[Deathpenalty] death penalty news----TEXAS, DEL., LA., KY., CALIF., USA

[Rick Halperin]

Aug. 22



TEXAS:

The death penalty's essential futility


Maybe our society should congratulate itself occasionally on how much progress 
it's made in the last half-century toward equality and individual rights, 
especially for women, racial minorities and LBGT.

Or maybe self-congratulation isn't called for just for doing the right thing. 
And some of our steps in the right direction have been timid and tentative.

Nevertheless, good things have been done. Yet our ambitious, magnificent 
experiment in democracy, freedom, human rights and the progress of civilization 
is hampered by our reluctance to abandon a practice that we share only with 
repressive countries such as China, Saudi Arabia and Iran: the prerogative of 
the state to put citizens to death.

For many this characteristic of American life is largely invisible. 20 states 
have abolished the death penalty already, and many of the others haven't 
executed anyone in decades.

Even in my home state, Texas, which is the nation's most active death penalty 
state, an execution doesn't draw much attention. Every month or so a short 
article, buried in the B-section of the newspaper, announces that another 
criminal has been put to death. Even in Texas, executions are generally beyond 
the public's notice.

But a couple of Associated Press articles, literally adjacent in my local 
newspaper last week, provide the occasion to consider the practice of capital 
punishment in America in the 21st century.

If you were looking for someone who deserves to be executed, John Battaglia 
would be a good candidate. In 2001, Battaglia murdered his 9-year-old and 
6-year-old daughters with gunshots while his ex-wife listened on the phone. The 
older child, Faith, begged for her life before he pulled the trigger. And, 
indeed, last week a district judge in Dallas set an execution date of Dec. 7.

On the other hand, 3 defense psychiatrists testified at his trial that he has 
bipolar disorder, which distorts his sense of reality, and he reportedly 
suffers also from narcissistic personality disorder.

The court said Battaglia showed evidence of mental illness and delusions and 
that his competence is in question. Nevertheless, the Supreme Court has ruled 
that a criminal may be executed if he understands that he has been condemned to 
die, and why. In accordance with that low standard, Battaglia will be executed 
in December.

The article just above Battaglia's reports the case of Sheborah Thomas, who 
faces capital murder charges in Houston for drowning her 7-year-old son and 
5-year-old daughter in the bathtub. Apparently, the children fought back, 
struggling for their lives, but she held their heads under the water until they 
died.

She waited a day and then dumped her children's bodies in a trash container 
behind her house. Later she tried, unsuccessfully, to bury them and then rolled 
them under a neighbor's house.

To say that a mother who could commit such a crime is mentally unstable seems 
redundant. In fact, Thomas's attorney says that she has been diagnosed with 
schizophrenia, bipolar disorder and severe depression.

Don't mistake this column for an effort to generate sympathy for Thomas and 
Battaglia. On the other hand, anger doesn't feel like the right response, 
either. How about futility, in 2 versions?

The 1st is the futility of the principal argument in favor of capital 
punishment, the idea that it serves as a deterrent to crime. Both Battaglia and 
Thomas already live in an active capital punishment state, and it's impossible 
to believe that crimes based in mental instability like theirs could be 
deterred by the threat of execution.

The 2nd futility is the one we feel when we try to give people like Thomas and 
Battaglia what we think they deserve merely by killing them. We'll never 
succeed as long as we're limited by the "cruel and unusual" language in the 
Constitution.

And since we've neither figured out how to administer the death penalty 
equitably, without regard to race, gender or economic status, nor how to 
prevent the occasional execution of innocent people, maybe it's time for the 
U.S. to join the rest of the West and to abolish a practice whose only real 
purpose is an essentially unsatisfying feeling of revenge.

(source: John M. Crisp, an op-ed columnist for Tribune News Service, teaches in 
the English Department at Del Mar College in Corpus Christi, Texas----Olean 
Times Herald)






DELAWARE:

Delaware death penalty fight not over


Mark Eichmann has been covering news in Delaware for more than 10 years. In 
addition to writing about Delaware for Newsworks, Mark is co-host of WHYY's 
Delaware focused newsmagazine, First. First airs Friday nights at 5:30 and 11 
p.m.

After starting as a general assignment reporter for WILM News Radio in 
Wilmington in 2000, Mark worked his way up to Legislative Correspodent, 
Managing Editor, and eventually News Director. He joined WHYY in 2008.

Over the last 10 years, Mark has interviewed national political figures, 
including long time Delaware Senator and now Vice President Joe Biden, Howard 
Dean and Wesley Clark, as well as sports legends like NASCAR's Jeff Gordon, 
baseball's iron man Cal Ripken, and Broad Street Bully Bob "the Hound" Kelly.

When not covering the news, Mark enjoys playing guitar and cheering for Philly 
sports teams (especially the Flyers) with his wife (and high school sweetheart) 
Ivy and his two sons, Drew and Landon.

Earlier this month, Delaware's Supreme Court ruled the death penalty 
unconstitutional. Some Republican lawmakers hope to resurrect capital 
punishment through legislation next year.

A group of 15 Republican Representatives and Senators has signed an open letter 
pledging to restore the death penalty when lawmakers return to Dover for their 
next session in January.

"The ruling by the Delaware Supreme Court is an opportunity to craft a new, 
stronger capital punishment statute that not only meets constitutional 
standards, but also potentially contains safeguards to further augment the high 
integrity of the process it will replace," the lawmakers wrote.

The Republican lawmakers who signed onto that letter are Senators Greg Lavelle, 
Brian Pettyjohn, Gerald Hocker, Dave Lawson and Bryant Richardson, along with 
Representatives Danny Short, Deborah Hudson, Jeff Spiegelman, Steve Smyk, 
Harvey Kenton, Ron Gray, Lyndon Yearick, Dave Wilson, Tim Dukes and Ruth Briggs 
King.

Earlier this month, Delaware's Attorney General- Democrat Matt Denn, said the 
state would not appeal the Supreme Court's decision against the death penalty. 
"Litigating and appealing these issues - a process that would likely take years 
before issues of both federal and state constitutional law were resolved - 
would likely not only bring about the same result, but would also deny the 
families of victims sentencing finality."

But Denn's statement did express his support for legislation that could amend 
the state's death penalty to correct the problems raised by the Supreme Court. 
Denn would support legislation "that would require a unanimous jury verdict in 
order to impose a death sentence, and he stands by that position."

Delaware Fraternal Order of Police president Fred Calhoun said he was 
disappointed in the decision not to appeal, but not surprised. He believes 
there will be negative results for crime in the state if the death penalty is 
not restored.

"I do believe long term, whether it be 5, 10, 15, 20 years, this will have a 
long-term impact on society in general as we move forward."

While is willing to back legislation to restore the death penalty, he admits it 
will be a difficult task.

The 15 Republican lawmakers say they'll be working with their legal staff 
between now and the start of the next legislative session in January to find a 
way to restore capital punishment in Delaware.

(source: newsworks.org)






LOUISIANA:

James Rhodes' trial delayed again----Man accused of killing cellphone store 
clerk was set for trial next week


The trial for the man accused of gunning down Metro PCS clerk Shelby Farah in 
2013 has been postponed for the 4th time.

Judge Tatiana Salvador on Monday scrubbed next week's trial date for James 
Rhodes and said the case won't move ahead until there's guidance from the 
state's high court on challenges to the death penalty.

Defense attorneys for Rhodes have filed a long list of motions related to 
Florida's death penalty. Rhodes' trial had been scheduled to start Aug. 29.

Rhodes' next pretrial hearing will be Oct. 24, and a trial might not happen 
until April 2017.

Lawyers from all over Florida have asked the Supreme Court to strike down the 
state's death penalty law as unconstitutional, even with fixes made by the 
Legislature.

The Rhodes case is one of several high-profile murder prosecutions that have 
bogged down in the uncertainty over the law.

Gov. Rick Scott signed into law in March a measure designed to fix the state's 
death penalty sentencing process after it was found unconstitutional by the 
U.S. Supreme Court. The new law requires a jury to vote at least 10-2 for 
someone to receive a death sentence.

Rhodes' attorneys contend that a jury verdict must be unanimous in death 
penalty cases.

Rhodes' public defender has repeatedly tried to get the state to accept a plea 
deal with Rhodes that would take the death penalty off the table.

The State Attorney's Office said it will continue to seek the death penalty 
against Rhodes, who is charged with 1st-degree murder in the shooting death of 
Farah, 20, during a robbery at a Brentwood cellphone store.

Police said Rhodes pointed a gun at Farah and demanded money. They said she 
cooperated and after she handed him the last bit of money, he fired 4 rounds, 
killing her.

(source: news4jax.com)






KENTUCKY:

Murder defendant seeks dismissal of charge because of lost notes


A Scott Circuit Court hearing to determine whether a murder charge should be 
dismissed is scheduled to start Tuesday and could go for several days.

The defense for Nicholas Willinger, accused in the 2010 beating death of Glenda 
Sue Jones, says the murder charge against him should be thrown out because some 
investigative records have been lost.

The prosecution says the missing records are supplemental notes to the main 
investigative report.

After a brief status hearing on Monday, public defender Sandra Downs said the 
defense will call 6 witnesses during the hearing.

Scott Circuit Judge Paul Isaacs said the hearing will begin at 9 a.m. Tuesday 
and could extend into Wednesday and even Thursday.

Jones, a former Scott County school bus driver, was found dead in her house 
near Sadieville on Feb. 4, 2010. The county coroner said she died of 
blunt-force trauma. Willinger was indicted in 2014.

Ciji Jefferson of Sadieville pleaded guilty in early 2015 to complicity to 
2nd-degree burglary. Her indictment said that she told Willinger that Jones had 
a large amount of money in her home on Double Culvert Road and that Jones 
wouldn't be at home on a particular date.

Jefferson accompanied Willinger to Jones' house, and, intending to share in the 
proceeds of the burglary, waited outside in a vehicle while Willinger allegedly 
went inside.

Willinger's indictment said he killed Jones by striking her in the head with a 
blunt object. Willinger could face the death penalty if convicted.

(source: kentucky.com)






CALIFORNIA:

Execution for brutal beating death of Ethiopian actor, taxi driver?


A Lakewood man accused in the beating death of a taxi driver and recording 
artist who was attacked at a Hollywood gas station appeared in court Monday but 
did not enter a plea.

Najib Halibi is being held without bail while awaiting arraignment in 
connection with the attack on Asfawosen Alemseged, who had worked for Yellow 
Cab for 24 years. Speaking today through an interpreter, Halibi agreed to 
postpone his arraignment to Sept. 6.

The murder charge includes the special circumstance allegation of murder during 
the commission of a robbery. Prosecutors will decide later whether to seek the 
death penalty against the 34-year-old defendant.

According to a statement issued by Yellow Cab, the 47-year-old victim was 
well-known in his native Ethiopia as an actor, singer and poet.

Halibi allegedly got out of the taxi, reached back inside the vehicle, grabbed 
Alemseged, went through his pockets and beat the cabbie after the driver got 
out of the vehicle shortly after 3 a.m. Aug. 14.

Police were dispatched to the gas station in the area of Franklin Avenue and 
North Beachwood Drive in response to an assault with a deadly weapon call, said 
Officer Scott Danielson of the LAPD's Hollywood Station.

Alemseged was rushed to an area hospital, where he died from his injuries.

Halibi was arrested about 3:15 p.m. last Wednesday in the area of Avalon 
Boulevard and the San Diego (405) Freeway, according to Los Angeles police.

(source: mynewsla.com)






USA:

Attorney Objects to Closed Hearing in Church Shooting Case


A media attorney is objecting to closing a hearing on a defense request to keep 
some evidence out of the federal trial of Dylann Roof in the Charleston church 
shootings.

U.S. District Judge Richard Gergel has set a Sept. 1 hearing and says he 
intends to close it to protect Roof's right to a fair trial.

Attorney Jay Bender, representing The Post and Courier of Charleston, has 
written the judge asking to be heard before any decision to close the hearing. 
Bender says reasonable alternatives should be considered and if the hearing is 
closed, reasons for doing so should be on the record.

The 22-year-old Roof is charged in the deaths of 9 black parishioners at 
Emanuel AME Church in June 2015. His death penalty trial is set for November.

(source: Associated Press)

**********************

Marathon Bomber Dzhokhar Tsarnaev's Death Penalty Appeal Comes Due ---- The 
federal appeals court wants to see his legal team's argument by Oct. 3.


An argument to spare the life of surviving Boston Marathon Bomber Dzhokhar 
Tsarnaev is due to a federal appeals court within 2 months, according to 
multiple reports Monday.

Tsarnaev was sentenced to the death penalty in summer of 2015 for his role in 
the 2013 bombings that killed 3 people and injured 250 more. He also killed a 
police officer in the ensuing manhunt. The jury's unanimous decision followed 
14 hours of deliberation.

His legal team now hopes to appeal that decision.

A federal appeals court wants to receive the initial write-up from Tsarnaev's 
team by Oct. 3, multiple outlets reported Monday afternoon.

Tsarnaev's lawyers during the 2015 trial admitted he took part in the bombings 
but argued he should be spared the death penalty because he was under the spell 
of his older brother, Tamerlan, who was killed in a shootout with police.

A judge in January rejected his legal team's request for a new trial, leaving 
them mired in what will likely be a lengthy appeals process.

Tsarnaev, now 22, is being held at a maximum security federal prison in 
Colorado.

(source: patch.com)

*************************

How the 1st liberal Supreme Court in a generation could reshape America


Odds are that very soon, the Supreme Court will become something it hasn't been 
in nearly 50 years: made up of a majority of Democratic-appointed justices.

Ever since Abe Fortas's resignation in 1969, the Court has either been split 
down the middle or, more often, made up primarily of Republican appointees. 
Some of those Republican appointees nonetheless turned out to be liberals, but 
even taking that into account, the Court hasn't been majority liberal since 
1971, when William Rehnquist and Lewis Powell joined.

That hasn't stopped the Court from evolving in a progressive direction at 
times. In 1973, GOP appointee Harry Blackmun authored Roe v. Wade, drawing only 
2 dissents; from 1996's Romer v. Evans to 2015's Obergefell v. Hodges, Anthony 
Kennedy and the Court's liberals steadily expanded the rights of LGBTQ 
Americans.

But for the most part, over the past half-century liberals have been playing 
defense as an organized and well-planned movement of conservatives has limited 
the scope of rights trumpeted by liberals, expanded the power of the state in 
criminal justice, and issued more business-friendly rulings on campaign finance 
and regulatory issues.

The Court ruled that states didn't have to give poor black and Latino school 
districts the same funding as rich white districts. It ruled that school 
resegregation achieved through white flight to wealthy suburbs was just fine. 
It ruled that despite declaring abortion a fundamental right, that didn't mean 
Medicaid had to extend that right to poor women, and then it reversed course on 
treating abortion as a fundamental right at all. It struck down the death 
penalty but then brought it back 4 years later.

And in more recent years, it's gutted the Voting Rights Act, struck down limits 
on campaign donations by corporations, strangled Medicaid expansion in the 
crib, and for the first time in American history declared an individual right 
to own guns.

All that could be about to change.

The Supreme Court is truly at a tipping point

The unfilled vacancy of Antonin Scalia???s seat combined with a Hillary Clinton 
victory in November could set the Court on a new course.

Merrick Garland, nominated by Barack Obama in March, has yet to face a vote. 
But though Senate Republicans have denied they'll confirm him in the lame-duck 
session this winter, should Hillary Clinton win they might be tempted to 
confirm him lest she name a more liberal nominee. Either way, the result is a 
moderate to liberal justice in Scalia's seat, moving the Court appreciably to 
the left.

Clinton also stands a good chance of replacing the moderate-to-conservative 
Anthony Kennedy (who recently turned 80) with a reliable liberal, and keeping 
Ruth Bader Ginsburg (83 and a 2-time cancer survivor) and Stephen Breyer's (78) 
seats in liberal hands. The result would be a solid 6-3 liberal majority of a 
kind not seen in many decades.

The implications of such a shift are massive. The Court is not a legislative 
body, and it can???t simply undo all of the conservative rulings of recent 
decades. The doctrine of stare decisis means the Court tries not to contradict 
its past rulings except in rare cases. But after speaking to a number of 
prominent legal scholars and experts, it appears there are some notable areas 
where a liberal Court could make a significant difference.

A liberal Court could end long-term solitary confinement. It could mandate 
better prison conditions in general, making it more costly to maintain mass 
incarceration. It could conceivably end the death penalty. It could uphold 
tough state campaign finance rules and start to move away from Citizens United. 
It could start to develop a robust right to vote and limit gerrymandering. It 
could strengthen abortion rights, moving toward viewing abortion rights as a 
matter of equal protection for women.

If Donald Trump wins in November, this is all moot. But if he loses, as polls 
increasingly indicate, the dawn of a new era of liberal jurisprudence could be 
upon us.

This could be the end of solitary confinement

Let's start with perhaps the biggest thing that could happen under a liberal 
Court, perhaps even a Court where another conservative replaces Scalia: the end 
of long-term solitary confinement.

In 2015, Anthony Kennedy filed a concurring opinion in Davis v. Ayala, a death 
penalty case in which the Court (joined by Kennedy) sided against the 
defendant. Nevertheless, Kennedy used his concurrence to unleash a bracing 
jeremiad against the evils of solitary confinement, in which the defendant had 
been held for most of his more than 25 years in prison.

"Research still confirms what this Court suggested over a century ago: Years on 
end of near-total isolation exact a terrible price," Kennedy wrote. "In a case 
that presented the issue, the judiciary may be required, within its proper 
jurisdiction and authority, to determine whether workable alternative systems 
for long-term confinement exist, and, if so, whether a correctional system 
should be required to adopt them."

The implication was clear: Kennedy wanted advocates to bring a case challenging 
the constitutionality of long-term solitary confinement on the grounds that it 
constitutes cruel and unusual punishment under the Eighth Amendment. He 
basically dared them to, and suggested that if such a case reached the Court, 
he'd be inclined to limit the practice. With four reliable liberals already on 
the Court and likely to join him, it's quite likely that such a case would end 
with solitary confinement sharply limited.

Sharon Dolovich, a law professor at UCLA and faculty director of the 
university???s Prison Law & Policy Program, describes solitary confinement as 
the "one major unresolved issue" in criminal justice "that is definitely going 
to come up" in the next few years.

It's a long time coming. At any given moment, about 80,000 to 100,000 people 
are held in solitary confinement in the US; in many states, the average stint 
in solitary lasts years. And it's been that way at least since the 1980s, 
without any federal court intervention to halt it.

"There has not been one federal court that has affirmatively found extended 
solitary confinement to be per se unconstitutional under the Eighth Amendment," 
Dolovich recalls. "And that is in spite of the fact that even under the 
relatively unprotective Eighth Amendment doctrine, there is no question that 
solitary confinement is unconstitutional."

That doctrine, Dolovich explains, requires plaintiffs alleging a constitutional 
violation to show that prison officials were "deliberately indifferent to a 
substantial risk of serious harm," or "deliberately indifferent to a basic 
human need." The Court has equated deliberate indifference with a recklessness 
standard, which requires that prison administrators know there's a risk that 
what they???re doing could seriously harm the prisoner.

"Given what everybody knows about solitary confinement, that would be easy to 
show," Dolovich says. Then the plaintiff must show there's a substantial risk 
of serious harm, or of being deprived of a basic human need, due to solitary 
confinement.

"There's so much data now - physiological data, psychological data, reentry 
data - there's so much data making clear the extended physical, psychological, 
and emotional trauma that people suffer in extended solitary confinement, it 
would be so easy for the Court just to point to it all and conclude there's an 
objective harm," Dolovich says.

Were the Supreme Court to strike down or limit long-term solitary confinement 
in one case on those grounds, it would open the door for lower courts to honor 
additional challenges, eventually leading to change across the system. And it 
wouldn't require rethinking Eighth Amendment doctrine to be more friendly to 
prisoners.

Jonathan Simon, a law professor and director of the Center for the Study of Law 
and Society at UC Berkeley, agrees that solitary confinement is on "the verge 
of being found unconstitutional, at least in its most excessive forms." Just 
what "excessive" means there is, naturally, a matter of debate, and Simon 
cautions that the Court could err on the side of giving prisons too much 
leeway.

He notes that Ashker v. Brown, a recent case challenging solitary confinement 
in California that ended in a settlement rather than reaching the Supreme 
Court, "involved a class of inmates that had been held more than 10 years, and 
the settlement will still allow people to be held up to 5 years, and even after 
that they can still be held in solitary if they're given programming and 
special services."

By contrast, the United Nations special rapporteur on torture has called for an 
absolute ban on solitary confinement lasting 15 days or more. "I'm not sure 
Kennedy or any justice would go nearly that far," Simon says.

But even if the Court were to only place a 5-year maximum on periods in 
solitary confinement, that would be a significant step forward. If the Court is 
bold enough to accept the UN standard and place a hard 2-week limit, then tens 
of thousands of prisoners would be spared a truly devastating punishment that 
many medical experts believe to be a form of torture.

The Court could make it more costly to maintain mass incarceration

Solitary confinement is perhaps the most shockingly cruel condition of 
imprisonment in the United States, but the sheer scale of mass incarceration is 
also an issue in need of addressing. And because federal courts have the 
ability to affect policy at both the federal and state level, they can have 
considerable influence on the incarceration rate going forward.

Both Dolovich and Simon were skeptical that outright challenges to legislative 
sentencing statutes like mandatory minimums could prevail. "At the end of the 
day, the ability of courts to control the level of incarceration is relatively 
weak compared to legislatures who can change the underlying sentencing 
structure," Simon warns. But one thing the Court can do is raise the cost of 
incarceration by insisting upon prisoners' rights to humane conditions.

The most encouraging recent Supreme Court decision along these lines was Brown 
v. Plata, a 5-4 ruling in 2011 upholding a lower court order that California 
release tens of thousands of prisoners to reduce overcrowding, which the state 
itself admitted was unconstitutional. It was, Simon notes, "the first 
prisoners' rights decision to come down in favor of the prisoner in a long 
time. It ended mass incarceration in California." But the unique circumstances 
of the case meant it had limited applicability outside the state.

In the past, the Court hasn't been particularly willing to accept Eighth 
Amendment challenges to prison conditions. In Rhodes v. Chapman, an 8-1 
decision in 1981, the Court ruled that "double celling" (placing 2 inmates in a 
space with room for only one) was not cruel and unusual punishment. That 
effectively ruled out Eighth Amendment challenges to overcrowding in and of 
itself.

Overturning Rhodes seems unlikely, but modifying it with a ruling specifying 
that people who are seriously ill need better treatment could be possible. And 
because prisons are, like the country as a whole, aging considerably at the 
moment, that could have a far-reaching impact.

"The new focus of prison conditions, which could be a real game changer in my 
view, is the intersection of overcrowding with mental and physical health 
burdens. The real game changer in terms of the current prison population is how 
disease-burdened it is," Simon says. "That could be pretty far-reaching because 
states have to contemplate the consequence of incarcerating so many aging 
prisoners."

Dolovich also emphasizes the need to expand prisoners' procedural ability to 
challenge their conditions. The 1996 Prison Litigation Reform Act greatly 
limited prisoners' access to the courts for making complaints about conditions, 
and the Court could either interpret the law in ways that minimize those limits 
(as it did in Ross v. Blake this year) or attempt to strike down provisions of 
the act. That opens the door to more challenges, including challenges focusing 
on the intersection of overcrowding and poor prisoner health.

"If you require prisons to be constitutional in this way, it becomes more 
expensive and burdensome for states to comply," Dolovich explains. "States are 
going to reduce the incarceration rate."

One way in which the courts could be more receptive to directly challenging 
sentences, she says, is by starting to take "collateral consequences" into 
account. That's the technical term for the myriad ways that criminal 
convictions, and in particular sex crime convictions, can hamper defendants' 
lives in the long term. That includes restrictions on where they can live after 
they're released from prison, bans on government employment and benefits like 
public housing, inclusion on sex offender registries, bans on gun purchases and 
voting, and so forth.

Dolovich outlined one possible example of a challenge incorporating collateral 
consequences: "So you're a 19-year-old boy who's been convicted of having sex 
with your 15-year-old girlfriend. You're convicted of statutory rape, which 
itself carries huge direct carceral consequences - you go to prison for 5 
years. But not only that; you also have to register as a sex offender for the 
rest of your life, which is a burden in itself and carries innumerable other 
collateral consequences that come along with the status of being a registered 
sex offender."

"So you bring a claim under Harmelin v. Michigan" - a 1991 ruling banning 
"grossly disproportionate" sentences - "claiming the sentence you received is 
grossly disproportionate to the crime. That's an incredibly state-friendly 
standard, and you barely ever win. ... But a court committed to including 
collateral consequences in its thinking about gross disproportionality would 
realize it's not just the 5 years in prison, it's all of the burdens that 
someone registered as a sex offender has to follow."

The death penalty could be ripe for another challenge

Almost as explosive as Kennedy's 2015 concurrence was a dissent filed by 
Stephen Breyer and joined by Ruth Bader Ginsburg that same year. The case, 
Glossip v. Gross, resulted in a 5-4 ruling affirming that the particular drug 
cocktail Oklahoma currently uses in executions doesn't violate the Eighth 
Amendment. One dissent, by Sonia Sotomayor and joined by the Court's other 3 
liberals, narrowly argued against the specific drugs. Breyer's dissent took aim 
at capital punishment as a whole.

"The death penalty, in and of itself, now likely constitutes a legally 
prohibited 'cruel and unusual punishment,'" Breyer concluded. He rests the 
argument on 4 premises: a) the Court has ruled that death sentences must be 
reliably applied only to appropriate cases to be constitutional, and the 
frequency of wrongful executions shows that the punishment is not reliably 
applied; b) the punishment is arbitrarily applied, with some "worst of the 
worst" offenders not receiving it and some lesser offenders facing execution; 
c) wait times between conviction and execution are cruelly long; and d) the 
decline in the punishment's usage in the US shows it's becoming 
unconstitutionally "unusual."

It's telling that neither Sotomayor nor Elena Kagan, the 2 other liberals on 
the Court, joined Breyer's opinion. And it's hard to imagine Merrick Garland, 
who was one of the prosecutors who successfully sought to see Timothy McVeigh 
executed, declaring his own past actions categorically unconstitutional.

But if Garland's nomination fails and Clinton picks a less tough-on-crime 
nominee for Scalia's seat, or if Kennedy leaves the Court during her 
presidency, it's conceivable there would exist 5 votes for outright abolition 
of the death penalty.

"I would not be surprised to see Sotomayor and Kagan supportive of [abolishing 
the death penalty]," Simon says. "Kennedy is a harder call. The reason I'm 
somewhat optimistic about including Kennedy goes back to his interest in 
dignity. The strongest of the opinions in Furman" - the 1972 case that briefly 
abolished capital punishment - "was William Brennan's, and Brennan based it 
most directly on human dignity. He argued the Eighth Amendment bans any 
punishment you can't carry out without respecting the dignity of those being 
punished." Kennedy leaned heavily on the importance of dignity in Brown v. 
Plata, the California prison overcrowding case.

Simon even found an early Kennedy opinion from when he was a circuit court 
judge in the 1970s in which he quoted Brennan's concurrence in Furman at 
length. Even if Kennedy doesn't buy a dignity argument for abolishing the death 
penalty, Simon suspects he'd be swayed by the issue of delays, which Breyer 
raised - and which were the entire reason for the prisoner's stay in solitary 
confinement that Kennedy assailed in his concurrence last year.

"[Kennedy] came and gave a talk at Berkeley Law about a year and a half ago, 
and one of my colleagues was rude enough to ask him point blank whether he 
thought the death penalty was compatible with human dignity," Simon recalls. 
"Of course he declined to answer, but he said kind of cryptically, 'Here in 
California you guys take so long enough to execute people that we may not even 
need to reach that cliff.'"

One other death penalty-related case Simon thinks the Court could amend or 
overturn, which could have widespread implication outside this specific issue 
area, is McCleskey v. Kemp, a 1987 case in which the Court ruled 5-4 that a 
death sentence for a black defendant could not be overturned due to the state 
of Georgia's hugely disproportionate imposition of capital punishment on 
African Americans.

The effect of that was to foreclose challenges to the criminal justice system 
premised on its discriminatory effect - the Court required that plaintiffs show 
that discrimination was intended, not merely that the system was in effect 
discriminating against African Americans.

"It's been terrible for equal protection law generally. Criminal justice is run 
through with very disproportionate racial practices that are very difficult to 
prove as discrimination," Simon says. "Overturning McCleskey, and a companion 
case a few years later, could be a really important change agent both in 
unleashing the potential for trial court challenges to racially 
disproportionate criminal justice practices of all sorts, and perhaps ending 
the death penalty in those states where it seems most firmly rooted, like Texas 
and Florida."

The Court probably won't overturn, but could limit, Citizens United

No Supreme Court action in recent memory has provoked the kind of populist 
outcry and fury of Citizens United v. FEC, the 2010 case that banned 
restrictions on corporate and organizational spending on independent campaign 
activities, opening the door to Super PACs and the considerably reducing limits 
on corporate influence in elections.

Hillary Clinton, Barack Obama, and Senate Democrats have all pushed for 
constitutional amendments to overrule the decision. Clinton promises to 
"appoint Supreme Court justices who will protect Americans' right to vote over 
the right of billionaires to buy elections," and has reportedly told her own 
donors that she will make prospective justices pledge to overturn Citizens 
United.

That's created the groundwork for a shift away from the ruling's approach to 
campaign finance. "If Citizens United is overturned, it will be because of the 
sustained efforts of critics in civil society to critique it, educate the 
public about why it's wrong, and show through local initiatives that 
alternative reforms are possible," Georgetown Law professor David Cole says.

But most of the experts I spoke with expressed skepticism that the decision 
will be overturned outright. The Court rarely reverses rulings explicitly, 
especially ones made as recently as Citizens United. And more to the point, 
directly overruling the decision would likely entail a challenge to a campaign 
finance law identical or very similar to the one at issue in the case. Congress 
shows little interest in passing such a law, and states similarly lack 
initiative to do so.

That being said, the legal scholars I asked suggested that a more left-leaning 
Court could subtly undermine Citizens United by upholding distinct campaign 
finance regulations at the federal and state levels.

"My guess is that [a more liberal court] wouldn't overrule Citizens United in 
the short run, but that it would narrow the decision and uphold a range of 
possible regulations of money in the political process," Geoffrey Stone, a law 
professor at the University of Chicago and specialist in free speech cases, 
says. "Over time, these decisions would significantly erode Citizens United."

Heather Gerken, a Yale Law professor and expert on law surrounding elections, 
voting, and federalism, concurs, and suggests one possible line of legal 
reasoning that cases like this could embrace. "I think Citizens United can be 
overturned without even overturning it, something that should appeal to a 
moderate and careful judge like Judge Garland," she explains. "Citizens United 
was premised on the idea that independent spending was genuinely independent. 
If this political cycle has shown us anything, it's that this premise is flatly 
wrong ... The Court could easily take notice of these facts and license 
legislators to regulate this spending precisely because it isn't 'independent' 
in the sense that Citizens United used that term."

This could greenlight limitations on independent corporate spending of the kind 
that Citizens United struck down without undermining that decision???s 
reasoning. That prevents the kind of upheaval in precedent that the Court 
normally tries to avoid, while still signaling to states and Congress that it s 
okay to pursue more aggressive campaign finance regulations.

The Court could take a more expansive view of voting rights While less 
popularly reviled than Citizens United, the Roberts Court's 2013 decision in 
Shelby County v. Holder was arguably more consequential. The decision struck 
down Section 4 of the Voting Rights Act, which contained a formula for deciding 
which states and counties would have to be subject to "preclearance," a process 
in which any changes to voting laws they proposed must be run past the Justice 
Department to make sure they don't violate the voting rights of minorities.

The upshot of the ruling was that the Voting Rights Act could not be easily 
enforced by the federal government, and instead has to be enforced through 
individual lawsuits filed after laws are passed, under Section 2 of the act. 
That's a much slower, more expensive process that effectively makes it harder 
to challenge things like voter ID requirements or restrictions on early voting.

This is something that's mainly in Congress's court. "There are plenty of ways 
that Congress could revive [preclearance], and a Court with a liberal majority 
would be far more welcoming to new legislation," Gerken says. "But, again, the 
ball is in Congress's court."

"The preclearance regime can't easily be recovered," says Pam Karlan, a law 
professor at Stanford and former deputy assistant attorney general for civil 
rights specializing in voting rights. At best, she explains, "the Supreme Court 
could give a robust reading of Section 2 in the Voting Rights Act," and use it 
to invalidate large categories of franchise-restricting voting regulations.

The problem is deeper than Shelby, too. "The Court has really moved to an 
'undue burden' standard on the right to vote" in the past 10 years or so, 
Karlan explains, "rather than treating it as a straightforward fundamental 
rights issue under strict scrutiny."

Under an undue burden standard, legislation that places some burden on a 
constitutional right, such as the right to vote, is acceptable, as long as that 
burden isn't excessive in scale.

For example, in Crawford v. Marion County in 2008, the Court ruled that 
Indiana's photo ID requirement for voters was not an undue burden, because, as 
Justice John Paul Stevens wrote, "the inconvenience of going to the Bureau of 
Motor Vehicles, gathering required documents, and posing for a photograph does 
not qualify as a substantial burden on most voters' right to vote."

"Strict scrutiny," by contrast, is the toughest test a law can face in court, 
requiring that it address a government interest that's really compelling, and 
address it in the least restrictive, narrowest way possible. Voter ID laws 
would be in trouble with such a regime, not least since the evidence that voter 
fraud is a major problem, and preventing it is a compelling government 
interest, is basically nonexistent.

But Karlan notes that the Court wouldn't even have to totally reverse course 
and start applying strict scrutiny to make progress on these issues. "One of 
the things I've been thinking about is a more liberal version of the undue 
burden-style standards that the Court has employed," she says. "A version of 
that test that really takes into account socioeconomic disparities and the like 
could have a major impact."

"For example, voter ID - it's not a burden on most people to have a voter ID," 
she continues. "A huge majority of Americans drive cars and have drivers' 
licenses. So saying that you need to show your driver's license to vote for 
most people is not a burden. But if there's a group of people that are too poor 
to own cars, or are disabled in ways that mean they can't drive, for those 
people getting the documents and going to the DMV and dealing with a system 
that requires a certain degree of sophistication is a real burden. If courts 
were to start taking seriously the question of looking at the burden with 
respect to the people who actually face it, that might change dramatically how 
the Court thinks about a lot of these issues."

That's a particularly promising avenue for the Court since it requires minimal 
change in the Court's doctrines. "It's not necessarily the legal tests 
themselves that are the problem," Karlan notes. "It's the sensibilities and the 
understandings and the world-awareness of the people applying the tests." 
That's something that changing the membership of the Court could shift 
substantially, even if the new Court isn't eager to overturn precedent.

The Court could start to fight gerrymandering

Both Karlan and Gerken also point to gerrymandering and districting issues as 
an area where action from a more liberal Court would be likely.

As it stands, many judicial conservatives view partisan gerrymandering issues 
as "non-justiciable." The Court has agreed to no firm standard as to what is 
and isn't allowed in creating congressional and legislative districts, and in 
2004's Vieth v. Jubelirer a plurality opinion by the right wing of the Court 
argued that no such standard is even possible.

But the Court's 4 liberals dissented, and Anthony Kennedy filed a concurrence 
arguing that while at that moment there was no clear standard the Court could 
use to evaluate whether a redistricting is acceptable, it's possible the Court 
could develop such a standard in the future.

Since then, there's been a lot of academic energy around trying to develop such 
a standard. University of Chicago law professor Nicholas Stephanopoulos and 
political scientist Eric McGhee have devised one promising option, which notes 
that gerrymandering forces the losing party to "waste" votes by placing all its 
voters into a small number of districts where the party gets a landslide, 
rather than spreading those voters out so they can have more impact.

Stephanopoulos and McGhee argue that fair districting requires a roughly equal 
number of wasted votes for each party, and that districting schemes where one 
party is wasting many more votes are unconstitutional. Whitford v. Nichol, a 
challenge to Wisconsin's gerrymandering for state House districts, is using the 
Stephanopolous and McGhee standard, and could eventually make it to the Supreme 
Court.

But there are other standards on offer as well, including one developed by 
political scientists Gary King and Bernard Grofman of Harvard and UC Irvine, 
respectively, and another by Princeton neuroscientist Sam Wang.

"I do think this will be a Court open to the possibility of policing partisan 
gerrymanders, at least the worst ones," Gerken says. "I've told every election 
lawyer and social scientist I know to dust off their old papers and briefs, 
because I think the Court is ready to act. It just needs a manageable standard 
to move forward, and there are plenty of those."

"The question can't be, 'Was there any gerrymandering here?'" Karlan notes. "If 
the people who drew the districts are breathing, there was some level of 
gerrymandering, particularly if they're drawn by state legislatures. The 
question has to be, 'Is it too much?'"

How abortion law could change

This past spring saw the strongest Supreme Court verdict affirming reproductive 
rights in years, as the Court struck down 2 Texas regulations of abortion 
clinics in Whole Woman's Health v. Hellerstedt.

One interesting aspect of the Court's ruling is that Stephen Breyer, the author 
of the majority opinion, explicitly invoked an "undue burden" test. As in 
voting rights, the Court has decided to evaluate abortion regulations under 
that metric, rather than treating abortion as a fundamental right that the 
Court must past a strict test to restrict.

In 1992's Planned Parenthod v. Casey decision, a plurality opinion by Sandra 
Day O'Connor embraced the "undue burden," standard, which has had the effect of 
allowing a wide number of abortion regulations - bans on late-term abortions, 
parental consent requirements, waiting periods - that otherwise would've been 
struck down.

Indeed, not even a decade earlier, in City of Akron v. Akron Center for 
Reproductive Health, the Court struck down a waiting period and parental 
consent requirement and explicitly rejected an argument from O'Connor in the 
dissent, and from the Reagan administration's solicitor general, Rex Lee, that 
they should adopt an undue burden standard that would allow such measures. Once 
undue burden was adopted, those kinds of provisions were viable for states to 
pass again.

Whole Woman's Health didn't abandon the undue burden standard but instead 
repurposed it, in much the way Karlan suggested, by taking into account things 
like indirect effects (the closure of clinics due to the regulations, for 
example) and effects on quality of care and the patient experience of women 
seeking abortions. A test that had formerly been used to restrict the right to 
abortion had been retrofitted to protect it.

"It is difficult to say, but my guess is that undue burden will remain the 
standard going forward, with the focus on exactly how it will be applied, 
because it is a standard that can be developed to apply to strongly protect 
against harmful government restrictions on abortion," Dawn Johnsen, an expert 
on abortion law and a professor of law at Indiana University, says.

If the Court wanted to make a bigger shift on the issue, it could adopt an 
argument that Justice Ginsburg has been making for years and start considering 
abortion as an issue of gender equality. Roe v. Wade asserted a right to 
abortion based on a right to privacy found in the due process clause of the 
14th Amendment; many observers have argued this is a flimsy basis for the right 
to abortion, and that premising it on the equal protection clause, and arguing 
that restrictions on abortion unconstitutionally burden women without affecting 
men, would make for a firmer foundation.

In particular, this reevaluation could lead to increased abortion access for 
poor women. In a number of states, including Connecticut, New Mexico, New 
Jersey, and Alaska, state constitutional guarantees to equal protection have 
been used to mandate that Medicaid cover medically necessary abortions.

It's unlikely that the Court will overturn Harris v. McRae, a 1980 case 
upholding the Hyde Amendment, Congress's ban on most federal funding for 
Medicaid abortions, anytime soon. But an equal protection reevaluation of 
abortion rights is at least somewhat likely, and could lay the groundwork for a 
right to abortion coverage in the medium to long run.

"Supreme Court justices increasingly over the years have recognized that the 
right to choose when and whether to bear children is important not just to 
their individual liberty but to women's equality," Johnsen says. "I think odds 
are very good that a majority of justices in the future will hold that the 
right is protected by the constitutional right to both liberty and equal 
protection."

And that's just the start

Even outside the issues of imprisonment, capital punishment, elections, 
gerrymandering, and abortion, there are places where the Court could move. 
Karlan raises the possibility of a "civil Gideon" - a ruling that would create 
a right to counsel in civil cases, so poor people are guaranteed a lawyer if 
they need to sue their landlord or their employer; the name comes from Gideon 
v. Wainwright, which established the right to a government-provided attorney in 
criminal cases.

Hailly Korman, a principal at Bellwether Education Partners and a veteran 
education attorney, expresses hope that the Court could overturn San Antonio 
Independent School District v. Rodriguez, the 1973 decision that concluded, 
5-4, that there was no federal right to education.

"With a liberal majority, I don't think it's implausible," Korman explains. " I 
think there is a very strong case to be made that some minimum of education is 
a necessary prerequisite to enable people to access and wield all of their 
other rights. If I could change one thing about our federal jurisprudence, this 
would be it."

Berkeley's Simon notes that a more liberal Court could push back on past Court 
decisions about policing expanding the scope of searches and seizures - like 
Whren v. United States, which Simon alleges "constitutionalized racial 
profiling" by letting police stop cars whenever they want as long as there's 
probable cause for a traffic violation; or Atwater v. City of Lago Vista, which 
held that police could arrest people and take them for jail for driving without 
a seat belt, a crime that can't be punished with jail or prison time - and thus 
send a signal to police to use less aggressive techniques, particularly in 
policing communities of color.

David Strauss, a professor at University of Chicago Law School, argues that 
focusing on classic Supreme Court issues that split on liberal/conservative 
lines (like abortion) distracts from areas of law that might prove to be bigger 
parts of the Court's jurisprudence, like "the relationship between free speech 
and both government secrets and individual privacy," and cyber harassment.

But even if a small fraction of the changes detailed above are incorporated 
into a new, more liberal Court's jurisprudence, the consequences could be 
momentous. The Scalia vacancy and Kennedy's coming exit have opened the door 
for liberals to rethink American law in dramatic ways, the implications of 
which are only beginning to be teased out.

(source: vox.com)