Three Decisions by The Supreme Court

The Supreme Court ruled on three cases today.

In the most interesting decision, to me, the Court ruled that indigent inmates on death row have the right to federally provided counsel when seeking clemency in state courts. Harbison v. Bell

I'll just quickly quote from Jurist for the other two:

The Court ruled [opinion, PDF] 6-3 in favor of power companies in Entergy Corp. v. EPA [Cornell LII backgrounder; JURIST report] that Section 316(b) of the Clean Water Act [text, PDF] authorizes the Environmental Protection Agency (EPA) [official website] to use a cost-benefit analysis to determine what is the best technology available for minimizing adverse environmental impact from cooling water intake structures that draw water into power plants to offset the heat created during power generation.

...and

The Court ruled [opinion, PDF] 5-4 in 14 Penn Plaza LLC v. Pyett [Cornell LII backgrounder; JURIST report] that an employee may not bring a statutory anti-discrimination suit when the collective bargaining agreement (CBA) prohibits such suits in favor of arbitration.

Check out Jurist for more info on all three cases as well as links to the actual decisions.

Supreme Court Hears Drug Case

The Supreme Court heard oral arguments today in a case in which a criminal defendant was arrested for buying cocaine using a cell phone. The purchase itself would only have been a misdemeanor. However, since he used a cell phone to make a purchase the government is attempting to use a law that,

prohibits the use of a communication facility in causing or facilitating the commission of any act constituting a felony under the Controlled Substances Act...

to convict the defendant of a felony. Although the purchase would be a misdemeanor, the sale and distribution is a felony. Therefore, (according to the government) the defendant's phone is the "communication facility" from the law quoted above and now he is a felon.

I'm sure what this person needs is to be convicted of a felony and have his prospects for a decent life completely ruined. It would be awful if he got off with a misdemeanor and maybe some drug treatment if he needed it. Nah, lets throw him in jail and turn him into a convicted felon. I just hope the Supreme Court makes the moral decision here.

George Bush Countdown: 7 Days

#7 in the countdown of things we'll remember about George Bush...the Federal Court System.

This may be the longest lasting legacy of the Bush Presidency. He has appointed a slew of conservative justices all throughout the Judicial branch. He was also able to appoint two Justices to the Supreme Court. While Justices of the Supreme Court do, sometimes, change their point of view over time, Justices Alito and Chief Justice Roberts seem to be two pretty strong conservatives and they're young so they'll be around for while. It's one last little F.U. that will out last a lot of people's memories of the President himself.



Oh, and Bush tried to appoint the woefully unqualified Harriet Miers to the Court, you know Miers, the White House Counsel and good friend to the President. No one was falling for that one, luckily.

Supremes

Child rapists cannot be executed.

Laws making handgun possession illegal are unconstitutional.

Lethal Injection is not "cruel and unusual" punishment.

Foreign detainees have a right to challenge their detention in court.

These are four recent decisions handed down by the Supreme Court. An article in today's New York Times chronicle recent decisions by the court and point out the high number of cases decided by a 5-4 vote. On many major issues one moderate justice, Justice Kennedy has been the swing vote. There are a number of Justices on the court who's age makes them candidates for imminent retirement. Two of them are usually reliable votes for the "Liberal Block" of the court. The next President will likely have the opportunity to appoint 2 Judges to the court for lifetime appointments.

Guantanamo Protestors Convicted for Demonstration at Supreme Court

Thirty-four members of the group Witness Against Torture were convicted in a Washington DC court this week for their demonstration calling for the prison in Guantanamo Bay to be closed. Eighty-one protesters had initially been arrested. Their is a law against protesting on the grounds of the Supreme Court and a rational argument can be made for the need for such a law. However, there is also a rational and moral argument for the need to break this law in this case. Kudos to these folks for speaking out in dramatic fashion.

One more thing. During the trial one defendant turned his back on the judge and was held in contempt of court.

Let's Get 'Em Dead

The Supreme Court ruled, 7 to 2 today, that the Kentucky standard of lethal injection does not violate the 8th Amendment ban on Cruel and Unusual punishment. Shortly thereafter, a number of states eager to free up some prime real estate no doubt, announced they would start executing inmates ASAP. It's sort of unfortunate that only the two most liberal justices dissented, but the decision itself was not surprising. Up next on the government sanctioned killing tip is a case that seeks to allow the death penalty for crimes less than murder, namely the rape of a minor. Admittedly, the rape of a child may be just as terrible as murder. However, expanding the crimes for which the death penalty can be administered just seems like a bad idea. Oral arguments took place on Wednesday, the decision is supposed to be announced sometime in June. Expect a similar decision, with a closer vote, let's call it 5-4.

By the way, electing a Republican President virtually guarantees that the death penalty will not be overturned by the Supreme Court for a long ass time (we're talking 20-30 years). So, just think on that. The United States, like a tiny handful of 3rd world nations, will continue to be a leader in sheer quantity of executions.

Bravo!

Virginia Halts Executions

The Governor of Virginia today stayed all scheduled executions in lieu of the Supreme Court ruling upcoming on the constitutionality of lethal injection. There was an execution scheduled for April 8th. Of course, I can't imagine the Supreme Court will determine lethal injection to be "cruel and unusual". We'll see.

The Meme of the Ticking Time Bomb

Imagine if you will....

Three shopping centers near major U.S. cities have been hit by suicide bombers. Hundreds are dead, thousands injured. A fourth attack has been averted when the attackers were captured off the Florida coast and taken to Guantanamo Bay, where they are being questioned. U.S. intelligence believes that another larger attack is planned and could come at any time.

This scenario was given by a FOX News moderator at a Republican Presidential debate in May 2007 leading up to the question,

How aggressively would you interrogate those being held at Guantanamo Bay for information about where the next attack might be?

The ticking time bomb scenario has been the subject of not a few stupid movies (Face Off) and t.v. shows (24). In recent years it has become a way to justify the torture of prisoners, including those not involved in any sort of ticking time bomb scenario. The idea is by outlawing torture you remove the possibility of beating the location of a hidden bomb out of a terrorist just in time to save the day, like a man would.

It is a pretty simplistic and silly scenario. It is not surprising that a FOX News employee would bring it up. I imagine its brought up on their airwaves pretty often. It may surprise you, however, if a member of the Unites States Supreme Court would bring it up when talking about the Constitutionality of torture in the context of the 8th Amendment ban on cruel and unusual punishment.

During an interview with the BBC, Associate Justice Antonin Scalia said it would be "absurd" to say you can't smack a suspect around or stick things in their fingernails to find out the location of hidden bomb in Los Angeles.

Ugh. So, ok...Some terrorist plants a bomb somewhere in L.A. Somehow, he is caught by law enforcement, lets say the CIA, after planting the bomb but before it blows up, during its ticking time. The CIA has enough info to catch this guy but doesn't know where the bomb is. Seems like shoddy investigative work. Anyway, they get this guy in a back room somewhere. There is a ticking time bomb, remember, apparently the guy has set it to tick away for a long time. The CIA starts going to work on him, maybe they use a blow torch. Why would this terrorist ever tell them anything? Eventually, the bomb will stop ticking and blow up and he will have achieved his goal. Why not tell them faulty info to get them to stop torturing him until word comes down that the ticking time bomb has stopped ticking?

It is a patently dumb scenario that is only good for cheesy suspense. I expect it's use by talking heads and dirty politicians, but a Supreme Court Justice...

On Lethal Injections: A Follow Up

I wanted to follow up on yesterday's post about the oral arguments heard by the Supreme Court yesterday regarding lethal injection. I found a good article from Huffingtonpost which lays out the process and the potential problems the process could cause.

The first of the three drugs used in lethal injections is an anesthetic (sodium thiopental) to render the prisoner unconscious. Next is pancuronium bromide, a drug that paralyzes voluntary muscles, including the lungs and diaphragm, but does not affect consciousness or the experience of pain. The final drug is potassium chloride, which causes cardiac arrest.

If the prisoner does not receive a sufficient quantity of anesthesia he will feel himself suffocating from the pancuronium bromide. If he is still conscious when given the potassium chloride, he will feel his veins burning as the poison courses to his heart. Indeed, potassium chloride is so painful that U.S. veterinarian guidelines prohibit its use on domestic animals unless a vet first ensures they are deeply unconscious.

Incorrect dosage, faulty catheter insertion, kinking IV tubes - many problems can prevent anesthesia from working. No surgery would ever be conducted without assessing and continually monitoring the patient's level of consciousness. But during lethal injections, no one makes sure the prisoner is deeply unconscious before and during the injection of the second and third drugs.

It should also be noted that the process was developed 30 years ago and has not been modified. Oh, and apparently no anesthesiologists or ANY EXPERTS AT ALL!!!! were consulted in the development of the process.

Oral Arguments in Lethal Injection Case

The Supreme Court heard oral arguments in the case Baze v. Rees this morning. Arising out of Kentucky, the petitioners claim that the lethal injection method for execution violates the Eighth Amendment of the Constitution's provision against cruel and unusual punishment. The process of injection involves three separate injections, and anesthetic, a drug intended to paralyze, and the final drug designed to stop the heart. Should the initial anesthetic fail the paralyzing drug would prohibit the expression of pain caused by the final injection effectively rendering the condemned to lie helpless in excruciating pain.

Justice Scalia in the oral arguments today suggested that there is no requirement that executions be painless. Eh, what a guy!

Justice Souter, on the other hand, suggested that the court take the time to really look into the method of execution even if it means sending the case back down to the lower court.

Supreme Court: Crack Cocaine Sentencing Guidelines Not Mandatory

The Supreme Court handed down a decision today ruling that Federal courts do not have to follow the sentencing guidelines when sentencing convicted crack cocaine dealers. For years, federal guidelines have made the punishment for possessing large amounts of crack cocaine much harsher than that of powder cocaine. The basic criticism of this disparity is that crack is a largely urban-poor drug and most defendants tend to be minorities from these urban areas where as cocaine is more of a middle to upper class and white drug.

The original intent of such a disparity was, ostensibly, to provide harsher punishments for crack due to the high levels of violence involved in the crack trade. However, a lower appeals court ruled that courts must follow the guidelines strictly. This would prevent judges from considering a persons background and any other mitigating factors when applying a sentence. With such harsh guidelines that tend overly punish minorties it is nice to see, at least, that Judges still have some discretion. Of course, judges will still, largely, follow these guidelines until Congress acts to reduce the suggested mandatory sentences.

A previous post on sentencing guidelines can be found here.

Florida State Supreme Court Upholds Lethal Injection

Despite the upcoming U.S. Supreme Court case Baze v. Rees, the Supreme Court of Florida has upheld the lethal injection death penalty procedure, rejecting the accusation that it is "cruel and unusual punishment". In Baze v. Rees the U.S. Supreme Court will be deciding whether or not lethal injection constitutes "cruel and unusual punishment" under the U.S. Constitution which would mean that the procedure could no longer be used anywhere in the United States. The U.S. Supreme Court has already granted a stay for a previously scheduled execution by lethal injection in Mississippi in lieu of their own upcoming decision.

With the new more conservative make up of the court, I have a hard time believing that they will find lethal injection to be cruel and unusual. I would expect a 7-2 decision with only Justices Ginsburg and Souter agreeing that lethal injection is cruel and unusual. In fact, I believe both Justices believe the death penalty in any form is unconstitutional.

In any case, the execution of Mark Dean Schwab is scheduled for November 15 in Florida. The Supreme Court should step in as it did before and stay the execution, I expect they will.

My Ultra-Con Supreme Court

There will be two major consequences of the Bush administration that will be felt throughout the nation for many, many, years, decades, and generations. The first and most obvious is the Iraq war. As the death and injury tolls rise and rise more and more folks back home suffer the consequences and many more unborn and as yet unwitting folks come closer to feeling the effects. Perhaps a better way to think about the casualties in terms of numbers is to multiply each death by 4 or 5. This produces a number sparked by the death toll somewhere in the 14,000-18,000 number. These are the families, the spouses and children, the parents and siblings. Broken families create a myriad of problems children grow up without fathers, mothers fall into depression over the loss of their child, guilt, anxiety, nightmares, etc. And what about those who come back changed, PTSD and other mental and physical problems. What fate do their people face. Think of the children forced to grow up in a home with an Iraq vet suffering from PTSD, substance abuse and poor veteran's benefits. How many generational cycles of abuse will begin or amplify as a result of the war in Iraq and Afghanistan for the matter?

The role the war in Iraq will play n our future is terrifying but a more dangerous if less obvious problem is the Supreme Court. There was a concerted effort made in 2000 and 2004 to try to call attention to the fact that the President appoints Justices to the Supreme Court and the Supreme Court in many ways is the most powerful branch of the government. Well, with the decisions recently handed down we see what will become a depressing trend. Votes of 5-4 on issues from campaign finance, th First Amendment, abortion, and on-on are going to be with us for some time. Lets look at the composition of the court.

The conservatives on the Supreme Court have resumes fitting Republican administration officials, which is perhaps not surprising since some of them have been in Republican Presidential administrations.

The current Chief Justice, John Roberts is only 52 years old, the life time appointments given to Justices makes him a relatively young man. This guy is likely to be on the court for 20 years. From 1981 - 1986 Roberts worked in the Reagan administration.

Justice Alito is 57, also young by Supreme Court standards. From 1981-1987 Alito served in the Reagan administration as well.

Justice Clarence Thomas is 59 and served in the Reagan and Bush administrations from 1981-1990.

Justice Saclia, relatively middle aged at 71 served time in the Ford administration and was appointed to the Court by Reagan.

These four make up the solidly conservative block of the court and, get this, they are all ROMAN CATHOLIC!

Justice Kennedy, often referred to as the swing voter is also Roman Catholic and therefore, isn't much of a swinger. He does have a little more of a libertarian streak in him which accounts for some of his swinging away from the Ultra-cons.

The liberals and moderates are between the ages of 67 and 87.

The decisions of the Supreme Court can sometimes be rendered irrelevant by legislative action ranging from Constitutional Amendments to simple law creation. It will always, however, be easier for 9 judges to hand down opinions on important topics than it will be for hundreds of mostly dirty politicians to really get things done. SO, what's the answer, just to wait I guess. Just to wait like within anything else. Try not to get in the way. Hope things will change. I don't know. Have a beer. There's no movement.