Tuesday, June 13, 2006



Non-substantive rights

When is a right not a right? When you're in America, of course.

The US Supreme Court has unanimously ruled that prisoners facing execution can make last minute appeals under the constitutional right not to be subjected to cruel and unusual punishment - but that this does not necessarily mean that the execution will be halted. So conceivably the court could rule that an execution should not proceed, but the point be moot because the prisoner has already been executed. You'd think that given the irreversibility of execution, the court would order a temporary stay simply to preserve the status quo, but that apparently is trumped by the interest of the state and crime victims in "the timely enforcement of a sentence" (even one that is later ruled to be illegal and unconstitutional).

This is a kafkaesque mockery of law which comes close to establishing a "no prior restraint" rule for executions. But I guess that's just how things work in bloodthirsty America...

2 comments:

Cruel and unusual punshiment was originally introduced to stop the use of the rack and other torture devices.

Of course no mention of the victim's rights in your post.

If your being raped and/or murdered by a criminal their rights are being taken away with no right of nearly endless appeal to the courts.

I think cruel and unusual punshiment is having condemed criminals sit on death row for years - once convicted the sentence should be carried out immediately.

After all the mental anguish of being put to death could be considered cruel and unusual punshiment.

Posted by Anonymous : 6/15/2006 10:37:00 AM

Oh, for goodness sake, read the decision here and confirm for yourself that there's nothing Kafkaesque or bloodthirsty going on..... In sum: the decision is a relatively technical one about controlling precedents. The court clarifies that it's its Nelson decision 13 years ago that controls. They then clarify the core contention of that earlier opinion: that all judicial reasoning about stays/injunctions in execution cases is, like reasoning about stays/injunctions generally, equitable reasoning and remedy-making, not statutory let alone super-statutory/Constitutional. So there are a balance of state and individual interests to be considered into which any specific statutory or super-statutory questions raised are going to have to fit.

"Thus, inmates seeking time to challenge the manner of their execution must satisfy all of the re-quirements for a stay, including showing a significant possibility of success on the merits. A court considering a stay must also apply a strong equitable presumption against granting relief where the claim could have been brought at such a time as to allow consideration of the merits without requiring a stay." (From the Syllabus summary)

So you can challenge consitutionality *and* you can ask for a stay of your execution - it might be granted if you have a strong case - but the way to raise constitutional matters which bring in the whole machinery of Federal Courts is well before a stay would be required, i.e., during all the years spent sitting on death row.

Note too that the Court preliminarily confirms that the petitioner in this case has no quibble with his death sentence itself or with lethal injection more generally so that by the petitioner's own lights there's only a very narrow question of "manner" of injection (dosage, drug order, that sort of thing) that's at issue.

It's a very long way from _The Trial_...

Posted by stephen glaister : 6/16/2006 02:22:00 AM