One Step Forward, One Step Backward: Remarks on Recent Rulings in the Supreme Court
Two isolated Supreme Court decisions serve to remind us of how the more that our criminal justice system seems to change, the more it stays the same. In the realm of improvement, the Supreme Court has halted the execution of Duane Buck due to concerns of racial bias. Buck’s argument related to the testimony of Dr. Walter Quijano, a psychologist hired by his counsel. Despite expressing his belief that Buck would not be a danger in the future, Quijano argued that race is a definite indicator of violent behavior and presented a report which stated that Buck’s race gave an enhanced probability that he would act violently. The jury returned a sentence of death, and these events prompted the Supreme Court to revoke this sentence due to Buck’s grossly inadequate counsel.
This decision is important for Ohio, in that it comes at a time in which sensitivity to matters of racial justice is at an all-time high. The Joint Task Force to Review the Administration of Ohio’s Death Penalty offered seven recommendations to combat issues of racial disparity within the sentencing process, so as to prevent situations exactly like this. These included processes to allow for the removal of state actors from the legal process who exhibit significant racial prejudice and allow claims of racial disparity to be heard within a state court. None of these recommendations have been accepted by the Ohio government, but a bill calling for the establishment of practices that would preclude the death penalty for offenders who can prove that race was the driving factor in seeking their execution has been introduced to the Senate. Senate Bill 12 is being sponsored by Senator Charleta Tavares of District 15, and has been sitting in the Senate Judiciary Committee since February 1st.
Contrary to this decision comes the Supreme Court’s refusal to hear the case of Thomas Arthur in Alabama. Arthur sought to demonstrate that the lethal injection was a needlessly cruel mode of execution and instead wished to be executed by firing squad. The Court refusal to hear the case is due to the unavailability of execution by firing squad under Alabama law thus Arthur could not be executed by firing squad in the Alabama prison system. A CNN opinion piece remarks, “Dissenting in Tuesday’s case, Justice Sonia Sotomayor noted that the Court’s decision effectively allows a state, simply by refusing to include any alternative in its death penalty protocol, to avoid a challenge to its execution method, “no matter how cruel or how unusual” that method might be.” For Ohioans, the execution of Dennis McGuire and the on-going drug cocktail controversy come to mind during this decision. McGuire was executed after the adoption of an untried lethal injection cocktail, due to the decision by foreign pharmaceutical companies to cease the selling of drugs with the United States used in prior lethal injections. It was the longest an executed prisoner took to die in Ohio since 1999, a 15 minute affair characterized by McGuire’s repeated gasps, snorts and groans. However, in light of such needless suffering, the decision of the Supreme Court invites little to no legal opposition to the mode of execution no matter how cruel or unusual. With this latest ruling, what legal bulwark do we have to stop the reapplication of antiquated and offensive forms of execution?