Monthly Archives: April 2017

Justice Gorsuch and the Death Penalty

Justice Neil Gorsuch being sworn in as the 113th Supreme Court Justice

How will the United States’ newest Supreme Court Justice affect new and ongoing death penalty cases? This is a good question, and one in which we have little information. However, what we do know does not bode well for capital murder defendents seeking relief from the highest court in the land.

The evening that Donald Trump announced Justice Neil Gorsuch’s nomination to the Supreme Court, inauspiciously, a man was lying on a gurney being executed by the State of Missouri. Frustratingly, during Justice Gorsuch’s confirmation hearing, the subject of the death penalty was rarely discussed. This could be because of lack of interest among those on the Senate Judiciary Committee, or due to the lack of high profile death penalty cases  on which Gorsuch has ruled.

There are, however, indicators of how Gorsuch will respond to death penalty cases brought before the Court. Many people believe he will follow in the footsteps of his predecessor, Justice Antonin Scalia, who died in February of 2016. Gorsuch describes himself as a “textualist” or “originalist” who believes strongly in legal precedent. Scalia held the same views. According to the NAACP LDF “Report on the Civil Rights Record of Neil Gorsuch”, Gorsuch “…reveals a consistent opposition to granting relief in capital punishment cases.” The LDF describes the various ways Justice Gorsuch impedes access to justice, and states, “Winning federal habeas relief from any judge is a challenge. Winning federal habeas relief from Judge Gorsuch is a near impossibility.”

During his confirmation hearing, Senator Dick Durbin asked Gorsuch, “Have you ever written an opinion finding that a defendant’s Sixth Amendment right to effective assistance of counsel was violated?” Gorsuch answered affirmatively. In fact, he rarely, if ever, has. To be fair, Merrick Garland, President Obama’s nominee to the Supreme Court, also, according to the ACLU, strictly applied the AEDPA (Antiterrorism and Effective Death Penalty Act) and rarely granted relief to defendants claiming ineffective assistance of counsel.

Clayton Lockett was scheduled to be executed by the State of Oklahoma in April, 2014. After approximately 16 attempts to insert a needle into Lockett’s veins, a doctor managed to finally insert one in his femoral artery near his groin, causing blood to spurt outward. When the first drug of three, the sedative Midazolam, was injected, the needle became dislodged from Mr. Lockett’s artery, causing that drug and those that followed to flow into his tissue. It took 43 minutes for Lockett to die after groaning, speaking, raising up and writhing in pain. In a civil suit filed by Lockett’s family stating that he had a right to be free from cruel and unusual punishment, Justice Gorsuch as part of a panel opinion, called the brutal last few minutes of Clayton Lockett’s life an “innocent misadventure” and an “isolated mishap”.  Using these terms to describe the horrific and tortuous death of another person is revealing.

Clearly, those that oppose the death penalty had no friend in Justice Antonin Scalia. Unfortunately, his replacement will likely be just as unsympathetic to those looking to him for relief.