Death Penalty Foes Forget Constitution Allows It / Gorsuch’s First Big Top Court Vote Allows Arkansas Execution

Death Penalty Foes Forget Constitution Allows It

A protest of the death penalty is seen outside the Board of Church & Society near the US Supreme Court on March 15, 2017, in Washington, D.C. (Brendan Smialowski/AFP/Getty Images)

By Jonah Goldberg, Friday, 21 Apr 2017 12:48 PM

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The debate over the death penalty can be infuriatingly dishonest.

Consider the April 17 broadcast of Fox News Channel’s "Special Report with Bret Baier" (a show on which I am an occasional commentator).

Casey Stegall reported on the legal battle in Arkansas, where officials want to execute eight death row inmates in 11 days before their supply of midazolam expires. This is one of the drugs used to carry out lethal injections.

Stegall did his legwork. He talked to Susan Khani, the daughter of the woman murdered, execution-style, by Don Davis in 1990. She told Stegall the last quarter century has been agony for her, adding, "He is just a very cruel person. He needs to be put to death."

Stegall then talked to the usual death penalty opponents. First was Robert Dunham of the Death Penalty Information Center, who said, "There is a myth that family members of murder victims will get closure out of executions. In fact, for many of the family members, that does not happen."

So let’s start there. To say that something is a "myth" is to suggest that it is untrue. The Loch Ness Monster is a myth. Bigfoot is a myth. But on Dunham’s own terms, some family members do get closure. He didn’t say, "No family members of murder victims get closure." He said "many," a subjective term that could mean pretty much any number short of "most."

Stegall then talked to Stacy Anderson of the American Civil Liberties Union, which is concerned that we might execute the wrong person. "We know that 156 innocent people have been found on death row in the last 20 years," she said.

Added Stegall: "The ACLU says cost is another driving force of the decline. Litigating death penalty cases is expensive since the condemned often spend years filing appeals and lawsuits."

This is also true. But you know what group is arguably most responsible for raising the cost of the death penalty? The American Civil Liberties Union.

The ACLU is well within its rights to clog the courts with lawsuits. But there’s something remarkably cynical about barraging the courts with often frivolous complaints that raise the costs of the death penalty, then pretending that your objection is the cost.

Indeed, Arkansas is racing to use its drugs before they expire because death penalty opponents have worked tirelessly to make such drugs extremely difficult to obtain.

The same cynicism applies to concerns about innocent people being wrongly executed. I’m in favor of the death penalty. You know what? I’m also passionately opposed to executing the wrong person.

But Don Davis eventually admitted to murdering Jane Daniels in cold blood after breaking into her home, so objections that some other death row inmate might be innocent have no bearing on his case.

Ironically, immediately after Stegall’s report, anchor Bret Baier announced: "A massive manhunt is underway at this hour for a suspect who police say engaged in a heinous public crime that can truly be called a sign of the times."

The suspect was Steve Stephens, the so-called "Facebook Killer," who video-recorded himself admitting that he was about to murder someone randomly. He then got out of his car, walked up to 74-year-old Robert Godwin, a father of 10 and grandfather of 14, and casually executed him. Stephens then posted the video on Facebook.

Stephens killed himself two days later. But say he hadn’t. Obviously, he would have gotten a trial. Let’s suppose he was found guilty and got the death penalty. We would still be subjected to all of the sleight-of-hand rhetoric about the risk of executing innocent people, the costs, etc., even though there would be zero doubt in this instance.

We’d probably also hear that the death penalty is "racist" — Stevens was black — despite the fact that Stevens’ victim was black as well. Meanwhile, Don Davis is white.

It is entirely legitimate and honorable to oppose the death penalty on principle. The problem is that this is a constitutionally ridiculous position given that the plain text of the Constitution itself allows for the death penalty in several places.

Acolytes of the "living Constitution" want to believe that nothing bad (as defined by them) can be constitutional. I don’t think the death penalty is bad, but if you want to get rid of it, amend the Constitution. Otherwise, opponents should stop pretending their real objection is something else.

Jonah Goldberg is a syndicated columnist and author. He explores politics and culture for National Review as a senior editor. He is the author of "Liberal Fascism" and "The Tyranny of Cliches: How Liberals Cheat in the War of Ideas.” For more of his reports, Go Here Now.

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Gorsuch’s First Big Top Court Vote Allows Arkansas Execution

(AP)

Friday, 21 Apr 2017 04:23 PM

Justice Neil Gorsuch took his first major action on the U.S. Supreme Court by casting the deciding vote to let Arkansas begin executing a group of death-row inmates.

In a series of orders Thursday night, the high court cleared the state to execute Ledell Lee, one of eight convicted murderers that Arkansas has been trying to put to death before one of its lethal-injection drugs expires at the end of the month. Arkansas executed Lee minutes after the court rejected the last of his requests.

Gorsuch joined his four fellow Republican appointees — Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy and Samuel Alito — in the majority. They didn’t explain their reasons.

The court’s four liberal justices each voted to grant at least one of the requests to halt the executions. Justice Stephen Breyer said the state didn’t have an adequate reason to rush.

“Apparently the reason the state decided to proceed with these eight executions is that the ‘use by’ date of the state’s execution drug is about to expire," Breyer wrote. "That factor, when considered as a determining factor separating those who live from those who die, is close to random."

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan also voted to block the executions.

The inmates said the state’s drug protocol, which includes the controversial sedative midazolam, puts them at risk of an unnecessarily painful death. They said the odds were increased by Governor Asa Hutchinson’s original plan to execute all eight of them over the course of 11 days.

The state has scaled back its plans in the face of orders from other courts affecting some of the inmates. Arkansas had been planning to execute four inmates this week.

Arkansas, which hadn’t executed anyone since 2005, is among states that have had difficulty acquiring the drugs it needs for lethal injections, largely because of restrictions imposed by pharmaceutical companies.

Lee was convicted of the 1993 strangulation of Debra Reese in a Little Rock suburb. He maintained his innocence and his lawyers were seeking additional DNA testing.

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