Three Sotomayor Dissents on Death Penalty Cases Are the Voice of Reason on the Issue

I am opposed to the death penalty. While my opposition principally comes from my work in wrongful conviction cases, my opposition is to the death penalty in all cases – even where the evidence of guilt is overwhelming or where the details of the crime are horrific and gruesome. I just feel it is a barbaric practice for our society to engage in and I know that it has never been fairly or constitutionally applied.

But if certain States continue to engage in the death penalty, then at the very least, we should ensure that we don’t cut short all the available procedures and processes to make sure it is applied as fairly and humanely as possible as guaranteed by the Constitution. To that end, in three recent death penalty cases, Supreme Court Justice Sonia Sotomayor has emerged as the SCOTUS jurist most likely to protect those guarantees.

Today, in the case of Donnie Cleveland Lance v. Eric Sellers, Warden, which came out of the State of Georgia, Justice Sotomayor expressed dismay over the Court’s denial of a writ of certiorari to Mr. Lance who was given the death penalty without his lawyer having put up any evidence of mitigation on his behalf. Lance was convinced of capital murder for the killing of his ex-wife Sabrina Lance and her boyfriend, Dwight Wood; he shot the boyfriend with a shotgun and then used the shotgun to bludgeon his ex-wife to death. At his trial, the evidence of his guilt was not overwhelming: a partial shoe print on the door of the trailer where the victims lived matched a work boot believed to be worn by Lance and police found an unspent shotgun shell in Lance’s shop that matched the ammunition that killed Mr. Wood. Lance was represented during both the guilt and penalty phases of his trial by a solo practitioner who became convinced of Lance’s innocence—and his own ability to prove it—early in the representation. He thus prepared exclusively for the guilt-or-innocence phase of the trial. He did not even broach the subject of possible penalty-phase evidence with Lance or his family, because he did not want them “thinking that [he] might be thinking in terms of losing the case.” So when the jury found Lance guilty and the question became whether Lance should be put to death, Lance’s counsel had no evidence whatsoever to present. He did not present an opening statement; presented no evidence of Lance’s mental illness (discussed later); and in closing just referred to his client as “kind of a quite person and a country boy.” The State on the other hand, in its penalty phase put in evidence of prior threats and acts of violence against Ms. Lance and in its closing argument emphasized the brutality of her killing, and Lance’s apparent lack of remorse. The State urged the jury to perceive Lance as “‘cold and calculating’” and repeatedly asked “‘what kind of person’” would do these things.

Well, perhaps the jury might have come up with a different verdict had it heard of Lance’s numerous head injuries and mental impairment. That history including being regularly exposed as child to toxic gas fumes at his home; repeated serious head traumas caused by multiple car crashes; serious alcoholism; and—most seriously—Lance’s once being shot in the head by unknown assailants while lying on his couch. Four mental health professionals testified at a post-sentence evidentiary hearing. They all agreed on many points: First, Lance had permanent damage to his brain’s frontal lobe. Second, his 70 IQ placed him in the borderline range for intellectual disability. Third, his symptoms warranted a diagnosis of clinical dementia. The evidence was enough to convince the Georgia Superior Court to reverse the conviction, but the Georgia Supreme Court reversed finding the evidence was unlikely to have made any difference. After his Federal habeas petition was denied on finding that the Georgia Supreme Court decision was “not unreasonable,” his appellate lawyers applied for a writ of certiorari to the Supreme Court that was denied on a 6-3 vote.

While the majority did not even bother to write a decision, Justice Sotomayor’s dissenting opinion was strong and joined by Justices Ginsburg and Kagan. In it, she said it was wholly unreasonable for the Georgia Supreme Court to decide on its own that all this mitigation evidence would not have changed the death penalty verdict. She stated the Georgia Supreme Court reached its conclusion “only by unreasonably disregarding or minimizing Lance’s evidence finding that the state court acknowledged those experts would testify that “significant damage” to Lance’s frontal lobe compromised his ability “to conform his conduct to the requirements of the law.” It failed, however, to allow for the possibility that the jury might credit that evidence.” Instead, the Georgia Supreme Court made its own findings and decided to believe the State’s experts over the defense experts, ignoring that it was the jury’s province to make that determination.
She also stated that the Georgia Supreme Court unreasonably dismissed that both sides’ experts agreed that Lance was in the borderline range for intellectual disability and never mentioned—much less discussed Lance’s dementia diagnosis.

In a rebuke to the Georgia Supreme Court and the majority which denied certiorari, Sotomayor ended her opinion by stating : Absent this Court’s intervention, Lance may well be executed without any adequately informed jury having decided his fate. Because the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied, I respectfully dissent. Her full dissent can be found here: https://www.supremecourt.gov/orders/courtorders/010719zor_m6ho.pdf

Donnie Cleveland Lance

Billy Ray Irick

Back in August 2018, in a case involving a man named Billy Ray Irick from the State of Tennessee, Judge Sotomayor was even more harsh in her critique of her fellow justices and the death penalty.

But it wasn’t the fact of the execution that Sotomayor objected to, but rather the method. Tennessee used a three-drug combination that, as Sotomayor details in her dissent, cause “sensations of drowning, suffocating, and being burned alive from the inside out.” Sotomayor went on to note that the state’s contention that the first drug in the combination would stop the torturous feelings were disproven by the medical expert:

“In theory, the first drug in the three-drug protocol, midazolam, is supposed to render a person unable to feel pain during an execution. But the medical experts who testified here explained that midazolam would not work, and the trial court credited that testimony.”

Sotomayor would have granted state courts more time to consider Irick’s case, instead of being beholden to Tennessee’s rushed schedule to kill him. She stated:

“In refusing to grant Irick a stay, the court today turns a blind eye to a proven likelihood that the state of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this ‘rush to execute’ without first seeking every assurance that our precedent permits such a result.”

She then went a step further, way further actually, by making a statement about what such a practice means about our society:

If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism.”

I know what death penalty proponents will say: Irick’s victim was denied that concern about barbarism by Irick. Why should we care about how painful or painless his execution is when he didn’t care what his victim went through. I understand the sentiment. Irick’s crime was abhorrent. He brutally raped and then strangled a 7 year old girl who was left in custody by her parents.

But I recall what Mario Cuomo said about the death penalty when he was asked while campaigning for Governor of New York. He was asked if his wife or children were killed wouldn’t he want to extract revenge on their killers? He stated:

 I have felt the anger myself, more than once. Like too many other citizens, I know what it is to be violated and even to have one’s closest family violated through despicable criminal behavior. Even today, I tremble at the thought of how I might react to a killer who took the life of someone in my own family. I know that I might not be able to suppress my anger or put down a desire for revenge, but I also know this society should strive for something better than what it feels at its weakest moments.  

If we adopted the maxim of an eye for an eye, where would it end? “You kill my son; I kill yours.” “You rape my daughter; I rape yours.” “You mutilate my body; I mutilate yours.” And we would pursue this course, despite the lack of any reason to believe it will protect us even if it is clear that occasionally the victim of our official barbarism will be innocent.

In the third dissent, in Miller v.  Parker, decided December 2018, Judge Sotomayor bemoaned the practice, set forth by the Supreme Court in 2015 in Glissop v. Gross , requiring inmates to offer alternate ways to be executed if they argue the state’s preferred method is cruel and unusual.
Miller chose the electric chair given how potentially painful lethal injection can be. But being electrocuted to death isn’t a great option either, Sotomayor said, noting it can also “be a dreadful way to die.” While Miller and another death row inmate in Tennessee picked electrocution, Sotomayor said, “They did so against the backdrop of credible scientific evidence that lethal injection as currently practiced in Tennessee may well be even worse. ” When the Court voted to deny the stay of execution because Miller had chosen the chair, Sotomayor dissented saying the whole practice of making the condemned choose a better way to die -among horrific choices- must stop. She labeled it “a perverse requirement” and was unequivocal in stating her position: Such madness should not continue.”

Mario Cuomo understood that “official barbarism” is no better and perhaps worse than individual barbarism. Its why as Governor he vetoed 12 attempts to reinstate the death penalty in NY. Its why Justice Sotomayor understands that even in the most horrific of crimes we must as a society stand up to make sure that if the death penalty is to be applied, it must be applied humanely and only after making sure that the condemned has had every fair and full opportunity to be heard. These three strong opinions make her the strongest judicial voice against the death penalty. But with the current balance of the Court, its clear that her voice will be heard only in dissent and that the end of this horrific, official barbarism is nowhere in sight.

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    • According to a recent Pew Institute study support is currently at around 54% overall: “Support for the death penalty remained lowest, and opposition highest, among Democrats (35% in favor, 59% opposed), Blacks (36% in favor, 52% opposed), and people with postgraduate degrees (42% in favor, 56% opposed). The highest levels of support for capital punishment were reported among Republicans (77% in favor, 17% opposed), White evangelical Protestants (73% in favor, 19% opposed), and men (61% in favor, 34% opposed). Women and the youngest voters (aged 18-29) were evenly divided on the issue, with 1% more saying they supported the death penalty. The largest shift since 2016 was among those identifying themselves as political independents, with reported support increasing from 44% in 2016 to 52%. Long-term trends, however, continued to show declining death-penalty support among all demographic groups. Support fell from 78% in 1996, to 64% in 2007, to 54% in 2018. That decline was sharpest among Democrats, whose support had dropped 36 percentage points since 1996, with support among Independents falling 25 percentage points during that period, and Republican support fallen 10 percentage points.” Those working in the system know that it is too flawed to allow for a Constitutionally applied death penalty.

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