Presidential Commission on the Supreme Court of the United States
- ↑ See Presidential Commission on the Supreme Court of the United States 2 (June 25, 2021) (written testimony of Christina Swarns, Innocence Project) [hereinafter Swarns Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/06/Swarns-Presidential-Commission-on-SCOTUS-Testimony.pdf. Given these statistics, “the risk of convicting and executing an innocent person is real and,” the witness argued, “constitutionally unacceptable.” Id. See also Glossip v. Gross, 567 U.S. 863, 927 (2015) (Breyer, J., dissenting) (“Several inmates have come within hours or days of execution before later being exonerated.”) (citing multiple examples); Dahlia Lithwick, Cruel but not Unusual, Slate (Apr. 1, 2011, 7:43 PM), https://slate.com/news-and-politics/2011/04/connick-v-thompson-clarence-thomas-writes-one-of-the-cruelest-supreme-court-decisions-ever.html (noting that John Thompson had seven death warrants signed, each setting an imminent date for his execution, before he was exonerated).
- ↑ One Commission witness drew a sharp distinction between challenges to a condemned person’s conviction and arguments that the execution itself would violate the condemned person’s constitutional or statutory rights. Presidential Commission on the Supreme Court of the United States 2 (Sept. 15, 2021) (written testimony of Hashim M. Mooppan) [hereinafter Mooppan Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/09/Hashim-Mooppan.pdf.
- ↑ See, e.g., Glossip, 576 U.S. at 876–77 (2015) (describing the standard for an Eighth Amendment method-of-execution claim).
- ↑ See Ford v. Wainwright, 477 U.S. 399 (1986).
- ↑ See supra note 42 (discussing religious advisor cases).
- ↑ See, e.g., Swarns Testimony, supra note 78, at 1 (arguing that there “is no area of the law in which reliability, accuracy, and fairness are more critical than capital punishment”).
- ↑ Price v. Dunn, 139 S. Ct. 1533, 1540 (2019) (mem.) (Thomas, J., concurring in denial of certiorari) (quoting Ivana Hrynkiw, Execution Called Off for Christopher Price; SCOTUS Decision Allowing It Came Too Late, Alabama.com (Apr. 12, 2019, 7:03 AM), https://www.al.com/news/birmingham/2019/04/christopher-price-set-to-be-executed-thursday-evening-for-1991-slaying-of-minister.html). Most death sentences are never carried out. See Glossip, 576 U.S. at 931 (Breyer, J., dissenting) (“Of the 8,466 inmates under a death sentence at some point between 1973 and 2013, 16% were executed, 42% had their convictions or sentences overturned or commuted, and 6% died by other causes; the remainder (35%) are still on death row.”). Those that are take a very long time: for those put to death in 2014, an average of 18 years had elapsed between the imposition and the execution of sentence. See id. at 924–25. Most of that delay is attributable to the ordinary course of judicial review (as opposed to emergency stay applications) or to factors independent of the judicial process. See, e.g., Jones v. Chappell, 31 F. Supp. 3d 1050, 1055–60 (C.D. Cal. 2014) (concluding after reviewing multiple reports on death penalty delay in California “that delay is evident at each stage of the post-conviction review process, including from the time the death sentence is issued”).
- ↑ Mooppan Testimony, supra note 79, at 3 (“Especially given the lengthy delay before an execution is scheduled at all, further delaying an execution even for a limited time in these circumstances essentially undermines for that period the judgment of Congress, the Executive Branch, and the sentencing judge and jury that continued imprisonment is inadequate and only death is sufficient punishment for the most heinous of murders.”).
- ↑ A further consequence, also noted by Justice Thomas, is that surviving relatives of the victims sometimes travel to witness the execution and may be “forced to leave without closure” after years of waiting if the execution is postponed at the last minute. Dunn v. Price, 139 S. Ct. 1533, 1540 (2019) (mem.).
- ↑ See Federal Bureau of Prisons, Historical Information: Capital Punishment, at https://www.bop.gov/about/history/federal_executions.jsp (last accessed Oct. 3, 2021); see also Lee Kovarsky, The Trump Executions 10 (July 27, 2021) (U. Tex. L. Sch., Pub. L. Res. Paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3891784.
- ↑ See Death Penalty Information Center, Execution Database, https://deathpenaltyinfo.org/executions/execution-database (last accessed Oct. 3, 2021). Against this backdrop, several witnesses who shared assessments and recommendations with the Commission regarding the Court’s emergency capital orders grounded their analyses at least in part on cases from the states, including a series of recent cases from Alabama and Texas about the
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