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Thread: How to streamline the death penalty process?

  1. #1
    Senior Member Frequent Poster Steven AB's Avatar
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    How to streamline the death penalty process?

    The main problem with the death penalty in United States is the obstructionism to it, such as the Bleak House-like appeal process, causing long time gaps between death sentences and executions.

    This increases the average cost of a death sentence; though not above the average cost of a life sentence, the pseudo-studies from abolitionists claiming that having been debunked long ago.

    https://prodpinnc.blogspot.com/2013/...ing-money.html

    That death penalty opponents rely on this is a damning proof that, in spite of their hegemony in the media, they horribly failed for decades to convince on their root idea: that the death penalty is inherently wrong no matter the crime for which it is inflicted.

    http://www.cncpunishment.com/forums/...l=1#post139998

    Note also that this panoply of appeals has never precluded opponents to claim that the system is unreliable and lawless. So why caring about what they say, since they will always say the same thing? Even if the death penalty were totally abolished, they would attack life without parole, or whatever would be the highest punishment.

    http://www.cncpunishment.com/forums/...l=1#post136132

    And that's not peculiar to the death penalty.

    Every policy largely supported by the people, but opposed by the elites, is sabotaged by them, who at the same time lecture ordinary citizens to resign to this situation as "inevitable", necessary, etc., etc.

    That's also true about cheap labor immigration.

    That's also true about political financing by the wealthy.

    That's also true about almost anything else.

    The issue is, whether citizens want to kowtow to this insulting denial of popular self-government.

    That abolitionism and obstructionism are not invincible is well-known, as they already have been defeated in the past with zero executions in the entire United States from July 1967 to December 1976, and 659 executions from July 1997 to December 2006.

    One law that contributed to this history is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) signed by President Clinton, which was the ironical result of the abolitionist false claim that the death penalty is expensive and unenforced.

    Similarly, California Proposition 66 that won in 2016 to expedite the process was provoked by two other anti-death penalty initiatives in 2012 and 2016 that much relied on the cost-delay claim, and that both lost. And had one won, that would have fueled the passage of streamlining legislations in other states.

    Something that should be done today is to enforce Chapter 154 of United States Code's Title 28, which provides a fast-tracked federal habeas corpus process for state cases. Adopted in 1996 as part of the AEDPA, this Chapter provides short deadlines to decide the petition. At the state level, similar deadlines should be set for state courts by statutes or by rules of procedure.

    Moreover, section 2262(c) of Chapter 154 provides no more stay once the convict loses his habeas appeal, and the provision language is not limited to habeas stays, so it would apply also to other federal suits, such as §1983 method challenges, for which the convict should have no standing to sue before federal habeas completion, nor if he forfeits the right to file such habeas petition.

    But this Chapter has never been enforced because it is conditioned to certification of each state by the federal government that its own appeal process includes some features, and that review is itself lengthy and vulnerable to abolitionist obstruction.

    One will say that enforcing this Chapter would result in a denial of access to federal non-supreme courts for state capital convicts. Yes, that is the goal, and that should even be extended to habeas itself.

    The separation between direct and collateral review is defensible because they deal with separate kinds of claim that require different methods of review. But in state cases, federal collateral review and civil suits are nothing but a re-adjudication of claims already decided or cognizable by state courts, which are already bound by federal law.

    In contrast, federal death row convicts already have not three, but just two main avenues of appeal, and it would not be credible to claim that their sentences are less fair or less reliable for that reason. State death sentences should follow the same course.

    There are already many other areas of litigation where statutes bar federal non-supreme courts to adjudicate matters that already belong to state courts, but that at the same time still allow review by the U.S. Supreme Court through certiorari from the state top court, which is the only federal recourse indispensable to ensure: (1) Uniform federal law thorough the country; (2) That the state judiciary provides a due process (and (3) The U.S. Supreme Court is more likely to uphold a statute that doesn't reduce its own jurisdiction).

    Using this scheme for federal review of state sentences would be legitimate, even if limited to capital cases, since (1) States courts and laws already provide a singularly thoughtful scrutiny of death sentences compared to other matters; and (2) Finality is a more stringent need in these cases, since deprivation of life cannot be applied provisionally in advance as for deprivation of liberty or property.

    To conclude, since for the first time the United States has a majority of Supreme Court members committed to enforce the constitutional document rather than to be a committee of philosopher-kings, it is the occasion for Congress to enact as part of an AEDPA II provisions that would essentially say:

    (1) States courts and the U.S. Supreme Court shall have exclusive jurisdiction to adjudicate all things than can lead to stay the execution or annul, affect or impede any sentence of death imposed by a state court.

    Federal courts, except the U.S. Supreme Court, shall never stay such an execution or otherwise annul, affect or impede such a sentence.

    Federal habeas corpus petitions that can lead to such stay, effect or impediment shall:

    (a) Be under the exclusive jurisdiction of the U.S. Supreme Court. These petitions belong to the court's appellate jurisdiction over state courts.

    (b) Be grantable only on the ground that the state court that imposed the sentence had no jurisdiction to do so.

    All legal actions barred by this provision (1) shall be dismissed for want of jurisdiction, including if they were filed before this provision takes effect and not decided by final judgment.

    For habeas petitions that were already filed or cognizable before the taking effect of sub-provision (a), the period of limitation shall restart when it takes effect.

    If this provision (1) is stayed pending adjudication of its constitutionality, or held unconstitutional, legal actions barred by it shall continue, or readmitted at the stage where they were. Period of limitations and other deadlines related to them shall not be suspended during such a stay.

    In Felker v. Turpin (1996), the U.S. Supreme Court unanimously held that its jurisdiction over federal habeas corpus petitions is appellate for constitutional purposes, even when they are filed in the first instance.

    Under this provision (1), a state death sentence would be regarded as final once the U.S. Supreme Court denies certiorari from state collateral review, and a filed or possible federal habeas petition would in practice never be a ground for stay.

    (2) If provision (1) is held unconstitutional by the U.S. Supreme Court, in full or in part, 28§2266 shall apply with respect to all things that will be adjudicated by non-supreme federal courts as result.

    (3) If sub-provisions (1)(a) and (1)(b) are both held unconstitutional by the U.S. Supreme Court, federal habeas cases belonging to non-supreme federal courts shall continue, or readmitted at the stage where they were. 28§2263 and 28§2264 shall apply to all of them.

    (4) 28§2261, 28§2262 and 28§2265 are repealed.

    The AEDPA II could also contain other provisions, that could be a topic for future posts.
    Last edited by Steven AB; 03-20-2024 at 07:02 PM.
    "If ever there were a case for a referendum, this is one on which the people should be allowed to express their own views and not irresponsible votes in the House of Commons." — Winston Churchill, on the death penalty

    The self-styled "Death Penalty Information Center" is financed by the oligarchic European Union. — The Daily Signal

  2. #2
    Senior Member Frequent Poster Steven AB's Avatar
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    Moreover, the proposed provision (1) in the earlier post has become even more realistic since today's U.S. Supreme Court Jones v. Hendrix decision, which stated 6-3 that there is no constitutional right to collateral review under the Suspension Clause.

    (5) The word "Special" about Chapter 154 is repealed.

    With respect to 28§2266:

    – At (c)(1)(A) the deadline is simplified as "300 days after the appealed decision".

    – At (c)(1)(B)(i) the deadline is simplified as "60 days after the panel decision".

    (6) Provisions (1) to (5) shall take effect one month after this Act is enacted.

    The U.S. Supreme Court will have to decide the constitutionality of these provisions, and it will probably take less than two years.

    For that purpose, the court should stay the enforcement of provision (1) before it takes effect and until the court issues a final determination of its constitutionality.

    Only in the unlikely event that this decision strike down provision (1), in part or in full, would provisions (2) or (3) become enforceable.

    (7) 28§2266 shall apply to:

    – Sentences of death imposed by a federal court with respect to both direct and collateral review (excluding 28§2266(b) with respect to direct review).

    – Any other lawsuit than can lead to stay the execution or otherwise annul, affect or impede any sentence of death imposed by a federal court.

    (8) Neither the Food and Drug administration nor any federal administration, agency, court or entity, shall have jurisdiction nor any power to regulate, restrict or prohibit in any way the use of any drug or any thing used for execution of a sentence of death imposed by a state court; including, but not limited to, when the drug or thing was purchased of otherwise acquired from abroad.

    Only the U.S. attorney general shall have jurisdiction to regulate, restrict or prohibit in any way the use of any drug or any thing used for any execution of a sentence of death imposed by a federal court.

    (9) For the enforcement of provisions (1) to (8), territorial courts and home rule courts shall be treated in the same manner as state courts.

    (10) Neither the Religious Land Use and Institutionalized Persons Act, nor the Religious Freedom Restoration Act, nor any other law, shall impose to the execution of any sentence of death more than what is already guaranteed by the First amendment with respect to religious accommodations.

    (11) When an inmate is wanted by different U.S. sovereigns, priority shall be given for custody to the one that imposed a sentence of death upon him.

    When an inmate is wanted by different U.S. sovereigns that imposed a sentence of death upon him, priority shall be given for custody to the one that can reasonably be expected to execute that sentence the earliest.

    For the enforcement of this provision, territories and home rule districts shall be treated in the same manner as sovereigns.

    (12) Life without parole is the minimum penalty for any capital crime.

    When the death penalty is pursued, the question asked to the jury is what a penalty shall be, and not a weighing of factors.

    In U.S. district courts, when a jury deadlocks on capital sentencing, a penalty retrial shall be held before a different jury, as long as the death penalty remains pursued, until one jury is unanimous.

    A three-fourths majority shall be required for a court-martial or a military commission to impose a sentence of death, and any lesser majority shall be for a life sentence without parole.

    The judge or presiding officer shall be bound by the jury, panel or commission decision, and impose it immediately.

    (13) A sentence of death imposed by U.S. district court shall be carried out according to the method of execution of the state where that court seats.

    If that state doesn’t have a valid statutory method of execution, the Director of the Bureau of Prisons shall select another state for that purpose in the order setting the execution date.

    If the sentence of death was not imposed in a state, it shall be executed in the same manner as if the location of the court were a state.

    A sentence of death imposed by a court martial or a military commission shall be carried out according to a method determined by the U.S. Secretary of Defense in the order setting the execution date.

    A method of execution is defined as the top-line choice among execution methods such as lethal injection or electrocution, and not including the subsidiary details such as the drugs to be used, even for states where such details belong to legislation.

    (14) The identity of persons participating to the execution of sentences of death, and the provenance of any drug or thing used for execution, shall be subject to confidentiality, whose violation shall be a criminal offense punishable by ten years of imprisonment and a fine of any non-excessive amount.

    (15) The Administrative Procedure Act shall not apply to anything relating to executions of sentences of death nor to anything relating to the death penalty.

    (16) The U.S. court of appeals for the armed forces shall have exclusive jurisdiction for direct review of sentences of death imposed by courts-martial, without intermediate review. It shall hear and render a final determination on such appeal not later than one year after the date of such sentence.

    (17) The U.S. Supreme Court shall have exclusive jurisdiction to adjudicate all things than can lead to stay the execution or otherwise annul, affect or impede any proceeding of a military commission or any verdict or sentence issued by it.

    The appellate jurisdiction of the U.S. Supreme Court over military commissions shall take the form of certiorari or habeas corpus.

    This provision (17) would allow execution of the 9/11 conspirators a few times after their sentencing, as for the Lincoln assassins and the Nuremberg war criminals.

    (18) Provisions (7) to (17) of this Act shall take effect at enactment.

    Provisions (7) to (18) should be allowed to be fully enforced immediately, and any lower court decision to the contrary vacated.
    Last edited by Steven AB; 08-20-2023 at 02:32 AM.
    "If ever there were a case for a referendum, this is one on which the people should be allowed to express their own views and not irresponsible votes in the House of Commons." — Winston Churchill, on the death penalty

    The self-styled "Death Penalty Information Center" is financed by the oligarchic European Union. — The Daily Signal

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