Strict Scrutiny - Hostility to Mercy

Episode Date: August 8, 2022

Leah talks with Lee Kovarsky of the Capital Punishment Center at the University of Texas about the Supreme Court's treatment of death penalty cases.  Before 2020, there hadn't been a federal execution since 2003. In the last six months of the Trump presidency, there were 13. Lee tells us how that came to be, and what the justices' writings signal for future death penalty cases.Read Lee's article, "The Trump Executions," in the University of Texas Law Review Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your host for today, Leah Littman. And today I have a special episode that is about a recurring issue on the court's docket, capital cases. And I'm delighted

to be joined by one of the country's foremost experts on capital litigation, post-conviction proceedings, and more, Professor Lee Kowarski at the University of Texas Law School. Welcome to the show, Lee. Thanks for having me. So Professor Kowarski is the Bryant Smith Chair in Law and co-director of the Capital Punishment Center at the University of Texas. He has also worked on several, many dozens of death penalty matters in various courts throughout the United States, including through the Texas Defender Service. He argued in one, an important habeas case, Aestas v. Davis, decided in 2018, that ensured that habeas petitioners who were sentenced to death had access to the federal funding that was authorized by statute for federal court proceedings challenging the effectiveness of their counsel. On this show, we've talked about the court's treatment of

capital cases and some of the justices' views about capital litigation. These are issues, as I mentioned, that regularly come before the court, and the justices' views on capital litigation also seem to influence their views on constitutional law, like the amendments, prohibition, uncruel and unusual punishment, or various procedural rules about post-conviction review. So maybe we can start with some basics. How do capital cases make their way to the Supreme Court? Capital cases make their way up to the court in much the same way that any criminal case makes its way up to the court with a couple of different nuances. The case can go up on direct review of a state conviction and capital sentence. It can go up on review of a state post-conviction

disposition, or it can go up on review of federal habeas disposition. If it's a federal capital sentence, then it can go up on direct review of the death sentence from the federal trial court. And then it can go up on review of the federal post-conviction proceeding, which is under 28 U.S.C. 2255. And then, of course, capital punishment is an area that's replete with litigation over stays. And so there is a lot of activity on the shadow docket or the emergency docket, if you're one of those people. We will be talking about one of those people, as you put it throughout this episode. But just to kind of unpack, you know, the last part of what you said, the emergency docket regarding stays, you know, something that I didn't realize before I clerked at the court was just the sheer volume of stays and capital litigation, you know, that the court oversaw.

Because basically what happens is anytime there's an execution that's scheduled in the United States, there's actually a permanent employee at the court who's known as the death clerk, who oversees and is in charge of monitoring all of these executions and being in touch with lawyers to figure out if those lawyers might ask the Supreme Court for what's known as a stay. And a stay puts on hold the ordered execution nominally to allow, you know, the person who has been sentenced to death to pursue legal claims about their execution that need to be resolved before the execution is carried out. So I guess that kind of begs the question about why do these challenges to death sentences in capital cases

kind of come in or come up as an execution date is set up and, you know, not well before. Yeah. And before I go into why there's so much what I'll call warrant litigation, that just means litigation under death warrant, which is the type of last minute litigation you're talking about. I do want to send a shout out to the death clerks, Mara Silver and Danny Bickle. They are fantastic people who over the years have, you know, helped me through some really difficult stuff. I mean, obviously staying neutral with respect to the case, but I had warrant litigation going on, you know, as my wife was having our second child and what they did for me at that time was something I'll never forget.

Anyways, so why is there so much warrant litigation? Why are there so many headlines about this prisoner sought this day, the night of the execution and so forth? I think that really confuses people. Well, some of it has to do with the type of claims that are being litigated. So some claims just aren't ripe until the state sets an execution date. So for example, if you're challenging the method of execution, which a lot of these challenges do, you don't know what method the state is going to use to kill you until the state announces when it's going to do that. And so those claims don't ripen until that time.

And then, you know, they generally take longer to work their way through the courts than there is between when the execution date is set and when it's supposed to take place. And just to like unpack and like spell out ripeness for our listeners who might not be lawyers, all it means is when a claim isn't ripe, it's not ready for a federal court to review it yet. And so like Asley is saying, like, if you want to challenge the method, you know, that the state is executing you, that claim isn't ready for a court's review until you know how a state plans to execute you. Yeah, it's like a, it's one of those like legal words, but it's pretty intuitive, right? Like you can't say you're not allowed to kill me that way until you know the way that the state intends to try to kill you. Similarly, there's a set of claims that we sometimes call Ford claims, but they're claims that basically you're not sane at the moment of execution. And like the challenges to the method of execution,

you can't really make an argument about what your mental functioning is at the time of your execution until the time of execution is ascertained. So that litigation isn't undertaken until later. Now, I think that stuff is pretty intuitive. What I think a lot of people don't realize, and what even a lot of lawyers don't realize, is that there's lots of claims based on new facts and new law because of the way that we structure indigent representation. And what I mean by that is like kind of two related things. First, a lot of times people are just like unrepresented between when their first round of what we call federal habeas litigation is finished and then when the state sets an execution

date. And so all of those claims that become available because there's some new fact that is ascertainable or because there's some new legal rule, if those things develop during that period when the prisoner is unrepresented before the execution date is set. Those things aren't going to be detected until the execution date is set, there's a lawyer looking at the case, and then they start litigating those. litigation is I don't think people realize how much of this litigation draws from a pool of death penalty experts who are just sort of like careening without sleep from case to case, you know, trying to put out fire after fire after fire. And this pool of death penalty experts can't possibly know the details of every case in the country, right? So they have to triage their attention. Well, how do they triage their attention? They direct their attention to the cases that get execution

dates. The setting of the execution date is really the moment in which the person gets the lawyer and also the professional death penalty community directs their attention there. And that's because the state generally hasn't funded indigent representation effectively up until that time. And so that accounts for a lot of the reason why you see so much warrant litigation. You know, so all this goes back to the same basic problem. If we were serious about indigent representation earlier in the process, we is like new facts or new law can develop between the point at which someone is represented in their federal habeas proceedings and the moment at which, you know, a death warrant is signed. Imagine that you are someone who, say, was 17 years old when you were convicted and sentenced to death before the Supreme Court held in Roper v. Simmons that juveniles cannot be sentenced to the death penalty. Like if that decision came down, you know, after your federal

habeas proceedings had finished, but before your death warrant had been signed, that might be an example of a new rule that develops in a time during which you're represented. Or, you know, there often might be like new facts or like new developments in forensic evidence. Like let's say, for example, there's a new technique that's developed in order to assess the reliability of, say, expert evidence regarding arsons or something like that. And that develops between the time you're represented and when your death warrant is signed. So you don't have a lawyer who can press that claim and collect the relevant experts up until the moment your death warrant is signed. Lots of different reasons why capital litigation ends up proceeding very close to the end of the case after a warrant has been signed. And it's just not unusual for there to be last-minute capital litigation. But some justices are extremely dismissive of what they see as last-minute capital

litigation and just hostile to it, even though it's inevitably part of the process, given the substance of constitutional limits on the death penalty and how states carry out executions. So I just wanted to play this one clip from, as you say, one of these people, Justice Samuel Alito, from the oral argument in Glossop v. Gross, in which he characterizes what he perceives as going on in the death penalty bar. Yeah, I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions, there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other states could carry out

executions painlessly. Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could like this one, which give rise to disputes about whether, in fact, every possibility of pain is eliminated.

Now, what is your response to that? And, you know, less people think this is just Sam Alito free associating and it has no connection to the law that develops. Justice Alito has written in orders denying stays in capital cases, like this line from Murphy v. Collier in 2019, quote, inexcusably late stay applications present a recurring and important problem. So, you know, again, their perception about, well, it's somehow the death penalty litigants fault that this litigation is happening last minute appears to influence, you know, what they are doing in these cases. Any other examples of that that you can think of where the perceived problem with death penalty litigation is like leading some justices

to modulate their views accordingly or decide kind of cases on that basis? A lot of times justices are savvy enough not to put that in the supertext of the opinion. Now, sometimes it seeps through. And I would say the issue is gone well beyond the Supreme Court justices doing that, but they're really setting a norm for federal judges at all levels of judicial hierarchy that if you see a claim that feels late to you, you should hunt for evidence that the prisoner or the lawyer wasn't diligent. I mean, the problem is that unless you're looking really carefully at the case history, you're going to be able to tell yourself some story as to why this claim could have been brought two weeks earlier. And you actually see this play out over and over and

over again with the federal executions that happened during the last six months of the Trump presidency, where you see lower courts accusing lawyers and prisoners of diligence, where if you like peek beneath the hood, what's really happening is like the state isn't seeking a death date till the very end, and there's litigation already pending. So it looks like all this litigation was undertaken at the 11th hour, but it only feels that way because that's when the state saw the death date. You know, stuff like that, you know, in any piece of litigation, it's going to be easy to pick out a window of time and say like, oh, during that three month period, the defendant was sitting on their hands when they could have been rushing around to Kinko's and to the courthouse.

And, you know, for that reason, we're going to deny what might otherwise be a claim upon which we would lavish more judicial resources. So that really is a perfect segue to what will be the focus of this episode, which is the wonderful article that Lee wrote that was published in the Texas Law Review. It is called The Trump Executions, and it documents a series of events we discussed on the podcast and have alluded to repeatedly, but we haven't had a chance to do an in-depth retrospective on it. So now's the time. The focus of the article is on former President Trump and specifically outgoing President Trump's decision to resume the federal death penalty and actually carry out somewhat legally dubious executions in the waning days of his administration, even after President Biden had been elected. And President Biden had, of course, promised to reinstate a moratorium on federal executions.

So let's just go with like a little background about the federal death penalty. Like before, you know, President Trump decided to make the death penalty great again, like when was the death penalty last used? And when did President Trump decide to bring it back? There was a federal execution in 1963. Then there wasn't another one until 2001. There were two in 2001 and there was one in 2003. So there's this like volley of three executions during the first couple of years of the Bush II administration, one of which is Timothy McVeigh, who's the mastermind of the Oklahoma

city bombing. The prosecutor on those cases is Merrick Garland. Merrick Garland. And then there's no federal executions until this tranche of executions that the Trump administration undertakes during basically like the last six months that he's in office. And the reason that happens is because there's a sort of a confluence of extraordinary political and bureaucratic will to make those happen. I think what most people don't realize, what distinguishes the death penalty from a lot of other punishments is that like,

if you're sentenced to a term of years, they kind of send you to prison and then you're there. And then the sentence is like fairly easy to administer. I mean, I don't mean to diminish what correctional officers do, but with the death penalty, you know, in order to get from like the sentence to the actual execution, there's actually a lot of intervening bureaucratic and political hurdles that you have to pass, like different prosecutorial officials have to make, you know, decisions basically opting into the next step. And so if at any step along the way that bureaucratic or political will is lacking, then, you know, the prisoner will just basically die in jail. And it looked like kind of like that was what was going to happen to the people at Federal Death Row at Terre Haute until Trump wins and Jeff Sessions sweeps into DOJ in 2017.

And one of Sessions' top priorities when he comes in is to nail down a lawful execution protocol. And the lack of a lawful execution protocol, like basically a set of lethal injection drugs that they could use that complied with the Constitution and all of the applicable federal statutes. That's what was basically getting in the way of federal executions for a long time. And at the end of the Bush administration, the Obama administration, they just weren't that interested in spending a bunch of resources figuring out how to find a lawful supply of lethal injection drug. So Sessions comes in and he triggers this initiative within DOJ and the Bureau of Prisons to find those drugs and, you know, find not only to figure out

what drugs they can use, but then find out where they can actually acquire them. Like they have to fight a pharmacy that will provide the drugs for that purpose. Now, Jeff Sessions leaves and Bill Barr comes in. But Bill Barr is as enthusiastic about the death penalty as Sessions is, and he's a far superior bureaucrat. Barr comes in and they lock down what they believe to be a defensible supply of penobarbital, which comes from what's called a compounding pharmacy. It is a pharmacy that basically like is in charge of, it's not as heavily regulated by the FDA because it makes like custom made medicine for individual patients. And the second they nailed down that lawful supply of pentobarbital, they start announcing execution dates. And so how did they pick, because at this point there hadn't been federal executions for almost 20 years,, how did they pick the people who were actually going to be subjected to the death penalty at that point?

Yeah, you know, my brain is a little addled at this point. There's like 81, 82, I can't remember the exact number of people on death row at about this time. And much of what we know comes from the deposition of somebody named Brad Weininsheimer. And he is the senior most official at DOJ at the time. And what he says in his deposition is that they identified 14 people on the row who did not have any litigation pending. That is, their convictions and sentences were final. They were through their federal post-conviction proceedings, and they weren't part of any lethal injection litigation that was pending against the federal government. We know that Barr wanted to announce like a tranche of executions, which have become known as the first five. These are the first five people that they announced, and he was in search of a criteria that he would use to say, these are

the five people that are going to go first. They wanted these to be really bulletproof and morbid pun not intended. The criteria that they used was like what they said was the unique vulnerability of the victims, either young children or elderly folks. And those are the first five executions that you see the DOJ set in the summer of 2019 before the stays start. Got it. Okay, so now they've identified the people who they plan to execute. They have assembled their 2019 execution protocol, the method by which they planned to execute

the people. I guess now let's talk about some of the challenges that were raised once the federal government announced an intention to proceed with these executions. Like what were the legal claims that persons who were sentenced to death and had their execution warrants signed, what were the legal claims that they were raising? When I looked at all this, I chunked it up into four categories. These four categories are categories that are sort of unique to federal death penalty litigation because in all of these cases, there's also a bunch of claims that we always see in warrant stage litigation about like my trial phase attorney was ineffective or the prosecution suppressed evidence that was material and exculpatory and so forth.

So bracket those claims that appear in kind of every piece of post-conviction litigation for a second. And let's talk about these four chunks that are unique to the federal death penalty litigation. So the first is lethal injection claims, basically, right? There's the constitutional challenge under the Eighth Amendment, which the court really just wants to shut down. I mean, the court hates those challenges as much as it hates anything in the death penalty context. Well, maybe as much as it hates habeas corpus. Yeah, I mean, like the oral argument clip I played from Justice Alito was in one of those constitutional challenges to, you know, lethal injection protocol cases. Yeah, they just think that this is a stalling tactic. And that like, if the Constitution says that you've got who cares about torture, right? Yeah, like,

because if the Constitution says that you can kill someone, then like, obviously, you can't violate some other constitutional provision in the course of killing somebody. It's not it's not the most compelling syllogism. So basically there's the Eighth Amendment litigation, then there's litigation challenging the protocol under four statutes. The Federal Death Penalty Act, which I'm going to talk about in a second, the Controlled Substances Act, the Food, Drug, and Cosmetics Act, and the Administrative Procedure Act.

The most important of those is the Federal Death Penalty Act, the FDPA, because that's got something that's called a parity provision, or that I call a parity provision, but it basically provides that the, quote, implementation of the federal death sentence shall be in the manner prescribed by the law of the state in which the sentence was imposed. Like basically if, you know, there's a federal death sentence of someone who was sentenced in federal court in Texas, then you've got to, quote, state in which the sentence was imposed. Like basically, if there's a federal death sentence of someone who was sentenced in federal court in Texas, then you've got to, quote, implement the death penalty in the way that it will be implemented by the state of Texas. So there's a bunch of challenges to the use of penobarbital in states that have some other lethal injection

method, and the court has to sort through those. Then there's basically fights about using unprescribed drugs under the Food, Drug, and Cosmetic Act and the Controlled Substances Act. And then some challenges to the way that the Bureau of Prisons changed the protocol under the Administrative Procedure Act. So all of those challenges are to the Weaflow Injection Protocol. They all lose. Then there's stuff that I call other FDPA litigation. And this is litigation over that same parity provision, but not over the execution protocol. Remember that the provision says that the implementation has to be the same. So that invited questions about whether you needed the same amount of notice that you had in the state or whether the rules about which witnesses could attend the federal execution had to be the same as the rules about which witnesses could attend in the states.

And then you had this provision called the designation provision, or again, I call it the designation provision. But if you think about the parity provision, it kind of presupposes that the federal death sentence is in a state that has the death penalty. Well, the drafters of the FDPA thought about the contingency that like, well, maybe there's a federal death sentence in a state that doesn't have a death penalty. And they said in that case, then what the court is supposed to do is designate some other state for parity purposes, presumably the other state having a death penalty, and then the federal implementation would track that state. This ended up being pretty significant to what I think is probably one of the two most shocking slash troublesome moments of the federal executions, which is the Dustin Higgs execution, which is actually the last one

before Trump leaves office. And what happened in Higgs was when Higgs is sentenced federally, he's sentenced by district court in Maryland, and Maryland has the death penalty, right? So there was no designation made. But then Maryland abolishes the death penalty after that. And so by the time Higgs is, you know, receives his execution date, there's no death penalty for the purposes of parity in Maryland. And honestly, DOJ doesn't like have it shit together. It doesn't think about this until kind of the last minute. The Trump DOJ didn't have it shit together, you're saying? Yeah. And they didn't think about this problem until the last minute. So they kind of like

file this 11th hour piece of paper that's like, hey, judge, why don't you just amend the criminal sentence or reopen the judgment? And, you know, he kind of throws up his hands. He's like, I don't have any authority to do that. Like, I can't reopen the judgment to designate some other state. I don't, there's no... This is like a perfect example of this kind of asymmetric requirement of formalism in death penalty litigation, where, you know, death penalty litigants and prisoners, they have to perfectly dot the I's, cross the T's, follow every procedure to its letter and its spirit read, you know, as stingily as possible. But the government can just file a motion being like, amend the judgment, which you definitely can't do, but like, we kind of need you to do so. Like, it's cool. Right. So what happens is that the judge,

the trial court judge is like, you know, I can't do that. So this is the last execution, right? So all of the federal appeals courts have seen the Supreme Court like delivering this cascade of shadow docket orders, just basically being like, go forward with the execution. So they get the idea. They set this like lightning briefing schedule for the appeal. The Solicitor General's Office asked for judgment, which is basically, for those who aren't familiar with this, like a very, very, very, very unusual request. It asks the Supreme Court to act on the district court disposition before the appeals court has a chance to do anything with it. And the Supreme Court grants it. And all of my looking and Steve Vladek, who tracks these things much more closely than I do,

concurs. We've never seen cert before judgment without plenary review in the Supreme Court. They just granted cert before judgment, summarily reversed with an instruction to the district court to designate Indiana for the purposes of parity and get on with it. Just to be clear, the plenary disposition that we is talking about is, you know, usually when the court grants cert before judgment, it will schedule the case for argument, have full briefing, and then like decide the matter, you know, on its full docket. You know, that's what it did in the census litigation. That's what it did in one of the cases challenging the sentencing guidelines. Like, that's usually what is required when it's

going to take this, like, very novel and unusual procedural step of basically serving as an appellate court. Yeah, it's like the process that produces the, like, careful opinions that we're accustomed to reading rather than these kind of, like, slapdash, you know, shadow docket opinions that we're accustomed to reading rather than these kind of like slapdash, you know, shadow docket opinions that like forget about authority and like forget to answer questions and stuff like that. So third category of litigation is what I call savings clause litigation. And the federal post-conviction statute has a provision that basically says, well, you know, if this set of procedures isn't adequate and effective for the purposes of testing your detention, then you can opt into like

a more robust remedy. And the Seventh Circuit has this tested a lot in capital cases because Terre Haute is the location of a federal death row. And all of those challenges, you know, a bunch of the death row prisoners come in and they say, like, I can't bring this claim or I can't bring that claim under the traditional post-conviction statute. So I'm going to opt into this more robust remedy. And the federal courts all shut the door on that. That's the third category of litigation. The last category, which like is actually like pretty troubling is the COVID litigation. Now, when it's undertaken by the affected prisoners, right, you get why the court just like isn't that sympathetic to the prisoner saying, you know, that like my veins aren't are going to blow or I'm going to have pulmonary edema

or some like specific problem that makes their execution particularly problematic. I'm not saying I agree with any of those things, but if you put yourself in the shoes of a court that's hostile to these method of execution claims, you can understand why they're not going to take those sorts of COVID-based claims that seriously. But then you start seeing COVID litigation undertaken by other people. For instance, the family members of the victims that wanted to witness the execution couldn't travel to Terre Haute to witness the execution because of COVID. And this produces this like weird spectacle where the federal government is like waving its hands around saying we're undertaking these execution in the name of the victims. And then it won't hit pause on the executions to let the victims come. Then there's COVID litigation undertaken by the non-capital community at FCC Terre Haute, which is where Federal Death Row is. FCC Terre Haute is a really big facility, has a lot of

non-capital prisoners as well. And what they've learned, especially by the end of this execution sequence, is that every execution is a super spreader event. You got to fly a ton of people in. They got to all move through choke points. Then they got to sit in a room together for a really long time. And there were COVID outbreaks at the facility. So you had non-capital prisoners who don't have anything to do with the death penalty process that's being administered. They're saying, hey, hey, hey, can you stop staging super spreader events at our facility because we're going to get sick and die. This is before the vaccine's available. And the court blows that off too. So what a lot of this COVID litigation tells you is

like, first of all, how unserious the like, we're doing this in the name of the victims thing is. I mean, there's lots of clues that they're not serious about that, right? Like, Bill Barr says we're doing this in the name of the victims, but like doesn't actually contact any of the victims' families to like let them know that they're setting execution dates. And the COVID, I mean, they're willing to basically put the prisoners at the correctional facility at risk, the execution team at risk, and the victim's family at risk just to have these executions. They're willing to incur the risk of super spreader events just to avoid delay in these executions. And that is just how important these executions were symbolically to whatever political and bureaucratic community is pushing for them. So you mentioned both that the Supreme Court took the extraordinary step in the Dustin Higgs case of skipping over a court of appeals, ordering the district courts to take this

procedurally unique and like unprecedented and like perhaps totally lawless and unauthorized move of just amending its judgment to designate another state. And you also mentioned that lower federal courts, in particular the Court of Appeals, had picked up from some of the Supreme Court's other actions in death penalty cases that the Supreme Court just wanted these executions to move forward. So other than the Dustin Higgs example, what's another example of how the Supreme Court just wanted these executions to move forward. So other than the Dustin Higgs example, what's another example of how the Supreme Court kind of like got involved in these Trump executions in order to ensure that they went forward? So I think what people need to understand about the Trump executions is there's like a very extra legal factor driving the timing that is like not showing up in any of the opinions, but it's like probably

the first thing that any judge deciding these is thinking about. And that is that everybody knows that once Trump leaves office, Biden's going to stop having executions. And so every federal judge is eyeballing January 21st, 2021, either on one side knowing that if the calendar pushes past that date, then the execution isn't going to happen, or on the other side panicking that if the calendar pushes past that date, then the execution isn't happening. So what the Supreme Court is very clearly doing is patrolling what I call the inaugural margin. That is, they are superintending the calendaring function of lower federal courts to make sure that like whatever they're doing isn't going to push past

that date. And by the end of the Trump executions, that becomes pretty transparent, right? They're, you know, even if an appeals court is setting like a 12-day docket, if it goes to January 23rd, the Supreme Court's not going to let that calendar and proceed. The federal death penalty litigation is shot through with a lot of the same shadow docket problems that you see in the decisional law of other shadow docket scenarios. It's just like really sloppy reasoning. So think back to the early cases about COVID restrictions. And I think at South Bay is the first case where, you know, there's kind of like a shadow docket order and they say some stuff and then they say that the decisional language and

that posture isn't binding. And then for the next like five cases later, they say like, why didn't you follow the precedent in South Bay, which was supposed to be non-precedential? And these are just like silly mistakes that a more deliberate and careful process would have exposed and the court would have taken care of. You see some of that in the shadow docket adjudication in the death cases. For example, right, Bar v. Lee, which is like the first really big opinion, actually, it's really the only opinion of substance that the Supreme Court opinion of substance that

these executions produce. It's an opinion about whether or not penobarbital is a lawful execution protocol under the Eighth Amendment. And it just is like loaded with like omissions and like shoddy logic. Like for example, Bucklew v. Precythe is this like really kind of big deal case where the Supreme Court self-perceives as like laying down like what the pleading requirements are going to be if you challenge the method of execution. And specifically what Bucklew says is that if you're challenging a method of execution, you have to put forward a feasible and readily implemented a method of execution, you have to put forward a feasible and readily implemented alternative. That is, you have to plead the instrument of your own demise.

Then the rest of the test runs as a comparison between the execution method that you would get in the absence of relief and then the alternative execution method that you would get in the absence of relief, and then the alternative execution method that you proffer in your pleading. Well, Bar V. Lee like forgets about all of this, right? And it just sounds like the Supreme Court saying Penabarbital is always constitutional, no matter what happens. And they talk about somewhat about the comparison between Penobarbital and like a firing squad, which was one of the alternatives that the federal prisoner Lee pleaded, but they kind of forget to talk about the other alternative, which was just the use of like, basically better medical protocols to reach the veins and stuff like that, some different

cut down procedures. And, you know, like, that's just not a mistake the court would have made if it would have engaged in like a more orderly process of adjudication, but it was rushed. It felt like what happened at the outset of the Trump execution litigation is at least some lower courts tried to pump the brakes and say, we'd like to kind of sort through these claims. You know, the Supreme Court got involved immediately in Barr versus Lee, as you're suggesting. And then once it did so again, you know, the lower federal courts basically picked up, no, they want to ensure these claims are resolved before President Biden's inauguration. And that's kind of what ended up playing out, you know, on two tracks, both at the Supreme Court

and in the appellate courts as well. So you've mentioned the shadow docket a few times. You know, we've talked about it a lot on the show. I mean, like, what do we make of this, either about, you know, the state of death penalty litigation, the shadow docket? Like, where is the problem?

Is it in both? Is it a toxic combination of the two? Like, what does this episode of, you know, again, the justices basically ensuring that all these executions could be carried out before President Trump is thrown out of the office? Like, what's the problem with the system? Because it's obvious there are problems. I mean, so like, it's really there are problems. And it is going to find any excuse to say that prisoners are dilatory for bringing them. It also seems clear that at least in the death penalty context, the Supreme Court is going to be very hostile in situations where it looks like there is like the resistance or the problem with the implementation is coming from like executive abstention. And what I mean by that is like, so take example, the state of Texas, right? One of the things that has to happen for an execution to go forward in Texas is that the

local district attorney has to move for the execution in court. What that means effectively is if like the death sentence was 20 years ago and that district attorney supported the death penalty and 20 years later, there's a district attorney who doesn't think that that particular person deserves the death penalty. They just won't seek an execution date. And it seems like the Supreme Court is going to be hostile to like that sort of abstention because that's what's driving behind this inaugural margin idea, right? Like the Supreme Court knows that like Biden's not going to go through with these executions. And so it's very wary of that executive abstention. And it wants to make sure that this stuff is going to go off on the watch of the Trump administration. In terms of the shadow docket specifically, some of the problems with the decisional law that comes out of the Trump administration. In terms of the shadow docket specifically, some of the problems

with the decisional law that comes out of the shadow docket death cases is typical of the decisional law that comes out of all shadow docket cases, but some of it is uniquely bad. Because in death penalty cases, there really is a hard stop in a way there isn't in other litigation. Like if they don't get that opinion out by the time the execution is supposed to take place, then obviously they've mooted the entire purpose of having the shadow docket. And so that will often produce opinions that are exaggerated versions of what we always see in these shadow docket cases and that they are particularly threadbare. They are particularly vulnerable to serious mistakes. Now, some of that

might be taken care of if jurisdictions, including the federal government, give a little bit more notice between when they announce the execution date and when the execution is supposed to take place. And that would give appellate courts more time to give reasoned attention to a lot of these issues. Unfortunately, it requires not just the. You know, unfortunately, it requires not just the Supreme Court to move quickly, it requires the lower federal courts to move quickly. I mean, a lot of times litigation ends up jammed at the end, not because a prisoner has brought the claim late, but because the litigation has languished in some lower court for a while. So this sort of problem and the spectacle we see at the end of the

Trump administration is sort of multi-causal. And I think the most important implications are kind of for death penalty in the states. You know, you said at the beginning of the broadcast, you said former President Trump, and then you called him something else. And in my head, I'm thinking like, and maybe future President Trump. I guess there really is a question, and I was a little bit more dismissive of it in the article than I should have been, that like, we actually do see this scenario again, because maybe Trump does come back into power. And he will doubtlessly appoint an attorney general who, you know, heavily favors the death penalty, and they'll try to move forward with other folks, it would be nice if we got more clear decisional law on the particular

legal questions at issue. Like most people don't realize that the D.C. Court of Appeals actually held that you can't use unprescribed pentobarbital in federal executions. It's just that because it was in the shadow docket emergency posture, the balance of harms didn't cause courts to intervene to stop the execution. And just like to have some clarity around underlying legal questions, independent of whether you're like for the death penalty in some abstract sense or not, it'd be great to have

clarity around that stuff. I was really struck by, you know, the first causal factor you identified in this, which is a hostility to executive discretion in death penalty. Just because to a listener, it might seem like that is hostility to mercy, and also just very odd notions of judicial supremacy, where the court is basically asserting that it gets to decide, or at least like elected officials can't decide, you know, whether someone will receive the death penalty, which is really at odds with, you know, if you think about some of their decisions in habeas cases saying, we actually think the remedy for these constitutional violations or the remedy for claims of innocence is to go ask the executive branch for discretionary relief. And now it's basically withdrawing, you know,

one of the mechanisms by which executive officers exercise that discretion and show mercy. And this is going to be a bigger and bigger issue and not to veer sort of unexpectedly into another area of your expertise. But, you know, one of the things I've flagged over and over on Twitter is you're going to basically have district attorneys post-Dobbs setting up sanctuary cities effectively where they're going to not prosecute. They're going to nullify criminal abortion laws in red states. the abstaining district attorney and some centralized law enforcement entity trying to take control of the law enforcement function that the DA isn't exercising, right? And so, you know, the sort of friction that develops between local district attorneys or local executives and then more centralized entities that feel like, you know, they have a superior

claim to the exercise of discretion over whether to enforce criminal penalties is going to be a fight that we see play out over a bunch of other contexts. And this feels like kind of like a warning shot or a preview of what that's going to look like in some ways. While I have you, and you are a fellow habeas arcana aficionado and post-conviction expert, I did want to ask, between Brown versus Davenport, which we haven't had a ton of time to talk about on the show, and Shin versus Ramirez, which we have, if you had to pick a worst, worst habeas case, which one would you pick and why? No doubt Shin. So Brown versus Davenport is like this

itty-bitty question that I think felt more important 25 years ago than it is now. And it's basically like, you know, you've got a harmless error inquiry. Do you use the strict harmless error inquiry or do you use a less strict harmless error inquiry and then like amplify it through EDPA, which like it's an esoteric question, right? Yeah. But then it's loaded with all of this stuff that signals really clearly that Justice Gorsuch is hunting bigger game. And Justice Kagan calls him out for it. And he has this sort of like discredited history about how habeas was only for jurisdictional errors and convictions before brown v allen and then felix frankfurter reinvented habeas and like here we are right and it's it's it's the opening shot and attempt to reset the steady state of what habeas is about and like that really sets me off when people give that historical account that has like been debunked over and over again. But, but I'm not going to say that Shin versus Ramirez is like the worst decision ever,

but it's like the gaslightingest decision ever. In Martinez v. Ryan, the Supreme Court basically says, well, you know, if you forfeited a claim that you didn't have a good trial lawyer, and the reason you forfeited that claim was because the next lawyer we gave you was no good, then we're going to hear that claim on the merits. We're going to – and you're going to need to develop evidence to do that because the evidence that your crappy lawyer harmed you is evidence that sits outside the trial record. Because by definition, the form that the harm takes is they didn't develop a record. It's literally like the definition of those claims, right? So Shin comes up, and the court says, well, when we said that the federal court would be able to decide those claims on the merits, we never thought that they would take evidence to do that. Which is just like such a facially absurd thing to say. Now, I get it.

So it is facially absurd, except or unless you look at their death penalty cases and you realize that the Supreme Court is in the habit of deciding legal issues and claims without considering evidence or the record at all. Fair, fair. Another explanation, right, is they have a fixed amount of reversing stuff capital,th Amendment right to effective assistance of counsel. Instead, they style it as like, oh, you can still have a forum to enforce, you just can't introduce evidence at the enforcement moment, which is again, like absurd, but like maybe they just didn't want to say, oh, we're overturning Martinez because their husband in capital. I mean, they're basically doing to Martinez or doing to the Sixth Amendment, like the final fight scene in Gladiator, where Russell Crowe is like stabbed several times and then like made to fight with those stab wounds. And that's not how we

think about litigation and like how it should work. You know, ideally, you should be able to actually support your claims with evidence, But that did not seem to be. I definitely feel like Russell Crowe these days, you know, I'm doing a lot of shin trainings and shin panels now. And it's like, what do we do next? There are some ways around potentially that I'm starting to see that give me a glimmer of hope until the next case gets to the Supreme Court. Okay, well, on that note, maybe anyone who is doing federal habeas litigation knows who to email and talk to as they are trying to make their way around Shin. One last question while we're sounding an optimistic note, you know, for those people who might want to go

into death penalty litigation or capital work, you know, any words of advice or, you know, for those people who might want to go into death penalty litigation or capital work, you know, any words of advice or, you know, encouragement you can offer to them. What I always tell my students is that death penalty litigation is like three tragedies. The first is obviously the death of the victim. The second is almost invariably the tragedies that unfold in terms of when you learn about the death sentence prisoner's life, which is almost always like excruciating at an early age. And then, of course, the last tragedy is the execution. And it's a very grueling process. And something that I really struggled with when I was younger was just like going to sleep. I mean that like, I would always tell myself the opportunity cost of me like eating dinner or going to sleep or having a beer or whatever was like the X number of hours

I could instead spend on this case. And I was like constantly telling myself like, okay, you can never ever stop. And I just like, wasn't going to make it that way. Especially as you get older and you have families, like you have to find a balance and you have to, I mean, you have to learn how to lose because you're going to lose early and often. And the other piece of advice I'd give is we have this romanticized idea about what federal habeas is in the 1960s, 70s, 80s, even 90s. It was the site of a lot of legal victory. But that's not true anymore. Federal habeas is basically dead. And so if you want to work on behalf of death sentence prisoners, we all need to get serious about remedies in state court. At trial, we need to be serious about indigent defense, and we need to start funneling resources into state post-conviction proceedings because that's where the meaningful remedies sit.

Hear, hear to state courts. This has been also a somewhat recurring theme on this podcast. So thank you so much, Lee, for making time to discuss your article and post-conviction litigation with our listeners. It's greatly appreciated. Thank you so much for having me. Before we go, I wanted to give you a heads up about another great Crooked Media podcast, America Dissected.

50 years ago this week, it was discovered that the United States government conducted the Tuskegee experiment that involved infecting hundreds of black men with syphilis in order to better understand long-term effects of the disease. This week on America Dissected, Dr. Abdul Al-Sayed is joined by Dr. Ruben Warren, Director of the National Center for Bioethics and Research and Healthcare at Tuskegee University. Together, they discuss the study's long-lasting implications on health inequities.

You can listen to new episodes of America Dissected every Tuesday, wherever you get your podcasts. and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell, audio engineering by Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, digital support from Amelia Montooth, and summer intern support from Anushka Chander.