While we’re on the subject…

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In her Nevada Independent op-ed, “Nevada is preparing to execute a man with significant organic brain damage,” Dr. Natalie Novick Brown, a licensed clinical psychologist who evaluated Nevada death row prisoner Zane Floyd, states that Floyd was born with Fetal Alcohol Spectrum Disorder (FASD). The disorder is “similar in severity to intellectual disability … which has broad implications regarding his behavior, impulse control, and decision-making.” She points out that Floyd is “categorically ineligible for the death penalty” because of this intellectual disability. Floyd has appeals pending before the Nevada Supreme Court and the Ninth Circuit Court of Appeals.

In a New York Times essay, “An Inspiring Act of Racial Healing in Chattanooga,” Peter Canellos recounts the story of the lynching of Ed Johnson in Chattanooga, Tennessee, in 1906. Johnson was found guilty of the rape of a white woman in a sham trial and sentenced to death. After the US Supreme Court ordered a stay of execution, a mob abducted Johnson from the local jail and hanged and shot him. The murder so outraged Justice John Marshall Harlan, who had ordered the stay, he persuaded his fellow justices to sit as a trial court, something the court had never done before. Six defendants, including the sheriff, were found guilty of contempt and sentenced to jail. This month, 115 years later, a memorial to Johnson and his two Black lawyers will be unveiled at the site of the lynching.

In his SCOTUSblog article, “Abortion, the death penalty, and the shadow docket,” Lee Kovarsky analyzes the US Supreme Court’s recent use of the “so-called ‘shadow docket,’ where it hands down orders and summary decisions that did not receive full briefing and oral argument.” Kovarsky says the Court uses this system (more frequently lately) to “award emergency relief in politically charged cases.” He points to the Court’s reliance on the shadow docket in the execution spree the Trump administration engaged in last year when it executed 13 people in seven months. “Nobody can reasonably argue that the court’s federal-execution interventions sided with a party that would clearly prevail on the underlying claims, at least based on existing law,” he maintains.

In his review of Ethel Rosenberg: An American Tragedy in Los Angeles Lawyer, Stephen F. Rohde, a retired constitutional lawyer, and DPF board member describes the book as “gripping,” and says author Anne Sebba “lays her cards on the table at the very outset and proceeds to make a persuasive case: ‘Ethel Rosenberg was not, I believe, a spy. Nor was she a saint.’ Ethel and Julius Rosenberg were executed in 1953, accused of being Soviet spies, and convicted of conspiring to violate the Espionage Act of 1917. Rohde says they were the only Americans ever put to death in peacetime for conspiring to commit espionage.

While the US Supreme Court is the nation’s most powerful court, a Washington Post editorial maintains that the Fifth Circuit Court of Appeals “is staking out a claim to be the most dangerous.” Deputy Editorial Page Editor Ruth Marcus writes that the 5th Circuit, which covers Mississippi, Louisiana, and Texas, is the “least wedded to respecting precedent or following an orderly judicial process.” While Marcus cites abortion cases to bolster her argument, she could also have used death penalty decisions made by the Fifth Circuit (for example, Ayestas vs. Davis) that have also failed to respect precedent or followed an orderly judicial process.

In their Inquest article, “A Most Carceral Friend,” Darcy Covert and A.J. Wang look at the role of the Solicitor General of the US and how the person appointed to this position has historically been pro-prosecution, regardless of which president appointed them. President Biden has nominated acting Solicitor General Elizabeth Prelogar, who formerly clerked for US Supreme Court Justice Elena Kagan and former Supreme Court Justice Ruth Bader Ginsburg, for the permanent position. “If President Biden is serious about reform, he must first reckon with how the solicitor general of the United States, the federal government’s top appellate litigator, has historically been a pro-prosecution friend to the Supreme Court — and hope that the person he has chosen for the role, Elizabeth Prelogar, will depart from that practice,” they write.

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