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Thursday, February 2, 2023
Groundhog Day All Over Again .... REPUBLICANS HAVEN'T CHANGED
As Republicans desperately try to escape blame for the government shutdown they forced on America, even fellow conservatives realize that this completely unnecessary crisis was imposed on Congress by an intransigent group of Tea Partiers that have taken over the House GOP. Just like 1995, the GOP will not escape public blame for the shutdown.
Marc Ash | Saving the Next Tyre Nichols
02 February 23
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What would prevent such barbarism under color of law going forward? The short answer is that there is no quick fix. Progress is a process and determination over time is the key. Things that will help:
Police Body Cameras
The police officers who attacked Tyre Nichols were remarkably Brazen in their actions, apparently believing that their status as Scorpion Unit members somehow shielded them from oversight. One thing that might give them reason to believe that would be prior experience. A dead giveaway that they had used some of those tactics before was the practiced and coordinated manner in which they acted. For them it was routine. Their disregard for the fact that their actions were being recorded would seem to indicate that they had a reasonable degree of confidence that their actions were authorized. The body cameras along with a critically important street surveillance camera however ultimately proved their undoing.
Many have argued that the body cameras did nothing to save Tyre Nichols. That’s true but shortsighted. While the video images of Tyre Nichols murder cannot bring him back the criminal proceedings those images have launched send a clear signal to other officers, “crime demands punishment.” It creates a much greater incentive not just for the officers themselves but for the departments that empower them to find a lawful way to keep the peace.
While police body cameras are seeing far greater use they are far from universal. The recent death of a protester near Atlanta protesting the new proposed sprawling police training facility dubbed, “Cop City” by protesters clearly underscores the legal complications that can arise when force is used by police and the events are not recorded.
What is clear is that protester, Manuel Esteban Paez Terán was shot and killed by police. The circumstances under which the shooting occurred are in dispute. There were no police body cameras. The only record therefore are the statements of the shooters, the police themselves. While there is a tendency to want to trust the word of police officers the recent events in Memphis are a stark reminder that they often have a strong incentive to modify their version of events to shield themselves from legal exposure.
The first American police department to use body cameras was Rialto, California. The results were stunning, “The department saw an 88 percent decline in complaints against officers and use-of-force incidents plumetted 60 percent.” The impact police body cameras on public safety is stark. Increasing their use and making the images available to the public in a routine and transparent manner is cornerstone to police reform.
Federal Prosecution
One of the biggest obstacles to prosecuting police officers, under any circumstances is the reluctance state and local officials to file charges, even when the evidence clearly justifies doing so. While video evidence is certainly forcing the hand of local prosecutors in some high profile cases the reticence and its deep-seated origins remain a stubborn limitation.
Federal prosecution, typically under civil rights statutes is often the only way to pursue justice. While federal prosecution can be an effective remedy it is also susceptible to political influence. With each new presidential administration comes new leadership at the Department of Justice and often a whole new perspective on civil rights enforcement. In totality however the DoJ has historically been slow and reluctant to overstep local authority. Often taking the far safer route of acting only after state’s prosecutors have filed charges.
Robust dependable federal prosecution when clear evidence exists and local charges are not forthcoming would also have a dramatic impact on police reform and public safety.
Abolishing Lethal Force as a Remedy to Flight
It would be impossible to accurately estimate how many people have been killed by police in America for literally doing nothing more than running away from them. That is what made the police in the Memphis incident so angry, why they beat Tyre Nichols so savagely he ran from them and that act produced a in them a level of rage they could not control, a homicidal rage.
There is no law anywhere in the United States that authorizes police to use deadly force a a remedy to flight. Still it is one of the most dangerous decisions a person can make when confronted by law enforcement. Tyre Nichols, Daunte Wright, Walter Scott, Jessica Hernandez, Jayland Walker the list goes on and on and on. It is an essential component of a vast majority of police use of lethal force cases.
What if Tyre Nichols or George Floyd had just walked away? To American police the idea of someone they define as a suspect simply walking away is anathema, it runs contrary to all of their training and often their personal beliefs. But what if Tyre Nichols had in fact been allowed to walk or run away? Would he, the police officers involved in his death and the entire city of Memphis be in a better or worse place today?
The police knew who he was just as well as the police know or might easily know who most of the people they are in contact with are. If deescalation actually matters to police departments then making decisions to allow individuals who appear to be panicking to simply depart. It is not the end of the world, police in many other countries routinely make the decision to do so all the time and essentially knowing the identity of the individual makes locating them later a fairly simple matter.
Nothing short of weapon wielding escalates a police encounter more predictably or dangerously than an attempt to flee. Deescalation needs to contemplate flight as a manageable occurrence rather than a life and death process.
Progress on police reform is absolutely being made but a lot more work needs to be done. Let’s do it for Tyre Nichols, Daunte Wright, Walter Scott, Jessica Hernandez, Jayland Walker, so many more and those still to come.
Marc Ash is the founder and former Executive Director of Truthout, and is now founder and Editor of Reader Supported News.
Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.
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Ukrainian servicemen stand on their tanks near the frontline town of Bakhmut, amid Russia's attack on Ukraine, in Donetsk region, Ukraine, Jan. 13, 2023. (photo: Vladyslav Smilianets/Reuters)
ALSO SEE: Russian Troop Buildup May Signal New Assault, Ukraine Says
Ukraine’s allies have pledged longer-range weapons and rushed to deliver tanks and armoured vehicles as Moscow intensifies its campaign in the east.
Ukraine faced intensifying battles in the east where Russian regular troops were injecting new vigour into fronts held by mercenaries from the Wagner Group, mounting new offensives and incrementally gaining ground.
The hammer has fallen hardest in the eastern city of Bakhmut, where Ukrainian unit commander Denys Yarolavskyi said “super qualified” Russian troops were pouring in during the week. Those included elite airborne troops that reportedly made marginal gains in Bakhmut on January 29 and 30.
In a single 24-hour period, Ukraine’s eastern forces spokesman Serhiy Cherevaty said on January 31 that 42 battles had taken place within 15km (9 miles) of Bakhmut in the region of Donetsk.
Russian troops launched a new battle against Vuhledar, a town 30km (19 miles) southwest of the occupied Donetsk city on January 27. Ukrainian defenders repulsed them but geolocated footage suggested they captured the village of Mykilske on the southeastern outskirts of Vuhledar.
Russian forces also conducted a reconnaissance-in-force in the neighbouring Luhansk region on January 27, breaking through Ukrainian defences near the village of Ternova.
Further north, they stepped up cross-border artillery attacks. The Ukrainian state border service said 60 explosions were heard in the Sumy and Chernihiv regions on January 26, far from the battlefront. The explosions were 120mm shells being fired from Russian territory.
And Russia continued its blitz, launching 55 air and sea-based cruise missiles and 24 Iranian drones into Ukraine on January 26. Ukraine’s air defences shot down 47 of the missiles and all 24 drones.
The surviving missiles caused no casualties but the next day, three people were killed and 14 wounded when Russian S-300 missiles struck the town of Kostyantynivka in the Donetsk region.
Weapons pledges come in
After the attack on Kostyantynivka, Ukrainian President Volodymyr Zelenskyy renewed his call for longer-range weapons.
“Ukraine needs long-range missiles, in particular, in order to remove this possibility of the occupier to place its missile launchers somewhere far from the front line and destroy Ukrainian cities with them,” Zelenskyy said.
As if in response, two United States defence officials told the Reuters news agency a forthcoming $2bn package of military aid could include some of the longer-range weapons Ukraine has been asking for.
The Ground-Launched Small Diameter Bomb (GLSDB) has a range of 150km (93 miles), double that of the high mobility artillery rocket systems (HIMARS) the US provided last June. The bombs would put all of the occupied and partly occupied Donetsk, Luhansk, Zaporizhia and Kherson regions within range of Ukrainian forces.
That is important because Russia has been learning from its mistakes and was placing ammunition depots 80-120km (50-75 miles) from the front line in the Russian region of Rostov, out of range of HIMARS rocket artillery, said Ukraine’s deputy military intelligence chief Vadym Skibitskyi.
“If you ask what’s critical for the Russian Federation, the centres of gravity are these very hubs and they need to be struck in order to disrupt the supply systems of all kinds,” Skibitskyi said.
Longer-range weapons would also help Ukraine soften Russian defence positions ahead of a counteroffensive, Skibitskyi said.
Battle tanks
Ukrainian air force spokesman Yuriy Ignat said Ukraine was to be supplied with the French-Italian Aster 30 surface-to-air missile, which also has a range of up to 150km (93 miles), in what may have been a coordinated decision with that of supplying the GLSDB.
The US has still not approved giving Ukraine the 300km (186-mile) range Army Tactical Missile Systems (ATACMS) rocket it wants.
Polish Prime Minister Mateusz Morawiecki on January 27 said Poland would give Ukraine 60 modern tanks, including a company of Leopard 2 tanks.
That brought to 119 the number of Western battle tanks allies have now pledged, including 14 Leopard 2s from Germany, 14 Challenger 2 tanks from the United Kingdom, and 31 Abrams M1 tanks from the US.
That is still far short of the 300 battle tanks Ukraine has said it needs to take back all of its occupied territories, and they may not all arrive quickly.
Valuable time – and lives – lost
Analysts have suspected for some time that Russian President Vladimir Putin is planning a significant counteroffensive and evidence of that mounted in the 49th week of the war.
Bloomberg quoted Kremlin sources as saying Putin was planning a late winter offensive to take back the initiative.
“Putin remains convinced that Russia’s larger forces and willingness to accept casualties … will allow it to prevail despite the failings so far. The renewed offensive may start as soon as February or March, the people close to the Kremlin said,” Bloomberg wrote.
Germany’s company of Leopard 2 tanks and the UK’s company of Challenger 2 tanks are scheduled to arrive in Ukraine at the end of March, while US Pentagon spokesperson Sabrina Singh said the Abrams tanks would “take months rather than weeks”.
A Russian offensive in the next two months could catch Ukrainian forces unequipped, which has led to harsh criticism of Western indecision.
The Royal United Services Institute’s ground war expert, Jack Watling, said Germany’s insistence on the US pledging Abrams tanks before it pledged Leopards lost valuable time and complicated Ukraine’s defence.
“Thanks to the obstructionism and incompetence of the German government, Ukraine has ended up with the worst of the positive outcomes available. Rather than receiving a large number of a single type of tank they are receiving three different NATO-designed tanks, all in limited numbers and each with separate, complex maintenance requirements. This will delay getting these tanks to the front lines,” Watling wrote.
Russia is using its attacks in the Donbas to draw Ukrainian soldiers into an attritional fight and hobble their ability to man a counteroffensive in the spring, Watling said.
The Institute for the Study of War (ISW) said Ukraine’s counteroffensives have depended on Western weapons deliveries and delays have weakened its defences.
“If allies had started transitioning Ukraine to Western battle tanks, aircraft and armoured vehicles in early summer 2022, the Russians would never have had the chance to regain the initiative, as they are now attempting to do,” said ISW.
If Ukraine is unequipped to launch a winter offensive, the muddy spring weather may force it to wait until early summer to do so, allowing Russia to make even more incremental territorial gains, the ISW said.
It appears the urgency of the situation has begun to sink in. The US Transportation Command said 60 Bradley Fighting Vehicles promised last month had already been shipped to Ukraine and posted photographs on social media showing them being loaded in Charleston, South Carolina in the US.
Allies also began to address the long-term nature of the war facing Ukraine, given Putin’s apparent intention of doubling down.
Ukraine’s general staff said France and Australia were embarking on a collaboration to produce 155mm shells for its artillery.
Ukraine’s foreign ministry said German defence manufacturer Rheinmetall was prepared to step up production of tanks and artillery to meet Ukrainian demand.
The US is increasing artillery shell production sixfold – a level not seen since the Korean War – to replenish stocks sent to Ukraine, supply Ukraine with more and build up stocks for future conflicts. According to a New York Times report, the US Army was buying 14,400 shells a month until September 2022, when it tripled that, and in January 2023 doubled it again to 90,000.
But some Ukraine allies are still drawing the line at air power. Austria and Hungary last week joined the US and Germany in refusing to pledge F-16 fighter jets.
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The City of Memphis has made an exhibition of the footage of Tyre Nichols’s brutal beating by police officers, calculatedly situating the city and its police as the conduits to truth. (photo: Cheney Orr)
ALSO SEE: Impassioned Calls for Police Reform at Tyre Nichols' Funeral
By appropriating citizen-made mechanisms for monitoring violence, the police have spun failed reform into a myth of incremental accountability.
The creation of this atmosphere, one of anticipatory dread, speaks to the years that have passed since the uprisings following George Floyd’s murder. Before the footage was released, schoolchildren in Memphis were sent home early. Officers in the city and in other metropolitan areas around the country prepared for protests. Nichols’s family gave interviews encouraging a peaceful and polite response from the public. The five officers who killed Nichols, all of whom are young Black men, were fired and indicted on charges including second-degree murder and aggravated assault, before the video’s release—an attempt to invest the document with the energy of justice.
The City of Memphis has made an exhibition of the footage, entering the video, and the idea of the video, into a lineage of truth-telling documentary, situating the city and its police as the conduits to truth. In the interview with Lemon, Davis did some media analysis, comparing the Memphis footage to that of the 1991 recording of L.A.P.D. officers beating Rodney King—a recording that was taken by a bystander. In 2023, Davis, a representative of the state, is urging the witnessing of a cultural object that her own team has so violently made.
What is the unvarnished truth, the information, supposedly transmitted? In the footage, which was published on Vimeo, on Friday evening, in four different installments, officers descend on Nichols, under the pretense of a traffic stop. They punch him. They beat him with a baton. Nichols attempts to flee. They spray him with pepper spray. They issue contradictory commands, more than seventy. Nichols flees. Nichols is found, and beaten again, until he slumps next to a vehicle, unmoving. All this: data, irrefutable.
There is other information conveyed, and it is moldable. The police-brutality video, its ability to shock and to outrage, to center the ethical viewer’s reaction, can supplant the brutality itself. The police apparatus is a storytelling apparatus—a resourceful one. And the killing of Tyre Nichols produced an opportunity for a story. The videos’ carefully choreographed release and the rhetoric used by public officials demonstrate how thoroughly the carceral state has appropriated liberal critiques of police violence. The story that they’ve told imbues instruments of surveillance—the footage, which has been edited and redacted, was drawn from body cameras and from a SkyCop feed, a street camera designed to deter crime—with the aesthetics of sousveillance, of “watching from below.” The story stresses the evidentiary function of police-generated body-camera footage; in the courts, video is never neutral, and what it captures can be interpreted to justify excessive force. The M.P.D.’s story also permits the department to disavow certain officers, to make a spectacle of their Blackness so as to distance their actions from the project of policing. The story seeks to spin a failure of reformism into a myth of incremental accountability—a myth that the police are interested in policing themselves. It’s a myth that strengthens our necropolitics: the death of Tyre Nichols as a kind of sacrifice, in the name of a far-off but attainable improvement.
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Kyle Rittenhouse appears in court as he is found not guilty on all counts on Nov. 19, 2021, at the Kenosha County Courthouse in Kenosha, Wis. (photo: Sean Krajacic/AP)
The father of Anthony Huber, one of two men shot and killed by Rittenhouse, filed the lawsuit in 2021, accusing officers of allowing for a dangerous situation that violated his son's constitutional rights and resulted in his death. Anthony Huber's father, John Huber, also alleged that Rittenhouse, who was 17 at the time of the shootings, conspired with law enforcement to cause harm to protestors. John Huber is seeking unspecified damages from city officials, officers and Rittenhouse.
U.S. District Judge Lynn Adelman on Wednesday dismissed motions filed by Rittenhouse and the government defendants seeking to dismiss the civil rights lawsuit.
In allowing the case against Rittenhouse and the others to proceed, the judge said that Anthony Huber's death "could plausibly be regarded as having been proximately caused by the actions of the governmental defendants."
Rittenhouse attorney Shane Martin said in a phone interview that it's important to note the ruling doesn't address the merits of the case, it only allows it to proceed to the next phase.
"While we respect the judge's decision, we do not believe there is any evidence of a conspiracy and we are confident, just as a Kenosha jury found, Kyle's actions that evening were not wrongful and were undertaken in self defense," Martin said.
Attorneys and private investigators for John Huber spent over 100 hours trying to locate Rittenhouse, tracking down addresses in seven states before they found the home of his mother and sister in Florida. The lawsuit was served on Rittenhouse's sister, who said that he wasn't home. Adelman said that was sufficient to qualify as being served.
Rittenhouse had argued that the case against him should be dismissed because he wasn't properly served with the lawsuit. Adelman dismissed that, saying that Rittenhouse "is almost certainly evading service."
"Rittenhouse has been deliberately cagey about his whereabouts," Adelman wrote. "Although he denies living in Florida, he does not identify the place that he deems to be his residence."
Attorneys for the law enforcement and government officials being sued did not immediately return emailed messages seeking comment.
The ruling puts Anthony Huber's family "one step closer to justice for their son's needless death," said Anand Swaminathan, one of the attorneys for parents John Huber and Karen Bloom.
"The Kenosha officials that created a powder keg situation by their actions tried to claim that they cannot be held accountable for their unconstitutional conduct; that argument was soundly rejected today," Swaminathan said in a statement.
Rittenhouse was charged with homicide, attempted homicide and reckless endangering for killing Anthony Huber and Joseph Rosenbaum and wounding a third person with an AR-style semi-automatic rifle in the summer of 2020 during a tumultuous night of protests over the shooting of a Black man, Jacob Blake, by a white Kenosha police officer.
Rittenhouse was acquitted of all charges in November 2021 after testifying he acted in self-defense. Rittenhouse's actions became a flashpoint in the debate over guns, vigilantism and racial injustice in the U.S.
Rittenhouse went to Kenosha from his home in nearby Antioch, Illinois, after businesses were ransacked and burned in the nights that followed Blake's shooting. He joined other armed civilians on the streets, carrying a weapon authorities said was illegally purchased for him because he was underage.
Rittenhouse first killed Rosenbaum, 36, in the parking lot of an auto dealership and as Rittenhouse ran from the scene he stumbled and fell. Anthony Huber, 26, struck Rittenhouse with his skateboard and tried to disarm him.
Rittenhouse fell to the ground and shot Anthony Huber to death and wounded demonstrator Gaige Grosskreutz, 27.
This case is one of several ongoing civil lawsuits filed in the wake of the shootings. Grosskreutz last year filed a similar lawsuit against Rittenhouse.
Rittenhouse has maintained a high public profile, particularly on social media, where he is an outspoken advocate for gun rights. He has nearly 1 million followers on Twitter and has spoken at conservative gatherings.
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Florida Gov. Ron DeSantis speaks at a press conference in 2018. (photo: Paul Hennessy/Getty)
The longtime opponent of free speech adds the Sixth and Eighth Amendments to the list of constitutional rights he wants to abridge.
The first, which he suggested during an appearance before the Florida Sheriffs Association, was to allow juries to sentence someone to die even if the jury vote is not unanimous. “Fine, have a supermajority,” DeSantis said, adding that executions should be permitted if “maybe eight out of 12 or something” of a jury’s members vote for the death penalty.
The Supreme Court held in Ramos v. Louisiana (2020) that a jury must vote unanimously in order to convict someone of a “serious offense.” Meanwhile, the Court held in Hurst v. Florida (2016) that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Read together, the cases leave little doubt that a jury’s decision to sentence someone to die must also be unanimous. (There is always some risk that the Court’s current majority will refuse to follow Ramos or Hurst, but neither of these cases divided the Court along ideological lines when they were decided.)
A few days after offering this first half-baked proposal, DeSantis spoke at the Miami Police Benevolent Association hall, where he not only reiterated that idea, but also laid out a broader agenda on crime that included expanding the death penalty to offenders who rape children. The Supreme Court explicitly rejected this expansion of the death penalty in Kennedy v. Louisiana (2008). Among other things, Kennedy warned that, if sexual assault of a child carried the same penalty as murder, that would endanger children because “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.”
DeSantis is widely expected to seek the Republican Party’s presidential nomination in 2024, so this latter proposal may be an attempt to appeal to voters who believe in a QAnon conspiracy theory, which falsely claims that prominent liberals and Democrats are part of a vast ring of pedophiles.
While DeSantis’s two proposals are just ideas right now, he has been effective in moving his ideas through Florida’s GOP-controlled legislature. And he is a prominent voice in the Republican Party trying to convince the Court’s current 6-3 Republican supermajority to roll back limitations on the government’s power to impose cruel and unusual punishments.
Indeed, DeSantis isn’t really trying to hide this goal. Referring to the Kennedy decision that explicitly forbids his proposed expansion of the death penalty to a non-homicide crime, DeSantis said that “we do not believe the Supreme Court, in its current iteration, would uphold it.”
Should DeSantis’s plans to expand the death penalty succeed, the immediate consequences might only be felt in a handful of states. When Kennedy was decided in 2008, for example, only six states had laws on the books authorizing the death penalty for some sexual crimes that did not take a life. And only one state, Louisiana, actually had non-homicide offenders on its death row.
But the long-term implications of a decision overruling Kennedy could be profound. Kennedy held that nearly all people convicted of non-homicide crimes may not be sentenced to die. If the Supreme Court lifts this ban, that could permit a cascade of new state laws permitting executions for all sorts of offenses that do not involve murder.
And, while the non-unanimous jury idea would probably be too far for even this Court, DeSantis is not wrong to think that the Court’s current GOP-appointed majority may be willing to toss out whole swaths of cases limiting the government’s ability to impose excessive punishments on offenders. Fairly recently, in Bucklew v. Precythe (2019), a majority of the justices suggested that the legal framework the Court has used since the middle of the 20th century to decide which punishments are unconstitutional should be scrapped.
The Court, in other words, might be willing to give the government far more freedom to impose cruel and unusual punishments on offenders. And DeSantis is actively egging that possibility along.
Current law almost certainly requires a unanimous jury to impose a death sentence
In fairness, DeSantis’s proposal to allow a mere “supermajority” of a jury to impose death sentences may be too extreme even for this Supreme Court. Although the Court has never said explicitly that death sentences can only be imposed by a unanimous jury, it’s come pretty darn close. It’s done so, moreover, in two decisions that did not divide the Court along partisan lines.
Hurst was an 8-1 decision (only Justice Samuel Alito dissented). Ramos was authored by Justice Neil Gorsuch, a Trump appointee.
Before Hurst, Florida law empowered a judge to sentence capital defendants to die — the jury would recommend a sentence, but this recommendation neither had to be unanimous nor was it binding on the trial judge. Hurst held that this scheme violated a longstanding role providing that juries, and not judges, must “find each fact necessary to impose a sentence of death.”
Ramos, meanwhile, held that Louisiana and Oregon — the only states that permitted felony defendants to be convicted by non-unanimous juries — were in violation of the Sixth Amendment right to trial “by an impartial jury.” In so holding, Ramos spoke in sweeping terms about the need for unanimity from juries. “If the term ‘trial by an impartial jury’ carried any meaning at all,” the Court explained, “it surely included a requirement as long and widely accepted as unanimity.”
Read together, Hurst and Ramos should require a unanimous jury verdict to impose a death sentence. Hurst established that the decision to impose a death sentence must be made by a jury. And Ramos established that a unanimity requirement is implicit in the Constitution’s reference to a “trial by impartial jury.”
Florida’s laws have changed since Hurst, so DeSantis would need to pass a new law to permit non-unanimous juries to sentence individuals to die. And, of course, this new law would have to survive federal judicial scrutiny under Hurst and Ramos.
There is absolutely no doubt that the Constitution prohibits the death penalty for non-homicide crimes against individuals — for now
DeSantis’s proposal to expand the death penalty to some child sex offenders is a direct attack on Kennedy. The explicit holding of Kennedy is that “the Eighth Amendment prohibits the death penalty” for “the rape of a child where the crime did not result, and was not intended to result, in death of the victim.”
More broadly, Kennedy explained that death is only an appropriate sentence for a very short list of crimes. As a general rule, it held that “the death penalty should not be expanded to instances where the victim’s life was not taken” — although Kennedy also left open the possibility that death sentences could be imposed for “offenses against the State,” such as treason or terrorism.
In reaching this decision, Kennedy applied the same framework that the Court has used to determine which punishments are “cruel and unusual,” and thus violate the Eighth Amendment, for many decades. As Chief Justice Earl Warren wrote in Trop v. Dulles (1958), the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
This standard flows from the text of the Eighth Amendment itself, which says that “unusual” punishments are suspect. Thus, as a specific form of punishment becomes more and more uncommon, it stands on increasingly weak constitutional footing.
By the time the Kennedy case reached the Supreme Court, statutes permitting the death penalty for non-homicide offenses — even horrific offenses like child rape — were quite rare. Only six states permitted the death penalty for this offense when Kennedy was decided, and most of these statutes were defunct. No one in the United States has been executed for rape since 1964. And, at the time of the Kennedy decision, there were only two individuals on death row anywhere in the United States for a non-homicide offense. Both of these individuals were in Louisiana.
Accordingly, the Court concluded that “the evolving standards of decency that mark the progress of a maturing society” did not permit executions for non-homicide offenses. Absent a crime that threatens the nation itself, Kennedy held that the criminal justice system may only take a life to avenge the loss of another life.
In Bucklew, however, the Court handed down a very odd decision that seemed to suggest that Trop’s “evolving standards of decency” standard may be on its way out. Gorsuch’s majority opinion in Bucklew made no mention of Trop — a very unusual omission, because Trop is the seminal Eighth Amendment opinion that laid out the modern rule governing cases brought under that amendment — and it applied a novel rule that is inconsistent with Trop.
Bucklew suggests that, when determining whether a method of punishment is “cruel and unusual,” a court must ask whether “by the time of the founding, these methods had long fallen out of use and so had become ‘unusual.’” Thus, while Trop asked whether a particular punishment is unusual today, Bucklew asked whether it was unusual in the 1780s.
It’s hard to know what to make of this disparity. Again, the majority opinion in Bucklew did not explicitly overrule the long line of cases applying the Trop rule; it did not mention Trop at all. Since Bucklew, moreover, the Court favorably cited Trop’s “evolving standards of decency” test in United States v. Briggs (2020) — though it discussed Trop only in passing and without explaining when lower courts should apply Trop and when they should apply Bucklew.
At the very least, however, Bucklew indicates that there is a strong contingent on the Court that wants to remake the Court’s approach to the Eighth Amendment, and to literally turn back the clock on which punishments are considered “cruel and unusual” by more than 230 years.
And, if Bucklew does eventually displace Trop, Kennedy is just one of many decisions that could fall.
Kennedy is one of many narrowly decided cases that imposed limits on the death penalty
The most ominous thing about DeSantis’s proposal to apply the death penalty to a non-homicide crime is that he knows full well that his state may not do this under Kennedy, but he’s decided to move forward anyway due to his belief that this Supreme Court will not respect its previous precedent.
He has good reason to suspect that.
For many years, Justice Anthony Kennedy (no relation to the party in Kennedy v. Louisiana) was the Court’s most important vote in death penalty cases. Kennedy typically voted with the Court’s conservative bloc in cases challenging the methods states may use to kill capital offenders. But he frequently voted with the Court’s liberal bloc in cases arguing that certain offenders may not constitutionally be executed.
Thus, Kennedy didn’t just write the Court’s opinion holding that non-homicide offenders are normally immune from the death penalty. He joined the Court’s decisions in Atkins v. Virginia (2002), which held that intellectually disabled offenders may not be executed; in Roper v. Simmons (2005), which held that juvenile offenders may not be sentenced to die; and in Panetti v. Quarterman (2007), which shielded death row inmates whose mental illness prevents them from understanding why they are being executed from being killed.
But Kennedy is no longer on the Court, and he was replaced by Justice Brett Kavanaugh, a hardline conservative who joined the Court’s opinion in Bucklew. Meanwhile, liberal Justice Ruth Bader Ginsburg died, and was replaced by conservative Justice Amy Coney Barrett (although, in fairness, Barrett does occasionally break with her fellow Republican appointees in death penalty cases).
There is good reason to believe, in other words, that the Court no longer has the votes to sustain not just the Kennedy decision, but a whole line of decisions limiting the government’s power to kill certain offenders.
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Lebanese college students raise placards during a demonstration in the Lebanese city of Nabatiyeh against the execution of prominent Shia Muslim cleric Nimr al-Nimr by Saudi authorities, on 13 January 2016 (photo: AFP)
Rights group Reprieve denounces failure of kingdom's allies to challenge mass executions after data reveals colossal increase in death penalty use
According to data studied by legal charity Reprieve and the European Saudi Organisation for Human Rights (ESOHR), from 2010-2014 there was an average of 70.8 executions per year carried out in the kingdom.
From 2015 - the year the crown prince became the de facto ruler of the kingdom under his father King Salman - until 2022, there was an average of 129.5 executions per year, a rise of 82 percent.
The organisation noted the deep secrecy the kingdom maintained around its judicial process and the use of the death penalty, pointing out that of the 81 men killed in a mass execution on 12 March 2022 - the third such set of killings to take place under Mohammed bin Salman - only 12 death sentences were documented by ESOHR.
"The remaining 69 men were tried, convicted, sentenced, and executed in complete secrecy," they said in a statement, adding that any figures on the number of executions could be a major underestimation.
They said at least 15 child defendants had been executed since 2013; 11 of them were executed after Mohammed bin Salman came to power.
The report also said the country had "disproportionately" used the death penalty against non-Saudis, with almost three-quarters of all women executed from 2010-2021 being foreign nationals - of which at least 56 percent were domestic workers.
Maya Foa, executive director at Reprieve, told Middle East Eye that the failure of Saudi Arabia's allies to challenge the kingdom over the executions had effectively given them the green light for mass killings.
"The UK Government should publicly condemn the execution of people whose only crime was to stand up for their democratic rights, in the strongest possible terms. Failure to do so projects diplomatic weakness – it also makes the next mass execution more likely," she said.
"It is no coincidence that execution levels in Saudi Arabia spiked again in a year in which Mohammed bin Salman was feted by Joe Biden, Boris Johnson and Emmanuel Macron, among others. When Saudi Arabia’s international partners signal that they will turn a blind eye, the regime understands that it can sentence children and pro-democracy protesters to death with impunity.”
The report comes as London's High Court was set on Tuesday to examine the legality of the UK government decision's to renew arms sales to Saudi Arabia.
The case was brought by the UK-based organisation, Campaign Against Arms Trade (CAAT). They accuse the government of turning a blind eye to Saudi rights abuses and the impact of the kingdom's bombing campaign in Yemen, which has contributed to what the UN has called the world's worst humanitarian disaster.
According to Oxfam, the UK has licensed at least £7.9bn ($9.6bn) in arms to Saudi Arabia across 547 licences since 2015, including Tornado and Typhoon aircraft and bombs.
CAAT says the true value of arms sales could be more than £23bn (around $28bn) when additional "open licensees" are taken into account.
A previous court challenge by CAAT in 2019 forced the UK government to suspend arms sales, but after an internal review, sales resumed in 2021 on the basis that the breaches of humanitarian law were “isolated incidents”.
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Oil pipelines stretch across the landscape outside Nuiqsut, Alaska, where ConocoPhillips operates the Alpine Field, in 2019. (photo: Bonnie Jo Mount/The Washington Post)
Environmental assessment says ConocoPhillips’s Willow can go forward on Alaska’s North Slope, but recommends smaller footprint for project
On Wednesday, his administration recommended permitting the largest upcoming oil development in the country — on federal land in Alaska.
The president is embroiled in a two-decade-long fight over an Arctic petroleum reserve, where the oil giant ConocoPhillips owns leases it bought from the government long before Biden was president. On Wednesday, a required environmental review said the project could best go forward with protections for birds, caribou and other wildlife by shrinking the project to three well pads from the originally proposed five.
It sets the stage for a final decision due next month and pushes one of Biden’s core pledges on conservation and climate change up against the limits of what the law allows. Although the administration has several times moved to slow or halt oil and gas development on federal lands, the ConocoPhillips project, known as Willow, shows the challenge that Biden confronts in fulfilling his promises.
“At the end of the day, every administration has to follow the law, even in some instances where they would prefer a different policy,” said David Bernhardt, an energy lawyer and former interior secretary in the Trump administration. “This is one example of the reality that there is an entire legal regime that provides for [oil and gas] leasing.”
At stake are resources in the federally owned National Petroleum Reserve-Alaska, the nation’s largest expanse of public land. There, ConocoPhillips plans to spend $8 billion to $10 billion, more than any other oil project on the table nationwide, according to consulting firm Wood Mackenzie. Willow is one of the most important projects to state leaders and several Native Alaskan groups, and it’s believed to be one of the surest oil reserves in the country.
The review released Wednesday, compiled by the Bureau of Land Management’s Alaska staff, estimated that the project could produce between 576 million and 614 million barrels of oil over 30 years. That would be enough for this one project alone to cover nationwide oil consumption for 30 days. And the company has previously said that its estimates are higher, as much as 3 billion.
The bureau, in a key development, identified a “preferred alternative,” a recommendation for the best proposal that can move forward. In this case, it is one with restrictions to shrink the project footprint to about 550 acres, nearly 12 percent smaller than ConocoPhillips’ original proposal. That would keep development out of a yellow-billed loon nesting site and caribou migration paths, the review said. It’s also in line with the minimum that company executives have publicly said that they need to make the project pencil out.
But reflecting the headaches this project poses to the administration, Interior Department officials emphasized Wednesday that no decision has yet been made and that they still have major concerns about the project’s environmental effects. In addition to hundreds of miles of roads and pipelines carving through often pristine wilderness, the review, known as a final supplemental environmental impact statement (SEIS), estimated that Willow would generate roughly 9.2 million metric tons of carbon dioxide a year.
“The preferred alternative is not a decision about whether to approve the Willow Project,” the Interior Department said in a separate news release. “The Department has substantial concerns about the Willow project and the preferred alternative as presented in the final SEIS.”
The Biden administration now has at least 30 days to mull a final decision. It will probably face intense pressure from environmentalists who want to kill it and oil advocates who say Willow would be a boost to domestic oil supplies and the state economy.
Under similar pressure as a candidate, Biden often sided with environmentalists. Campaigning in New Hampshire in 2020, he cited climate change as a reason to oppose drilling in the Arctic National Wildlife Refuge. He added: “And by the way, no more drilling on federal lands, period. Period, period, period.”
As president, he quickly moved to follow through on those promises from his first day in office. His administration briefly halted permitting for oil and gas drilling on federal land, canceled lease sales and delayed legally required new plans for oil and gas leasing plans in years to come.
But federal courts often overruled his decisions, forcing permitting and lease sales to go forward. Congress even intervened, with Sen. Joe Manchin III (D-W.Va.) pushing for provisions in last year’s climate and spending bill that mandated the Interior Department to sell leases.
For Willow, the leases ConocoPhillips controls date back to 1999 and the Clinton administration, and it operates two existing well sites in the same area. That legal standing gives the company formidable power in the permitting process and has made administration officials hesitant to try to simply block the company from drilling.
The company said Wednesday that it could work with the report’s recommended option, dubbed Alternative E, and mobilize this month to start construction as soon as the Interior Department makes its final decision.
“The three core drill sites in Alternative E … provide a viable path forward for development of our leasehold,” ConocoPhillips said in a news release.
“Willow will produce much-needed domestic energy while generating substantial public benefits,” added Erec Isaacson, president of the company’s Alaska arm.
Environmental groups are frustrated that the administration hasn’t worked more aggressively against Willow. And on Wednesday, they panned the Bureau of Land Management’s preferred alternative as insufficient. Environmental law firm Earthjustice, tallying the review’s own estimates, said Alternative E would cut the lifetime greenhouse gas emissions from the project by only 3 to 9 percent from ConocoPhillips’ initial proposal.
In just the past week, the administration has laid out a slew of conservation measures that were top asks among some of those groups. It moved to block logging and roads for more than half of Alaska’s Tongass National Forest; it banned mining for 20 years upstream of Minnesota’s Boundary Waters Canoe Area Wilderness; and it moved to block the Pebble Mine project to protect Alaska’s Bristol Bay watershed.
But that doesn’t go far enough, because climate change is such an urgent crisis, said Abigail Dillen, Earthjustice’s president, echoing the comments Wednesday from many other environmental groups. The administration has pledged to cut nationwide emissions in half by 2030 from 2005 levels, making it difficult to square how it could greenlight an oil project as large as Willow that will keep producing for more than 25 years, they said.
Earthjustice had sued to overturn a rush of lease sales that the Trump administration had approved, hoping that would help the Biden administration find legal ways to get out of approving permits tied to those leases. Instead, the Biden administration has approved more than 6,000 federal oil and gas permits and, because of a surge in its first year, has approved more in total over two years than the Trump administration approved during its first two years, according to Interior Department data tallied by two environmental groups.
“Protecting these critically important places does not solve the problem that the federal government can’t meet U.S. climate goals without winding down its oil and gas business,” Dillen said. “They could be wielding their power in a lot more plausible ways to slow down oil and gas leasing. But they don’t seem interested in that.”
Asked about Willow at a White House briefing Wednesday, press secretary Karine Jean-Pierre rejected criticism from environmentalists. She said that the president is committed to prioritizing his fight against climate change but acknowledged that he is working within limits.
“The president has done more than any other president on this front,” she said. “He continues to deliver on historic climate change action while carrying out the law and meeting our energy needs.”
The administration has kept some of its environmental ambitions in check while managing other crises. Shortfalls in commodity markets last year led administration officials to obsess over energy prices, even asking oil produces in the United States and abroad to pump more. And to ensure support for its agenda in a divided Congress, the administration has at times offered olive branches to moderates in Alaska’s delegation, Rep. Mary Peltola (D) and Sen. Lisa Murkowski (R).
Both are supporters of Willow, allying themselves with local Native American groups. Many of these groups are in line for a slice of the project’s revenue, although some in the nearest town, Nuiqsut, are concerned about the project’s effects.
Murkowski, along with other Alaskan leaders, said they plan to keep pushing for the administration to approve the preferred option from Wednesday’s review. ConocoPhillips has said it may abandon the project if the administration pursues further restrictions, such as limiting the area to two or fewer well pads — a decision Alaskan leaders want to avoid.
“I urge the administration to maintain a viable project by selecting Alternative E — without further limits or extraneous conditions,” Murkowski said in a statement. “Thousands of good union jobs — and immense benefits that will be felt across Alaska and the nation — will hang in the balance until a positive final decision.”
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