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Monthly Archives: January 2014


Can gay jurors be excluded for being gay? Ninth Circuit says no

On Tuesday, the Ninth Circuit Court of Appeals took the unprecedented step of holding that potential jurors could not be excluded on the basis of sexual orientation. More specifically, if at trial one party makes a prima facie claim that its adversary has used peremptory challenges–which do not require the attorney to articulate cause for removal–to discriminate against gay or lesbian jurors, the striking party must set forth a nondiscriminatory justification for the removal. The Supreme Court has already held that the Fourteenth Amendment prohibits the use of peremptory challenges to strike jurors based on race (Batson v. Kentucky (1986)) or sex (J.E.B. v. Alabama (1994)), but it has not yet ruled on exclusions based on sexual orientation. That opportunity might be seized soon, thanks to a contrary ruling from the Eighth Circuit. But for the Court to follow the Ninth Circuit’s lead, a course it typically avoids at any opportunity, it will have to take two dramatic leaps.

The first leap would involve ruling that classifications based on sexual orientation should be reviewed under one of the more stringent levels of review assigned to race- and sex-based classifications, as opposed to the more deferential level (“rational basis”) used for classifications based on age, disability, and economic class. The Ninth Circuit ruling claimed that the Supreme Court had effectively taken this step last year when it struck down part of the Defense of Marriage Act in U.S. v. Windsor. There’s ample justification for believing that the Court, in Windsor and Lawrence v. Texas (2003), had displayed less deference to legislative judgments than is typical of rational basis review when it considered challenges to the Defense of Marriage Act and a state anti-sodomy law, respectively. Convincing Justice Kennedy that he was doing something other than what he was claiming to do when he wrote the majority opinions in Windsor and Lawrence, however, presents a sizable challenge, given the wide-ranging implications of subjecting sexual orientation-based classifications to heightened scrutiny. And as Judge Stephen Reinhardt wrote in Tuesday’s opinion, reliance on rational basis review would mean that the exclusion would withstand an equal protection challenge.

The second leap would involve opening the door to a broader challenge to the constitutionality of peremptory challenges.  While the Court has imposed limitations on the use of peremptory challenges, it has expressly declined to entertain the notion that they are unconstitutional per se. (Thurgood Marshall argued in his Batson concurrence that peremptory challenges should be held unconstitutional because there is no way to ensure that their use will not rely upon impermissible stereotyping, but Marshall stood alone in holding this view.) Extending Batson and J.E.B. to include sexual orientation must rest on the notion that it, like race and sex, offers potential for reliance on stereotyping that harms potential jurors of the excluded class, litigants, and confidence in the legal system itself. The Ninth Circuit explains at length, and in what strikes me as convincing fashion, how gay men and lesbians had historically been excluded from American political life on the basis of invidious stereotyping. Yet one could develop a similar argument about excluding disabled individuals, or Muslims. Once enough characteristics have been deemed worthy of Batson-style exceptions, one might reasonably ask whether there exists any basis for allowing peremptory challenges at all. Whatever the merits of a system allowing only challenges for articulable cause, it is hard to envision the current Court moving toward its adoption. Then again, it’s possible that the Court could do as it did in Lawrence and Windsor: fuzz over the standard of review, carve out a narrow extension of Batson, and otherwise leave peremptory challenges as they are. Stay tuned…. 



No pusherman = no problem for death-penalty states

A few weeks ago, I had expressed skepticism that logistical difficulties surrounding the administration of lethal injection might cause the de facto abolition of the death penalty. Shortages of drugs comprising the prevailing three-drug protocol, I argued, would not jeopardize capital punishment because states sufficiently motivated to maintain the practice would find either alternative drugs or alternative methods of execution. This week, we got one from Column A and one from Column B.

First, from Ohio:

Dennis McGuire took 15 minutes to die by lethal injection Thursday morning at the Southern Ohio Correctional Facility in Lucasville for the 1989 rape and murder of a 22-year-old pregnant woman named Joy Stewart….Mr. McGuire was given midazolam, a sedative, and hydromorphone, a powerful analgesic derived from morphine, just before 10:30 a.m. on Thursday, the first time that any state has used that combination. The drugs were selected by the Ohio Department of Rehabilitation and Correction after the state’s supply of pentobarbital expired in 2009, said JoEllen Smith, the department’s spokeswoman.


A reporter for The Columbus Dispatch, one of the witnesses at the execution,described Mr. McGuire as struggling, gasping loudly, snorting and making choking noises for nearly 10 minutes before falling silent and being declared dead a few minutes later. An Associated Press report described him as snorting loudly and making snoring noises, but did not say he struggled or made choking sounds.


“Whether there were choking sounds or it was just snorting, the execution didn’t go the way it was supposed to go,” said Deborah Denno, a professor at Fordham Law School and an expert in lethal injection cases. “Usually, lethal injection takes about four or five minutes, if done properly.”

Will the circumstances of McGuire’s execution cause states to rethink their reliance on experimental methods of administering lethal injections? Only if policymakers care more about preventing death-row inmates from suffering needlessly than they do about the considerations that lead them to support the death penalty in the first place. Until legislators get tossed from office for being too supportive of capital punishment, we should expect to see them follow Ohio’s lead and use whatever drug combinations they can find to carry out executions.

Second, let’s fire up the flux capacitor and see what retro-goodness the Missouri legislature has in store:

Missouri State Representative Rick Brattin (R) is proposing legislation that would allow death row inmates to choose a firing squad as their means of execution….


States have been struggling to acquire the drugs required to perform lethal injections in a manner that is neither “cruel” nor “unusual.”

Missouri has executed two inmates in recent months using pentobarbital, but the drug comes from a compounding pharmacy in Oklahoma that isn’t licensed to do business in Missouri….


One solution is to return to firing squads, which are a constitutionally approved means of execution. They are also, as an advocate of a similar bill in Wyoming notes, “one of the cheapest.”

Admittedly, a firing squad gives the condemned an opportunity to trash-talk his or her executioners in a way that being hooked up to a needle just doesn’t offer. And there’s a good chance that the bill won’t go anywhere, so perhaps it’s wise not to overreact. But the fact that legislators are seeking to bring back execution methods of yore (not the guillotine yet, though perhaps I’m being too hasty in dismissing this possibility) demonstrates the lengths that death penalty advocates will go to in the service of maintaining capital punishment.