Late last Thursday, as death row inmate Ronald Bert Smith was strapped to a gurney in Alabama – burning alive from the inside out – he heaved, coughed, clenched his fists, moved his lips, and opened his left eye.
The tremors of this savagery and the cruel and unusual punishment Smith suffered are a deplorable new addition to an already abominable list of recent botched executions in the U.S.
Indeed, the vibrations of Smith’s thirteen-minute death-rattle were so strong they stretched hundreds of miles away to Washington, D.C., and the Supreme Court. Just how sick was this premeditated, prolonged torture?
It caused “equal,” majestically etched underneath the Court’s venerable, greyish-white frieze – where it says “equal justice under law” boldly for the whole world to see, and hopefully to emulate – to careen, crash, crater in an already overflowing cesspool of constitutional crises eating our country alive, literally every day.
I’m not saying you can’t actually see the word “equal” up there anymore — you can.
But, after Smith’s savage killing in which “courtesy,” or in Smith’s case, discourtesy, trumped fundamental constitutional rights, equal protection under the law, a once revered principle, is gone.
Smith’s federal public defenders explained this best in their last-minute filings with the high court pleading for a stay of execution: “For a fifth courtesy vote to grant [death row inmate Tommy Arthur] a stay of execution but for this court to fail to do so on Mr. Smith’s behalf is arbitrary action that violates the due process clause and the equal protection clause. Inconsistent practices in capital cases clash with the appearance and reality both of equal justice under law and of sound judicial decision-making.”
In layman’s terms, what’s good for Tommy Arthur should logically, fairly, and constitutionally be so for Ronald Smith. “[R]espect of the administration of criminal justice requires no different degree or higher punishment shall be imposed on one that is not imposed on all for like offenses.” Moore v. Missouri, 159 U.S. 673, 678 (1895).
But it was not to be.
Despite Chief Justice John Roberts giving Tommy Arthur a “courtesy vote” for a stay of execution on November 3rd (to give the other justices “the opportunity to more fully consider the suitability of [Arthur’s] case for review”), he refused one for Smith.
Why?
Despite our country’s claim to a transparent legal system, no one but the Supreme Court knows the reason for this disparate treatment. Only the justices know why Tommy Arthur was treated more courteously – and allowed to keep living to fight on, even if only temporarily – but not Smith.
Speculating in The Washington Post the morning after Smith’s bungled execution, University of Chicago law professor William Baude, a former law clerk to Chief Justice Roberts wrote, “Perhaps the courtesy vote was a one-time experiment, and for some reason unknown to us, it has been deemed a failure.” Baude cautioned however, “it is not clear whether we will ever know why the two cases [Arthur and Smith’s] were treated differently.” Because he is no longer privy to the Court’s inner-workings, Baude was essentially conceding that anyone, including the French novelist and playwright Honoré de Balzac, might have as much insight on the juridical machinations that went on in Smith’s case.
Insightful, albeit gloomy, Balzac wrote, “[c]ourtesy is only a thin veneer on the general selfishness.”
But you know, maybe bringing Balzac and Baude into the mix complicates matters too much.
All that’s really needed to understand how Chief Justice Roberts could extend courtesy, and with it continued life to Arthur but without explanation, or a distinction that makes a difference, deny it to Smith, is a bit of homespun wisdom from avant-garde political writer, Mercy Otis Warren, (an advisor to presidents and generals during the Revolutionary War). Ms. Warren observed, “that man in a state of nature, is more disposed to cruelty than courtesy.”
What is certain about this sad and sorry state of affairs is Justice William J. Brennan, Jr.’s observation, dissenting in McClesky v. Kemp, 481 U.S. 279, 320 (1987), and quoting his brother, the incomparable Justice Thurgood Marshall: “Nothing could carry more powerfully the intractable reality of the death penalty: ‘that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is as plainly doomed to failure that it – and the death penalty – must be abandoned altogether.’”
In Lawrence v. Texas, 539 U.S. 558, 579 (2003), Justice Kennedy wrote, “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Eventually, this will be true for the death penalty.
The only urgent, (literally) still burning question left is, when?
Source: The Hill, Stephen Cooper, December 13, 2016. Mr. Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.
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