This past Thursday, on December 8, 2016, Alabama executed Ronald Bert Smith, Jr. in a 30-minute (!) procedure during which Ronald Berth Smith, Jr., reportedly, coughed, heaved, clenched his fists, raised his head and opened his eyes, obviously expressing distress.
He was slowly put to death anyway.
Ronald Bert Smith, Jr., was not sentenced to death by a jury.
According to his petition to the Supreme Court of Alabama, the jury sentenced him to life without parole.
But, in Alabama, a judge is allowed to override a jury verdict, and Smith’s sentencing judge did just that – overrode the jury verdict of life in prison without parole, and imposed a death sentence.
The execution was set at December 8, 2016.
In 1988 in a dissent, Justice Thurgood Marshall claimed that death sentences by judicial override are unconstitutional.
On January 12, 2016, 11 months BEFORE the execution, that dissent became a majority opinion, when the U.S. Supreme Court decided Hurst v Florida and struck as unconstitutional imposition of the death penalty by judicial decision.
And, in that case, the U.S. Supreme Court stated exactly this, in its majority holding:
The holding in Hurst is pretty straightforward - a judge may not make additional findings, and in Hurst the death sentence was overruled, even though the jury recommended it to the judge - only because the judge made additional finding of aggravating circumstances.
Well, I wrote about a federal judge, Richard Kopf of Nebraska, who invented three reasons why he would knowingly allow to execute an innocent person - and "waiting too long" to invoke the condemned person's right to live was one of them.
In Smith's case there was no question of guilt, only that the jury gave him life without parole, and the judge did not have a constitutional right to override that sentence and impose a death penalty.
But, on December 6, 2016, when the Alabama Attorney General Luther Strange
asked the U.S. Supreme Court not to follow its own precedent, Alabama had, 2 months prior, suspended from office its own Chief Judge - for not following another U.S. Supreme Court precedent, declaring same sex marriage constitutional.
Here is some of Alabama AG's claims in his pleadings to the U.S. Supreme Court:
By not being "retroactive", Alabama AG, this man with innocent baby blue eyes, claimed that if a court declared that a criminal death sentence verdict is unconstitutional, it means that only the new death penalties imposed are unconstitutional, but the "old" death penalty verdicts can proceed anyway.
Under the same logic, if a gay couple was denied the right to marry before the U.S. Supreme Court decision in Obergefell in June of 2015, it's a done deal, a court of law denied couples their right to marry at the time when it was legal to deny gay couples a right to marry, and the couple is now collaterally estopped from claiming that right anew, since the new precedent, Obergefell, does not have a "retroactive effect", and all old court decisions denying gay couples their right to marry are legal and enforceable after it was declared unconstitutional.
I wonder if Alabama AG wants to try that logic out with LGBT community.
Yet, based on the same logic, a man, this man,
was tortured and killed.
Alabama AG Luther Strange presented to the U.S. Supreme Court also these arguments:
I love the language - the use of the word "eligible" - like "eligibility" for death penalty is an eligibility for some benefit.
Actually, Alabama AG stretched the truth in his pleading - because in Hurst the jury actually recommended the death penalty, and the court still reversed it, because a judge made his own factual findings.
In Smith, the jury did not recommend the death penalty, barring the judge from having a constitutional ability to still recommend it, so claiming that the jury made a finding necessary for a death penalty in a decision where they did not recommend the death penalty was completely inappropriate.
So, the highest-ranking judge in the State of Alabama defied a U.S. Supreme Court precedent on gay marriage - and lost his position.
Just two months after that, the highest-ranking prosecutor in the State of Alabama asks the U.S. Supreme Court to disregard - without overruling - its own precedent on death penalty, and the U.S. Supreme Court obliges - and the Chief Judge denies Smith his "courtesy" vote to stay the execution, which he earlier granted to another condemned prisoner, and granted him life, under the same circumstances.
So, apparently, not all U.S. Supreme Court precedents are binding and must be honored by state public officials, and, what is worse, the U.S. Supreme Court itself participates in instilling disrespect to its own precedents by refusing to follow even the most recent of them - and even to save a person's life.
The gay community gained political clout, and defying it is now dangerous even for a top state judge?
But, a condemned individual has no clout - and thus, a precedent clearly stating that he must be allowed to live, can be disregarded at the very same time?
The U.S. Supreme Court, by refusing to impose the stay, apparently agreed with this logic.
And allowed Alabama to kill Ronald B. Smith, Jr.
Knowing about the unconstitutional judicial override in how his death sentence was imposed.
Knowing of the long-standing international boycott of American prisons seeking drugs for execution.
Knowing that states try to avoid this boycott and import drugs illegally, or use drugs not meant for execution - thus experimenting on condemned prisoners.
Knowing that several recent executions turned into slow torture - as, Ronald B. Smith Jr.'s execution did.
Alabama AG Luther Strange made this announcement after the illegal torturous execution of Ronald B. Smith, Jr.:
What was important for AG Luther Strange was that "justice was finally served".
It was not important that the way it was served was unconstitutional.
Once again - Chief Judge Roy Moore of the same blessed State of Alabama, was suspended in September 2016 from his high position for the remaining part of his term for "defiance" of a U.S. Supreme Court precedent on gay marriage - which, once decided, the Alabama Judicial Council claimed was instantly applicable, without any retroactive bar nonsense, to all gay couples in all states.
Yet, a later-decided U.S. Supreme Court precedent on death penalty did not prevent the same blessed State of Alabama from torturing a man to death, even though his death sentence was illegal under a U.S. Supreme Court precedent.
By the way, in the suspension order of Roy Moore, on page 37 at the bottom of the page, the Alabama Judicial Council said the following:
So, after the U.S. Supreme Court decided, in January of 2016, Hurst v Florida, declaring unconstitutional judicial imposition of death penalty, that decision became binding on Alabama Supreme Court.
Equality under the law and a nation under the rule of law is a very easy notion.
Either all laws equally apply to all citizens, or there is no rule of law in this country.
The torturous death of Ronald Bert Smith, Jr., where all state actors involved - from the Attorney General to the executioners - collectively defied one U.S. Supreme Court, after the Chief State judge was suspended for defying another U.S. Supreme Court precedent - is proof that there is no rule of law, or equal protection of laws, in this country, and that laws in this country are imposed on a whim.
Or - "courtesy" - given or withheld at whim - of various public officials.
And that is not the rule of law.
That is the rule of men.
At its worst.