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1884: Not Crow Dog, saved by an ex parte

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January 14 was supposed to be the hanging day in 1884 for the Sioux Crow Dog — but instead of being executed he was busy making caselaw.

A sub-chief of the Brule Lakota, Crow Dog on August 5, 1881, met — intentionally? — the tribal chief Spotted Tail on a road in the Rosebud Reservation and shot him dead with a rifle.

The killing was adjudicated the very next day within the Brule community, at a council where the killer and the survivors of his victim agreed together on the appropriate compensation, and paid up.* But the U.S. Indian agent on the scene also arrested Crow Dog a few days later, and had him tried for murder in a non-Indian court in the the frontier town of Deadwood.

Sidney Harring, who would expand this review to book length with Crow Dog’s Murder: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century, argued in a 1988/1989 paper** that the needless white court’s trial was staged from the outset as a test case by the Bureau of Indian Affairs, angling for new legal tools to break the doctrine of tribal sovereignty which dated back to Worcester v. Georgia (1832). Although that anti-sovereignty cause would suffer a tactical setback in this case, it would very soon carry the day.

Condemned to death early in 1882, Crow Dog had various appeals, respites, and delaying actions that stretched the case out for nearly two years until the U.S. Supreme Court at last stepped in ahead of a scheduled January 14, 1884 execution to adjudicate the question of whether a murder within a tribe, on that tribe’s own reservation, was within the proper jurisdiction of non-Indian courts like the one that tried Crow Dog. Its Ex parte Crow Dog resoundingly answered in the negative, a milestone in the legal framework around Indian sovereignty in the U.S. To execute Crow Dog under the white court’s verdict, the justices ruled, would require Anglo law to be

extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others, and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It tries them not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man’s revenge by the maxims of the white man’s morality.

The legal doctrine at work here holds that although conquered, native tribes still possess internal sovereignty. And with Ex parte Crow Dog it became clear and settled American jurisprudence that one attribute of that remaining sovereignty was plenary — that is, absolute — power over purely internal affairs.

At least, for a year.

White America was discomfited by the abrogation of its morality-maxims over the revengeful red man, and the situation invited moral panic around any malfeasance in Indian country. The Washington D.C. Evening Star would complain months later (June 5, 1884) that Ex parte Crow Dog “has had the effect of creating the idea among the Indians that there is no law to punish an Indian for a crime committed on a reservation.” And the Supreme Court itself had slyly noted that it was obliged to make such rulings absent “a clear expression of the intention of Congress” to take a bite out of Indian sovereignty — an intent “that we have not been able to find.”

So in 1885, the U.S. Congress decided to express that intent and voted the Major Crimes Act placing Indians under federal, not tribal, jurisdiction for seven major types of crimes — including, of course, murder. “We all feel that an Indian, when he commits a crime, should be recognized as a criminal,” Michigan Congressman Byron Cutcheon urged on the legislation’s behalf. “It is an infamy upon our civilization, a disgrace to this nation, that there should be anywhere within its boundaries a body of people who can, with absolute impunity, commit the crime of murder, there being no tribunal before which they can be brought for punishment.”

This briefest interim between Ex parte Crow Dog and the Major Crimes Act was in a sense the high water mark for tribal sovereignty. Following the Major Crimes bill, white politicians began almost systematically reaching onto the reservations to legislate, picking away at tribal sovereignty until another much more infamous case, Lone Wolf v. Hitchcock, disastrously declared that plenary power now resided in Congress.

Crow Dog went on to become a major figure in the ghost dance movement. Present-day American Indian Movement activist Leonard Crow Dog is a descendant; he’s written a book connecting back to his famous ancestor called Crow Dog: Four Generations of Sioux Medicine Men. Meanwhile, South Dakota’s Sinte Gleska University is named for Spotted Tail.

* The price was $600, eight horses, and a blanket.

** Sidney Harring in “Crow Dog’s Case: A Chapter in the Legal History of Tribal Sovereignty,” American Indian Law Review, Vol. 14, No. 2 (1988/1989) — also the source of the preceding footnote.

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1865: Not Lambdin P. Milligan, ex parte man

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This date in 1865 was the originally scheduled hanging of Indiana pro-slavery gadfly Lambdin P. Milligan — a sentence respited two days prior by President Andrew Johnson, and then subsequently commuted, for which reason Milligan survived to attach his surname to a landmark Supreme Court decision the following year.

During the Civil War, the state of Kentucky was a borderlands claimed by, and viciously fought over, by both North and South. “I hope to have God on my side, but I must have Kentucky,” Abraham Lincoln wrote in 1861.

Kentucky’s northern neighbor, the Union breadbasket Indiana, had little fighting and no hint of Confederate power — but it was a hotbed of so-called “Copperheads”, northern Democrats who opposed Lincoln’s willingness to prosecute the civil war. So fraught was the Hoosier political situation that in 1862, Indiana’s Republican governor refused to call the Democrat-dominated legislature for fear that it might vote a secession bill or attempt to withdraw Indiana from the war.

The inevitable existence of northern domestic opposition to the war came joined at the hip to impossible statecraft conundrums. Just how much wartime dissent and/or resistance could be countenanced — as a legal matter, and a practical one? President Lincoln would not have received an A+ from the American Civil Liberties Union; he suspended the writ of habeas corpus in the Union and resorted to military tribunals and martial law in some places.

Our man Milligan was one of these Copperhead Indiana Democrats born to test Washington’s elasticity. He was an exponent of the Knights of the Golden Circle,* a pro-slavery secret society whose name denoted their aspiration to the antebellum filibusters‘ dream of a human-bondage empire to ring the Caribbean basin.

An attorney,** Milligan briefly became the toast of Democrats nationwide (whatever was left of the nation) for his robust defense of Clement Vallandigham when the former Congressman was prosecuted under the anti-Copperhead General Order 38.

At this point, Milligan was very well-known in what was then called the Northwest, and he was a major political player in Indiana — a pivotal state in the 1864 election.

But according to federal spies who tailed him in 1863-64, his interests in governance ran to more illicit grants of state power. Milligan was arrested in October 1864 as a principal in what was dubbed the “Northwestern Conspiracy”: a plot to mobilize the antiwar factions in that part of the country. This was no mere matter of pamphleteering; the “visionary and desperate” scheme aimed to prolong the hopes of the now-fading South by instigating an armed uprising in the Northwest that would relieve Union pressure on Dixie and perhaps turn the tide of the war.

Milligan was among several of the conspirators swept up in arrests in the following weeks, then tried by military tribunal for treason and sedition. It’s hard to argue that the plot was anything but.

But why a military court? This is the question in Milligan’s great legacy to posterity, the Supreme Court ruling Ex Parte Milligan.†

Milligan himself was not a soldier, and had not been in a war zone. He was a civilian, and Indiana’s regular civilian courts had never ceased to function. The question at stake in Milligan’s appeal to the Supreme Court was whether there was any legitimate recourse to a military tribunal under such conditions — well behind the lines, as it were.

On the morning of March 5, 1866, 34-year-old Republican U.S. Representative James Garfield — the future president whose assassin would command contentious caselaw all his own — strode into the U.S. Supreme Court to eloquently argue Milligan’s side.

“Such a doctrine,” Garfield intoned of the civilian courts’ being intentionally bypassed on national security grounds, “is too monstrous to be tolerated for a moment; and I trust and believe that … it will receive its just and final condemnation. Your decision will mark an era in American history. the just and final settlement of this great question will take a high place among the great achievements which have immortalized this decade. It will establish forever this truth, of inestimable value to us and to mankind, that a republic can wield the vast enginery of war without breaking down the safeguards of liberty; can suppress insurrection, and put down rebellion, however formidable, without destroying the bulwarks of law; can, by the might of its armed millions, preserve and defend both nationality and liberty … if the protection of the law shall, by your decision, be extended over every acre of our peaceful territory, you will have rendered the great decision of the century.

The high court found for Milligan unanimously, establishing as a constitutional bedrock Garfield’s proffered principle that civilian courts must try civilians wherever those courts are open, and ordered Milligan’s release. Although re-indicted by a civilian grand jury, Milligan was not re-prosecuted; he resumed his law practice and died near Fort Wayne, Indiana on December 21, 1899.

* Also known as the Sons of Liberty, a callback to revolutionary patriots.

** Milligan studied law in Ohio, his native soil; his class of nine also included Edwin M. Stanton — Lincoln’s War Secretary during the events of this post. Milligan himself reflected that “I should have probably been hung” but for his fortuitous ancient friendship with Stanton.

† Court precedents with names like Furman v. Georgia are most familiar to us, signifying two disputing parties; by contrast, the phrase ex parte (by/for the party) theoretically indicates a decision issued on behalf of the named party, without need of any opposing party’s intervention. (Ex parte Quirin is another notable death penalty case using this terminology.)

While the ex parte locution was once a common one for habeas corpus appeals, such cases were in practice almost invariably contested by some organ of the state — as Milligan’s was.

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2003: Scott Hain, the last juvenile offender executed in the United States

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On this date in 2003, the state of Oklahoma executed Scott Hain for a Tulsa carjacking that netted $565 and two dead bodies.

The Hain that was strapped down on the gurney that evening was a 32-year-old with a nebbishy middle manager look, high forehead pursuing his hairline to the scalp’s horizon where it had drawn up a wilting rearguard picket fringing an egg-bald pate.

But back in 1987 when he stuffed Laura Lee Sanders and Michael Houghton into the boot of their own car and set it ablaze, Scott Hain was 17 years, 4 months, and 4 days of age.

American jurisprudence through the ages has regularly compassed the execution of minors, sometimes astonishingly young ones. But come the late 20th century the still-ongoing execution of a few men (they were all men) for crimes they had committed when still only boys was a deeply contentious subplot of the death penalty drama.

Because of the protracted judicial processes, there was no longer any question at this point of boosting wispy teenagers into electric chairs as South Carolina had done in 1944. The Scott Hains of the world were grown men by the time they died: grown up on death row.

They were, to be sure, nearly men when they killed as well.

The prevailing jurisprudence at this point was the 1989 Supreme Court decision Stanford v. Kentucky, which set the minimum age for death penalty eligibility at 16.*

And so 17- and even sometimes 16-year-old offenders not considered equal to adult responsibility** in most other spheres of life continued to face the executioner through the 1990s and into the 21st century, a period when the death penalty itself picked up steam.

This became an increasingly awkward situation. For one thing, it placed the United States internationally among a very small handful of countries with unsavory human rights records. Maybe it was a matter of the raw numbers; on the day Stanford came down, the United States had executed only 114 people in its “modern” era, and just three of them were juvenile offenders. For the 1990s, there would be an average of 48 executions every single year, and (again on average) one of those would be a juvenile offender.

But even as the numbers grew, only 20 of the 38 death penalty states permitted such executions, and only three states — Virginia, Texas, and Hain’s Oklahoma — actually conducted any such executions at all after 1993.

Foes argued over those years that the diminishing scope of the juvenile death penalty reflected an emerging national consensus against it — which could in turn be held to create a constitutional prohibition under the 8th Amendment’s proscription of “cruel and unusual punishment.”

Most of the death-sentenced juveniles made similar arguments in the course of their appeals, hoping to be the case that would catch the conscience of the court. Hain’s appellate team made this argument, too. It didn’t take, like it didn’t for any of the others who tried it.

Except, it was taking. Those evolving standards of decency were about to evolve right past a tipping point: in 2004, the justices accepted a new case from Missouri that placed the juvenile death penalty question before it once more.

The nine-member high court’s inconstant swing vote Anthony Kennedy — who had once upon a time (call it a youthful indiscretion) voted with the majority in Stanford to permit juvenile executions — wrote the resulting 2005 decision Roper v. Simmons, barring the execution of juvenile offenders in the United States.†

Scott Hain remains the last person executed in the United States for a crime committed in his childhood.

* The bright-line court ruling was necessary because states had indeed death-sentenced even younger teenagers. For example, Paula Cooper was condemned to death by an Indiana jury for a murder committed at age 15; her sentence was commuted to a prison term, and she was eventually released in 2013. The victim’s grandson, Bill Pelke, notably supported Cooper and has become a leading anti-death penalty activist in the intervening years.

** The notion of age 18 as the age of majority predominates worldwide, but is of course as arbitrary as any other, and has not been the threshold selected in all times and places. The Austrian empire declined to execute Gavrilo Princip for assassinating Archduke Ferdinand in 1914 and precipitating World War I because it could not establish that he had reached the age of 20 when he did so.

† Among the notable cases affected was that of Lee Boyd Malvo, the underaged collaborator of Beltway sniper John Muhammad. Malvo was being considered for capital charges in Virginia at the time Roper came down.

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1991: Warren McCleskey

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Twenty years ago today, Warren McCleskey died in Georgia’s electric chair for the murder of a police officer.

Yet the “question reverberates: Did Warren McCleskey deserve the chair? For the question to outlive him is a damning commentary on capital punishment in the United States.”

The most reverberating commentary on this case was the 1987 Supreme Court decision McCleskey v. Kemp — a landmark 5-4 ruling that still shapes the way judges handle purported racial discrimination in the criminal justice system.

McCleskey (the decision, not the man) “marked the end of an era in death penalty jurisprudence … reject[ing] the last major challenge to the death penalty in America” from the generation of legal tinkering reaching back to the 1960s.

McCleskey v. Kemp was decided on April 22, 1987, at which time just 70 humans had been executed since the “modern” era of capital punishment began in the 1970s. (Today, the count is well beyond 1,200.)

The victims attributed to those 70 were 83% white (77 of 93),* even though blacks and whites are murder victims in roughly equal numbers — suggesting on its face that white victims are treated as disproportionately “valuable” by prosecutors, juries, and/or judges. This was, prospectively, the case with Warren McCleskey himself, an African American who in the course of an armed robbery had gunned down (or maybe not: see below) a white off-duty policeman.

McCleskey’s appellate team marshaled a statistical study by Iowa Prof. David Baldus indicating that black murderers (to a small extent) and killers of white victims (to a greater extent) were indeed more likely to receive a death sentence in Georgia, even when controlling for dozens of other variables. “According to this model,” wrote Justice Lewis Powell for the majority, “black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.”

Though it accepted evidence of a discriminatory pattern,** the high court nevertheless ruled that McCleskey was not entitled to appellate relief unless he could demonstrate that that it was at work in his specific case.

And with some reason: the import of granting constitutional relief to a claim of “endemic racism in the system” would open a Pandora’s box of appeals from America’s burgeoning carceral state.

McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system … if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.

Let justice be done though the heavens fall?† Not on our dime, buddy.

This reasoning too backtracked from equal protection concerns that had helped lead a similarly bare 5-4 majority to strike down then-existing capital statutes 15 years before in an appeal originating from the same state — Furman v. Georgia. That old regime had then been replaced with a death penalty system supposedly capable of minimizing arbitrariness. McCleskey served notice that justices wouldn’t be going out of their way to hunt arbitrariness any time soon.

The Court’s remaining liberal lions — it still had such a thing in 1987 — dissented furiously from McCleskey. William Brennan replied to the majority:

Warren McCleskey’s evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.

He also found “fear that recognition of McCleskey’s claim would open the door to widespread challenges … seems to suggest a fear of too much justice.”

mccleskey_presentation_314

Brennan was on the losing side of this judgment in a larger historical sense as well — at least, the brief span of history to unfold since Warren McCleskey sat in the electric chair.

McCleskey author Lewis Powell retired a few weeks after issuing it, and not long thereafter expressed regret for the McCleskey decision.‡ Relentless death penalty foes Brennan and Thurgood Marshall would hang up the spurs within a few years. (The circus Senate hearing to place Clarence Thomas in Thurgood Marshall’s seat was ongoing when Warren McCleskey finally died.)

But the deciding vote in McCleskey was cast by freshman Reagan-appointed justice Antonin Scalia, and he’s still going strong.

Scalia was then the Court’s emerging conservative paladin, though he was so new to the Court that McCleskey’s litigators hoped he might be amenable to their suit as a swing vote. Far from it: after Thurgood Marshall’s death in the early 1990s, his donated papers were found to contain a Scalia memo that rubbished the McCleskey majority’s mere consideration of the Baldus study.

I disagree with the argument that the inferences that can be drawn from the Baldus study are weakened by the fact that each jury and each trial is unique, or by the large number of variables at issue. And I do not share the view, implicit in [Powell’s draft opinion], that an effect of racial factors upon sentencing, if it could be shown by sufficiently strong statistical evidence, would require reversal.

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial [ones], is real, acknowledged by the [cases] of this court and ineradicable, I cannot honestly say that all I need is more proof.

Shorter Scalia: racism happens, so what?§ (Ultimately, Scalia opted not to file a separate opinion explicitly making this case; he just signed on to the majority opinion.)

As squishy regret-prone jurists have left Scalia’s Court since, and hard-right ideologues joined it, 1987’s militant reactionary is now one Rick Perry victory away from being the highest court’s median vote. Now that’s moving the Overton Window.

As one might imagine, death penalty jurisprudence at One First Street NE in these latter days has become correspondingly rougher — and the problems raised by McCleskey have scarcely abated.

Although the McCleskey case is what our day’s principal is best known for, he was also caught up in one of the more everyday — but not the less disreputable — toils of the system: the phony jailhouse informant. Very late in the appeals process, McCleskey’s lawyers were finally able to show that the fellow-prisoner who testified that McCleskey admitted the shooting to him was in fact a police plant operating on a quid pro quo to reduce his own sentence. (It’s amazing how often defendants spontaneously confess to these guys; the Troy Davis case which climaxed last week also featured a jailhouse snitch.) Somehow, prosecutors forgot all along to mention that arrangement even when directly asked.

The Supremes ruled, Kafkaesquely, that this issue was procedurally out of order because McCleskey hadn’t raised it earlier, neatly ignoring that the reason he hadn’t raised it was that prosecutors were actively concealing the fact. That’s the subject of the other SCOTUS case under our man’s name, McCleskey v. Zant.

(At issue was whether McCleskey was himself the triggerman. Since he was part of the robbery gang, he was legally on the hook for capital murder whether or not he personally fired the shot; but, his death sentence turned in reality on the jury’s belief that McCleskey was the individual killer — a detail supplied by the suspect police informant. None of McCleskey’s confederates faced execution.)

The final drama this date was a “chaotic” mess of last-minute legal maneuverings, with McCleskey strapped into the chair at one point, then interrupted from his last statement to be returned to his cell, then finally hauled back to the lethal device after an early-morning telephone poll of Supreme Court justices.

* Execution demographic counts via the Death Penalty Information Center’s executions database.

** While the McCleskey court accepted Prof. Baldus’s statistical interpretations even while rejecting their constitutional import, a vigorous pro-death penalty case is made here against the reading that the modern American death penalty is racially discriminatory to any great extent.

† This Latin phrase — fiat justitia ruat caelum — is actually engraved above the sitting justices at the Georgia Supreme Court.

‡ The regret was about more than Warren McCleskey; Powell’s biographer described a complete change of heart in the June 23, 1994 New York Times:

when the retired Justice Powell said he had changed his mind about the McCleskey case, I thought he meant that he would now accept the [Baldus] statistical argument.

“No,” he replied, “I would vote the other way in any capital case … I have come to think that capital punishment should be abolished.” …

Justice Powell’s experience taught him that the death penalty cannot be decently administered. As actually enforced, capital punishment brings the law itself into disrepute.

§ See Dennis Dorin, “Far Right of the Mainstream: Racism, Rights, and Remedies from the Perspective of Justice Antonin Scalia’s McCleskey Memorandum,” Mercer Law Review, 1994.

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1941: Eugene Johnson, the first electrocuted in Louisiana

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On this date in 1941, the U.S. state of Louisiana joined the 20th century (or at least the late 19th) with its first electrocution.

Louisiana’s electric chair did debut very late in the game. The great surge of adoption for this uniquely American way of death was the 1910s and 1920s. Louisiana was the last state to begin electrocuting prisoners save one — West Virginia.

But in 1940, the state legislature had finally joined the trend sweeping the South and voted for voltage.

So on March 7, 1941, Louisiana hanged its last hangings.

Eugene Johnson, the next to die, has no purchase on death penalty annals but his accidental milestone as the first to die seated: a black man condemned for killing a white farmer is just about your standard-issue condemned man in the interwar South. (The more things change …)

Johnson’s death this date would inaugurate the nickel-and-dime execution solution that Baton Rouge came up with to keep its various parishes right in the thick of the retribution business: the portable electric chair soon christened Gruesome Gertie, which trucked around to the local jails and courthouses meting out motorized justice.

This particular chair, though a latecomer and a modest overall contributor by the standards of Louisiana’s neighbors, would make itself the subject of highest jurisprudence a few years later by not merely botching but failing the execution of one Willie Francis — and then again in the 1980s as the subject of another man’s near-miss legal challenge to the constitutionality of electrocution.

Having always found five friends on the high court, the illustrious furniture retired in 1991 with 87 souls to its electrodes (including that of Willie Francis the second time around: he lost his appeal). Gertie lives on adorning the set of the Angola Prison Museum — and the Academy Award-winning film Monster’s Ball.

Part of the Themed Set: Americana.

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1799: Thomas Nash, after rendition to the British

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On this date in 1799, Thomas Nash was hanged in Jamaica for the bloody mutiny on the HMS Hermione.


Before there was Hermione Granger, there was the HMS Hermione. Painting by Thomas Whitcombe.

The Admiralty’s most notorious mutiny this side of the Bounty was actually a far bloodier affair. Dig the description from one of the conspirators who later turned state’s evidence.

“The captain,” said he, “was very severe with the men, who were all good seamen, and they were determined to either run the ship on shore and desert, or else take her by force. This had been in their minds for months before it happened. At last,” said he, “on a dark night, when the young lieutenant had the watch, our minds were made up. A party went to the cabin-door, knocked down the sentry, and entered it. The captain was in his cot, and he was soon overpowered. We threw him out of the cabin-window. Another party threw the officer of the watch over the larboard quarter, but he, being young and active, caught hold of the hammock-stanchion, when one of the men cut his hands off, and he soon dropped astern. The first lieutenant had been ill and keeping his cot, but on hearing the noise, he came up the hatchway in his shirt, when one of the carpenter’s crew cut him down with an axe, and he was sent overboard with several others.”

(There’s a fine audio lecture about this mutiny in the context of maritime class violence at the Bristol Radical History Group, which reminds that in a context where most of a ship’s manpower was marshaled with the violence of involuntary conscription, mutiny bids were a regular feature of Old Blighty’s maritime empire. London Times archives are available from 1785, and searches on the word “mutiny” in those early years reveal dozens of episodes — and those were just the reported ones.)

After making sharkmeat of that tyrannical captain, 27-year-old Hugh Pigot, the Hermione mutineers got drunk, and then delivered the frigate to the Spanish.

A Royal Navy vessel aptly named the Surprise* was able to surprise the wayward warship and cut her out of the Venezuelan harbor Puerto Cabello. The Hermione was then aptly renamed the Retaliation (and later, Retribution). Then, the British put the ominous word into action with a global manhunt for the mutineers.

Nearly thirty men ultimately hanged for the affair, though that meant that most of those involved escaped the noose.

And Executed Today never** deals with the lucky ones.

Mind if I do a Jay?

And so we come at last to our day’s protagonist, one of the Hermione mutineers who was at length recognized in the breakaway former British colonies now constituting themselves the United States of America.

Upon catching this intelligence, British envoys demanded the extradition of this character — who now claimed to be an American citizen by the name of “Jonathan Robbins” — under the terms of the recent and controversial Jay Treaty. After several months under lock and key without any American charge against him, Robbins/Nash eventually had a habeas corpus hearing before Judge Thomas Bee, who decided† that this “American citizen” was no such thing. With an okay from the Adams administration, Bee had the man delivered to the crown.

Nash was immediately shipped down to the British colony of Jamaica, put on trial on Aug. 15 (he had no defense), and hanged on Aug. 19.

Little could the Waterford-born seaman imagine the legacy he bequeathed his fake-adopted country.

I know my rights, man

The Nash extradition became a political firestorm in the U.S., with anti-British Jeffersonian Democratic-Republicans decrying the Federalist administration’s handling of the case. For the infant republic, formulating juridical precedent on the fly, this played as a separation-of-powers issue: was it within the president’s power to fulfill the treaty unilaterally, absent executing legislation passed by Congress? Was it within a judge’s purview to approve an extradition request without the constitutionally assured right to trial by jury?

Sounding eerily contemporary, New York Rep. Robert Livingston denounced a system whereby “a citizen of the United States might be dragged from his country, his connections and his friends, and subjected to the judgment of an unrelenting military tribunal.” Less measured, a Philadelphia Aurora headline announced: “BRITISH INFLUENCE threatens destruction of these United States!” (Source of both quotes)

Though it was surely not decisive, this issue provided great fodder in the 1800 elections swept by the Democratic-Republicans and standard-bearer Thomas Jefferson. Jefferson’s home state of

Virginia, the stronghold of inimical feeling to Great Britain … passed a law forbidding under heavy punishment a magistrate to be instrumental in extraditing any person out of the state. Thus desertions from British ships in a Virginian port became a regular event. Captains of British vessels sailing to United States ports in no long time would meet their men strolling in the streets, furnished with naturalization papers, who set them at defiance, for their arrest was impossible.

“This passage of history,” the otherwise hostile-to-Nash source is obliged to concede, “tells unfavourably on the character of the treatment of British seamen … the Discipline was harsh and oppressive, one of pure repression. The consideration of others, enforced by benevolence and duty, was often regarded as weakness.”

Hard to imagine why anyone would want to mutiny! It calls to mind, at the end of this passion play as at its start, the words supposed to have been hurled at the Hermione‘s doomed Captain Pigot as he pled with his assailants for mercy: “You’ve shown no mercy yourself and therefore deserve none.”

A real reactionary

Despite the electoral slam dunk, the real last word on the case ultimately belonged to the administration’s defenders.

Among these rose in Congress a first-term — for he would only serve a single such term — member of the House of Representatives also from the Old Dominion, John Marshall.

Just months later, Marshall would be one of outgoing President Adams’s “midnight judges” appointed to the federal courts: in Marshall’s case, to the U.S. Supreme Court, where his epochal 34-year term as Chief Justice would shape the future evolution of American jurisprudence.

Rising on March 7, 1800, in defense of President Adams’s conduct in the Nash case, Representative Marshall gave a preview of the strong federalist perspective that would define his time on the bench. (Read it in full here.)

The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations … He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.

This passage was exhumed from Congressional archives for citation in a 1936 Supreme Court case on federal supremacy, and has proceeded thence into a go-to bullet point for every latter-day defender of any arbitrary executive authority.

Of consequence (as Marshall might put it), Marshall’s speech about Nash gets an approving reference in Bush administration lawyer — and possible future extradition subject? — John Yoo‘s September 25, 2001 memorandum on “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them”.

Supreme Court Justice Clarence Thomas, too, quotes this phrase in his Hamdi v. Rumsfeld dissent, further to the doctrine that a man consigned to a presidential oubliette has no recourse to the courts; Justice John Harlan used it (with the rather grandiosely exaggerated qualifier that “from that time, shortly after the founding of the Nation, to this, there has been no substantial challenge to this description”) in his dissent in the Pentagon Papers case to claim that Richard Nixon could prevent the New York Times and Washington Post from publishing the embarrassing classified history of the Vietnam War.‡

So in this imperial age, Thomas Nash is more with us than ever he was. Who knows but what noxious monarchical theories are even now being buttressed with footnotes resolving to the vindictive execution of that obscure mariner two centuries past?

* The Surprise features prominently in novelist Patrick O’Brian‘s beloved Aubrey-Maturin series of nautical adventure novels, the most widely recognized of which is Master and Commander.

Given the vessel’s centrality in this popular series, there’s a book all about the colorful history of the Surprise. In reality, the Surprise — actually a captured French ship herself — was sold out of the service in 1802, prior to the notional 1805 setting of both the cinematic Master and Commander: The Far Side of the World and the book in the series when Jack Aubrey first commands her.

** … hardly ever.

† Rightly, it’s generally presumed; “Robbins” is alleged (albeit by his self-interested executioners) to have confessed to being Nash before his execution. This entry garners the Wrongful Execution tag on the basis of its contested American jurisprudence.

‡ The limited aim of Marshall’s speech in context, and its subsequent (mis)appropriation, is the subject of an interesting and accessible-to-laypersons law review article here. (pdf) This tome gets a bit more into the weeds on the way the separation of powers operated practically as the Nash case unfolded in Judge Bee’s court.

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1997: Bruce Edwin Callins, in the machinery of death

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On this date in 1997, Bruce Edwin Callins was executed in Texas — part of the torrid pace of executions unleashed in Texas in the late 1990s.

This small-timer would hardly rate a notice, but for the fact that Supreme Court Justice Harry Blackmun had chosen this otherwise forgettable murderer’s appeal to announce, in 1994, his belief that the death penalty was irreperably unconstitutional — probably the most famous comment on the death penalty to issue from the bench since capital punishment was reinstated with Blackmun’s concurrence in Gregg v. Georgia.

From this day forward, I no longer shall tinker with the machinery of death.

You’ll see the quote on anti-death penalty placards and apparel from now ’til kingdom come.

But there’s a bit more to it than what fits on a bumper sticker, and Blackmun’s reasoning is worth excerpting at greater length:

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel — someone who is inspired by the awareness that a less-than-vigorous defense truly could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants’ rights — even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.

But even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, 408 U.S. 238 (1972), and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. This is not to say that the problems with the death penalty today are identical to those that were present 20 years ago. Rather, the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form. Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death, see Furman v. Georgia, supra, can never be achieved without compromising an equally essential component of fundamental fairness – individualized sentencing. See Lockett v. Ohio, 438 U.S. 586 (1978).

It is tempting, when faced with conflicting constitutional commands, to sacrifice one for the other or to assume that an acceptable balance between them already has been struck. In the context of the death penalty, however, such jurisprudential maneuvers are wholly inappropriate. The death penalty must be imposed “fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).

To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that “degree of respect due the uniqueness of the individual.” Lockett v. Ohio, 438 U.S. at 605 (plurality opinion). That means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death. Reasonable consistency, on the other hand, requires that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice. Finally, because human error is inevitable, and because our criminal justice system is less than perfect, searching appellate review of death sentences and their underlying convictions is a prerequisite to a constitutional death penalty scheme.

On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U.S. 279, 313 , n. 37 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years, I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants “deserve” to die? — cannot be answered in the affirmative.

Antonin Scalia, never one to let pass an opinion he could just as easily scorn, issued his retort in a concurrence with the 8-1 opinion to execute Callins:

Convictions in opposition to the death penalty are often passionate and deeply held. That would be no excuse for reading them into a Constitution that does not contain them, even if they represented the convictions of a majority of Americans. Much less is there any excuse for using that course to thrust a minority’s views upon the people.

Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern.* The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!

Scalia’s mention of the “case of the 11-year-old girl” isn’t about Callins at all. The monster Scalia refers to here as obviously execution-worthy for his incendiary crime is Henry Lee McCollum … who in 2014 would be exonerated by DNA evidence after some 30 years on death row.

* Specifically, Callins wasted the patron of a strip bar who was insufficiently prompt at giving up his wallet. The $3 he took from the dying man’s pockets wouldn’t even have been enough to make it rain.

On this day..

1879: Three botches in three states

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America’s weird love-affair with Frankenstein execution technology has been an occasional theme on this blog, but the fact is that the old-school execution methods these ghastly machines replaced were unpleasantly hit-and-miss.

On this date in 1879, three different U.S. states produced botched executions, each blurbed this New York Times article. (pdf)

One is attracted most readily to the firing-squad execution of murderer Wallace Wilkerson in Utah.

Wilkerson appealed the constitutionality of this method of execution, and in 1879’s Wilkerson v. Utah, the U.S. Supreme Court held that “the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not” cruel and unusual punishment.

This legal precedent has actually been cited* by the present-day Supreme Court in rejecting legal challenges to lethal injection. Which is ironic, because a couple of months after the high court issued Wilkerson v. Utah, Wilkerson suffered a very cruel execution indeed.

The doomed man talked the officials conducting his execution into allowing him to die without being strapped down. With the resultant range of motion, Wilkerson at the last breath before the fusillade hit him drew his shoulders up as he braced for the impact — and pulled the white target pinned to his shirt above his heart.

The volley didn’t kill him — it just knocked him out of his chair to the ground, screaming “Oh, my God! My God! They have missed!”

He bled to death in 27 minutes, prompting the tongue-in-cheek observation by the Ogden Junction that “the French guillotine never fails.”

Meanwhile, on the very same day in Missouri …

ST. LOUIS, Mo., May 16.–A special dispatch from Booneville, Mo., says: “John I. West, who murdered a tramp last October, was to-day hanged at the Old Fair Ground near this city. When the trap was sprung, at 11:41 A.M., the rope broke, and the culprit fell to the ground on his back, but was too weak to rise. His groans and the gurgling sounds of strangulation were terrible to hear. He was picked up and speedily raised to the trap again, and, while being held by four or five men, was dropped a second time. This time he swung, and in 11 minutes was pronounced dead.

After reaching the platform of the gallows, West spoke nearly half an hour to the crowd present, reiterating his confession of the murder of Shinn, reviewing his past life, and appealing to young men and women to take his fate as a warning. There were about 8,000 people present, among whom was the father of West, who had come from Chapin, Ill.

(There’s a great deal more about West’s crime in the Times article, but it’s pretty dull reading for all the column-inches. He was a tramp who committed a semi-random murder, seemingly activating all the crime-freakout circuits so familiar to cable news programmers.)

Hillsboro, North Carolina, held a first-ever triple hanging — of the “Chapel Hill burglars”. As you might guess, these gentlemen burgled, and said burgling occurred in Chapel Hill. It was for housebreaking, not murder, that they were condemned, with the help of a confederate who turned state’s-evidence against them as soon as the lot was arrested.

Each of the culprits proclaimed his innocence to the last moment. [Lewis] Carlton spoke for an hour, and said his salvation was sure. The parting between [Henry] Andrews and his sister on the scaffold was most affecting, and moved the crowd of witnesses to tears. All the doomed men bore themselves firmly, and showed no signs of wavering. The hanging took place at 2:30 P.M., and was very badly conducted. The ropes around the necks of [Henry Alphonso] Davis and Carlton were too long, and their feet rested on the ground. They were raised up and the ropes retied, causing death by strangulation.

(According to this “history of the University of North Carolina” page, one of the burglars’ victims was writer Cornelia Phillips Spencer. Famous as the woman who rang the bell re-opening UNC in 1875, her role in closing the university in the first place in 1870 and her retrograde racial politics have recently been in Tar Heel news. The linked article suggests that her brush with the Chapel Hill burglars might have given Spencer an appreciation for the Ku Klux Klan’s version of order. After all, a white supremacist vigilante is just a liberal who’s been burgled.)

The St. Louis Globe-Democrat of May 17, 1879 adds of our men’s exit (in an addendum to a report primarily about the aforementioned West) that

[t]he execution was romantic in the extreme. Just as the doomed men ascended the platform a murky cloud, which had been drifting around, hung over the crowd and the instrument of death. Alfonso Davis began to speak, and as he opened his mouth the thunder began to peal, and the rain came down in torrents. Not a man, woman or child in the vast crowd moved or seemed to be aware that the rain was falling, so wrapped up in the death scene were they. At times the cloud threw such a dense shadow over the scene that it seemed as though night had enveloped the place. Then the lightning, vivid and intense, lit up the field of blood and cast forward, in bold and statuesque relief, the figures of the doomed and their executor as he stood like an artilleryman, lanyard in hand, ready to send the signal of death forward … the souls of three burglars went out and beyond, forked lightning illuminating their way and the wildest of thunder pealing their requiem.

The Bayou State redeemed this black day for the executioner’s craft by the uneventful hanging one Robert Cheney (black, of course) “for ravishing Amelia Voight in June, 1878.”

All told, four states killed six men on May 16, 1879, but only two of them died “cleanly.”

* The author of the New York Times opinion piece cited here, Gilbert King, has guest-blogged on this site:

On this day..

1996: William Flamer, Alito’d

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On this date in 1996, William Flamer was executed for murder in Delaware.

He’s a forgettable criminal who, with an accomplice executed 19 months before, robbed and stabbed to death Flamer’s elderly aunt and uncle.

He has his small footnote in modern American death penalty jurisprudence in a case decided by then-circuit court judge Samuel Alito, which was — er — exhumed when President George W. Bush elevated Alito to the Supreme Court.

The matter was, to all but the initiated, a fairly picayune legal issue: if the jury that imposed his sentence used an aggravating factor subsequently found to be unconstitutional, could the sentence stand with the multiple other, constitutional aggravating factors it also used?

Little compelling as the issue might sound to all but the already converted, this sort of salami-slicing goes on justices’ daily bread to make up the great hero sandwich of jurisprudence. Mmm-mmm.

Anyway, the State of the Union head-shaker held — as Flamer’s presence in this blog would suggest — against the appellant.

Pdf examinations of Flamer v. Delaware (and other Alito death penalty legal opinions) prepared around the justice’s confirmation hearing are available from the Congressional Research Service and from the Criminal Justice Legal Foundation, the latter a pro-death penalty source.

(This decision also affected fellow Delaware death row inmate Billy Bailey, whom we have just met as the last man hanged in that state. Flamer could have had that distinction for himself; he chose lethal injection instead, and died four days after Bailey hanged.)

On this day..

2007: Michael Richard, whose time ran out

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Two years ago today, the U.S. Supreme Court unexpectedly accepted a case, Baze v. Rees, challenging the constitutionality of lethal injection — the supposedly humane execution method that seemed less and less so.

Texas inmate Michael Richard, condemned for raping and murdering Marguerite Dixon in 1986, was slated to die that very evening, also by lethal injection.

As Richard’s Texas Defender Service lawyers scrambled to prepare a last-minute legal challenge based on the pending Supreme Court case — for how could Texas carry out a procedure whose constitutionality was in question? — they tripped over an unexpected stretch of red tape that ultimately claimed their client’s life:

The Texas Court of Criminal Appeals closed at 5 p.m. on the day of the scheduled 6 p.m. execution, and refused to accept an appeal filed a few minutes after 5.

Or more specifically, Judge Sharon Keller refused to accept the appeal, for which she came under immediate fire — and launched campaigns like the website SharonKiller.com.

This bizarre situation, complicated by the fact that the Lone Star State did not have written rules for handling last-minute appeals (it does now), has a thicket of procedural detail best appreciated by lawyers.

But it caught worldwide attention as an illustration of Texas’s cavalier approach to its numerous death penalty cases.

Keller, who has what you might say is an inordinate regard for “finality” (and for prosecutors), has herself been forced to defend her conduct in hearings of the State Commission on Judicial Conduct. Those hearings could result in her removal from the bench over this incident; a decision is expected soon. (Update: She skated.)

Though it was not completely clear for a few more weeks, it was in fact true that the pending Baze decision suspended the death penalty in the United States. As a result, Michael Richard — whose execution would have been stayed had the appeal entered the judicial system — was the last American put to death until May of 2008.

On this day..