News Roundup

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The highly publicized escape of two murderers from a New York prison came to an end this week as Richard Matt was shot and killed and David Sweat was shot and captured. Sweat has been telling investigators about the escape and has apparently revealed quite a few interesting details. CNN has the latest here. For whatever reason, even our local media paid much less attention to the escape of a murderer from a North Carolina prison last weekend. Like the incident in New York, North Carolina’s escape involved romance between an inmate and a female guard, as WNCN reports here. The escapee has been recaptured.

In other news:

Same-sex marriage in jails and prisons? That’s the question that correctional facilities are pondering the wake of the Supreme Court’s same-sex marriage ruling last week. Sentencing Law & Policy sets the table here. Of course, in jurisdictions that already allowed such unions, this issue has arisen before. Slate discusses the federal experience here. This story discusses California’s rules (in brief, inmates may marry non-incarcerated same-sex partners, but not other inmates). This one chronicles the first same-sex marriage between inmates in Hawai’i (“The warden say[s] they will receive no special treatment as a married couple. Officials say they will not be housed together and both state and federal law prohibits inmates from engaging in any sexual acts.”). Across the pond, two inmates married in a UK prison earlier this year. The Guardian reports that one murdered a man he met through a gay chat line while the other “was sentenced to life behind bars for a homophobic killing on Blackpool seafront.”

Ted Cruz, tennis, and the Supreme Court. Politico recently published an excerpt from Senator Ted Cruz’s memoir. The excerpt concerns Cruz’s time as a law clerk for Chief Justice William Rehnquist. Cruz recounts playing tennis with the Chief Justice, who was legendarily competitive, as well as watching hard-core pornography with Justice Sandra Day O’Connor. But my favorite story concerns the Chief Justice’s penchant for discussing cases with his clerks while walking “laps” around the Court building:

A kindly looking gentleman, often wearing a cap, Rehnquist was frequently stopped on the street by tourists asking him, [who they thought to be] a passerby, to take photographs of their families standing in front of the Supreme Court or the Capitol. He was so down-to-earth, so approachable, that he could be as comfortable with a plumber as he could a poet. And he was hardly ever recognized.

Each time he was stopped to take a photo, the chief would smile and say gamely, “Sure.”

To this day, hundreds of people have had their picture taken in front of the Supreme Court by the chief justice of the United States and never knew it.

Glossip v. Gross and the future of death penalty. This week, the court decided Glossip v. Gross, rejecting inmates’ Eighth Amendment challenge to Oklahoma’s current lethal injection protocol, which permits the use of the drug midazolam. Justice Breyer, joined by Justice Ginsburg, dissented, opposing the use of midazolam but also stating that “rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” The remainder of the opinion leaves no doubt how Justice Breyer would answer that question.

How one views Justice Breyer’s dissent depends on one’s perspective. On the one hand, two Justices requested a full frontal assault on the death penalty, leading the ACLU to argue that “[t]he demise of the death penalty is upon us.” On the other hand, seven Justices, including several appointed by Democrats, did not request a full frontal assault on the death penalty despite Justice Breyer’s invitation to do so, leading a conservative commentator to opine that Glossip “was the most significant Supreme Court victory for the death penalty” in the modern era of capital punishment.

Over at the Volokh Conspiracy, Professor Orin Kerr flags an interesting aspect of the case:

Justices Breyer and Ginsburg suggested that they have decided, after decades on the Court, that the death penalty is categorically unconstitutional. Other Justices have done the same thing. Justices Stevens and Blackmun also decided, after decades on the Supreme Court, that the death penalty was unconstitutional.

Kerr proceeds to speculate about what might explain these “late career conversion[s].” His answer – that death penalty cases require too much depressing and uninteresting work from the Justices – is interesting, but I don’t find it especially convincing. If readers have other thoughts, please share them.

I hope everyone has a safe and happy holiday weekend.

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