The Illusory Quest to Execute Only “The Worst of the Worst”

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—explains how a recent decision by the Florida Supreme Court allowing that state to proceed with its plan to execute Harry Franklin Phillips highlights America’s illusory quest to ensure that the death penalty be precisely targeted only at “the worst of the worst.” Sarat argues that it is now time to acknowledge that the attempt to exclude clear categories of offenders from death eligibility has failed to adequately protect the dignity of those prisoners, which Justice Anthony Kennedy viewed as a central part of the Eighth Amendment.

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Bastanipour v. Wells Fargo Bank, N.A.

Docket: 20-1373

Opinion Date: June 8, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Bankruptcy, Legal Ethics

After filing a Chapter 13 bankruptcy petition, Bastani asked the judge to stay a pending state court foreclosure procedure. Bastani’s previous bankruptcy petition had been dismissed less than a year earlier, creating a presumption that the new filing was not in good faith, 11 U.S.C. 362(c)(3)(C)(i), and meaning that the automatic stay would end 30 days after the new proceeding began. The bankruptcy and district courts denied Bastani’s motion. The Seventh Circuit denied relief and also denied Bastani’s motion for leave to file in forma pauperis under 28 U.S.C. 1915. Chapter 13 is designed for people who can pay most of their debts; someone eligible for Chapter 13 relief cannot establish that she cannot pay judicial fees in the absence of extraordinary circumstances. The court further concluded that Bastani’s second bankruptcy petition was filed in actual bad faith; Bastani appeared to be trying to achieve a Chapter 13 benefit (keeping her home) without the detriment of having to pay her debts.

Burton v. Ghosh

Docket: 19-1360

Opinion Date: June 8, 2020

Judge: HAMILTON

Areas of Law: Civil Procedure

Burton injured his knee in 2009 while incarcerated. He repeatedly sought medical attention. Burton’s knee was not treated until 13 months later when Dr. Ghosh recommended a consultation with an orthopedic specialist. Burton had surgery more than 18 months after his injury. Burton’s discharge orders and his follow-up visit called for physical therapy and pain medication. Burton did not receive pain medication nor physical therapy for several months despite repeated letters and a formal grievance. Because of these delays, Burton claims, he has significant, permanent damage to his knee. In 2011, Burton filed suit alleging deliberate indifference to serious medical needs and retaliation. After several procedural missteps that resulted in dismissal, recruited counsel filed a new complaint. In 2018, after discovery was complete, and after newly‐recruited lawyers took Burton's case, Burton was allowed to file an amended complaint. The amendments were minor. The defendants filed a motion to dismiss, raising the new affirmative defense of res judicata, arguing that the dismissal of Burton’s first suit with prejudice in 2012 precluded the second, that they had become aware of Burton’s earlier dismissed case only days earlier, and that the amended complaint permitted new affirmative defenses. The district court dismissed. The Seventh Circuit reversed. The FRCP 8(c) and 15 standards for amending pleadings govern the raising of new affirmative defenses even when an amended complaint is filed. A district court is not required to allow any and all new defenses in response to any amendment, without regard for the substance of the amendment and its relationship to the new defenses. Here, the late amendment to the complaint was minor and did not authorize a new res judicata defense that had been waived or forfeited years earlier.

United States v. Carter

Docket: 18-3713

Opinion Date: June 8, 2020

Judge: HAMILTON

Areas of Law: Criminal Law

Four months after escaping from a work-release facility, an intoxicated Carter walked into an Illinois bar. He told an employee that a white-supremacist gang was searching for him and then walked out. The employee called the police, who stopped Carter on the street and discovered an active arrest warrant related to his escape. As he was being handcuffed, Carter stated that he was “strapped” and gestured towards his pants. Officers seized a stolen, loaded semiautomatic pistol from Carter’s waistband. Carter pleaded guilty to possessing a firearm as a felon, 18 U.S.C. 922(g). The court calculated his Sentencing Guideline range based on a finding that he had previously sustained at least two felony convictions for “crimes of violence,” U.S.S.G. 2K2.1(a)(2), and imposed a sentence of 105 months' imprisonment, at the top of the guideline range. The Seventh Circuit affirmed. Carter had at least two prior felony convictions (a California conviction for assault with a deadly weapon and an Iowa conviction for aggravated assault) that qualify as crimes of violence under the categorical approach. The court noted that district judges may and should use their sound discretion to sentence under 18 U.S.C. 3553(a) on the basis of reliable information about the defendant’s criminal history even where a strict categorical classification of a prior conviction might produce a different guideline sentencing range.