‘Fervent, Lonely Dissents’ on the Rise in Death Penalty Cases
Some appeals court judges are apparently becoming increasingly frustrated with a 1996 law restricting habeas review of state death penalty convictions, as they voice ringing disapproval in dissenting opinions.
The New York Times reviewed death penalty opinions by federal appeals courts and concluded that “fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years.”
The dissenters have targeted barriers to appeals raised by the U.S. Supreme Court and the Antiterrorism and Effective Death Penalty Act of 1996. Since the law passed, it has been cited in six to 24 dissents a year, often in forceful language, according to the story.
One recent dissenter was Judge Rosemary Barkett of the 11th U.S. Circuit Court of Appeals based in Altanta. In April, she complained about the law’s “thicket of procedural brambles” in a dissent that argued death row inmate Troy Davis deserved a hearing on his claim of actual innocence. Seven of nine witnesses at Davis’ trial for killing a police officer have since recanted their testimony. The story says Barkett has voted to uphold the death penalty in more than 200 other cases.
Despite the emotional wording of her opinion, Barkett told the Times her dissents are about policy rather than emotions. She did acknowledge, though, one feeling that motivates her dissents: “mostly frustration that I cannot make people see what I see.”
Appellate litigator and blogger Howard Bashman told the newspaper that such dissents were likely directed at audiences to come, such as future appeals court panels and legislators.
