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American Morning
The Supreme Court's Handling of Napoleon than Beazley's Appeal
Aired August 15, 2001 - 11:07 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DARYN KAGAN, CNN ANCHOR: The U.S. Supreme Court also is part of the controversy of the Beazley case. A 3-3 split that the high court refused Monday to halt the execution. Three of the Justices recused themselves.
Mary Cheh joins us now from Washington with her views on what happened at the Supreme Court. She is professor of law at George Washington University. Professor Cheh, good morning. Thanks for joining us.
MARY CHEH, GEORGE WASHINGTON UNIVERSITY: Good morning.
KAGAN: First, let's go with the rare three justices recusing themselves on this single case. What are the chances of three justices knowing somebody whose case is coming before this, coming before the high court?
CHEH: Well, the chances of that are extremely low. In fact, this may be a unique case in that regard, and in that sense this particular case illustrates the unusual and perhaps even freakish circumstances that lead some killers to slip the noose and not be executed and others to be executed. You have not only a juvenile being executed, not only the co-defendants recanting their testimony about his wanting to kill and therefore his future dangerousness, not only the speculation that had it not been a prominent person and also the father of a federal judge that the death penalty wouldn't have been sought, but now on top of everything else you have a situation where three members of the court recuse themselves when a stay of execution is sought, leaving a six member court that divides 3-3, a tie vote about whether to grant the stay. And because it was only a tie, the stay was not granted.
KAGAN: OK, let's look at that tie just...
CHEH: So it's extraordinary.
KAGAN: ... that tie here for just a second. First of all, this is exactly what the founding fathers were trying to avoid by putting nine Justices on the Supreme Court, isn't that right? They didn't want to have a situation where there was a tie, especially when you're talking about somebody's life?
CHEH: Well, I do have to correct that a little bit. The constitution does not prescribe how many members of the court there should be. That's a matter of Congress to decide and the numbers have varied over the years. Typically it has been an odd number, sometimes seven, now in recent times nine. There had been a six member court at one time. But the idea of Congress in having an odd number and a sufficient number is to get collegiality and a group decision and also to avoid tie votes.
KAGAN: Explain this to me also about the tie vote. If it is tied, why does the tie go in the favor of the executioner rather than the defendant?
CHEH: Any time someone moves a court to do something, to change the status quo, they have to prevail, and you can't prevail on a tie vote. So if it's a tie, you haven't overcome the inertia of staying with the current decision.
Now, there are many who say, again, the arbitrariness in many senses of the application of the death penalty, that here you have a situation where there is sufficient disquiet about invoking the death penalty in these circumstances, especially when the court has in front of it another motion by this defendant to look at the constitutionality of killing persons who committed crimes like this when they were juveniles.
It's the unusual nature of this being a tie vote. Maybe in death penalty cases, given that you can't change the circumstances after the fact, that maybe a tie vote ought to be sufficient to enter a stay until we can settle things and see where we ought to go with the particular case.
KAGAN: You bring up the point that the defense here is trying two tactics, one, to get the stay, the other to get the high court to look at the constitutional grounds of enacting the death penalty here and look at the Eighth Amendment. Is it possible that you couldn't get the stay but you could get the review? But as you mentioned, it would happen too late? That's also kind of a weird part of the system.
CHEH: Yes. Now, this has happened before where the court has refused to give a stay. There was a 4-4 tie in one death penalty case. Then the individual was executed and, of course, then the state becomes moot. Now, it doesn't mean that the court can't consider the constitutionality of executing persons who commit crimes as juveniles, but it won't be this case.
KAGAN: And here we are hours before the execution is supposed to take place and what should we look for just in terms of action and decisions and announcements from the high court?
CHEH: Well, I would imagine that the situation remains as it is and now the center of attention would return to Texas, both to the governor and perhaps to the lower courts there to seek a stay. But the, at the moment, it looks like the engine of death is roaring down the tracks and come tonight that this individual will be executed.
KAGAN: Mary Cheh, professor of law from George Washington University, thanks for joining us. We appreciate it. CHEH: Thanks.
KAGAN: So, how young is too young to face the death penalty? Laws do vary from state to state on the minimum age that criminals are when they are subject to execution. In the 18 states that you see highlighted in blue, the minimum age requirement for the death penalty is 16. In the states shown in yellow, the minimum age is 17. Texas is among those five states.
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