If H.R. 569, the Equal Justice for Our Military Act, were to become law, a case in Loving‘s current posture would fall within the Supreme Court’s statutory certiorari jurisdiction.  Under current law, however, it appears that the Supreme Court has no jurisdiction to review CAAF’s denial of PVT Loving’s habeas petition because CAAF didn’t “grant[] relief.”  See 28 U.S.C. § 1259(4).  Accordingly, the locus of authority over the case now shifts about eleven blocks to the west, from CAAF to the White House.  (Of course, nothing prevented the President from acting on the case while PVT Loving’s petitions for extraordinary relief were pending, but it appears that the Executive Branch refrained from acting on this case–despite President Bush’s approval of the death sentence in the Gray case last July–as a prudential matter.)  As discussed in this Politico article, then-Senator Obama stated in the wake of the Supreme Court’s ruling last June in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008),  I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances, for the most egregious of crimes.”

10 Responses to “A thought about Loving”

  1. John O'Connor says:

    “I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances, for the most egregious of crimes.”

    I agree with the President. And I also assume we agree that these narrow circumstances would include those who premeditatedly murder cabbies working a graveyard shift and try to do the same to another.

  2. Anonymous says:

    Some of us are against the death penalty for anyone, but certainly it is true that Loving’s case was about as close to having few issues as you get. Although rushing a case to trial in less than 3 months after the offense, seems almost per se IAC in a death penalty case.

    At any rate, I have no doubt we may still see the President not sign the death warrant. He simply has no reason to politically speaking.

  3. Anonymous says:

    Anon 2201,
    I disagree: POTUS will sign the warrant because (IAW his practice to date) he has no reason NOT to.

  4. Anonymous says:

    None of the other Presidents had a non-political reason not to either.

    There will be no clamor for him sign, no political pressure to do so, and he will gain no brownie points with the right for doing so and will lose those points with the side that helped get him into office.

  5. Anonymous says:

    I wonder: What was the party affiliation of the last President to sign a death warrant in a court-martial? What is Loving’s race?

    It seems to me that President Obama is virtually the only Commander-in-Chief who could kill this servicemember. It would be his very own “Ricky Ray Rector” moment.

  6. Dwgiht Sullivan says:

    0136 Anon, the last President to approve a military death sentence was President George W. Bush. He’s a Republican. The soldier whose death sentence he approved, Ronald Gray, is African American.

  7. Anonymous says:

    Currently, President Obamadoesn’t need a “Ricky Ray Rector” moment. This is not a Gov. Clinton situation who fears that he needs to be viewed as not liberal in order to beat a then-popular sitting president.

    No one will care if he doesn’t sign the bill of any quantitative import. We might care, but we aren’t going to make a difference in re-election.

    Certainly i suppose that situation could change 3 years from now, but as it stands now, if he signs it, it will be because he cares and wants Loving’s sentence executed.

    I have no idea if he does or not (cares) but no indication that he would or does. I don’t think race would play a big role although the African-American community is generally not pro-death penalty and the public mood on the death penalty, while still slightly in favor, is changing as well.

  8. John O'Connor says:

    I predict that President Obama will take no action to cause Loving’s execution.

  9. Anonymous says:

    No-brainer. Letting the execution proceed = bad news headlines. Doing nothing = no news. Your choice, Mr. President?

    More interesting: note Judge Ryan’s last footnote in Loving, implicitly taking issue with the dissent’s characterization of MJ in Denedo.

  10. Dew_Process says:

    “Knock, knock, knockin’ on SCOTUS’ door….”

    With apologies to Bob Dylan