Latest / Beyond The Horizon / Murder In Moscow: Judge Hippler's Order On Bryan Kohberger's Capital Punishment Motion (Part 9)

Transcript

Murder In Moscow: Judge Hippler's Order On Bryan Kohberger's Capital Punishment Motion (Part 9) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're getting right back to Judge Hipler's order
• 0:06
  Speaker 1: denying Brian Kolberger's motions to remove the death penalty g
• 0:11
  Speaker 1: motion to strike states notice on grounds of international law.
• 0:14
  Speaker 1: Defendant next contends that Idaho's death penalty scheme violates the
• 0:18
  Speaker 1: International Covenant on Civil and Political Rights ICCPR, ratified by
• 0:23
  Speaker 1: the United States in nineteen ninety two. The ic CPR
• 0:28
  Speaker 1: prohibits interrelia cruel inhuman or degrading treatment or punishment, and
• 0:34
  Speaker 1: the arbitrary deprivation of life ICCPR, Part three, Articles six
• 0:40
  Speaker 1: and seven. He asserts Idaho's failure to comply with the
• 0:44
  Speaker 1: ic CPR violates his state and federal constitutional due process rights.
• 0:49
  Speaker 1: The State responds that Idaho's death penalty does not run
• 0:51
  Speaker 1: a foul of the treaty. The court agrees one the
• 0:55
  Speaker 1: ic CPR provides no additional protection than the United States Constitution.
• 1:00
  Speaker 1: It's well recognized that an international agreement creates obligations binding
• 1:05
  Speaker 1: between the parties under International law Restatement third of Foreign
• 1:09
  Speaker 1: Relations Law, Section one oh two. At issue here is
• 1:13
  Speaker 1: the ic CPR, which prohibits cruel inhuman or degrading treatment
• 1:18
  Speaker 1: or punishment, and arbitrary deprivation of life. Defendant contends that
• 1:24
  Speaker 1: the breadth of Idaho's capital selection process, the excessive delays
• 1:28
  Speaker 1: between sentencing and execution, the conditions of confinement, and implementation
• 1:33
  Speaker 1: of the death penalty violate these provisions. However, these provisions
• 1:37
  Speaker 1: provide no greater protection than what is already provided under
• 1:40
  Speaker 1: the United States Constitution. While the United States ratified the
• 1:44
  Speaker 1: ic CPR, it agreed to abide by the foregoing prohibitions
• 1:48
  Speaker 1: only to the extent that the fifth eighth and fourteenth
• 1:51
  Speaker 1: Amendments of the United States Constitution ban cruel and unusual
• 1:55
  Speaker 1: punishment C. One thirty eight Congressional Record April twod twenty
• 2:03
  Speaker 1: nine to ninety two that the United States considers itself
• 2:06
  Speaker 1: bound by Article seven to the extent that cruel, inhumane,
• 2:09
  Speaker 1: or degrading treatment or punishment means the cruel and unusual
• 2:13
  Speaker 1: treatment or punishment prohibited by the fifth eighth and fourteenth
• 2:17
  Speaker 1: Amendments to the Constitution of the United States. The ICCPR
• 2:21
  Speaker 1: does not prohibit the death penalty, and in fact sanctions
• 2:24
  Speaker 1: its imposition for the most serious crimes in countries that
• 2:27
  Speaker 1: allow for it to win. In countries which have not
• 2:31
  Speaker 1: abolished the death penalty. Sentence of death may be imposed
• 2:34
  Speaker 1: only for the most serious crimes, in accordance with the
• 2:37
  Speaker 1: law and force at the time of the commission of
• 2:39
  Speaker 1: the crime, and on the contrary to the provisions of
• 2:42
  Speaker 1: the Present Covenant and to the Convention on the Prevention
• 2:46
  Speaker 1: of Punishment of the Crime of Genocide. This penalty can
• 2:49
  Speaker 1: only be carried out pursuant to final judgment rendered by
• 2:52
  Speaker 1: a competent court. Further, when the United States ratified the
• 2:57
  Speaker 1: ic CPR in ninety two, it's specifically reserve of the
• 3:00
  Speaker 1: right to, subject to its constitutional constraints, to impose capital
• 3:03
  Speaker 1: punishment on any person other than a pregnant woman duly
• 3:07
  Speaker 1: convicted under existing or future laws permitting the imposition of
• 3:11
  Speaker 1: capital punishment, including such punishment for crimes committed by persons
• 3:15
  Speaker 1: below eighteen years of age. Thus, the ic CPR was
• 3:19
  Speaker 1: adopted by the United States does not impose any additional
• 3:23
  Speaker 1: limits on the application of the death penalty in the
• 3:26
  Speaker 1: United States than what it already constrained by the United
• 3:29
  Speaker 1: States Constitution see White versus Johnson, seventy nine, Fifth Circuit,
• 3:35
  Speaker 1: noting that even if it were to consider the merits
• 3:37
  Speaker 1: of the defendant. ICCPR claimed it would do so under
• 3:41
  Speaker 1: the Senate's reservation that only prohibits cruel and unusual conduct
• 3:45
  Speaker 1: Under the Eighth Amendment, the ic CPR does not create
• 3:50
  Speaker 1: enforceable rights, nor can it be used to interpret constitutional protections.
• 3:55
  Speaker 1: Even assuming the ic CPR afforded broader rights than what
• 3:59
  Speaker 1: is constant situtionally guaranteed, it cannot serve as an independent
• 4:03
  Speaker 1: basis for Defendant's claim. Treaties only affect the United States
• 4:07
  Speaker 1: law if they are self executing or otherwise given effect
• 4:10
  Speaker 1: by congressional legislation. Congress specifically declared that Articles one through
• 4:16
  Speaker 1: twenty four of the ICCRP are not self executing. Further,
• 4:21
  Speaker 1: it has been held by virtually every court that has
• 4:23
  Speaker 1: addressed the issue that the ICCPR is not self executing,
• 4:28
  Speaker 1: has not been given effect by congressional legislation, and creates
• 4:31
  Speaker 1: no enforceable individual rights. Defendant is not cited a single
• 4:35
  Speaker 1: case to the contrary. Recognizing this hurdle, Defendant urges this
• 4:40
  Speaker 1: court to overlook the ic cprs non self executability and
• 4:45
  Speaker 1: instead construe the Eighth Amendment in accordance with the ic
• 4:48
  Speaker 1: cprs pursuant to the Charming Betsy canon of interpretation. This
• 4:53
  Speaker 1: canon encourages judges to select an interpretation of an ambiguous
• 4:58
  Speaker 1: statute that accords with US international obligations, including those expressed
• 5:03
  Speaker 1: in non self executing treaties. Rebecca crodov Judicious Influence non
• 5:09
  Speaker 1: self executing Treaties, Yale, seventeen eighty four, twenty eleven. As
• 5:14
  Speaker 1: defendant notes, this canon has not been used to interpret
• 5:17
  Speaker 1: constitutional provisions, but he argues it should be done here
• 5:22
  Speaker 1: lest the Court place our country in breach of a treaty.
• 5:25
  Speaker 1: This argument defies logic. Defendant is essentially asking the Court
• 5:30
  Speaker 1: to construe the Eighth Amendment as incorporating the ICCPR as
• 5:34
  Speaker 1: a minimum standard based on an obscure canon of statutory interpretation.
• 5:39
  Speaker 1: To the extent the Charming Betsy canon even applies to
• 5:42
  Speaker 1: constitutional provisions, a necessary prerequisite to its application is a
• 5:47
  Speaker 1: finding of ambiguity crodoph At, seventeen ninety nine. Once the
• 5:51
  Speaker 1: Court is determined that a non self executing treaty codifies
• 5:55
  Speaker 1: customary international law, it may use the treaty in conjunction
• 5:59
  Speaker 1: with the Charming Bets when interpreting an ambiguous statute. Defendant
• 6:04
  Speaker 1: has advanced no argument that the Eighth Amendment's Cruel and
• 6:07
  Speaker 1: Unusual punishment language is ambiguous in some The ic CRP
• 6:12
  Speaker 1: provides no basis for relief in accordance with the weight
• 6:17
  Speaker 1: of the authority. The core fines it is not self executing,
• 6:20
  Speaker 1: has not been given effect by Congress, and provides defendant
• 6:24
  Speaker 1: with no enforceable right. Moreover, defendant is provided no basis
• 6:29
  Speaker 1: by which the ic CRP should be used as a
• 6:32
  Speaker 1: tool to interpret the meaning of the Eighth Amendment. Consequently,
• 6:36
  Speaker 1: the motion is denied. H motion to strike State's notice
• 6:40
  Speaker 1: on grounds of contemporary standards of decency. Relying on various
• 6:45
  Speaker 1: data points and information from several fronts, Defendant contends that
• 6:49
  Speaker 1: the imposition of the death penalty no longer comports with
• 6:52
  Speaker 1: the evolving standards of society, and therefore the state's effort
• 6:56
  Speaker 1: to impose the death penalty against them violates his constitutional
• 7:00
  Speaker 1: right to be free from cruel and unusual punishment under
• 7:03
  Speaker 1: both the state and federal constitutions. In response, the state
• 7:09
  Speaker 1: points out that only nine years ago, the Idaho Supreme
• 7:11
  Speaker 1: Court rejected this argument in Abdullah, which it reaffirmed four
• 7:15
  Speaker 1: years ago in the case of Harriston versus State. With
• 7:19
  Speaker 1: regard to defendants under the age of twenty one, the
• 7:22
  Speaker 1: state contends defendant has not established any significant change since
• 7:26
  Speaker 1: those cases were decided that would warrant the finding that
• 7:29
  Speaker 1: the death penalty is no longer constitutional. The Court agrees
• 7:34
  Speaker 1: one evolving standards of decency legal standards the Eighth Amendment
• 7:38
  Speaker 1: applied to the States through due process clause of the
• 7:41
  Speaker 1: Fourteenth Amendment forbids the infliction of cruel and unusual punishment
• 7:46
  Speaker 1: US Constitutional Amendment Number eight. Long ago, the US Supreme
• 7:50
  Speaker 1: Court recognized that the phrase cruel and unusual is to
• 7:54
  Speaker 1: be defined by the evolving standards of decency that marked
• 7:57
  Speaker 1: the progress of a maturing society. Ascertaining the standards of
• 8:01
  Speaker 1: decency require consideration of objective of society standards as expressed
• 8:06
  Speaker 1: in legislative enactments in state of practice to determine whether
• 8:10
  Speaker 1: there is a national consensus among the sentencing practice at issue. Then,
• 8:15
  Speaker 1: guided by the standards elaborated by controlling precedent and by
• 8:19
  Speaker 1: the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning,
• 8:23
  Speaker 1: and purpose, the Court must determine in the exercise of
• 8:27
  Speaker 1: its own independent judgment whether the punishment in question violates
• 8:31
  Speaker 1: the Constitution two, the death penalty remains consistent with contemporary
• 8:36
  Speaker 1: standards of decency. The Idaho Supreme Court is held time
• 8:40
  Speaker 1: and time again that Idaho's death penalty statute does not
• 8:43
  Speaker 1: violate the Eighth Amendment Abdullah one fifty eight Idaho at.
• 8:48
  Speaker 1: Seventy and seventy one. In fact, in Abdullah, the Court
• 8:52
  Speaker 1: considered and rejected the argument that the death penalty is
• 8:55
  Speaker 1: inconsistent with society's evolving standards of decency. Observe that at
• 9:00
  Speaker 1: the time of the twenty fifteen decision, thirty two states
• 9:04
  Speaker 1: continued to allow for the death penalty as an option,
• 9:07
  Speaker 1: and therefore it was difficult to view the practice as
• 9:10
  Speaker 1: objectively intolerable. It held that absence some legislative or executive action,
• 9:17
  Speaker 1: it could not conclude Idaho's death penalty statute was unconstitutional
• 9:21
  Speaker 1: based on evolving standards of decency and public opinion. The
• 9:25
  Speaker 1: Court revisited the issue five years later in Hairston II,
• 9:28
  Speaker 1: when the petitioner argued the death penalty for offenders under
• 9:31
  Speaker 1: the age of twenty one at the time of offense
• 9:34
  Speaker 1: was inconsistent with emerging national, international, and state trends against
• 9:38
  Speaker 1: such punishment. In support, the petitioner presented, inter alia, national
• 9:44
  Speaker 1: statistics regarding the abolishment of the moratoria against the death
• 9:48
  Speaker 1: penalty across the nation, evidence of international developments against execution,
• 9:53
  Speaker 1: and evidence of emerging medical and scientific consensus that defendants
• 9:58
  Speaker 1: under twenty one are just as deserving as constitutional protection
• 10:02
  Speaker 1: against the death penalty than those under eighteen. While the
• 10:05
  Speaker 1: Court acknowledges the trends, it reaffirmed that it subscribes to
• 10:09
  Speaker 1: the views of legislative bodies as the basis for determining
• 10:12
  Speaker 1: a national consensus. Absent evidence of legislative or executive action
• 10:18
  Speaker 1: or of consensus among those states that continue to exercise
• 10:21
  Speaker 1: the death penalty that it's unconstitutional for offenders under twenty
• 10:25
  Speaker 1: one years old, the Court was unwilling to depart from
• 10:28
  Speaker 1: the United States Supreme Court precedent setting eighteen years old
• 10:32
  Speaker 1: as the line at which death penalty eligibility rests. In
• 10:36
  Speaker 1: arguing the death penalty no longer comports with the contemporary
• 10:39
  Speaker 1: standards of decency. Defendant follows the same tact as the
• 10:43
  Speaker 1: petitioner inherit In II, citing to one the decline of
• 10:46
  Speaker 1: executions carried out nationwide over the past ten years, to
• 10:50
  Speaker 1: the increased number of state abolishing the death penalty or
• 10:53
  Speaker 1: attempting to do so. Three the decline in public support
• 10:56
  Speaker 1: for the death penalty and for anti death penalty sentiment
• 11:00
  Speaker 1: expressed in the international community by religious organizations and by
• 11:05
  Speaker 1: the medical and pharmaceutical field. However, the Idaho Supreme Court
• 11:09
  Speaker 1: has been clear, to determine whether the death penalty remains
• 11:12
  Speaker 1: consistent with the evolving standards of decency, the focus must
• 11:16
  Speaker 1: be on legislative and executive action. On this, defendant is
• 11:20
  Speaker 1: presented very little. It's true that since Abdullah was issued
• 11:24
  Speaker 1: in twenty fifteen, five additional states no longer have a
• 11:27
  Speaker 1: viable death penalty statute Delaware, New Hampshire, Colorado, Virginia, and Washington.
• 11:33
  Speaker 1: This still leaves twenty seven states that still currently have
• 11:37
  Speaker 1: the death penalty. As observed in Abdullah. It's difficult to
• 11:41
  Speaker 1: conclude the death penalty contravenes evolving standards of decency when
• 11:45
  Speaker 1: a majority of states in the Union continue to provide
• 11:48
  Speaker 1: for it as a punishment. Moreover, while defendant points to
• 11:52
  Speaker 1: tend states that currently have pending legislation to abolish the
• 11:55
  Speaker 1: death penalty, legislation that is merely pending reveals very little
• 11:59
  Speaker 1: about evolving standards of decency. The clearest and most reliable
• 12:04
  Speaker 1: objective evidence of contemporary values is the legislation enacted by
• 12:08
  Speaker 1: the country's legislators. More illuminating is the fact that voters
• 12:12
  Speaker 1: in both California, the most populous state, and Nebraska have
• 12:16
  Speaker 1: stated by way of referendum that the death penalty remains
• 12:19
  Speaker 1: appropriate in some defendant is demonstrated most significant legislative or
• 12:25
  Speaker 1: executive action taken since Abdullah and Harriston with respect to
• 12:28
  Speaker 1: the death penalty that would signify a consequential change to
• 12:32
  Speaker 1: societal standards of decency. Nor has defendants cited to any
• 12:36
  Speaker 1: court case in the past few years that the death
• 12:39
  Speaker 1: penalty should be abolished due to evolving standards of decency. Consequently,
• 12:44
  Speaker 1: there's no basis to depart from settled law of holding
• 12:47
  Speaker 1: Idaho's death penalty statute as constitutional. All right, we're going
• 12:51
  Speaker 1: to wrap up right here, and in the next episode,
• 12:53
  Speaker 1: we're going to finish this bad boy off. All of
• 12:56
  Speaker 1: the information that goes with this episode can be found
• 12:59
  Speaker 1: in the description box.