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November 16, 2013

Is pot already really legal for middle-aged white folks?

The question in the title of this post is prompted by this recent New York Times commentary by Jim Dwyer headlined "A Marijuana Stash That Carried Little Risk."  The piece is, I think, designed to complain about the impact and import of NYC stop-and-frisk policies, but my take-away is a bit distinct.  Here are excerpts from the piece:

Walking down Eighth Avenue a few weeks ago, I made sure my backpack was fully zipped shut.  Inside was a modest stash of pot, bought just an hour or so earlier.  A friend knew someone in that world, and after an introduction, then a quiet, discreet meeting, I was on my way to the subway.  Never before had I walked through Midtown Manhattan with it on my person.  There were four cookies in vacuum-sealed pouches — “edibles” is the technical term — and then a few pinches of what was described as “herb.”

The innovations of Michael R. Bloomberg as mayor are legion, but his enforcement of marijuana laws has broken all records.  More people have been arrested for marijuana possession than any other crime on the books.  From 2002 through 2012, 442,000 people were charged with misdemeanors for openly displaying or burning 25 grams or less of pot.

I wasn’t sure about the weight of my stash — although a digital scale was used in the transaction, I didn’t see the display — but it didn’t feel too heavy.  Still, I wasn’t about to openly display or burn it.

It turns out that there was little to fret over.  While scores of people are arrested on these charges every day in New York, the laws apparently don’t apply to middle-aged white guys. Or at least they aren’t enforced against us.

“It is your age that would make you most unusual for an arrest,” said Professor Harry Levine, a Queens College sociologist who has documented marijuana arrests in New York and across the country.  “If you were a 56-year-old white woman, you might get to be the first such weed bust ever in New York City — except, possibly, for a mentally ill person.”

About 87 percent of the marijuana arrests in the Bloomberg era have been of blacks and Latinos, most of them men, and generally under the age of 25 — although surveys consistently show that whites are more likely to use it.

These drug busts were the No. 1 harvest of the city’s stop, question and frisk policing from 2009 through 2012, according to a report released Thursday by the New York State attorney general, Eric T. Schneiderman.  Marijuana possession was the most common charge of those arrested during those stops.  The few whites and Asians arrested on these charges were 50 percent more likely than blacks to have the case “adjourned in contemplation of dismissal,” the report showed.

Now, having a little bit of pot, like a joint, is not a crime as long as you don’t burn or openly display it.  Having it in my backpack was a violation of law, meaning that it is an offense that is lower than a misdemeanor.  Pot in the backpack is approximately the same as making an illegal turn in a car.  Taking it out and waving it in the face of a police officer or lighting up a joint on the street would drive it up to the lowest-level misdemeanor.

How was it that all the black and Latino males were displaying or burning pot where it could be seen by the police?  The answer is that many of them were asked during the stops to empty their pockets.  What had been a concealed joint and the merest violation of the law was transformed into a misdemeanor by being “openly displayed.” If these were illegal searches — and they very well could have been — good luck trying to prove it....

Michael A. Cardozo, the chief lawyer for the city, is eager to get an appeals court to throw out the findings of fact by a judge who ruled against the city in a lawsuit over the stop-and-frisk tactics. Mr. Cardozo appears to believe, mistakenly, that losing a lawsuit is going to damage the legacy of his patron, Mayor Bloomberg.  Undoing a lawsuit will not unstain this history.

As for me, the pot got to a couple of people who might need it to get through some medical storms.  It’s too risky for me to use: I already have a hard enough time keeping my backpack zipped.

Cross-posted at Marijuana Law, Policy and Reform

November 16, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Offender Characteristics, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

November 15, 2013

If concerned principally about saving lives and public safety, can one reasonably oppose mass use of safer-driving technologies?

Traffic-fatalities-art-gnkpkaoq-11115gfx-fatalities-chart-epsThe question in title of this post is prompted by this local news item from my own local paper headlined "More Ohioans die on road in 2012." Here are excerpts:

Traffic fatalities rose last year across the United States for the first time since 2005, and Ohio was a big reason why, according to federal data.  More people died in car crashes in 37 states in 2012 than in 2011, and only Texas experienced a bigger jump than Ohio did, according to data released yesterday by the National Highway Traffic Safety Administration....

In all, 1,123 people died in Ohio wrecks last year — an increase of 106 from 2011.  More than 70 percent of the increase was attributed to alcohol and impaired driving. Nationwide, 33,561 people were killed in car crashes in 2012, an increase of 1,082.  Ohio’s crashes accounted for about 10 percent of the nationwide increase....

Ohio’s trend mirrors what much of the country experienced in 2012: a big jump in traffic fatalities early in the year.  About 72 percent of the increase nationwide occurred during the first quarter of the year, and Ralston said Ohio actually experienced a drop in traffic deaths during the second half of 2012.  Motorcycle deaths increased in the United States for the third consecutive year.

“I think too many times when we don’t hear about things or think things are going well, we get complacent about that,” MADD Ohio Executive Director Doug Scoles said. “The thing that’s frustrating with this is, impaired driving is completely preventable.”

The National Highway Traffic Safety Administration also announced yesterday that it would develop plans before the end of the year to encourage automakers to incorporate safety features in more vehicles.  Those features include seatbelt interlocks that prevent vehicles from being driven before a seat belt is fastened, alcohol-detection systems and collision avoidance.

MADD Ohio wants the state legislature to require ignition interlocks for all people convicted of drunken driving, and it’s hopeful that the auto industry will take a role in adding the safety technology, Scoles said.  “I think crackdown campaigns are effective, (but) they’re short-lived,” he said.

As regular readers know well (even if just from this post yesterday), I like to focus on traffic laws as a means to test whether and when citizens are really prepared to live up to oft-heard claims about the importance of public safety and saving innocent lives. And this local article (just like the one I noted yesterday) further reinforces my sense that significant investments in safer-driving technologies may be the most ready and cost-effective way to save innocent lives and improve public safety.

Recent related post:

November 15, 2013 in Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (3) | TrackBack

"One death row inmate supporting another in organ-donation fight"

The title of this post is the headline of this notable NBC News report in the wake of Ohio Gov. John Kasich's surprising decision to postpone the execution of child-killer Ronald Phillips to explore if he can donate his organs prior to (or during?) his execution (as first reported here).  Here are the details:

An Ohio convict's quest to donate his organs when he's executed is getting support from an Oregon death row prisoner who made a similar bid two years ago. Christian Longo, who was sentenced to die for murdering his wife and three small kids in 2001, told NBC News in an email that he reached out to Ronald Phillips, whose execution was just postponed so his organ-donation offer can be studied.

The "contact was rejected," Longo said. But he's still lobbying for Phillips to be given the chance to give away his organs at death — a proposal that experts say is an ethical and logistical minefield. “With a little bit of careful planning and coordination, lives can be saved from someone who has to die – up to eight lives with organs, and the enhancement of dozens more lives with tissues and tendons,” Longo wrote.

“There is no need to be in a rush to execute Mr. Phillips, who will die regardless. Not when there are so many innocently waiting on transplant lists for healthy donors who may die otherwise. To deny this is a perpetuated tragedy,” Longo said.

Longo's donation offer has been repeatedly turned down by Oregon authorities, and all executions are on hold anyway after Gov. John Kitzhaber declared a moratorium last year....

Medical ethicists say allowing such donations could give juries and judges an incentive to impose the death penalty and that prisoners could be coerced into giving away their organs. Organs are usually removed from people who are brain dead but whose bodies are otherwise functioning, and some experts say it would be impossible to replicate that scenario during an execution.

"The only options for executing someone to obtain vital organs is to either shoot them in the head or chop their head off and have a team of doctors ready to step in immediately," said Arthur Caplan, a professor of medical ethics at NYU Langone Medical Center. Theoretically, he said, the method of execution could be the removal of the organs under anesthesia. "The problem is no doctor is going to do it," he said. "It violates all medical ethics and now you're making the doctor the executioner."

Longo — who has a website and a Facebook page for his campaign, Gifts of Anatomical Value from Everyone — is also pushing states to allow prisoners who are not condemned to donate non-vital organs, like a single kidney. He helped Utah inmates push for a new Utah law, passed in April, that allows them to register as organ donors.

Recent related posts:

November 15, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Is AG Eric Holder going to stay on the job until he truly reforms American criminal justice?

The question in the title of this post is inspired by this new Washington Post article headlined "Reforming justice system is personal goal for Eric Holder Jr."  Here are excerpts from the piece:

As the Justice Department seeks new ways to reduce the burgeoning U.S. prison population, its success is likely to depend on community programs such as the one in this small city in America’s heartland.

In the past 11 years, federal prosecutors here have authorized substance abuse treatment and other assistance for more than 100 low-level offenders as an alternative to prison sentences.  Eighty-seven have successfully completed the program and, in the process, saved the federal government more than $6 million by sparing it the cost of incarceration....

Justice officials see the program in Peoria as a model for other communities — and central to the criminal justice reforms that Attorney General Eric H. Holder Jr. is moving to implement.  In August, at an American Bar Association conference in San Francisco, Holder announced that low-level nonviolent drug offenders with no ties to gangs or large-scale drug organizations would no longer be charged with offenses that impose severe mandatory sentences.  He has also introduced policies to reduce sentences for elderly, nonviolent inmates, to find alternatives to prison for nonviolent criminals, and to improve reentry programs to curb repeat offenses.

The announcements have heralded some of the most significant criminal justice policy shifts from the department in years.  For Holder — who has said that as a U.S. attorney and judge he saw neighborhoods destroyed by both illegal drugs and the tough-on-crime legislation that has disproportionately affected black men — the issue has been personal.

“Day after day, I watched lines of young people, most often young men of color, stream through my courtroom,” Holder told ex-offenders Thursday during a visit to a St. Louis courthouse, one of a string of stops he is making to promote his reform agenda.  “I learned how drug abuse, crime and incarceration can trap people in a destructive cycle.  A cycle that weakens communities, tears families apart and destroys individual lives.”...

Many of the department’s criminal justice reforms have bipartisan support, and Republican governors in some of the most conservative states have led the way on prison reform.  Congress also has shown a renewed interest in reducing the nation’s prison population, including the introduction of a bill this week that would reauthorize the Second Chance Act, which funds grants for programs that support probation, parole and reentry programs across the country.

“Rather than incarcerating repeat offenders in the same families generation after generation, we can put our taxpayer dollars to better use to break this vicious cycle and turn lives around,” Sen. Rob Portman (R-Ohio), a former prosecutor and one of the bills sponsors, said in a statement.

Efforts to reduce the prison population have drawn criticism from some lawmakers, who are skeptical that new policies will reduce crime.  “I am skeptical,” Sen. Charles E. Grassley (Iowa), the ranking Republican on the chamber’s Judiciary Committee, said at a a hearing last week.  “Reducing prison sentences will bring prisoners out on the street sooner.  The deterrent effect of imprisonment would be reduced.  Many so-called nonviolent drug offenders have violent records.  Some of these released offenders will commit additional crimes.”...

In a Philadelphia courtroom earlier this month, the attorney general watched more than a dozen drug offenders in a “reentry” program report to a judge to discuss their personal and work situations.  Officials there said the program, which provides parenting classes, vocational training and job opportunities, has saved $1.5 million in annual incarceration costs because fewer ex-offenders are being sent back to prison.  The national revocation rate for ex-offenders who are not in such programs is 47 percent; the rate among participants in the seven-year-old Philadelphia program is about 20 percent.

During his stops Thursday, Holder met with judges and pretrial service officers and watched as a district court judge encouraged ex-offenders to overcome their drug addictions and stay out of prison.  He spoke emotionally to a group about how his nephew struggled to overcome drug addiction.

Inside a federal courthouse in St. Louis, he watched a ceremony in which ex-offenders graduated from an intensive recovery program called EARN (Expanding Addicts’ Recovery Network). “I look at you all and I see myself,” he said. “I grew up in a neighborhood in New York City where people like you would have been my friends. We would have gone to school together. We would have tried to learn about girls together. We would have played basketball together. So I can’t help but feel mindful of the fact that, although I’m here in my capacity as attorney general of the United States, a few of the people I grew up with, good people like you, ended up taking different paths.”

“Some of them didn’t catch the same breaks,” the nation’s top law enforcement official said. “Some had to deal with drug issues. . . . I know that everyone makes mistakes — everyone. Including me. And that’s why I wanted to be here today to tell you in person how proud I am that each of you has decided not to let your mistakes define you and not to make excuses, but to make the most of the opportunities that you’ve been given.”

Right after President Obama's re-election, as noted in this post from last November, AG Holder was talking about staying on as AG for only "about a year" into this second Presidential term. But that year has now passed, and I have heard very little new buzz about AG Holder moving on. And, if he is truly committed to engineering significant and lasting criminal justice reform, I think he may need (at least) the next three years to really have a chance to get this done.

November 15, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

"Reducing crime by reducing incarceration"

The title of this post is the headline of this new Washington Times op-ed authored by David Cole and Marc Mauer.  Here are excerpts:

The United States remains the world leader in imprisonment, with an incarceration rate five times higher than that of many of our European allies. It wasn’t always this way. From 1925 through 1975, our incarceration rate was about 160 per 100,000 persons. Today it is nearly 700 per 100,000. It rose consistently for more than three decades, largely as a result of changes in policy, not crime rates. These policy changes, under the rubric of the “get tough” movement, were designed to send more people to prison and to keep them there longer. As the prison population has expanded, however, whatever impact incarceration may have had on crime has confronted the law of diminishing returns. Meanwhile, the corrections system costs us $80 billion a year.

In response to these concerns, recent years have seen significant reforms across the country. States from Texas to California to New York have reduced mandatory minimum sentences, softened “three-strikes” laws, or established drug-offender diversion programs. The number of people incarcerated in state prisons nationwide has dropped for three years in a row. California, New York and New Jersey have each reduced their prison populations by about 20 percent in the past decade — with no increases in crime.

In an era of heightened partisan politics, reform is a rare bipartisan issue. Attorney General Eric H. Holder Jr. and Republican Sens. Rand Paul and Mike Lee don’t often see eye to eye, but they have all advocated measures to reduce mandatory minimums. The American Legislative Exchange Council, which promotes free-market law reforms in the states, has identified reducing prison overcrowding as one of its priorities. Regardless of one’s politics, no one can be proud of the fact that the world’s wealthiest society locks up more of its citizens per capita than any other nation.

Most of the reforms thus far have focused on nonviolent offenders, especially drug-law violators — and for good reason. The large-scale incarceration of low-level drug offenders has had little impact on the drug trade; street-corner sellers and couriers are easily replaced. Incarceration imposes substantial costs on society at large, though, and on the life chances and families of those locked up.

If we are to tackle the incarceration rate effectively, we need to focus not only on those who receive the shortest sentences, but also on those who receive the longest sentences — lifers. Even as incarceration rates have begun to fall, life sentences have increased. One in nine prisoners in the United States is now serving a life sentence, including 10,000 serving life for a nonviolent offense (often the “third strike” under a three-strikes law). Nearly a third of the life sentences are imposed with no possibility of parole.

While most of these individuals have committed serious offenses, the increased reliance on life sentences is counterproductive. Criminal offenses tend to drop with age. As offenders grow older, their incarceration is increasingly less likely to have any incapacitative value. Nor is there any evidence that life sentences have greater deterrent effect. Studies find that it is the certainty of punishment, not its severity, that is most correlated with deterrence. Yet many states have adopted a “life means life” policy with no consideration of parole. Such sentences effectively write off the offender, rejecting the possibility of redemption altogether....

A key factor in the prison expansion of recent decades has been that offenders sentenced to prison are serving much longer sentences. American sentences today are frequently two to three times the length for similar offenses in the United Kingdom, the Netherlands, France and other industrialized nations. Sentencing reform has begun with the low-hanging fruit of mandatory minimums for nonviolent offenses, but if it is to succeed, we must reduce the length of criminal sentences generally.

Recent related post:

November 15, 2013 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

November 14, 2013

Some early reactions to Gov. Kasich's surprise decision delay execution to explore organ donation

Ohio Gov. John Kasich's decision to postponed today's scheduled execution of child-killer Ronald Phillips in order to determine if he can donate his organs prior to (or during?) his execution (reported here), has already, not surprisingly, generated considerable attention and has prompted a number of follow-up questions.  Here is some of the early buzzing and queries drawn from today's media headlines:

My own questions include whether (or really when) all the other condemned persons on on Ohio's death row will also offer to donate their organs if (and perhaps only when) their other legal appeal fail and they are only days from a scheduled execution.

Recent related post:

November 14, 2013 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

"Misconstruing Graham & Miller"

The title of this post is the title of this notable new piece by Cara Drinan now up at SSRN. Here is the abstract:

In the last three years the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in its Graham v. Florida and Miller v. Alabama rulings, the Court struck down a majority of the states’ juvenile sentencing laws, outlawing life without parole for juveniles who commit non-homicide offenses and mandating individualized sentencing for those children who commit even the most serious crimes.  An examination of state laws and sentencing practices, however, suggests that the Graham and Miller rulings have fallen on deaf ears.  After briefly describing what these two decisions required of the states, in this Essay, I outline the many ways in which state actors have failed to comply with the Court’s mandate. Finally, I map out a path for future compliance that relies heavily upon the strength and agility of the executive branch.

November 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

If concerned principally about saving lives and public safety, can one reasonably oppose mass use red-light cameras?

The question in title of this post is prompted by this local news item from my own local paper headlined "Coalition says red-light cameras reducing accidents, saving lives." Here are excerpts:

The battle over whether red-light cameras are primarily lifesavers or money-makers is being re-fought in the General Assembly seven years after it began. Cameras placed at critical intersections, including 38 in Columbus, help dramatically reduce accidents and save lives, a statewide coalition said yesterday, pushing back against a legislative proposal that would all but eliminate the devices in Ohio.

House Bill 69, passed by the House this year, “is bad public policy that puts people at risk on Ohio roads,” Sgt. Brett Bauer of the Springfield Police Department said at a Statehouse news conference. Red-light cameras “are making roads safer in Springfield and across the state,” he said. The bill would limit cameras to school zones — and then only when an officer was present.

A coalition of police officials from Columbus and other cities, plus municipal officials, bicycle enthusiasts and safety advocates, appeared at the news conference alongside Sen. Kevin Bacon, R-Minerva Park, who is planning legislation to reform how the cameras may be used rather than repeal the use of cameras, as the House bill would do.

The most emotional advocate in favor of continuing using the cameras was Paul Oberhauser of Somerset, whose 31-year-old daughter, Sarah, was killed in 2002 when a motorist ran a red light and hit her car in an intersection at 55 mph. “The year Sarah died, about 1,000 people nationally were killed in red-light accidents,” Oberhauser said. “I know you understand this carnage has got to stop.”...

Right-angle crashes are down 74 percent in Columbus, while rear-end crashes have dropped 25 percent at intersections with cameras, said Lt. Brenton Mull of the Columbus Division of Police. The city has 38 cameras at intersections scattered across the city. “It is a model program that should be emulated, not thrown out because someone doesn’t like getting a ticket from a red-light camera,” he said.

As regular readers (and my students) know well, I like to focus on traffic laws as a means to test whether and when citizens are really prepared to live up to oft-heard claims about the importance of public safety and saving innocent lives. In the context of debates over gun control, the death penalty, mass incarceration and other high-profile public policy criminal justice debates, there is often considerable competing claims and evidence concerning whether and when certain government policies actually do or do not save innocent lives and improve public safety. But this local article confirms my understanding that red-light cameras do tend to improve public safety at least somewhat (and does so in a way that actually raises revenue for localities rather than require significant expenditures).

I fully understand why persons principally concerned about privacy rights or due process or government graft might have real problems with widespread use and potential abuse of red-light cameras. But I really want to hear from readers if they think that those persons who say their principally criminal justice concerns relate to saving lives and public safety (as I do) have any sound basis for opposing mass use of these cameras.

November 14, 2013 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

New York Times op-ed asks "Serving Life for This?"

I am pleased to see that columnist Nicholas Kristoff used his op-ed space today in the New York Times to promote the ACLU's new report on the thousands of persons serving LWOP sentences for non-violent offenses in the United States (discussed here).  This piece is headlined "Serving Life For This?," and here are excerpts:

At a time when America has been slashing preschool programs, we have also been spending vast sums to incarcerate thousands of nonviolent offenders in life sentences without any possibility of parole. These cases underscore that our mass incarceration experiment has resulted in monstrous injustice and waste — a waste of tax dollars and of human lives.

Judges and prison officials are rebelling at the injustice of our justice system. Here’s what Judge James R. Spencer, a federal district judge, said when sentencing a former F.B.I. informant to life without parole for selling crack cocaine to support his own addiction: “A life sentence for what you have done in this case is ridiculous; it is a travesty.” But federal law on mandatory minimums left Judge Spencer no leeway. He added: “I don’t agree with it, either. And I want the world and the record to be clear on that. This is just silly.”

Here are some other nonviolent offenders serving life sentences without the possibility of parole:

• Ricky Minor, a meth addict and father of three, was found with 1.2 grams of meth in his home, along with over-the-counter decongestants that can be used to manufacture meth. He was initially charged under Florida law and says he faced a two-and-a-half-year sentence. Later indicted under federal law, he pleaded guilty because his public defender said that otherwise the prosecutors would also pursue his wife, leaving no one to raise their children. Minor had several prior nonviolent offenses, for which he had never served time, and these required Judge Clyde Roger Vinson to sentence him to life without parole. Judge Vinson said that the sentence “far exceeds whatever punishment would be appropriate.”

• Dicky Joe Jackson was a trucker whose 2-year-old son, Cole, needed a bone-marrow transplant to save his life. The family raised $50,000 through community fund-raisers, not nearly enough for the transplant, and Jackson tried to earn the difference by carrying meth in his truck. He has now been in prison for the last 17 years; when he lost his last appeal, he divorced his wife of 19 years so that she could start over in her life. The federal prosecutor in the case acknowledged: “I saw no indication that Mr. Jackson was violent, that he was any sort of large-scale narcotics trafficker, or that he committed his crimes for any reason other than to get money to care for his gravely ill child.”

• Danielle Metz became pregnant at 17 and later married an abusive man who was also a drug dealer. To placate him, she says, she sometimes helped him by fetching cocaine or collecting money from Western Union. After one clash in which he punched her in the face, she took the kids and left him. Two months later, she was indicted. She says that she was prosecuted primarily to induce her to testify against her husband, but that she wasn’t knowledgeable enough to have useful information to trade for a reduced sentence. She has now spent more than 20 years in prison.

Those examples come from a devastating new report, “A Living Death,” by the American Civil Liberties Union. It identified more than 3,200 such nonviolent offenders sentenced to die behind bars. Four out of five are black or Hispanic. Virtually all are poor. Many had dismal legal counsel. Some were convicted of crimes committed when they were juveniles or very young adults....

I write often about human rights abuses abroad. But when we take young, nonviolent offenders — some of them never arrested before — and sentence them to die in prison, it’s time for Americans who care about injustice to gaze in the mirror.

Recent related post:

November 14, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

November 13, 2013

"Kasich postpones execution of inmate who wants to donate organs"

The title of this post is the headline of this breaking news story reporting some surprising news coming from Ohio this afternoon.  Here are details:

In an unprecedented move, Gov. John Kasich has postponed the execution of Akron child-killer Ronald Phillips scheduled for Thursday to determine if his organs can be harvested. It has been rescheduled for July 2, 2014.

In a statement released this afternoon, Kasich halted Phillips’ execution “so that medical experts can assess whether or not Phillips’ non-vital organs or tissues can be donated to his mother or possibly others.”

“Ronald Phillips committed a heinous crime for which he will face the death penalty. I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen,” Kasich said.

Phillips, 40, was sentenced to die for the 1993 beating, rape and murder of three-year-old Sheila Marie Evans, the daughter of his girlfriend at the time. The governor said if Phillips “is found to be a viable donor to his mother or possibly others awaiting transplants of non-vital organs, such as kidneys, the procedures would be performed and then he would be returned to Death Row to await his new execution date.”

Phillips asked earlier this week if he could donate his organs to his mother or others, but the Ohio Department of Rehabilitation and Correction rejected his request.

Wowsa. I have to catch my breath and think about this a lot before I am sure how to react. While I do so, I look forward to hearing reactions from both the pro and anti death penalty crowd in the comments.

November 13, 2013 in Clemency and Pardons, Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Fourth Circuit rejects effort to use Miller to assail ACCA enhancements based on juve priors

In a not surprising but still noteworthy panel opinion, the Fourth Circuit today in US v. Hunter, No. 12-5035 (4th Cir. Nov. 13, 2013) (available here), rejected a federal defendant's effort to use the Supreme Court's Miller ruling to contest a lengthy mandatory minimum sentence for an adult crime based on prior offenses committed when the defendant was a juvenile.  Here is how Hunter begins:

In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the Supreme Court announced that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Relying on Miller, Defendant Jimmy Eliab Hunter appeals from his sentence for being a felon in possession of a firearm, asserting that the district court erred in sentencing him as an armed career criminal based on violent felonies he committed as a juvenile.  But unlike the juveniles in Miller, Defendant’s sentence here punishes him for an offense he committed at the age of thirty-three, well past an age when “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences.” Id. at 2465. Thus, proportionality concerns expressed in Miller regarding youthful offenders are not implicated here.  Finding Miller, Defendant’s sole basis for his Eighth Amendment challenge, inapplicable, we affirm.

November 13, 2013 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Is sentence disparity reduced if mass murderer Whitey Bulger and drug dealer Sam Hurd get the same LWOP sentence?

The question in the title of this post is prompted by the news of two seemingly very distinct federal sentencings taking place today in which it seems the federal sentencing guidelines are calling for the exact same LWOP sentence. 

Regular readers are already familiar with the case involving Whitey Bulger, whose sentencing is taking place today in federal Court in Boston.  This new USA Today article, headlined "Victim's son: Mobster Whitey Bulger is 'Satan'," highlights just the latest developments in a case in which I sincerely wonder why there is not more of an effort by pro-death-penalty advocates to have an even tougher punishment than LWOP in the mix.

Somewhat less high profile, except perhaps for hard-core football fans, is the sentencing of former NFL receiver Sam Hurd.  This SI.com article, headlined "Former NFL player Sam Hurd hopes to avoid life sentence at hearing," provides some background starting this way:

This afternoon at the Federal courthouse in Dallas, U.S. District court judge Jorge Solis is scheduled to begin the sentencing hearing for former Cowboys and Bears receiver Sam Hurd, who pleaded guilty to a single drug trafficking charge in April. Hurd's attorneys will be allowed to present witnesses and evidence to contest the individual allegations against him. At the end of the hearing Solis will decide whether to take the recommendation of the U.S. Probation and Pretrial Services Department of life in prison without parole or give Hurd a lighter sentence. The only certainty is that Hurd will be going to prison.

Hurd was arrested on Dec. 14, 2011 and indicted on Jan. 4, 2012. For the first 19 months, life in prison was not even in the discussion. Five to 20 years was the sentencing range, with precedent and the informed opinions of more objective onlookers and academics backing up that estimate. Since the life sentence recommendation was made in late July, one comment repeated by sources across the spectrum of partiality has been some version of this reminder: You realize life in prison in the federal system means the next time he comes out of prison it'll be in a coffin.

Hurd, who has been housed in the federal detention center in Seagoville, about a 30-minute drive from the Dallas court building, did not respond to an email from SI Wednesday morning. He may have already been relocated to downtown Dallas and unable to access his prison-controlled email account. He called last Friday night and repeated again that he is "ready to be sentenced for what I did, not this other mess. Our system should not work like this.

I have to assume that Hurd is facing a recommended LWOP sentence because of the quantity of drugs being ascribed to him and a guideline sentencing structure that provides that drugs dealers will often be facing the same guideline sentence as mass murderers.

Hurd is, of course, very fortunate that the federal sentencing guidelines are no longer mandatory, and I think it is unlikely he will get an LWOP term today. But this coincidence of these two very different criminals facing the exact same federal guideline sentence provides a high-profile example of how the guidelines can themselves create disparity and especially revelas how misguided it can often be to assume imposition of within-guideline sentences reduce disparity.

UPDATE On Wednesday afternoon, as reported here, Sam Hurd received a 15-year federal prison sentence; on Thursday morning, as reported here, Whitey Bulger received two life terms plus 5 years in the federal pen.

November 13, 2013 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack

New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms

Lwop-marquee-230x230-v01The ACLU has released a huge new report giving focused attention to the thousands of prisoners serving life without parole sentences in the United States for nonviolent drug and property crimes. This massive new report, which can be accessed at this link, is titled "A Living Death: Life without Parole for Nonviolent Offenses." This related webpage highlights some specific defendants and cases with this introduction:

For 3,278 people, it was nonviolent offenses like stealing a $159 jacket or serving as a middleman in the sale of $10 of marijuana. An estimated 65% of them are Black. Many of them were struggling with mental illness, drug dependency or financial desperation when they committed their crimes. None of them will ever come home to their parents and children. And taxpayers are spending billions to keep them behind bars.

Here is an excerpt from the 200+ page report's executive summary:

Using data obtained from the Bureau of Prisons and state Departments of Corrections, the ACLU calculates that as of 2012, there were 3,278 prisoners serving LWOP for nonviolent drug and property crimes in the federal system and in nine states that provided such statistics (there may well be more such prisoners in other states).  About 79 percent of these 3,278 prisoners are serving LWOP for nonviolent drug crimes.  Nearly two-thirds of prisoners serving LWOP for nonviolent offenses nationwide are in the federal system; of these, 96 percent are serving LWOP for drug crimes.  More than 18 percent of federal prisoners surveyed by the ACLU are serving LWOP for their first offenses.  Of the states that sentence nonviolent offenders to LWOP, Louisiana, Florida, Alabama, Mississippi, South Carolina, and Oklahoma have the highest numbers of prisoners serving LWOP for nonviolent crimes, largely due to three-strikes and other kinds of habitual offender laws that mandate an LWOP sentence for the commission of a nonviolent crime. The overwhelming majority (83.4 percent) of the LWOP sentences for nonviolent crimes surveyed by the ACLU were mandatory.  In these cases, the sentencing judges had no choice in sentencing due to laws requiring mandatory minimum periods of imprisonment, habitual offender laws, statutory penalty enhancements, or other sentencing rules that mandated LWOP.  Prosecutors, on the other hand, have immense power over defendants’ fates: whether or not to charge a defendant with a sentencing enhancement triggering an LWOP sentence is within their discretion.  In case after case reviewed by the ACLU, the sentencing judge said on the record that he or she opposed the mandatory LWOP sentence as too severe but had no discretion to take individual circumstances into account or override the prosecutor’s charging decision.

As striking as they are, the numbers documented in this report underrepresent the true number of people who will die in prison after being convicted of a nonviolent crime in this country.  The thousands of people noted above do not include the substantial number of prisoners who will die behind bars after being convicted of a crime classified as “violent” (such as a conviction for assault after a bar fight), nor do the numbers include “de facto” LWOP sentences that exceed the convicted person’s natural lifespan, such as a sentence of 350 years for a series of nonviolent drug sales.  Although less-violent and de facto LWOP cases fall outside of the scope of this report, they remain a troubling manifestation of extreme sentencing policies in this country.

November 13, 2013 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (19) | TrackBack

November 12, 2013

"The Eighth Amendment as a Warrant Against Undeserved Punishment"

The title of this post is the title of this notable new paper by Scott Howe now available via SSRN. Here is the abstract:

Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishments that they receive.  A deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium.

Yet, this view of the Eighth Amendment challenges many current criminal-law doctrines and sentencing practices that favor crime prevention over retributive limits. Mistake-of-law doctrine, felony-murder rules and mandatory-minimum sentencing laws are only a few examples. Why have these laws and practices survived? One answer is that the Supreme Court has largely limited proportionality relief to a few narrow problems involving the death penalty or life imprisonment without parole, and it has avoided openly endorsing the deserts limitation even in cases in which defendants have prevailed. Yet, this Article presents a deeper explanation. I point to four reasons why the doctrine must remain severely stunted in relation to its animating principle. I am to clarify both what the Eighth Amendment reveals about the kind of people we want to be and why the Supreme Court is not able to force us to live up to the aspiration.

November 12, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Sixth Circuit upholds dismissal of indictment with new mandatory minimum charge based on on prosecutorial vindictiveness

Last week, in a decision I have been meaning to blog about given recent blog debate over federal prosecutorial discretion, the Sixth Circuit upheld a district court's decision to dismiss an indictment in a child pornography downloading case based on prosecutorial vindictiveness.  The ruling in US v. LaDeau, No. 12-6611 (6th Cir. Nov. 4, 2013) (available here), highlights my concern about the potential misuse of federal prosecutorial charging discretion, while also revealing that judges are not without some mechanisms to try to check prosecutoral abuses of power.  Here is how the unanimous panel ruling in LaDeau starts:

Defendant Daniel Bruce LaDeau was indicted on a single count of possessing child pornog raphy, in violation of 18 U.S.C. § 2252A(a)(5)(A).  This charge prescribed a sentencing range of zero to ten years’ imprisonment.  Subsequently, LaDeau moved to suppress the evidence that he had any such materials in his possession.  After the district court granted LaDeau’s motion to suppress, the government sought and obtained a superseding one-count indictment charging LaDeau with a conspiracy offense based on evidence that had been in the government’s possession since before the initial indictment.  But rather than charging LaDeau in the superseding indictment with conspiring to possess child pornography, the government chose to charge him with conspiring to receive child pornography — a charging decision that subjected LaDeau to a five-to-twenty-year prison term instead of the previously applicable statutory range of zero to ten years.  Defendant LaDeau then moved to dismiss the superseding indictment.  The district court agreed with LaDeau that the government’s decision to change to a receipt theory warranted a presumption of prosecutorial vindictiveness, inasmuch as there was a realistic likelihood that LaDeau was being charged with a more serious offense in retaliation for his successful suppression motion.  Concluding that the government had not rebutted the presumption of vindictiveness, the district court dismissed the superseding indictment. The government filed this appeal.  Because the district court did not abuse its discretion in dismissing the superseding indictment, we affirm.

November 12, 2013 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Can and should brain science research become a regular (and regulated) part of sentencing decision-making?

Brainscans2The question in the title of this post is prompted by this notable new NPR segment (misleadingly?) headlined "The Case Against Brain Scans As Evidence In Court." Here are excerpts from the piece:

It's not just people who go on trial these days.  It's their brains.

More and more lawyers are arguing that some defendants deserve special consideration because they have brains that are immature or impaired, says Nita Farahany, a professor of law and philosophy at Duke University who has been studying the use of brain science in court.

About 5 percent of murder trials now involve some neuroscience, Farahany says. "There's a steady increase of defendants seeking to introduce neuroscience to try to reduce the extent to which they're responsible or the extent to which they're punished for a crime," she says.

Farahany was a featured speaker at the Society for Neuroscience meeting in San Diego this week.  Also featured were several brain scientists who are uncomfortable with the way courts are using brain research....

The approach has been most successful with cases involving teenagers, Farahany says. "It seems like judges are particularly enamored with the adolescent brain science," she says. "Large pieces of their opinions are dedicated to citing the neuroscientific studies, talking about brain development, and using that as a justification for treating juveniles differently."...

So judges and juries are being swayed by studies showing that adolescent brains don't function the same way adult brains do.  One study like that was presented at the neuroscience meeting by Kristina Caudle, a neuroscientist at Weill Cornell Medical College. The study, funded by the National Institutes of Health, used a technology called functional MRI to look at how the brains of people from 6 to 29 reacted to a threat.

"The typical response — and what you might think is a logical response — is to become less impulsive, to sort of withdraw, to not act when there is threat in the environment," Caudle says.  "But what we saw was that adolescents uniquely seemed to be more likely to act. So their performance on this task became more impulsive."  And Caudle found that in adolescents, an area of the brain involved in regulating emotional responses had to work much harder to prevent an impulsive response.  This sort of study is great for understanding adolescent brain development in a general way, Caudle says.

"What it doesn't do is allow us to predict, for example, whether one particular teenager might be likely to be impulsive or to commit criminal behavior," she says.  And Caudle worries that a study like hers could be used inappropriately in court.  "Jurors tend to really take things like MRI scans as fact, and that gives me great pause," she says.

When it comes to nature versus nurture, brain scientists think both matter.  A lot of the neuroscience presented in court is simply unnecessary, says Joshua Buckholtz, a psychologist at Harvard.  "Anyone who's every had a teenager would be able to tell you that their decision-making capacities are not comparable to adults," he says.

And relying on brain science to defend juveniles could have unexpected consequences, Buckholtz says.  For example, he says, if a prosecutor used an MRI scan to show that a 16-year-old who committed a capital crime had a very mature brain, "Would we then insist that we execute that juvenile?"

The task of integrating brain science into the judicial system will in large part be the responsibility of judges, Buckholtz says.  And how it works will depend on how well judges understand "what a scientific study is and what it says and what it doesn't say and can't say," he says.

I do not see anything in this piece which suggests that brain scans amount to "junk science," and thus I do not fully understand why NPR thinks this segment reveals a "case against" against brain science as evidence in legal proceedings. 

Of course, I fully understand concerns expressed by scientists about the potential misuse or misunderstanding of their nuanced brain scan research.  But juries and judges are drawn to scientific research largely because the decision-making alternative is to rely more on gut feelings, emotions, instincts or biases.  Unless brain scans provide a worse foundation for making judgments than gut feelings, emotions, instincts or biases, it seems to me they ought to have a role in legal decision-making.

As the question in the title of this post suggests, I think the really tough questions here are not whether brain science is worthy of consideration, but rather when and how brain science should be considered by judges and juries.  Indeed, the Supreme Court's Eighth Amendment rulings in Roper and Graham and Miller have already given brain science research some constitutional import, and thus I hope both scientists and law professors will now turn their attention to debating how the legal system might most fairly and effectively operationalize what the brain research is telling us about the scientific realities of human behaviors and personal development.

November 12, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (16) | TrackBack

November 11, 2013

Two notable SCOTUS criminal law arguments (with federal mandatory minimums at issue)

The Supreme Court Justices could have perhaps benefited from this long weekend by hanging out with my terrific first-year Criminal Law students because they return to work on Tuesday to hear two interesting cases raising classic issues relating to the basic doctrines of substantive criminal law. thanks to Congress, though, these issue arise for SCOTUS with severe mandatory minimum sentencing terms hanging in the balance.

SCOTUSblog, of course, is the place to go for a quick primer on Burrage v. United States and Rosemond v. United States, and here are the links and introduction for the argument previews now posted there:

    Law school hypos about criminal law mens rea by Rory Little

At 10:00 a.m. on Tuesday, November 12, the Court will consider a philosophical question that has troubled the criminal law for centuries: what mens rea (mental state) is required to prove “aiding and abetting” liability?   The question in Rosemond v. United States arises under 18 U.S.C. § 924(c), the federal law that provides significant mandatory minimum imprisonment terms for carrying, using, brandishing, or discharging a firearm during and in relation to a narcotics offense.  Arguing for petitioner Justus Rosemond, seeking to overturn his conviction, will be John P. Elwood, a former Assistant to the Solicitor General who is now a partner in the Washington, D.C., office of Vinson & Elkins.  Arguing for the federal government will be Assistant to the Solicitor General John F. Bash.

     Crime and death’s cause By Lyle Denniston

At 11 a.m. next Tuesday, the Supreme Court will hold one hour of oral argument on the proof that federal prosecutors must offer to get an enhanced prison sentence for a drug dealer when a customer who bought heroin died.  Arguing for the convicted Iowa man in the case of Burrage v. United States will be Angela L. Campbell, of the Des Moines law firm of Dickey & Campbell.   Arguing for the federal government will be Benjamin J. Horwich, an assistant to the Solicitor General.

UPDATE: The oral argument transcript in Rosemond v. United States is available at this link; the transcript in Burrage v. United States is available at this link.

November 11, 2013 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?

On Veterans Day, I always find myself thinking about veterans who, after serving our country in the military and thereby supporting of our nation's commitment to liberty and freedom, return home and discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems.  This Daily Beast piece, headlined "From PTSD to Prison: Why Veterans Become Criminals," highlights that there are now probably hundreds of thousand of veterans in America's prison and jails:

In 2008 the RAND Corporation surveyed a group of veterans six months after their return. It found that almost one in five had either PTSD or major depression. In recent years rates of substance abuse and suicide among veterans have also ticked steadily upward.

A certain number of veterans suffering from mental-health issues will, invariably, end up in jail or prison. After Vietnam, the number of inmates with prior military service rose steadily until reaching a peak in 1985, when more than one in five was a veteran. By 1988, more than half of all Vietnam veterans diagnosed with PTSD reported that they had been arrested; more than one third reported they had been arrested multiple times. Today veterans advocates fear that, unless they receive proper support, a similar epidemic may befall soldiers returning from Iraq and Afghanistan.

No one knows how many veterans are incarcerated, but the most recent survey, compiled by the Department of Justice’s Bureau of Justice Statistics in 2004, found that nearly one in 10 inmates in U.S. jails had prior military service. Extrapolated to the total prison population, this means that approximately 200,000 veterans were behind bars.

As the title of this post highlights, I would like to see President Obama go beyond the usual symbolic gestures and use his historic clemency powers to salute at least a few veterans in federal prison with commutations that would create just a bit more physical liberty and honor a few more veterans with pardons that would free offenders from the enduring collateral consequences of a federal criminal conviction.

This effective recent op-ed by Mark Osler, headlined "Clemency is a task for people and institutions of faith; It should also be a task for the president, but he seems unwilling or unable to use his powers," starts by noting why, sadly, I am not expecting the President to step up to the clemency plate today or anytime soon:

President Obama is, by a wide margin, the stingiest president in modern times in his use of the pardon power.  He seems unwilling or unable to use this simple constitutional tool, even as both conservative and progressive commentators are criticizing the federal government’s overincarceration of nonviolent offenders.  A simple way to alleviate that problem would be to commute (shorten) the most egregious of these sentences using the pardon power.

Some recent and a few older posts concerning federal clemency practices:

November 11, 2013 in Clemency and Pardons, Offender Characteristics, Who Sentences? | Permalink | Comments (2) | TrackBack

"Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate Review

The title of this post is the title of this notable new paper authored by Briana Rosenbaum now available via SSRN. Here is the abstract:

Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy.  As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises.  These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency.

The deferential approach to federal sentence appeals is in sharp contrast to the approach in England, where the appellate court conducts de novo review of sentencing law and policy to develop a common law of sentencing that is independent of the English sentencing guidelines.  The English model of appellate review suggests a new way to design the role of appellate courts in the federal system: from bodies that merely enforce guidelines to further consistency of sentencing outcomes, to bodies that develop sentencing law to further consistency of sentencing approach.

In this paper, I explore the primary functional, institutional, and normative arguments behind the resistance to robust appellate review in the federal appellate courts and study the English model as a means of evaluating these critiques.  Ultimately, I suggest that the federal courts of appeals borrow England’s “mixed deference approach” to sentence appeals, including de novo review of sentencing law and principles.  Doing so will promote greater sentencing consistency without either over-enforcement of the Guidelines or unwarranted encroachment of sentencing discretion.

November 11, 2013 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

November 10, 2013

Reviewing the continuing challenges for states seeking to continue with lethal injection

This New York Times piece, headlined "Executions Stall as States Seek Different Drugs," reports on the latest mechanical challenges for those states seeking to keep their machineries of death running despite new difficulties and old litigation surrounding lethal injection drugs and protocols.  Here are excerpts:

Florida ran out of its primary lethal-injection drug last month and relied on a new drug that no state had ever used for an execution.  At Ohio’s next scheduled execution, the state is planning to use a two-drug combination for the first time.  Last month in Texas, Michael Yowell became that state’s first inmate executed using a drug made by a lightly regulated pharmacy that usually produces customized medications for individual patients.

The decision by manufacturers to cut off supplies of drugs, some of which had been widely used in executions for decades, has left many of the nation’s 32 death penalty states scrambling to come up with new drugs and protocols.  Some states have already changed their laws to keep the names of lethal-drug suppliers private as a way to encourage them to provide drugs.

The uncertainty is leading to delays in executions because of legal challenges, raising concerns that condemned inmates are being inadequately anesthetized before being executed and leading the often-macabre process of state-sanctioned executions into a continually shifting legal, bureaucratic and procedural terrain....

“We have seen more changes in lethal injection protocols in the last five years than we have seen in the last three decades,” said Deborah W. Denno, a professor at Fordham Law School and a death penalty expert.  “These states are just scrambling for drugs, and they’re changing their protocols rapidly and carelessly.”

All 32 states with legalized executions use lethal injection as their primary option for executions. Of the more than 250 executions since 2008, all but five were done with lethal injections.

Facing increasing pressure and scrutiny from death penalty opponents, manufacturers of several drugs used in lethal injections — including sodium thiopental and pentobarbital — over the past few years have ceased production of the drugs or required that they not be used in executions.  Looking for alternatives, state prison systems have been more eager to try new drugs, buy drugs from new sources, keep the identities of their drug suppliers secret and even swap drugs among states.

A week before the execution of a convicted murderer, Arturo Diaz, in September, Texas prison officials received two packages of pentobarbital from the Virginia Department of Corrections, at no charge; the state with the country’s second-busiest death chamber acting as ad-hoc pharmacy to the state with the busiest.

Several states have turned to compounding pharmacies, which are largely unregulated by the Food and Drug Administration and overseen primarily by the states.  They have traditionally made specialized drugs, for instance, turning a medication into a cream or gel if a patient has trouble swallowing pills.

In Missouri, the availability of drugs and litigation have slowed the pace of executions. There have been two since 2009. “We are going to continue to be affected by these pharmaceutical company decisions time and again, unless the death penalty states can find a pharmaceutical product that has some supply stability around it,” said Chris Koster, the attorney general in Missouri, which dropped plans to use the anesthetic propofol after the European Union threatened to limit exports of the drug if it was used in an execution.

The drug shortages and legal wrangling have led some officials to discuss older methods of execution.  In July, Mr. Koster suggested that the state might want to bring back the gas chamber.  Dustin McDaniel, the attorney general in Arkansas, which has struggled with its lethal-injection protocol, told lawmakers the state’s fallback method of execution was the electric chair.  Mr. Koster and Mr. McDaniel said they were not advocating the use of the gas chamber or the electric chair, but were talking about the possible legal alternatives to an increasingly problematic method for states.

“No state has had any success with getting their hands on the cocktail that has heretofore been relied upon,” Mr. McDaniel said. He said that lawyers for the state are trying to navigate the appeals process in death penalty cases while knowing that “if the legal hurdles were magically to go away, we are in no position to carry out an execution in this state.”

November 10, 2013 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack