Saturday, March 28, 2015
Should states try harder to condemn and execute women to overcome death penalty's sexism?
The question in the title of this post is prompted by this notable new commentary about the Jodi Arias case headlined "Why the death penalty in America is sexist." Here are excerpts:
It took only one juror to spare Jodi Arias the death penalty for the brutal murder of her ex-boyfriend Travis Alexander in 2008. Considering the United States has executed only 13 women in the last 40 years, a death sentence would have been highly unusual.
Women committed less than 10% of all murders in America between 2000 and 2010, a Wall Street Journal analysis of crime data found. Women defendants, however, only make up 2% of death row, according to a recent report by the NAACP.
Even fewer women actually get executed, Death Penalty Information Center executive director Richard Dieter told Business Insider. "There's just less enforcement of the death penalty at almost every stage for females," he said.
Two major factors contribute to the low number of women who get capital punishment: the nature of the crime and how juries view women in general. The death penalty is often used for killers who also commit other felonies like robbery or rape, law professor Victor Streib has previously told the LA Times. Many of the murders women commit, on the other hand, involve people they're related to.
While women commit about 10% of murders, they were responsible for 35% of murders of intimate partners between 1980 and 2008. Most juries consider these crimes of passion arising from disputes — one-time offenses, Dieter said. Because of the high rate of domestic violence against women, though, juries don't give men the same benefit of the doubt.
On the other hand, most states consider killing a child an aggravating factor, or a reason for prosecutors to seek the death penalty. Hiring someone to do the work could also land a woman on death row. "If a woman hires someone, there's a coldness, a calculation. It's different than something that arises out of an argument," Dieter said. Teresa Lewis, for example, plotted to kill her husband and stepson for the insurance money. "Instead of pulling a trigger on a gun, she pulled a couple of young men in to pull the trigger for her," prosecutor David Grimes told a judge at the time, The Washington Post reported. She was the first woman Virginia sentenced to die in more than 100 years.
But the second factor — the jury's perception of the "fragile" female psyche — can overpower aggravating factors. "It's just easier to convince a jury that women suffer emotional distress or other emotional problems more than men," Streib told the LA Times....
"These 12 people [the jury] are asked to see if this person has any redeeming qualities. And they often see their own mother or wife or grandmother, not someone who will continue to be a threat to society," Dieter said. "Jurors just see women differently than men."
Of course, most women aren't going to argue for gender parity in the death penalty, Dahlia Lithwick has written in Slate. Only 59% of women favor the death penalty compared to 67% of men, according to a 2013 Gallup poll. "For equality's sake, you think that women would want the death penalty pursued more often," Dieter said. "But of course, they don't."
Friday, March 27, 2015
Has modern "death penalty politics radically, shockingly changed"?
The question in the title of this post is prompted by this new Salon piece which carries this full headline: "'We’re seeing it among Evangelicals': How death penalty politics radically, shockingly changed." The piece reports on an interview with National Coalition to Abolish the Death Penalty executive director Diann Rust-Tierney, and here is how the Q&A is introduced:
The recent release of Debra Milke, an Arizona woman who spent 23 years on death row for a crime she did not commit, is first and foremost a tragic story of injustice. But it’s something else, too: another arresting example of how the reality of the criminal justice system in the U.S., which has come under increasing scrutiny in recent years, falls well short of its supposed intentions. As Supreme Court Justice Anthony Kennedy, who was appointed by law-and-order drug warrior Ronald Reagan, told Congress earlier this week, the system is, “[i]n many respects … broken.”
Politicians on both sides of the aisle are more willing to discuss making serious changes to American justice than they have been in more than a decade, but one of the most stark and disturbing manifestations of the system’s flaws still often goes unmentioned. We’re thinking, of course, about the death penalty. But if one considers the great attention paid by the media and the public to recent botched executions in Oklahoma and Arizona — as well as Utah’s decision to bring back firing squads — there’s reason to think that, too, may soon change.
Recently, Salon spoke over the phone with National Coalition to Abolish the Death Penalty executive director Diann Rust-Tierney about her group’s work and the changing politics of capital punishment.
Wednesday, March 25, 2015
Are compounding pharmacies likely to cut off drug dealing to states for executions?
The question in the title of this post is prompted by this notable Wall Street Journal article headlined "Compound Pharmacists Trade Group Discourages Supplying Execution Meds." Here are excerpts:
As more states turn to compounding pharmacies to supply medicines for executions, the leading trade group for compound pharmacists is now discouraging its members from preparing or dispensing drugs for this purpose.
The move reflects growing concern among some compound pharmacists that some states – in response to ongoing controversy over the supply of drugs for lethal injections – may decide to alter regulations in ways that would cause pharmacists to face legal problems, according to the International Academy of Compounding Pharmacists. “We have concerns about what may occur,” says David Miller, the IACP chief executive. The trade group represents approximately 3,700 pharmacists who compound medicines, a process that involves customizing ingredients for a specific use.
Separately, the American Pharmacists Association will also consider adopting a similar position at a meeting that begins later this week, according to an official of the trade group, which represents about 62,000 pharmacists nationwide. The vast majority of APA members work for traditional pharmacies that dispense medicines manufactured by drug makers.
Until now, the IACP had not taken any position on supplying drugs for executions, but adopted this new stance after a growing number of drug makers began restricting the use of their medicines for executions. At least nine drug makers have formally taken this step, according to Reprieve, an advocacy group in the U.K. that has been pressuring companies to withhold their medicines for executions.
As a result, more states have gradually turned to compound pharmacies to supply drugs for lethal injections. To date, nine states have either used or indicated they intend to use compounded medicines for lethal injections, according to the Death Penalty Information Center....
Currently, pharmacists are permitted by law to dispense medications for executions if a licensed doctor writes a legitimate prescription, says Carmen Catizone, the executive director of the National Association of Boards of Pharmacy, which represents the state boards, the government agencies that regulate pharmacy practice. At the moment, he says there is no indication that any state legislature is considering a change to its regulations that might pose legal problems for pharmacists.
However, he explains that new policy statements may attract attention from state boards, especially given ongoing controversy over executions and the availability of medicines. “For any change in regulations or rule, the state boards would have to take action.” says Catizone, “But a change in policy can be significant because it may prompt our members to take a closer look at an issue.”
For his part, Miller says the IACP is concerned that state boards may decide to consider such action and, as a result, its members could eventually face legal action. “We definitely think it’s a possibility,” he says. At the same time, the trade group also worries pharmacists who supply drugs may face harassment if their identities become known. The IACP points to a recent episode in Tennessee where the name of a compound pharmacist was inadvertently disclosed. The IACP notes that nearly a dozen states are considering legislation to provide confidentiality.
Tuesday, March 24, 2015
"The Executioners' Dilemmas"
The title of this post is the title of this timely new article by Eric Berger now available via SSRN. Here is the abstract:
Despite several prominent recent botched executions, states usually resist external pressure to improve their lethal injection procedures. This symposium contribution explores why states fail to address lethal injection’s systemic risks and, relatedly, why they so vigorously resist requests to disclose execution procedure details.
This analysis is necessarily speculative; it is impossible to know for certain what drives states’ behavior in this area, and motivations likely differ from state to state and from official to official. That said, a constellation of epistemic, structural, strategic, and political factors likely shape much official behavior in this area.
Examining those factors more closely can help us better understand why so many states have acted so irresponsibly in designing and implementing their lethal injection procedures. Of course, these explanations hardly excuse states’ frequent indifference to the risk of pain their execution procedures create. Collectively, however, they help shine important light more generally on why state officials sometimes seem insensitive to constitutional values.
Monday, March 23, 2015
"WBUR Poll: Most In Boston Think Tsarnaev Should Get Life In Prison Over Death Penalty"
The title of this post is the headline of this intriguing new press report on an intriguing new poll about an on-going federal capital case. Here are the basics:
As the trial of Dzhokhar Tsarnaev moves ahead, a new WBUR poll (topline, crosstabs) finds most Boston residents believe the admitted Boston Marathon bomber should receive life in prison instead of the death penalty if convicted.
In a survey of 229 registered Boston voters, 62 percent said Tsarnaev should be sentenced to life in prison without the possibility of parole, while 27 percent said he should receive the death penalty. That preference held true for the broader Boston area, defined as communities inside and along Route 128 — but the margin is slimmer. Of 504 registered Boston area voters surveyed by telephone March 16-18, 49 percent think Tsarnaev should get life in prison, while 38 percent feel he should be sentenced to death....
Across different demographics, the preference for punishment varied a bit more. Men were more in favor of the death penalty in this case than life in prison, while women more strongly favored life in prison over the death penalty. Across all age groups, more people felt Tsarnaev should be sentenced to life in prison rather than the death penalty — but the widest margin was among young people ages 18 to 29, where 55 percent chose life in prison and 32 percent chose the death penalty.
Among minorities, there was also a wide margin — 64 percent believe Tsarnaev should be sentenced to life in prison, while 25 percent think he should get the death penalty. Among whites, 46 percent chose life in prison and 41 percent chose the death penalty.
Kozcela said the findings across demographics are also in line with partisan views on the death penalty. “The groups that tend to lean more Democrat also tend to be more opposed to the death penalty,” he said.
Ultimately, Tsarnaev’s fate will be decided by a jury. But the demographics of that jury is an issue defense attorneys raised in February, in their second attempt to get the case dismissed. Tsarnaev’s lawyer’s argued that the jury — which is all white and made up of eight men and 10 women — wasn’t diverse enough. (Twelve of those jurors will determine the final verdict.) Defense attorneys took issue with the way potential jurors were reordered when the final jury pool was summoned to fill out questionnaires. The defense argued the renumbering pushed African-Americans, young people and Boston residents — groups our poll shows favor life in prison over the death penalty — down the list of potential jurors, decreasing their chances of being seated on the jury.
Judge George O’Toole Jr. denied the defense’s motion in early March. The defense also tried unsuccessfully four times to get the trial moved out of Boston, arguing they could not get a fair trial here. However, as our poll shows, most Boston residents prefer to give Tsarnaev life in prison — a position the defense hopes the jury will take....
So far in the trial, the prosecution has been laying out its case against Tsarnaev with graphic videos and photos, emotional victim testimony and evidence gathered from Watertown and the Tsarnaevs’ residences. Once the prosecution wraps up its case, the defense will present its case. The defense already admitted Tsarnaev carried out the bombing, but they are trying to save his life by convincing the jury he was influenced by his older brother.
Three Justices lament SCOTUS failure to do death-penalty error correction in Texas case
Though the big Supreme Court sentencing news today is the cert grant in another Miller retroactivity case from Louisiana (basics here), also notable for sentencing fans is this dissent from the denial of certiorari in a Texas capital case authored by Justice Breyer (joined by Justices Ginsburg and Justice Sotomayor). Here are snippets from the start and end of the opinion:
On April 28, 1984, petitioner Lester Leroy Bower was convicted in a Texas court of murdering four men. Each of the four men had been shot multiple times. Their bodies were left in an airplane hangar, and an ultralight aircraft was missing.
The State sought the death penalty. Bower introduced evidence that was, in his view, mitigating. He noted that he was 36 years old, married, employed full-time, and a father of two. He had no prior criminal record. Through the testimony of Bower’s family members and friends, the jury also heard about Bower’s religious devotion, his commitment to his family, his community service, his concern for others, his even temperament, and his lack of any previous violent (or criminal) behavior.
At the time of Bower’s sentencing, Texas law permitted the jury to consider this mitigating evidence only insofar as it was relevant to three “special issues”...
[The] Texas Court of Criminal Appeals believed that the use of the special issues proceeding in Bower’s sentencing proceeding did not constitutionally entitle him to resentencing.
Bower now asks us to grant certiorari and to reverse the Texas Court of Criminal Appeals. In my view, we should do so. Penry’s holding rested on the fact that Texas’ former special issues did not tell the jury “what ‘to do if it decided that [the defendant] . . . should not be executed’” because of his mitigating evidence. Abdul-Kabir v. Quarterman, 550 U.S. 233, 256 (2007) (quoting Penry, supra, at 324). Bower’s sentencing procedure suffered from this defect just as Penry’s did. The distinction that the Texas court drew between Penry’s and Bower’s evidence is irrelevant. Indeed, we have expressly made “clear that Penry . . . applies in cases involving evidence that is neither double edged nor purely aggravating, because in some cases a defendant’s evidence may have mitigating effect beyond its ability to negate the special issues.” 550 U.S., at 255, n. 16. The trial court and the Fifth Circuit both recognized that Bower’s Penry claim was improperly rejected on that basis.
The Constitution accordingly entitles Bower to a new sentencing proceeding. I recognize that we do not often intervene only to correct a case-specific legal error. But the error here is glaring, and its consequence may well be death. After all, because Bower already filed an application for federal habeas relief raising his Penry claim, the law may bar him from filing another application raising this same issue. See 28 U.S.C. §2254(b)(1). In these circumstances, I believe we should act and act now. I would grant the petition and summarily reverse the judgment below. I dissent from the Court’s decision not to do so.
Sunday, March 22, 2015
Pope Francis categorically condemns death penalty as "inadmissible" in today's world
As reported in this piece from Vatican Radio, which describes itself the "voice of the Pope and the Church in dialogue with the World," Pope Francis spoke about capital punishment during a meeting with members of an international anti-death penalty group. Here are details:
Capital punishment is cruel, inhuman and an offense to the dignity of human life. In today's world, the death penalty is "inadmissible, however serious the crime" that has been committed. That was Pope Francis’ unequivocal message to members of the International Commission against the death penalty who met with him on Friday morning in the Vatican.
In a lengthy letter written in Spanish and addressed to the president of the International Commission against the death penalty, Pope Francis thanks those who work tirelessly for a universal moratorium, with the goal of abolishing the use of capital punishment in countries right across the globe.
Pope Francis makes clear that justice can never be done by killing another human being and he stresses there can be no humane way of carrying out a death sentence. For Christians, he says, all life is sacred because every one of us is created by God, who does not want to punish one murder with another, but rather wishes to see the murderer repent. Even murderers, he went on, do not lose their human dignity and God himself is the guarantor.
Capital punishment, Pope Francis says, is the opposite of divine mercy, which should be the model for our man-made legal systems. Death sentences, he insists, imply cruel and degrading treatment, as well as the torturous anguish of a lengthy waiting period before the execution, which often leads to sickness or insanity.
The Pope ... makes quite clear that the use of capital punishment signifies “a failure” on the part of any State. However serious the crime, he says, an execution “does not bring justice to the victims, but rather encourages revenge” and denies any hope of repentence or reparation for the crime that has been committed.
Saturday, March 21, 2015
Effective discussion of nitrogen gas as execution method alternative
This new Atlantic article, headlined "Can Executions Be More Humane?: A law professor suggests an untested procedure as an alternative to lethal injection," provides an interesting account of the person and story behind a novel execution method proposal. Here are excerpts:
Michael Copeland has a unique resume: former Assistant Attorney General of the tiny Pacific island nation of Palau, professor of criminal justice at East Central University in Ada, Oklahoma — and now, the proponent of a new execution method he claims would be more humane than lethal injection.
Copeland is one of the brains behind House Bill 1879 proposed by Oklahoma State Representative Mike Christian. The bill, passed by the Oklahoma House last week, would make “nitrogen hypoxia” a secondary method to lethal injection. Oklahoma State Senator Anthony Sykes will be introducing it to the senate shortly.
Copeland explained the execution method last September to the Oklahoma House Judiciary Committee at Christian’s invitation. Copeland says that Christian had been suggesting the firing squad, but Copeland thought there might be a better way. Along with two other professors from East Central University, Christine C. Pappas and Thomas M. Parr, he is drafting a white paper about the benefits of nitrogen-induced hypoxia over lethal injection....
Hypoxia occurs when a person lacks an adequate supply of oxygen. “Normally, the air we breathe is 79 percent nitrogen and 21 percent oxygen,” Copeland explains. Nitrogen hypoxia during an execution “would be induced by having the offender breathing a gas mixture of pure nitrogen.” Copeland points out that “nitrogen is an inert gas, and therefore doesn’t actually cause the death. It is the lack of oxygen that causes death.”
According to Copeland, death from nitrogen hypoxia is painless. “In industrial accidents, it often happens because the victim does not know they are in a hypoxic environment,” he said. “That suffocating feeling of anxiety and discomfort is not associated with hypoxic deaths.” He says nitrogen-induced hypoxia is well-researched, although the ideal delivery system for an execution has not yet been established. Two ideas include a medical-grade oxygen tent around the head or a facemask similar to those used by firefighters.
The condemned person might not even know when the “the switch to pure nitrogen occurs, instead he would simply lose consciousness about fifteen seconds after the switch was made,” he added. “Approximately thirty seconds later, he would stop producing brain waves, and the heart would stop beating about two to three minutes after that.”...
Copeland says that conditions for lethal-injection executions will only get worse. States are scrambling to find the drugs and the health professionals to use them, and both are required for lethal injection to take place. “You have anti-death penalty zealots around the globe that protest, that bring attention to the manufacturers of these drugs,” Oklahoma Attorney General Scott Pruitt told a local chamber of commerce last summer. Pruitt said that as long as activists pressure manufacturers, there will be supply issues....
From its first use in the execution of Gee Jon in Nevada in 1924 to its link to Nazi gas chambers, lethal gas as method of execution has a problematic history. American lethal-gas executions typically used hydrogen cyanide as the mechanism of death. Inmates were strapped to chairs in gas chambers and the ensuing chemical reaction would cause visible signs of pain and discomfort: skin discoloration, drooling, and writhing.
But nitrogen hypoxia would likely not produce the gruesome deaths that resulted from cyanide gas executions. Copeland says that “you don’t have to worry about someone reacting differently.” The condemned person would feel slightly intoxicated before losing consciousness and ultimately dying.
Other death-penalty experts are more skeptical. “It’s only been partially vetted, superficially researched, and has never been tried,” said Richard Dieter, executive director of the Death Penalty Information Center. “Using it would be an experiment on human subjects.” State death rows would be strapping someone down without any idea what would happen next, he feared. “We’d need testimony from the best experts on this,” Dieter says. “Right now, this is sailing through a legislature and not a peer-review process. I’m no doctor, but let’s hear from them. I don’t completely dismiss the idea that this could become approved or that it’s as good as they say because lethal injection is in a bind.”
If the bill becomes law and Oklahoma successfully executes someone using this method, it could spread from to state very quickly, Dieter says. Older methods like firing squads are a little too brutal for the American public, but something new could be accepted. If so, he says, “it could lead to an awkward spurt of executions.” Copeland says he is not a death penalty absolutist. “I think the state has a unique obligation for justice — it’s the state’s obligation,” he explains. “But I don’t think the death penalty is a deterrent compared to life without parole.” If we must have the death penalty, he argues, it should be humane.
Copeland thinks that it is death penalty abolitionists who have made executions inhumane by restricting access to drugs. It will only get worse. Some corrections officials at the Louisiana Department of Public Safety and Corrections agree. On February 18, they submitted a report to the state House of Representatives proposing the use of nitrogen-induced hypoxia and cited Copeland’s forthcoming paper.
Copeland says that it’s a logical and humane next step. “Nitrogen is ubiquitous. The process is humane, it doesn’t require expertise, and it’s cheap,” he explained. “I think of it as a harm-reduction thing — like you’d rather people not use heroin, but if they do, you want them to use clean needles.”
A few recent and older related posts:
- Is nitrogen gas the best modern execution alternative to lethal injection?
- Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma
- As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- A worldly perspective on different execution methods
- Should problems with lethal injection prompt return of other execution methods?
Friday, March 20, 2015
"Victim's wife: Keep me out of death penalty fight"
The title of this post is the headline of this notable new article out of Philadelphia which highlights how victims often can and will get victimized again by the political debates over the death penalty. Here is how the piece starts:
Since Gov. Wolf declared his moratorium on the death penalty last month, proponents of capital punishment have rallied around one case to push their cause - the scuttled execution of Terrance Williams, a Philadelphia man sentenced to die in 1986 for the beating death of a Germantown church volunteer.
But on Thursday, the widow of Williams' victim had a message for critics of the governor's action: Leave me out of it. In a publicly circulated letter, Mamie Norwood, whose husband, Amos, was killed by Williams in 1984, accused State Rep. Mike Vereb (R., Montgomery) and Philadelphia District Attorney Seth Williams of using her husband's slaying for political gain.
"You have never spoken to me and do not speak for me," Norwood wrote, adding that she had forgiven Terrance Williams long ago and did not want to see him put to death. She added: "Please don't use me . . . to get your name in the news. You should be truly ashamed of yourselves."
Norwood's letter was distributed by a group of Terrance Williams' supporters who run the website www.terrywilliamsclemency.com.
Norwood's letter is available at this link.
Wednesday, March 18, 2015
Death penalty symbolism and Robert Durst
Everyone interested in pop culture criminal law is now busy talking about the seeming confession of infamous real estate figure Robert Durst during the final episode of the HBO documentary series "The Jinx: The Life and Deaths of Robert Durst." Though I find interesting the debate over the potential meaning and use of Durst's statement that he "killed them all," as a sentencing fan I find even more notable this headline about these headlines about case:
- From NPR: "Robert Durst Charged With Murder, May Face Death Penalty"
- From Reuters: "Satisfaction over prospect of accused US killer Durst facing justice"
Because Durst is aged 71 and California has not executed anyone in nearly a decade, the odds that Durst would be sentenced to death and executed before he dies of natural causes are about the same as the odds that a 16 seed will win the NCAA basketball tournament. But, as in true in so many cases, here a death penalty penalty charge is not really about seeks a true punishment but rather about symbolically sending a message that Durst is among the worst of the worst criminals.
I am always ambivalent about the value of state actors spending lots of time, money and energy on seeking a form of punishment that will never actually be carried out. But the Durst case serves as a great example of why the death penalty (and sometimes other punishments like Bernie Madoff getting 150 years in prison) is often much more about criminal justice symbolism than punishment reality.
Might Utah's gov veto the effort to provide for a firing squad execution back-up plan?
The question in the title of this post is prompted by this AP piece headlined "Death Penalty Opponents Urge Veto of Utah Firing Squad Bill." Here are the basics:
Death penalty opponents are urging Utah Gov. Gary Herbert to veto a bill allowing execution by firing squad if the state cannot obtain lethal injection drugs. Ralph Dellapiana of Utahns for Alternatives to the Death Penalty delivered a petition and a letter to Herbert's office Tuesday. Dellapiana calls firing squads archaic and barbaric.
Herbert, a Republican, has declined to say if he will sign the proposal but says it could offer Utah a backup if it cannot get execution drugs. Utah lawmakers passed the bill last week as states struggle to obtain lethal injection drugs amid a nationwide shortage.
Republican Rep. Paul Ray of Clearfield sponsored the proposal and says a team of trained marksmen is faster and more humane than the drawn-out deaths that occur when lethal injections are botched.
Tuesday, March 17, 2015
Notable empirical review of what happens to most death sentences
This new Washington Post piece by two researchers provides an interesting review of the state and fate of most modern death sentences. The piece is headlined "Most death penalty sentences are overturned. Here’s why that matters," and here are excerpts:
If a person is given a death sentence, what is his or her chance of actually being executed? Based on a review of every death sentence in the United States since 1973, the beginning of the modern era of the death penalty, we have found that the most likely outcome isn’t being executed or even remaining on death row as an appeal makes its way through the courts. In fact, the most common circumstance is that the death sentence will be overturned....
From 1973 to 2013, 8,466 sentences of death were handed down by U.S. courts, and 1,359 individuals were executed — only 16 percent. Even excluding those who remained on death row as of 2013, only about 24 percent of condemned inmates have been executed. Those sentenced to death are almost three times as likely to see their death sentence overturned on appeal and to be resentenced to a lesser penalty than they are to be executed. Here is a summary of the outcomes:
- 8,466 death sentences were imposed across the United States from 1973 through 2013.
- 3,194 were overturned on appeal, composed as follows. For 523, the underlying statute was declared unconstitutional. For 890, the conviction was overturned. For 1,781, the death penalty was overturned, but guilt was sustained.
- 2,979 remain on death row as of Dec. 31, 2013.
- 1,359 were executed.
- 509 died on death row from suicide or natural causes.
- 392 had their sentence commuted by the governor to life in prison.
- 33 had some other outcome or a miscellaneous reason for being removed from death row.
Execution is in fact the third most likely outcome following a death sentence. Much more likely is the inmate to have their sentence reversed, or to remain for decades on death row....
In the early years of the modern death penalty, many were removed from death row because the underlying statute under which they were condemned was ruled unconstitutional. In fact, of 721 individuals sentenced between 1973 and 1976, just 33 were eventually executed. Other reversals have come because inmates’ individual convictions were overturned, and some were exonerated entirely.
But by far the most likely outcome of a U.S. death sentence is that it will eventually be reversed and the inmate will remain in prison with a different form of death sentence: life without the possibility of parole.
Why would reversal of the sentence be the single most common outcome of a death sentence? Capital trials have many unusual characteristics, but a key one is that there is an automatic (or “direct”) appeal through the state appellate courts and, if the death sentence is not overturned by the state appellate or supreme court, a review by a federal judge....
States differ greatly in the degree to which they carry out their legal promise of death, but most operate systems consistent with the trends above: They sentence far more inmates to death than they actually execute....
The average state has a 13 percent likelihood of carrying out a death sentence. Some states — such as Texas, South Dakota, Missouri, and Oklahoma — significantly higher rates, though none of these states reaches a level of 50 percent. In fact, only one state, Virginia, has executed more than half of the inmates it has condemned....
Texas, Florida, and California have all condemned more than 1,000 individuals to death in the modern period. However, the numbers of executions in these states are 508, 81, and 13, respectively. Virginia has sentenced 152 individuals to die, and 110 have been put to death.
I find these numbers notable and interesting, but I find not at all compelling the reasons stated in this commentary (and left out of the excerpt above) for why we should find these numbers troubling. If lawmakers and voters want to have a death penalty system that works very hard to ensure only the worst of the worst get executed after providing the accused with a form of super due process, it makes sense that the system will, through checking and double checking of every death verdict, screen out any and all suspect cases. This is a costly and time-consuming process for all involved, but so is every aspect of American government if and when we devote extraordinary resources to making sure everything has been done just right.
In addition, it bears noting that there were roughly 800,000 murders in the United States from 1973 to 2013. Thus, arguably far more remarkable than the relatively few executed from among those given a death sentence is the amazingly few murderers given a death sentence during this period. Because only a little over 1% of all murderers were given death sentences, I am not sure why I should be especially troubled that only a portion of these condemned actual were executed.
Monday, March 16, 2015
"The free-market case for opposing the death penalty"
The title of this post is the headline of this new piece from The Week magazine. Here are excerpts:
There are lots of ways to execute a prisoner. But in the U.S., at least, the 32 states that still execute prisoners have decided on lethal injection. On its face, lethal injection seems like a clinical, modern, hopefully low-pain, and usually low-key way to kill somebody. Except when it isn't, as we saw in last year's crop of botched executions.
The prolonged, evidently painful deaths of Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Dennis McGuire in Ohio were tied to experimental drug cocktails necessitated by a shortage of traditional death drugs. This shortage is due largely to a ban by European countries on exporting certain drugs to U.S. states that practice capital punishment. The free market is making a case against capital punishment. So far, the states that actively execute prisoners have been willfully plugging their ears....
With just a single dose of pentobarbital left and 317 inmates on death row, Texas is stocking up on midazolam. It's not clear if Texas can't get pentobarbital because the compounding pharmacies are refusing to sell it to them, or because they can't get the raw ingredients — the Professional Compounding Centers of America told The Texas Tribune that it stopped providing pentobarbital ingredients to its customers in January 2014.
Most compounding pharmacies aren't regulated by the Food and Drug Administration, and their products are uneven. Which compounding pharmacies are Texas, Oklahoma, Ohio, Georgia, Missouri, and other states buying drugs from? They're not saying. Why not? "Disclosing the identity of the pharmacy would result in the harassment of the business and would raise serious safety concerns for the business and its employees," Texas Department of Criminal Justice spokesman Jason Clark explained to The Texas Tribune last month....
Providing lethal injection drugs to state prisons is so toxic that no European country will do it and no American company is willing to do it openly. Gunmakers and abortion clinics advertise their services, but pharmacies and drugmakers won't publicly associate with a form of punishment approved of by 63 percent of Americans. That's the market talking, and it's saying it wants no part of this.
New York Times editorial assails death decided "by a single vote" in Alabama and Florida
This new New York Times editorial, headlined "Death Sentences, With or Without a Jury," uses the recent Supreme Court cert grant in Hurst to assail a capital punishment system it views as "warped by injustice and absurdity." Here are excerpts:
In Florida and Alabama, death row inmates are challenging perverse state laws on the jury’s role in capital trials. The Supreme Court, which has been intervening more often in death penalty cases, last week agreed to review the Florida law.
In death penalty trials, juries that reach a guilty verdict are usually required in the trial’s subsequent penalty phase to make factual findings, such as whether the crime was especially heinous, that will determine whether the defendant is sentenced to death.
But Florida lets the judge make these findings, and does not require that the jury be unanimous in voting for a death sentence. After Timothy Lee Hurst was found guilty of a 1998 murder of a coworker in Pensacola, his jury split 7 to 5 in favor of executing him, with no record of whether the majority even agreed on the reason. (Mr. Hurst claims he is intellectually disabled and thus ineligible to be executed.) In other words, Mr. Hurst was effectively condemned by a single vote by an unidentified juror.
Alabama also allows death to be decided by a single vote: that of the judge, who may override a jury verdict of life in prison and replace it with a death sentence, relegating the jury’s status to that of an advisory body. The Supreme Court declined to hear a challenge to the Alabama law in 2013, prompting a sharp dissent from Justice Sonia Sotomayor. She concluded that the state’s judges, who are elected — and who have unilaterally imposed death sentences 101 times after the jury voted for life — “appear to have succumbed to electoral pressures.”
The Alabama law, Justice Sotomayor wrote, undermines “the sanctity of the jury’s role in our system of criminal justice,” and very likely violates the court’s own rulings requiring juries, not judges, to find any fact that would increase a defendant’s sentence. Two new challenges to that law are before the court — one involving a death sentence imposed by a judge after a jury voted 12 to 0 for life — but it hasn’t decided whether to take them up.
This disregard for the jury’s role is all the more offensive given the Supreme Court’s reliance on jury verdicts as a key measure of America’s “evolving standards of decency,” the test it uses to decide whether a punishment is so cruel and unusual that it violates the Constitution. How can those “evolving standards” be accurately measured if the “verdicts” for death are so deeply divided or are in fact imposed by a judge who is rejecting the jury’s call to spare a life?
The Florida and Alabama jury laws are only more proof of the moral disgrace of capital punishment in this country. In Georgia, officials hide their lethal-injection drug protocol behind state-secret laws. Missouri has executed an inmate before the Supreme Court ruled on his final appeal. Texas has been trying for years to kill a man suffering from paranoid schizophrenia.
Prior related posts:
- SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring
- What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?
Saturday, March 14, 2015
"Death of the death penalty by lethal injection shortage?"
The question in the title of this post is the headline of this notable recent Chicago Tribune column. Here is how it starts:
A reliable supply line is crucial to any business. That's no less true when the business is death. States can't carry out death sentences if their prisons can't stock the lethal sedatives needed for court-sanctioned lethal injections. And that has become a serious problem of late.
Pharmaceutical companies such as Lake Forest-based Hospira in recent years have moved — pushed by activists and overseas regulators — to keep their drugs from being co-opted in the executioners' cocktails. The well is running dry.
Just in the last week:
• Texas' pantry is quite nearly bare. The state reportedly is left with a single dose of pentobarbital because European manufacturers of the anesthetic are prohibited from allowing it to be used by prisons.
• Georgia postponed its first execution of a woman in 70 years because the blend to be injected appeared unusually cloudy.
• And Utah's legislature sent the governor a bill that would authorize the return of firing squads when the state can't get its hands on the requisite toxins.
Friday, March 13, 2015
"Jones, Lackey, and Teague"
The title of this post is the title of this notable new article by J. Richard Broughton now available via SSRN. Here is the abstract:
In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane.
By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making the case for applying the bar, this paper adds to, and challenges, the existing literature on capital punishment, Lackey claims, and Teague doctrine. This paper dissects the Jones ruling on the application of Teague, examining the Supreme Court’s “new rule” case law and concluding that Lackey claims, when viewed at the appropriate level of generality, propose a new rule. It then addresses the more complicated aspect of applying Teague in this context, recognizing that the first Teague exception poses the most likely basis for avoiding the Teague bar on a Lackey claim. At a minimum, Lackey claims (like Miller v. Alabama claims, now the subject of substantial Eighth Amendment litigation on collateral review) sit at the intersection of procedural and substantive rules. Nonetheless, this paper makes the case for viewing the claim as procedural and therefore Teague-barred. Ultimately, then, this paper emphasizes a point that could substantially influence existing litigation: litigators and federal judges should take the Teague bar more seriously when considering Lackey claims on federal habeas review, particularly when viewed in light of modern habeas rules and doctrine that limit relief and protect the interests of the states. But the paper also emphasizes an important point about death penalty policy and politics: if the state is to have a death penalty at all, it should be prepared, and willing, to ensure that death sentences are actually carried out.
Wednesday, March 11, 2015
Colson Task Force highlights " biggest driver of growth in the prison population is in federally sentenced drug offenders"
As reported in this Crime Report piece, the Charles Colson Federal Corrections Task Force has just released this notable new research brief titled "Drivers of Growth in the Federal Prison Population." Here are excerpts from the document (with emphasis in original):
The federal prison population has grown by 750 percent since 1980, resulting in rapidly increasing expenditures for incarceration and dangerous overcrowding. In response, Congress created the Charles Colson Task Force on Federal Corrections to examine trends in correctional growth and develop practical, data-driven policy responses. Following the example of many states that have recently engaged in criminal justice reform, the first step for the Task Force is to understand the underlying drivers of growth in the prison population.
The biggest driver of growth in the prison population is in federally sentenced drug offenders, almost all of whom were convicted of drug trafficking. In fiscal year (FY) 2013, there were almost 50,000 more drug offenders in federal prisons than there were in FY 1994. Incarceration for drug offenses disproportionately affects nonwhite offenders: in FY 2013, over 75 percent of all drug offenders in federal prison were black or Hispanic....
The population growth is driven by both the number of people who are admitted to prison for drug crimes every year and the length of their sentences. In FY 2013, more people were admitted to federal prison for drug crimes than any other crime type, and the average sentence for those entering prison was almost six years. Every year, about 95 percent of federally sentenced drug offenders receive a term of incarceration as part of their sentence, up from about 76 percent in the year before the passage of the Anti-Drug Abuse Act in 1986, which established mandatory minimum penalties for certain drug offenses.
In particular, length of stay for drug offenders, often dictated by statutory mandatory minimum penalties, has driven most of the recent growth. Though the number of admissions has remained largely constant over time, the number of drug offenders in federal prison has increased because of people serving longer sentences.
Mizzou lawyers spotlight problems poised by rapid pace of executions
As reported in this Kansas City Star article, headlined "Attorneys struggle to keep up with Missouri’s execution pace," the Show Me State's recent pattern of showing condemned inmates to the execution chamber on a regular basis has prompted a notable expression of concern from lawyers. Here are the details:
[F]or the small group of lawyers who take on the burdens of defending inmates on the cusp of execution in Missouri, the sheer volume of cases is overwhelming their ability to do that work.
That’s the message four law professors and lawyers delivered to the Missouri Supreme Court this week as they called for execution procedure changes that would give lawyers more time for each client. “These amendments are necessary because the capital defense bar is in crisis because of its recent workload,” the group wrote.
Since November 2013, Missouri has executed 13 men. A handful of lawyers who specialize in capital litigation have represented most of them. They also represent most of Missouri’s other defendants with a pending execution date or who soon are expected to see one set.
The state’s fast execution pace — Missouri tied Texas for most in the country last year with 10 — has left those lawyers struggling to meet their legal obligations to multiple clients at the same time, according to the letter by members of an American Bar Association death penalty assessment team that recently studied Missouri’s execution system. “The legal proceedings in death penalty cases are notoriously lengthy and complex,” they wrote. “Establishing a detailed understanding of those proceedings is a time consuming task and a basic prerequisite to competent performance.”
In addition, the cases take an intense emotional toll on attorneys who get to know the clients intimately before watching them die, the letter said. “No matter how professional the relationship between a death-sentenced client and his counsel, having a client executed is a uniquely taxing professional experience,” the letter stated. One attorney has represented five of the last nine men executed and has two other clients with an “imminent risk of execution,” the letter noted....
The four members of the assessment team who sent the letter to the Supreme Court — University of Missouri law professor Paul Litton, St. Louis University law professor Stephen Thaman, retired Missouri Court of Appeals Judge Hal Lowenstein and Douglas Copeland, a partner in a St. Louis law firm — recommended three amendments to the state’s rules.
The first would limit any one lawyer from representing a client who has an execution date set within six months of any of the lawyer’s other clients. Second, they also ask that a minimum notice of six months be given before an execution can be carried out. The third proposal would allow lawyers to prioritize caseloads to concentrate on cases with pending execution dates while being granted more time to deal with other clients’ cases.
“These are common-sense solutions to a serious problem affecting virtually every scheduled execution,” according to the letter.
The problems have mounted only recently in Missouri, where the lawyers pointed out that only two executions took place in the seven years from 2006 through 2012. But this has been a long-term issue in other death penalty states. “For decades it has been widely recognized … that unreasonable workloads among capital litigators can severely challenge the effectiveness of their representation,” said national death penalty expert Deborah Denno, a professor at the Fordham University School of Law.
Though it will be up to the Missouri Supreme Court to adopt or reject the rule changes, the court has shown some flexibility in the past. Last July, it changed the rules to limit executions to no more than one per month.
And last August, the court withdrew an execution warrant it had issued the previous month after the inmates’ attorneys said they wouldn’t have enough time to do everything required in the case while balancing work they had in other pending cases. They were given additional months before that man’s execution was carried out in November....
Jennifer Herndon, a St. Louis-area lawyer who has represented several death row inmates, said the proposals are all good ideas that are badly needed. “People don’t understand the pressure, particularly in the last 30 to 45 days before an execution,” she said. “If you don’t work on it 24 hours a day, you’re thinking about it 24 hours a day.” Facing that same kind of pressure month after month makes it virtually impossible to operate at 100 percent “no matter how hard you try,” she said.
The helpful folks at The Marshall Project have uploaded a copy of the letter reference in this article at this link.
Utah legislature brings back firing squad as alternative execution method
As detailed in this Reuters piece, "lawmakers in Utah voted on Tuesday to bring back executions by firing squad if lethal injections are unavailable, which would make it the only state in the country to permit the practice." Here is more:
Utah used firing squads for decades before adopting lethal injections in 2004. The Republican-sponsored bill, which passed the state Senate by 18-10, was introduced amid national concerns about the efficacy of lethal injections.
The measure, approved last month by the Utah House of Representatives, says a firing squad should be used if "the state is unable to lawfully obtain the substance or substances necessary to conduct an execution by lethal intravenous injection 30 or more days" before the date set for the procedure.
Several U.S. states have had to search for new drugs for their lethal injection cocktails after many pharmaceutical companies, mostly in Europe, imposed sales bans about four years ago because they objected to having medications made for other purposes being used in executions.
Supporters of the legislation said three states - Oklahoma, Ohio and Arizona - recently carried out lethal injections that led to inmates' physical distress and drawn-out deaths, and that death by firing squad was more humane.
Republican state Representative Paul Ray of Clearfield, the bill's sponsor, said someone executed by gunfire typically dies in three to five seconds. "It's a quick bleed-out," he said.
Utah previously used firing squads, including in the execution of Gary Gilmore, a convicted murderer who in January 1977 became the first person to be put to death in the United States in 10 years, after insisting the sentence be carried out....
The last person to be executed in Utah by firing squad was Ronnie Lee Gardner in 2010. Gardner was convicted of murdering a lawyer inside a Salt Lake City courthouse in 1985.
The bill now goes to Utah Governor Gary Herbert. In a statement, a spokesman for the Republican governor said he had not yet decided whether to sign the measure.whether to sign the measure.
Tuesday, March 10, 2015
Might drug shortages in Texas grind its machinery of death to a halt?
The question in the title of this post is prompted by this new article headlined "Dearth Row: Texas Prisons Scrambling to Find More Execution Drug." Here are excerpts:
Texas' prison agency is scrambling to find a supplier to replenish its inventory of execution drugs, which will be used up if the state goes forward with two lethal injections scheduled for this week and next. Prison officials only have enough pentobarbital for the scheduled executions of Manuel Vasquez on Wednesday and Randall Mays on March 18, but they don't know how they will conduct lethal injections on four others scheduled for April.
The Texas Department of Criminal Justice declined to say why it has not been able to obtain more pentobarbital from the same compounding pharmacy that provided the current batch of the powerful sedative last March. The state switched to that source several months after its previous supplier cut ties, citing hate mail and potential litigation after its name became public through an open records request from The Associated Press.
Prison officials have since waged a legal battle to keep the name of its latest supplier secret, but it's unclear how much longer they can do so after a state judge last year ordered the agency to divulge the source. That ruling is on hold pending the outcome of the state's appeal....
Although Texas, traditionally the nation's busiest death penalty state, faces the most imminent deadline for replenishing its pentobarbital supply, other states are experiencing similar problems. Texas has executed a nation-leading 521 inmates since 1982, when it became the first state to use lethal injection. It's now been nearly three years since Texas began using pentobarbital as its only capital punishment drug, switching in July 2012 after one of the chemicals in the previous three-drug mixture no longer was available.
The last 17 Texas executions, stretching back to September 2013, have used compounded pentobarbital, and the last nine from compounding pharmacies the state has refused to identify. Texas officials have insisted the identity should remain secret, citing a "threat assessment" signed by Texas Department of Public Safety director Steven McCraw that says pharmacies selling execution drugs face "a substantial threat of physical harm." Law enforcement officials have declined to elaborate on the nature of those threats.
The U.S. Supreme Court, meanwhile, has refused to block punishments based on challenges to secrecy laws. However, the high court is reviewing Oklahoma's lethal injection method, resulting in a hold on executions there, after a punishment using the sedative midazolam followed by two other drugs went awry. Oklahoma lawmakers now are considering a switch to nitrogen gas as the first alternative to injection while officials in other states are considering a return to firing squads or the electric chair.
Despite all the controversies over lethal injection protocols and problems with drug supplies nationwide in recent years, Texas has been able to keep its machinery of death humming. And because so many executions take place in Texas (basic DPIC data here), a halting of executions in that one state would functionally diminish the overall number of US executions quite significantly.
Given that Texas has a long modern history of finding ways to move forward with executions, this drug story is especially interesting and dynamic because it might lead the Lone Star State to get serious about other possible execution methods. I assume some officials in Texas are already quietly exploring the possibility of executions using nitrogen gas or firing squads, and perhaps a Texas discussion of such matters will become public at some point soon if the state struggles to secure needed execution drugs.