The secrecy imposed by Arizona on the source and quality of the lethal injection drugs it uses to kill death row inmates has been challenged in a new lawsuit brought by the Guardian and other media organizations.
In the lawsuit, filed with a federal court in Phoenix, the Guardian together with the Associated Press and four of Arizona’s largest news outlets argue that the state’s refusal to disclose any information about its lethal injection drugs is a breach of the public’s first amendment right to know about how the death penalty is being carried out in its name. It follows agroundbreaking first amendment case brought by the Guardian and others in Missouri in May....
Use of midazolam in executions in recent months has proved particularly problematic and contentious. It has been associated with gruesome and prolonged deaths in Florida, Ohio and Oklahoma. The Arizona complaint has been joined, in addition to the Guardian and the Associated Press, by two of the state’s most important newspapers, the Arizona Republic and the Arizona Daily Star. Two major television channels, KPNX-TV Channel 12 and KPHO Broadcasting Corporation, are also party to the suit.
The action is lodged in the US district court in Arizona and is directed against Charles Ryan, director of the department of corrections, and the state’s attorney general, Thomas Horne, both in their official roles. The Guardian and fellow plaintiffs are represented by the Media Freedom and Information Access Clinic at Yale law school, with the assistance of Ballard Spahr LLP in Phoenix.
Unlike most other lawsuits that have been brought relating to the creeping secrecy that surrounds lethal injection drugs – which have argued the prisoners’ constitutional rights have been violated – the Arizona lawsuit starts with the principle that the public has a right to know how capital punishment is being carried out.
The complaint argues that “the public cannot meaningfully debate the propriety of lethal injection executions if it is denied access to this essential information about how individuals are being put to death by the state.” It says that the established constitutional right of public access to aspects of government procedures means that the state should be obliged to reveal “the source, composition, and quality of drugs, as well as the protocols, that have been or will be used in lethal injection executions and to view the entirety of an execution”.
This is the fourth lawsuit that the Guardian has launched against various manifestations of secrecy in the US death penalty. As well as the actions in Arizona and Missouri, there are ongoing legal complaints currently before the courts in Pennsylvania and in Oklahoma, where the state is being challenged for having drawn the curtain halfway through the botched execution of Clayton Lockett in April.
Thursday, October 30, 2014
"Physicians, Medical Ethics, and Execution by Lethal Injection"
The title of this post is the title of this new article by I. Glenn Cohen, Robert Truog, and Mark Rockoff available via SSRN. Here is the abstract:
In the wake of the recent botched execution by lethal injection in Oklahoma, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project issued a set of recommendations for sweeping legal and administrative reforms of this method of capital punishment. This Article discusses the Committee’s recommendation that medical personnel perform the medically-related elements of lethal injection executions. Noting that such involvement is prohibited by the codes of medical ethics of professional societies in every medical profession, this Article argues that significant ethical concerns dictate that medical professionals should refuse to participate in lethal injection executions.
- The Constitution Project issues big new report calling for broad reform of capital punishment administration
Notable criticism of Pope's advocacy against LWOP and "nurturing mommy" approach to government
As noted in this post last week, Pope Francis spoke out last week against life imprisonment and harsh sentencing systems focused more on punishment than social justice. This intriguing new American Spectator commentary by Mark Tooley takes issue with this papal advocacy, and concludes with complaints about governments failing to balance a "nurturing mommy" role with a "stern father role." Here are excerpts from an interestinf read:
Opposing life imprisonment raises questions. Should mass murderers be freed during their active lifetime? And what if they show no sign of remorse or rehabilitation? (My questions come respectfully from a Protestant who appreciates Catholic teaching.)
The Pope’s remarks acknowledged that official Catholic teaching still accepts the state’s rightful power to execute, quoting the Catechism that “the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.” News reports say he quoted the Catechism that “cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent.” It is not clear but presumably he also included the Catechism phrase immediately before those words, which cites the “possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm.”
What power does the state have for “rendering one who has committed an offense incapable of doing harm” except for the option of life imprisonment for recalcitrant murderers? It seems unlikely that many Americans, Catholic or otherwise, will advocate abolishing life imprisonment for heinous crimes. But recently Colorado’s pro-death penalty Republican gubernatorial candidate, a Catholic, recalled that Denver’s former bishop, Charles Chaput, had assured him that church doctrine is not against the death penalty....
The subtleties of Catholic teaching on capital punishment are difficult to translate into media sound bites or political explanations. Pope Francis’s comments against life imprisonment seem to go beyond the letter of the Catechism. Some activist American religionists, Catholic or otherwise, may latch on to them for a new campaign. But such an effort potentially would provoke a backlash and embolden defense of the death penalty.
Much of the American religious political witness today is totally uncomfortable with the state’s divine vocation for punitive action, much less lethal force. The New Testament offers little direct counsel on civil government’s responsibilities except, in St. Paul’s Romans 13, which warns that that “if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoers.” This language is pretty punitive.
But so much of modern American religious political witness prefers a highly non-punitive version of government. Their preferred vision likens the state to an indulgent, nurturing mommy, whose primary role is to feed, clothe, and ensure health care for all her children, while also welcoming all illegal immigrants, protecting the environment, lecturing against politically incorrect “hate speech,” and offering universal love, while simultaneously disarming in a way ironically that likely inhibits physical protection for her children.
Most of this mommy work the Scriptures and Christian tradition actually assign chiefly to the church, which is metaphorically a mother and the Bride of Christ. The Romans 13 focus for the state more resembles a stern father, who dispenses impartial but severe justice for the protection of his children. This sort of paternal state, unlike the sensitive mommy, reserves its interventions for dangerous misconduct. And it lets its charges pick themselves up from their stumbles, that they might grow strong, not remain immature through ceaseless coddling.
A true balance in society aligns nurturing mommy with stern father, both fulfilling their complementary roles in creation. The absence of one distorts human reality and creates corruption and tragedy. Pope Francis doubtless has earnest reasons for speaking against even life imprisonment. But his sentiments will likely only inspire the chronic mommy vision of the state already preferred by so many do-gooding religionists.
Religious leaders need to restore balance by citing Romans 13 and explaining the punitive, morally imperative stern father role of the state that is divinely ordained and essential for human justice.
Prior related post:
Wednesday, October 29, 2014
Is the death penalty really dying a slow death . . . in Texas?!?
The question in the title of this post is prompted by this new piece from The Atlantic, headlined "In Texas, the Death Penalty is Slowly Dying Out: The Lone Star State carried out its fewest executions since 1996 this year." Here are excerpts:
On Tuesday night, the state of Texas executed Miguel Paredes by lethal injection for murdering a woman and her two children sixteen years ago. With no executions scheduled by the state department of criminal justice for November or December, Paredes' death marks the tenth and final execution for Texas this year — the fewest in almost two decades.
2014 wasn't anomalous either. Executions in Texas, the most prolific death-penalty state in the country, spiked after Congress restricted federal appeals in death-penalty cases with the Antiterrorism and Effective Death Penalty Act in 1996. Since then, however, the death penalty has been in overall decline both in Texas and nationwide. Thirty people have been executed so far this year in the entire United States, whereas Texas alone executed 40 people at its peak in 2000.
What's driving the decline? Since executions peaked nationally in the late 1990s, multiple Supreme Court rulings have limited the death penalty's scope and application. The justices barred executions of the mentally disabled in Atkins v. Virginia in 2002, for example, and eliminated the death penalty for individual crimes other than first-degree murder in their 2008 decision in Kennedy v. Louisiana....
But for Texas, the greatest shift came in 2005. First, the Supreme Court ruled in Roper v. Simmons that executing defendants who were minors when they committed the crime violated the Eighth Amendment. Texas had led the nation in imposing the death penalty on under-18 defendants prior to Roper; 29 inmates had their sentences reduced accordingly after the ruling. More inmates left Texas' death row alive than dead that year for the first time since 1989. At the same time, legislators gave Texas juries the option to sentence murder defendants to life without parole, thereby lowering the number of new death-penalty convictions.
Other extrajudicial factors are also slowing down the death penalty in Texas and around the United States. Thanks to a European Union embargo that bars the sale of lethal-injection drugs to the U.S., executions nationwide have slowed precipitously as states scramble to find replacements and substitutes....
This doesn't mean executions will completely halt any time soon in Texas. State officials say they have a sufficient supply of pentobarbital for upcoming executions thanks to a secret supplier they refuse to name through 2015. Six in 10 Americans still support the death penalty according to a recent Gallup poll, and Greg Abbott, who will likely be elected governor of Texas next week, is also a staunch proponent. Reversing the overall downward trend, however, would require either a drastic shift in the Supreme Court's jurisprudence or a complete overhaul of Texas sentencing law. Neither are imminent.
I am glad this piece concludes by noting a number of reasons why the death penalty is very likely to persist in Texas for the years to come. Rather than talking about the death penalty potentially dying in Texas, I think the notable data on death sentences and executions in the state over recent years ought to be examined and analyzed as part of an effort to assess what might be deemed a "sound" or "stable" use of the death penalty within a state clearly committed to having the punishment be a significant aspect of its modern punishment system.
Monday, October 27, 2014
Two condemned New Mexico murderers left behind after death penalty repeal seek relief from NM Supreme Court
As reported in this local article, headlined "Convicted murderers ask to be taken off death row," in New Mexico the "last two inmates on death row are asking the state’s highest court to get them off the list." Here is more:
New Mexico’s only inmates facing possible execution want the state supreme court to declare their death sentences unconstitutional because capital punishment was abolished after their convictions.
Attorneys for the two convicted killers say their sentences are unconstitutional, while the state is still backing their death penalty. The hearing lasted around an hour and half Monday morning, but no official decision will be made for at least a few months.
Attorneys for Timothy Allen and Robert Fry argued this morning that carrying out their death sentence would be cruel and unusual punishment and would violate “equal protection” rights for the two as New Mexico residents.
New Mexico repelled the death penalty in 2009 and the two are arguing that because of that, their sentences should be changed, even though they were both convicted when the death penalty was still law. Allen killed 17-year old Sandra Phillips in 1994 after kidnapping her and trying to rape her. Robert Fry was convicted of killing a mother of five in 2000. He also murdered three other people in the ’90s.
Attorneys for the two men argued that the death penalty is cruel and unusual based on a report from the state’s Death Penalty Task Force which cited cost and liabilities with a death sentence. They also argued that it violates equal protection to effectively set a date when people can and can’t face the death penalty.
Meanwhile, the state argued that justices would be “overstepping” their reach if justices chose to allow Allen and Fry to live. The state says that would be like the justices re-interpreting what the legislature wished to do....
New Mexico has only executed one person in the last 54 years. It was Terry Clark who was a convicted child rapist and killer.
Sunday, October 26, 2014
Media coalition sues Arizona on First Amendment grounds seeking more info on executions
As detailed in this article from The Guardian, the "secrecy imposed by Arizona on the source and quality of the lethal injection drugs it uses to kill death row inmates has been challenged in a new lawsuit brought by the Guardian and other media organizations." Here is more about the lawsuit (including a link to the filing):
Friday, October 24, 2014
Unpacking the reasons given for public support and opposition to the death penalty
Gallup now has published this intriguing piece, headlined "Americans: 'Eye for an Eye' Top Reason for Death Penalty," which provides some interesting additional insights concerning Gallup's latest polling data on support for capital punishment (reported here). Here are some of the highlights:
Americans who favor the death penalty most often cite "an eye for an eye" as the reason they hold their position, with 35% mentioning it. "Save taxpayers money" and "they deserve it" tie as the second-most-popular reasons Americans volunteer in this open-ended measure, at 14% each....
This is the fourth time Gallup has probed Americans to state, in their own words, why they hold the position they do on the death penalty. Americans who say they support the death penalty have given a variety of responses over the years, but the biblical phrase "an eye for an eye," or retaliation, consistently has been named as the No. 1 reason why the death penalty should be applied. However, this reason's pre-eminence has waned since Gallup first asked this question in 1991, when half of Americans who favor the death penalty mentioned it....
While a majority of Americans tilt in favor of the death penalty, the one in three Americans who oppose it also have a diversity of views as to why the ultimate penalty should not be used. "Wrong to take a life" has been the top reason for opposing it since 1991, by comfortable margins.
In two of the three times Gallup has asked this question, "persons may be wrongly convicted" has been the No. 2 justification Americans give for opposing the death penalty, along with reasons grounded in religious beliefs, including that "punishment should be left to God." Yet "wrong to take a life" is still the most popular open-ended response by a more than 2-to-1 margin.
Over at Crime & Consequences, Kent Scheidegger has an extended discussion of what these results should help us understand about modern death penalty perspectives and arguments. Here is how that post finishes up:
Most folks make up their minds on justice and morality. These positions are largely undebatable. One who believes that executing Ted Bundy was fundamentally right and reducing Charles Manson's sentence to life was fundamentally wrong isn't going to change his mind, and the person who believes the opposite isn't going to change his either.
The utilitarians are a minority, but a substantial one. That is where the people who might change their minds based on data and arguments are, so that is where the arguments are directed.
Thursday, October 23, 2014
Gallup polling shows "Americans' Support for Death Penalty Stable"
Gallup has this new report highlighting that "[s]ix in 10 Americans favor the death penalty for convicted murderers, generally consistent with attitudes since 2008." Here is more:
Americans' support for the death penalty has varied over time, but apart from a single reading in 1966, the public has consistently favored it. Support ebbed from the 1960s to the mid-1970s, when the application of the death penalty was questioned and ultimately led to the Supreme Court's invalidating state death penalty laws. Subsequent to that, newly written laws passed constitutional muster and states began to use the death penalty again in the late 1970s, with support among Americans increasing to 70% or more in the mid-1980s to the late 1990s.
The broader trend over the last two decades has been diminished support for the death penalty, including a 60% reading last year, the lowest since 1972.
Over the last two decades, Democrats' support for the death penalty has dropped significantly, from 75% to 49%. Now, Democrats are divided on whether it should be administered to convicted murderers. Republicans' and independents' support is also lower now -- down nine and 18 percentage points, respectively -- though both groups still solidly favor the death penalty.
Gallup's long-standing question asks about basic support for the death penalty, but does not explicitly mention an alternative punishment for murderers. Gallup separately asks Americans to choose between the death penalty and "life imprisonment with absolutely no possibility of parole" as the better punishment for murder. Support for the death penalty has been significantly lower using this approach, but Americans still tilt in favor of it by 50% to 45%. These attitudes are similar to recent years, but show reduced support for the death penalty from the 1980s and 1990s.
Americans' support for the death penalty has stabilized at a lower level than was the case prior to 2008, and is well below the highs from the mid-1980s to mid-1990s. And in recent years the public has shown only a slight preference for the death penalty over life imprisonment as the better penalty for murder. These trends toward diminished support seem to be reflected in state death penalty laws, as six U.S. states have abolished the death penalty since 2007, and no new states have adopted it.
Democrats are mostly responsible for this shift in attitudes, and thus it is not surprising that most of the states that have abolished the death penalty in recent years are Democratic leaning. The death penalty is another example of how Democrats' and Republicans' opinions on political matters have become increasingly divergent compared with recent decades, including their views of the job the president is doing and on issues such as global warming and labor unions.
Wednesday, October 22, 2014
"The Death Penalty’s 'Finely Tuned Depravity Calibrators': Fairness Follies of Fairness Phonies Fixated on Criminals Instead of Crimes"
The title of this post is the title of this new article by Lester Jackson available via bepress SelectedWorks. Here is the abstract:
It has been loudly and repeatedly proclaimed by opponents that capital punishment is “unfair.” In their view, it is unfair because (1) only some murderers receive the ultimate sentence and (2) they are not the most deserving. Underlying this view is the remarkable assumption that fairness is subject to “fine tuning” and “moral accuracy.”
It is argued here that this assumption is indefensible both in theory and in practice. As a theoretical matter, it is insupportable to suggest that matters of conscience, right and wrong, are subject to calibration or “accuracy.” Right and wrong are not determined in the same manner as taking blood tests. Moreover, and this lies at the heart of the fallacy, there simply is no agreement upon what is fair punishment for unlawful intentional killing. Regarding the death penalty, the values chasm is unbridgeable.
In practice, this is clearly demonstrated by the considerations employed by those who allege unfairness. Using chicanery, outright falsehood and abuse of power, they have a laser focus on convicted criminals with no concern for past -- and future -- victims. It is easy to worry about criminals when the suffering of victims is left out of so-called fairness calibrations. When the assessment of fairness is confined to comparing the fate of one criminal against another, the reductio ad absurdum is that there should be no punishment for any violent crime.
This is the inevitable result of what is nowhere found in the actual written Constitution but, nevertheless, has been ordered by anti-capital punishment United States Supreme Court justices: “individualized sentencing.” That mandate, which places a heavy focus upon a criminal’s background and record, should be reconsidered.
Penal codes make certain conduct criminal. It is conduct that should be the prime (and perhaps exclusive) consideration. In determining punishments, the focus should be on crimes and not on the criminals who commit them. Based on such determinations, another view of fairness is presented.
Tuesday, October 21, 2014
Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias
A high-profile (and high-cost) capital case starts its next big phase as reported in this new AP article headlined "Opening statements expected in Jodi Arias sentencing retrial." Here are the basics:
Jurors in Phoenix will once again be asked to decide whether Jodi Arias should be executed for the gruesome murder of her former boyfriend. Lawyers are expected to make opening statements Tuesday at the sentencing retrial, more than a year after a jury found her guilty of killing Travis Alexander in June 2008. The first jury deadlocked on whether to sentence her to life imprisonment or death.
A new jury that was picked over the past several weeks will be sworn in as the former waitress tries to make another case that her life should be spared. They won't consider whether or not she's guilty -- that's already been decided. The retrial is expected to last into December....
Arias stabbed and slashed Alexander nearly 30 times, slit his throat so deeply she nearly decapitated him and shot him in the forehead. She left his body in his shower where friends found him about five days later at his suburban Phoenix home. She acknowledged she killed Alexander, but claimed it was self-defense after he attacked her. Prosecutors said it was premeditated murder carried out in a jealous rage after the victim wanted to end their affair and planned a trip to Mexico with another woman.
Weeks after Arias was convicted, the jury failed to reach a unanimous decision on her punishment. Her attorneys have since sought, unsuccessfully, to dismiss the death penalty as an option. If another deadlock occurs, the death penalty would automatically be removed as an option, leaving a judge to sentence Arias to one of two options: life in prison or life in prison with the possibility of release after 25 years.
The sentencing retrial will be a mini-trial of sorts to get a fresh jury up to speed on the case. Four hundred people were called as prospective jurors. Many of them were cut after they said they either made up their minds about the case or knew too much to be impartial. Some jurors cited their objection to the death penalty.
At her last trial, she testified for 18 days, describing for jurors an abusive childhood, cheating boyfriends, dead-end jobs, a shocking sexual relationship with Alexander, and her contention that he was physically abusive....
The costs of defending Arias have topped $2.5 million and will mount during a second penalty phase. Prosecutors have declined to provide their costs to try the case.
I am pleased this AP article ends with a discussion of the economic costs of this notable case. Because it is unlikely Arias will ever be executed even if she is sentenced to death, and because imposition of a death sentence will ensure years of state and federal appeals at taxpayer expense, I think prosecutors in this case are likely to do more harm to Arizona taxpayers than to Jodi Arias via this retrial.
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Jodi Arias now pleading for a life sentence before sentencing jury
- Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
- Arizona poised to take second (costly) run at death sentence for Jodi Arias
Sunday, October 19, 2014
Judicial misconduct complained against Fifth Circuit Judge Jones based on provocative death penalty speech dismissed
Thanks to recent posts at Hercules and the Umpire and at Crime & Consequences, I see that the judicial misconduct complaint filed against US Circuit Judge Edith Jones of the Fifth Circuit based on a provocative speech she gave concerning the death penalty at a law school. The lengthy dismissal order is available here, and this AP article reviews the basics:
A council of federal judges has dismissed a misconduct complaint against a conservative appellate judge who was alleged to have made racially discriminatory remarks at a lecture on the death penalty.
Judge Edith Jones ... allegedly said at a speech in February 2013 at the University of Pennsylvania law school that certain racial groups like African-Americans and Hispanics are predisposed to crime, and are prone to commit acts of violence and to be involved in more violent and heinous crimes than people of other ethnicities.
Thirteen individuals and public interest groups filed a judicial misconduct complaint against Jones, and Chief Justice John Roberts assigned the case to the appeals court in Washington at the request of the chief appeals judge in New Orleans. The dismissal, which took place in August, was publicly disclosed Wednesday.
In a lengthy inquiry, a three-judge panel of the judicial council was unable to find any recording of Jones' remarks, forcing them to rely on varying recollections of audience members about precisely what Jones said. "It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are `disproportionately' involved in certain crimes and `disproportionately' present in federal prisons," said the panel. "But we must consider Judge Jones' comments in the context of her express clarifications during the question-and-answer period that she did not mean that certain groups are `prone to commit' such crimes," the panel of judges said.
"In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial," said the panel. "They resemble other albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system."
Attorney Maurie Levin, who represents the complainants, said the ruling "essentially credits Judge Jones' stale recollections over the testimony of a lawyer and five law students who set down their recollections not long after the lecture. There is simply no way to understand that as a fair weighing of the evidence." The complainants are appealing to the Committee on Judicial Conduct and Disability of the judicial council.
I especially recommend Judge Richard Kopf's analysis and reactions in his post at Hercules and the Umpire, and I found noteworthy and important these particular reactive insights from Judge Kopf:
The work of the Special Committee and Professor Jeffrey Bellin makes me proud to be a federal judge. The clarity, tone, thoroughness and objectivity which is evident in the Report of the Special Committee is remarkable....
In my opinion, the essential allegations of the complaint lack a credible factual basis. With the aid of Professor Bellin’s searching investigation, the Report of the Special Committee, in restrained terms, explains why that is so.
I fear that complaints like this one will chill, and may even be intended to chill, judicial speech concerning the law, the legal system, and the administration of justice, particularly when the judge does not share the jurisprudential or ideological views of the listeners, and despite the fact that federal judges are expressly encouraged under the Code to speak about the law and how to improve it.
As distinguished from my fears expressed in the preceding paragraph, the Report of the Special Committee does a skillful job of explaining why controversial speech by a federal judge in the context of a talk on the law does not violate the Code.
Prior related posts:
- Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty
- "A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones"
UPDATE: Judge Kopf now has this additional interesting post on this matter titled "On being 'uncomfortable' and 'offended' — the ethics complaint against Judge Jones and the student affiants."
Tuesday, October 14, 2014
"Could firing squad make a comeback in Utah, elsewhere?"
The question in the title of this post is the headline of this lengthy new article discussing, yet again, possible alternatives to lethal injection as a means to carry out death sentences. Though covering some familiar ground, this article provides a useful reminder that it has been only a few years since the last firing squad execution in the United States and highlights reasons why states seriously committed to carrying out executions ought to be seriously considering this "classic" execution method again. Here are excerpts:
When Ronnie Lee Gardner was executed by firing squad in 2010 at the Utah State Prison in Draper, more than 59 journalists from news outlets from around the globe descended upon Utah to cover the event. Reporters from Japan and Great Britain called it “a Wild West way of dispatching people” and referenced John Wayne movies.
But as anti-death penalty pharmaceutical companies in Europe refuse to sell the drugs necessary for lethal injections to prisons in the United States and in the wake of botched lethal injection executions in recent months, the firing squad could be making its return to Utah and other places. “I’ve had several states actually call (to ask about the firing squad),” Rep. Paul Ray, R-Clearfield, said. “They asked me not to name them because they don’t want the media circus on it. But they’re in the same boat we are — they can’t get the drugs, either.”
Botched executions involving lethal injections in Arizona, Oklahoma and Ohio earlier this year have led Ray to believe that the method could face constitutional challenges as well. For that reason, he is proposing legislation that would bring back the firing squad as the secondary execution method in Utah, should the primary method, lethal injection, be found unconstitutional or unavailable. “It really won’t do anything,” Ray said. “It’s just the plan B if we need it.”
A law passed in 2004 eliminated death by firing squad in Utah, but those on death row who requested such a death prior to the new law still have the option. Ray said the legislation he is proposing would restore the firing squad as a possible execution method, but eliminate the inmate choice. “It will be lethal injection, and then, if the drugs are not there, or it is unconstitutional, then it will be firing squad,” Ray explained. “There is no option for the inmates.”
Utah's firing squad comprises five riflemen, all certified law enforcement officers, using 30-30 rifles. Four of the guns are loaded with live ammunition and one is loaded with a blank before the officers shoot in unison.
Ray acknowledged that part of the reason the method was eliminated was due to the extra attention that surrounded it. But he said there is always going to be interest around executions, especially among international media. The firing squad may heighten that interest, but Ray doesn't balk at it as an execution method.
“It is actually the most humane,” he said. “The individual is usually dead before they can even hear the gunshot. It’s four bullets to the heart, so it’s not ‘How long did it take for him to die? Could he breathe? Did he feel it?’”
Wyoming Sen. Bruce Burns, R-Sheridan, decided to propose the firing squad as Wyoming’s secondary execution method, because he said it is what he would choose if forced to select to among the alternatives to lethal injection. “It became a matter of personal prejudice and if I was the one that was being executed,” Burns said.
Wyoming’s current backup if lethal injection is unavailable is the gas chamber, which Burns felt was impractical for a number of reasons. For one, the state doesn’t have a gas chamber, and building one — and the possible litigation prompted by a decision to build one — would be expensive. “It would cost millions of dollars to build one,” Burns said. “And sometimes you have to put your own experience into it and I think the gas chamber would be a horrible way to kill somebody.”... “I do like the way Utah did it,” Burns said. “Utah has a very good protocol. If we pass this, I would hope the Wyoming Department of Corrections would look to the protocol that Utah uses.”...
Even before the botched executions, Burns noticed the difficulty getting lethal injection drugs from companies in the European Union. He proposed a bill to implement the firing squad in Wyoming’s legislative session this past January. It didn’t pass, but officials from the Wyoming Department of Corrections came forward and spoke about the difficulties states around the nation are facing when it comes to obtaining drugs for lethal injections, and the Wyoming Legislature’s Judiciary Committee decided to look at the issue. Lawmakers have since decided to sponsor the firing squad bill in the upcoming legislative session in January....
Burns said the the Wyoming Legislature’s Judiciary Committee recently had an extended debate about the death penalty and whether to eliminate it altogether. A proposed bill was even drafted. “It went down and not by a whole lot,” Burns said, before adding that he likes where Wyoming stands now with just one man on death row. “We have 22 people in prison for life without parole, and any one of those 22 could have been a capital case. We haven’t executed anyone since 1992, so we use it infrequently.”
Still, he believes the death penalty is an important tool in the criminal justice system to be used as needed. “I’m not a fan of using it more, but I would like to have it there in reserve for those crimes that are so horrible and so heinous that the person doesn’t even deserve life without parole,” Burns said.
A few recent related and older posts:
- Is nitrogen gas the best modern execution alternative to lethal injection?
- Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma
- A worldly perspective on different execution methods
- 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
- Should problems with lethal injection prompt return of other execution methods?
Monday, October 13, 2014
Oklahoma AG requests additional delay before state gets back to executions
As reported in this Reuters article, "Oklahoma's attorney general has filed a request to delay three upcoming executions in Oklahoma due to a lack of drugs and to provide more time to implement new lethal injection protocols, according to court documents obtained on Monday." Here is more:
Attorney General Scott Pruitt has asked the Oklahoma Court of Criminal Appeals to delay two executions set for November and one set for December because the state does not have the necessary drugs or the medical personnel to carry out the executions, a filing from last week showed. The drugs used during executions in the United States are under scrutiny after inmates in troubled executions in Ohio, Oklahoma and Arizona took longer than is typical to die and showed signs of distress.
Pruitt requested a Jan. 15 execution date for Charles Warner, convicted of raping and murdering 11-month old Adrianna Walker. Pruitt was scheduled to be executed Nov. 13. His original execution date was April 29, the same night of the botched execution of condemned murderer Clayton Lockett. Lockett's execution prompted the state to delay all executions pending a review and investigation into why it took Lockett over 40 minutes to die....
Richard Eugene Glossip and John Marion Grant were also scheduled for execution in 2014, but Pruitt asked that their executions be set for Jan. 29 and Feb. 19, respectively. Robert Patton, director of the Oklahoma Department of Corrections, issued a statement on Monday supporting the 60-day delay.
Dale Baich, attorney for Warner, issued a statement applauding Pruitt's request, saying more time is needed for the federal courts to review a lawsuit filed by 26 inmates, including Warner, Glossip and Grant. The lawsuit argues that the state is experimenting on death row inmates with untested lethal injection drugs, violating the law’s ban on cruel and unusual punishment.
Noting how politicians can be pro-life and pro-death (penalty) in Texas
This local story on modern Texas politics, headlined "Being pro-life in gov's race doesn't extend to death row," highlights what concerns about the sanctity of life real mean in the Lone Star State. Here are excerpts:
When Attorney General Greg Abbott talks about his opposition to abortion, he often mentions his Catholic faith. Not so when he talks about his support for the death penalty, whose abolition is advocated by Pope Francis.
“Catholic doctrine is not against the death penalty, and so there is no conflict there,” Abbott, the Republican nominee for governor, said when asked about that point in a meeting with the San Antonio Express-News Editorial Board. The Catholic catechism doesn't exclude the death penalty as an option if that's the only way to defend human lives from an offender, but it says that given current options, such cases “are very rare, if practically non-existent.”
Pope Francis, in reaffirming the church's call to abolish the death penalty last year, asked that such sentences be commuted to a lesser punishment allowing for the offender's reform, the National Catholic Register reported. “The difference, of course, is one between innocent life and those who have taken innocent lives,” Abbott said of his position on abortion versus the death penalty.
A different view on capital punishment would itself be seen as tantamount to a political death sentence in Texas. Abbott's Democratic opponent, Sen. Wendy Davis, also backs the death penalty — even though as a Fort Worth City Council member in 2000 she voted to impose a moratorium on it, and even though the Texas Democratic Party platform calls for substituting life in prison for capital punishment, saying the death penalty is applied disproportionately to the poor and persons of color.
The moratorium didn't pass, and Davis said that the questions prompting her to support it then have largely been answered through such means as advancement in the use of DNA evidence. “Obviously, before we mete out the most serious of punishments, we need to know we've done everything to assure that the person on the receiving end of that punishment is guilty,” Davis told the Express-News Editorial Board in a separate appearance Friday. “We have made some advances in that regard. ... Is there still work to do? Absolutely.”
Both candidates credited work by Sen. Rodney Ellis, D-Houston, on the issue. Abbott cited his efforts with Ellis on legislation to expand DNA testing in death penalty cases. “I know that the only way the death penalty will work is to ensure its absolute accuracy — that everyone who is given the death penalty is guilty of the crime for which they were accused and convicted of committing,” Abbott said.
Being sure can be difficult. In 2010, Anthony Graves became the 12th death-row inmate to be exonerated in Texas, absolved of the 1992 Burleson County murder for which he was convicted. Michael Morton, who served 25 years in his wife's Williamson County murder before being exonerated, told CNN, “I thank God this wasn't a capital case.”...
Abbott and Davis both said if elected, they'll also take care in presiding over executions. “I will ensure that before I ever allow an execution to occur, I will be 100 percent convinced that the person who is being sentenced to the death penalty is guilty of that crime,” Abbott said. Davis said, “As governor, I'll take that very seriously and make sure that before that punishment is meted out that we have done everything we can to answer the questions that need to be answered.”
Wednesday, October 08, 2014
Criticizing the tenure of AG Eric Holder based on the death penalty as a human rights issue
This extended New Republic commentary authored by Mugambi Jouet, somewhat inaccurately titled "What Eric Holder — and Most Americans — Don't Understand About the Death Penalty," takes shots at Holder's specific record on the death penalty:
Attorney General Eric Holder's recent resignation announcement prompted a flurry of assessments on his six years of service under President Obama. He let Wall Street off too easy. He was a hero to the poor. He compromised civil liberties in the name of national security—and defended civil rights better than any attorney general before him. But the debate over Holder’s record has overlooked one of the most important aspects of his legacy. Holder has been profoundly at odds with the rest of the Western world on one of the most significant human rights issues of our time: the death penalty.
All Western democracies except America have abolished capital punishment and consider it an inherent human rights violation. America further stands out as one of the countries that execute the most people. Thirty-nine prisoners were executed by the United States in 2013. While that figure marked a continuing decline in the annual number of U.S. executions, it still placed America fifth worldwide, right behind several authoritarian regimes: China, Iran, Iraq, and Saudi Arabia.
No federal prisoner has been executed since 2003, yet Holder’s decisions could ultimately lead this de facto moratorium to end, as he authorized federal prosecutors to pursue capital punishment in several dozen cases. "Even though I am personally opposed to the death penalty, as Attorney General I have to enforce federal law," Holder has argued. Prosecutors actually have the discretion not to pursue the death penalty at all — at the risk of losing popularity — since enforcing the law does not require pursuing capital punishment as opposed to incarceration....
Holder notably approved the decision to seek the death penalty in the federal trial of Dzhokhar Tsarnaev, who is accused of perpetrating the Boston Marathon bombings of 2013 — and whom a majority of Americans want to be executed. Nevertheless, the state of Massachusetts has abolished the death penalty and only 33 percent of Boston residents support executing Tsarnaev as opposed to sentencing him to life in prison without parole. However, Holder’s decisions supporting capital punishment have hardly been limited to terrorism cases. For example, he authorized the recent decision to seek the death penalty for Jessie Con-Ui, a Pennsylvania prisoner accused of murdering a federal correctional officer....
The death penalty is rarely framed as a human rights issue in America, unlike in other Western democracies. That's partly because the principle of human rights plays a very limited role overall in the legal and political debate in the U.S., where "human rights" commonly evoke foreign problems like abuses in Third World dictatorships — not problems at home.
The situation is different on the other side of the Atlantic, where the European Court of Human Rights tackles a broad range of problems facing European states, from freedom of speech to labor rights, discrimination, and criminal justice reform. National human rights commissions also exist in multiple countries, including Australia, Denmark, France, Germany, and New Zealand. These bodies focus mostly or exclusively on monitoring domestic compliance with human rights standards. On the other hand, the Tom Lantos Human Rights Commission, an arm of the U.S. Congress, focuses on the human rights records of foreign countries.
The relative absence of human rights as a principle in modern America is remarkable given how U.S. leaders actively promoted the concept in its infancy. President Franklin Delano Roosevelt invoked “human rights” in his “Four Freedoms Speech” of 1941. Eleanor Roosevelt was among the architects of the Universal Declaration of Human Rights of 1948. As the human rights movement progressed in later decades, Martin Luther King said in 1968 that “we have moved from the era of civil rights to the era of human rights.”
Even though Holder regards King as one of his models — and despite his proposals to make the U.S. penal system less punitive and discriminatory — the nation’s first black attorney general hardly put human rights at the center of his agenda.
The death penalty is far from the only human right issue where America stands apart from other Western democracies. America effectively has the world’s top incarceration rate, with 5 percent of the world’s population but 25 percent of its prisoners. America is likewise virtually alone worldwide in authorizing life imprisonment for juveniles. Its reliance on extremely lengthy periods of solitary confinement has been denounced by the U.N. Special Rapporteur on Torture. The extreme punishments regularly meted to U.S. prisoners are generally considered flagrant human rights violations in other Western countries. Nevertheless, Holder argued that America has “the greatest justice system the world has ever known.”
By the same token, no other modern Western democracy has gone as far as America in disregarding international human rights standards as part of anti-terrorism measures. This trend has been epitomized by indefinite detention at Guantanamo and the torture of alleged terrorists under the Bush administration. These practices have sharply divided U.S. public opinion but only a segment of Americans have depicted them as “human rights” abuses....
[T]he limited weight of human rights in the U.S. legal and political debate is not without consequences. Human rights are a far stronger basis to oppose practices like the death penalty or torture than the administrative arguments frequently invoked in America. The human rights argument against such practices is largely based on the premise that they violate human dignity....
Holder's narrow focus on problems with the administration of capital punishment suggests that he is among the many U.S. public officials and reformers who believe they have no duty to assess the “moral” issues regarding the death penalty. Whether this stance is justified or not, it seems quite exceptionally American in the modern Western world. Most contemporary European, Canadian, Australian, and New Zealander jurists probably would disagree with the notion that it is not their duty to assess whether executions violate human dignity.
Martin Luther King, who considered the death penalty an affront to human dignity, argued that “a genuine leader is not a searcher for consensus but a molder of consensus.” Perhaps Eric Holder — and his boss, Barack Obama — would have been willing to argue that the death penalty is dehumanizing if they did not fear losing popularity.
Tuesday, September 30, 2014
Ohio AG puts onus on Ohio legislature to reboot state's machinery of death
As reported in this local article, headlined "DeWine: Executions on hold until legislators change law," Ohio's Attorney General has now suggested that the state will not even seek to move forward with executions in 2015 unless and until Ohio's General Assembly passes legislation he thinks is needed to enable a constitutionally sound and effective execution protocol. Here are the details:
Ohio will not resume executions next year unless legislators enact two key changes in state law, Attorney General Mike DeWine said yesterday. “You’re not going to see a death penalty take place until the General Assembly takes action,” DeWine said during a joint meeting with David Pepper, his Democratic opponent in the Nov. 4 election. The session with Gannett newspaper editors in Ohio was streamed live on the Internet.
The execution issues deal with providing anonymity for “compounding pharmacies” and immunity protection for physicians who help the state with legal support for executions, DeWine spokesman Dan Tierney said. Tierney said DeWine thinks two pieces of legislation, not yet final, must be passed in order to meet stipulations set down by U.S. District Judge Gregory Frost. Frost halted all lethal injections in Ohio until early next year because of concerns about the drugs and how they are used.
Convicted killer Ronald Phillips is set to die on Feb. 15, followed by five other executions next year.
Ohio and most other states have exhausted their options for purchasing chemicals used in lethal injections, largely because manufacturers, many of them European, will not sell drugs for executions. States are now turning to compounding pharmacies, which combine materials into compounds on demand for customers. The proposal would allow the pharmacies to do that without being cited as the source, Tierney said.
Pepper spokesman Peter Koltak said Pepper agrees that Ohio’s death penalty should be “free from constitutional concerns.” He said, “Future legislation on Ohio’s death penalty should be given thorough and thoughtful consideration.”
Reviewing how death is different (but still being used) in Japan
This new piece from The Economist, headlined "The death penalty in Japan: Hanging tough," discusses the on-going debate over capital punishment in the Land of the Rising Sun. Here are excerpts:
It is one of the anomalies of Japan’s approach to the death penalty that a stricken conscience can bring the system grinding to a halt. At least two Japanese justice ministers have refused to sign execution orders, most recently Seiken Sugiura, a devout Buddhist who oversaw a 15-month moratorium from 2005 to 2006. But Japan’s new justice minister, Midori Matsushima, seems unburdened by such doubts.
Ms Matsushima, who took office this month, has swatted away demands to review the system. Japan is one of 22 nations and the only developed country — apart from America, where it is falling out of favour — that retains capital punishment. “I don’t think it deserves any immediate reform,” she said last week: in her view the gallows are needed “to punish certain very serious crimes”.
Calls for a review have grown since the release earlier this year of Iwao Hakamada, a 78-year-old who spent 45 years of his life in a toilet-sized cell awaiting execution. A Japanese court said the police evidence that put him behind bars in 1966 was probably fabricated. Mr Hakamada, dubbed the world’s longest-serving death-row prisoner, is awaiting a fresh verdict later this year. Prosecutors have lodged an appeal against his retrial.
Opponents are hoping that the state’s stubborn fight to wheel another elderly man back to the gallows (he is severely ill and suffers from advanced dementia) may trigger debate and a backlash. But critics face an uphill struggle. Japan’s media largely steers clear of the topic. Ms Matsushima points to public support of over 85% on carefully-worded surveys put out by the cabinet: respondents reply to whether execution is “unavoidable if the circumstance demands it”.
Mr Hakamada would not be the first elderly or infirm inmate to be hanged in Japan. On Christmas day in 2006, Fujinami Yoshio, aged 75, was brought to the gallows in the Tokyo Detention Centre in a wheelchair. Even the openly abolitionist Keiko Chiba, who was justice minister from 2009 to 2010, failed to make a dent in the system. In July 2010 she signed and attended two executions in a bid, she said, to start a public discussion that quickly petered out.
Saturday, September 27, 2014
Arizona poised to take second (costly) run at death sentence for Jodi Arias
As reported in this AP article, headlined "Life or Death? Arias Set for Sentencing Retrial," prosecutors in Arizona are about to take another run at convincing a jury that murderer Jodi Arias should be condemned to die for her crime. Here are the basics:
Jodi Arias' guilt has been determined. The only thing that remains is whether she dies for killing her ex-boyfriend. More than six years after his death, and more than a year after being convicted of murder, a second penalty phase to determine her punishment gets underway Monday with jury selection.
Arias acknowledged that she killed Travis Alexander in 2008 at his suburban Phoenix home but claimed it was self-defense. He suffered nearly 30 knife wounds, had his throat slit and was shot in the head. Prosecutors argued it was premeditated murder carried out in a jealous rage when Alexander wanted to end their affair.
The 34-year-old former waitress was found guilty last year, but jurors couldn't agree on a sentence. While Arias' murder conviction stands, prosecutors are putting on the second penalty phase with a new jury in another effort to secure the death penalty.
If the new jury fails to reach a unanimous decision, the judge will then sentence Arias to spend the rest of her life behind bars or to be eligible for release after 25 years. At least 300 prospective jurors will be called in the effort to seat an impartial panel, not an easy task in the case that has attracted so much attention....
One key difference in the second penalty phase is that there will be no live television coverage. Judge Sherry Stephens ruled that video cameras can record the proceedings, but nothing can be broadcast until after the verdict. Arias' five-month trial began in January 2013 and was broadcast live, providing endless cable TV and tabloid fodder, including a recorded phone sex call between Arias and the victim, nude photos, bloody crime-scene pictures and a defendant who described her life story in intimate detail over 18 days on the witness stand.
Arias' attorneys claimed the televised spectacle led to threats against one of her lawyers and defense witnesses who opted not to testify. Citing Arias' right to a fair trial, Stephens is erring on the side of caution this time around.
The retrial is expected to last until mid-December.
In this prior post, it was reported way back in January that "Jodi Arias' legal bills have topped $2 million." If this new penalty trial really extends a coupld of months, I suspect the tab for Arizona taxpayers will surely be nearly another million, and the imposition of a death sentence would also ensure many years of expensive appeals. Especially given the relatively low odds that Arias will actually ever be executed, I cannot help but wonder if all these Arizona taxpayer millions might have been better spent on a more productive cause.
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Jodi Arias now pleading for a life sentence before sentencing jury
- Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
Friday, September 26, 2014
"Hall v. Florida: The Death of Georgia's Beyond a Reasonable Doubt Standard"
The title of this post is the title of this new paper by Adam Lamparello now available on SSRN. Here is the abstract:
Welcome: We’re Glad Georgia is On Your Mind.
Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair.
Georgia’s standard for determining intellectual disability -- beyond a reasonable doubt -- is itself intellectually disabled. In 1986, Georgia became the first state to ban executions of the intellectually disabled. It should also be the next state to eliminate a standard that, as a practical matter, ensures execution of the intellectually disabled.
Ultimately, the Georgia legislature must explain why it chooses to execute defendants like Warren Hill, and the Georgia courts must explain why they allow it to happen. Intellectually disabled defendants do not appreciate or understand why they are being executed. Their crimes may be unspeakable, but the punishment is never proportional. Until Georgia provides an answer that extends beyond platitudes and biblically inspired notions of justice, the fact will remain that executing Warren Hill is as heinous as the crimes he committed. The only acceptable answer should come from the Supreme Court, holding that Georgia’s beyond a reasonable doubt standard violates the Eighth Amendment.
Thursday, September 25, 2014
Louisiana legislative commission looking closely at capital case costs
As this local article reports, the "Louisiana Legislature is looking into the cost associated with carrying out the death penalty in the state." Here is how:
State Sen. JP Morrell, D-New Orleans, is heading up a new Capital Punishment Fiscal Impact Commission. The group's first meeting was Wednesday morning. Louisiana doesn't have a well-researched estimate of how much it is spending on capital punishment trials and execution, according to Morrell. The commission's goal is to get an idea of what the overall price tag is for executions in the state.
The death penalty might be more expensive than the general public realizes. Inmates on death row are segregated from the main prison population and receive specialized care. Capital murder trials can also be much more expensive than regular murder cases.
Members of the commission include lawmakers, prosecutors, public defenders, law enforcement, an auditor and staff members from nonprofit organizations. The group has been broken down into three subcommittees -- prosecution expenses, defense expenses and general Department of Corrections expenses. The subcommittees will meet approximately once per month. The overall commission will meet once per quarter, according to Morrell. The group has to conclude its work by the end of 2015.
Louisiana's House Appropriations Committee experienced some sticker shock related to the death penalty last spring during the legislative session. The state's public defender told lawmakers he expected to spend $479,000 on legal work related to the murder of a Louisiana State Penitentiary guard. Louisiana has already spent $10 million on court proceedings for the defendants, known as the Angola 5.
Wednesday, September 24, 2014
"Why Are So Many People Getting Sentenced to Death in Houston?"
The title of this post is the headline of this new article in The National Journal. It gets started this way:
Just 10 U.S. counties — roughly 0.3 percent of the nation's total — account for more than a quarter of all the American executions that have been carried out since 1976.
Texas's Harris County, which includes Houston, is far and away the leader in executions during that period. That district has handed out 122 death sentences that were carried to completion, more than double the next highest. Harris County alone is responsible for more executions than any state besides Texas.
Dallas County, which includes the Dallas-Fort Worth area, comes in second at 53.