With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row prisoners.
“In a very real sense, the Eighth Amendment meant whatever Justice Kennedy decided that it meant,” Robert Dunham, the executive director of the Death Penalty Information Center, told me. “He was often the fifth vote in denying stays of execution and in favoring the state on questions of lethal injection, but he was also often a fifth vote for determining that a particular death-penalty practice was unconstitutional.”
The high court will likely continue to intervene in death-penalty cases that stray too far from the legal mainstream. But without Kennedy, it will no longer be the venue for a systemic attack on capital punishment as it had been in recent years. “It seems likely that there will be a firm, five-person majority on the court in Kennedy’s wake with absolutely no interest in revisiting the status quo on the constitutionality of capital punishment,” Carol Steiker, a Harvard University law professor who specializes in the death penalty, told me....
Monday, October 15, 2018
"How Statistics Doomed Washington State’s Death Penalty"
The title of this post is the title of this new commentary at The Atlantic by Garrett Epps. Here is an excerpt (with links from the original):
Last week, the Washington Supreme Court, in a fairly pointed opinion, declared that, at least in its jurisdiction, numbers have real meaning. And to those who have eyes to see, numbers make clear the truth about death-sentencing: It is arbitrary and racist in its application.The court’s decision was based on two studies commissioned by lawyers defending Allen Gregory, who was convicted of rape and murder in Tacoma, Washington, in 2001 and sentenced to death by a jury there. The court appointed a special commissioner to evaluate the reports, hear the state’s response, and file a detailed evaluation. The evidence, the court said, showed that Washington counties with larger black populations had higher rates of death sentences—and that in Washington, “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Thus, the state court concluded, “Washington’s death penalty is administered in an arbitrary and racially biased manner” — and violated the Washington State Constitution’s prohibition on “cruel punishment.”
The court’s opinion is painstaking — almost sarcastic — on one point: “Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own [state] constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles.” “Adequate and independent” are magic words in U.S. constitutional law; they mean that the state court’s opinion is not based on the U.S. Constitution, and its rule will not change if the nine justices in Washington change their view of the federal Eighth Amendment. Whatever the federal constitutionality of the death penalty, Washington state is now out of its misery.Last spring, a conservative federal judge, Jeffrey Sutton of the Sixth Circuit, published 51 Imperfect Solutions: States and the Making of American Constitutional Law, a book urging lawyers and judges to focus less on federal constitutional doctrine and look instead to state constitutions for help with legal puzzles. That’s an idea that originated in the Northwest half-a-century ago, with the jurisprudence of former Oregon Supreme Court Justice Hans Linde. It was a good idea then and it’s a good idea now. State courts can never overrule federal decisions protecting federal constitutional rights; they can, however, interpret their own state constitutions to give more protection than does the federal Constitution. There’s something bracing about this kind of judicial declaration of independence, when it is done properly.
Prior related posts:
- Washington Supreme Court strikes down state's death penalty based on its arbitrary administration
- Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)
Saturday, October 13, 2018
"The Pope and the Capital Juror"
The title of this post is the title of this new essay authored by Aliza Cover now available via SSRN. Here is its abstract:
Counterintuitively, the Pope’s recent announcement that the death penalty is impermissible in all circumstances may make death sentences easier to come by, at least in the short term. The reason for this peculiarity is the “death qualification” of capital jurors — the process of questioning prospective jurors about their views on the death penalty and removing for cause those who are “substantially impaired” in their willingness to consider imposing a death verdict.
This Essay anticipates three problematic consequences of the Pope’s declaration, given a capital punishment system that relies on death-qualified juries. First, prosecutors will likely be able to strike a greater number of death-averse jurors, thereby seating juries tilted in favor of death and obtaining death verdicts with greater ease. Second, with more believing Catholics excluded from jury service, the representativeness — and hence the legitimacy — of capital juries will suffer. Third, if the number of death verdicts rises with the ease of disqualification, one of the key “objective indicators” of “evolving standards of decency” will be skewed, registering more support for the death penalty despite — indeed, because of — societal movement against it. The potential for these unexpected consequences to flow from a major pronouncement against the death penalty highlights how death qualification shapes and distorts the practice of capital punishment in our country.
Friday, October 12, 2018
Highlighting how constitutional problems with death penalty also apply to drug prohibitions
Over at Marijuana Moment, Kyle Jaeger in this post is quick to note interesting implications of key statements by the Washington Supreme Court in its big opinion yesterday striking down the state's death penalty as "unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner." The post is titled "Successful Constitutional Case Against Death Penalty Works For War on Drugs, Too," and here are excerpts:
The movement to restore civil liberties and resolve systemic racial injustices in the criminal justice system scored a major victory on Thursday. And no, this time we’re not talking about ending the war on drugs. Or at least not yet. Washington became the 20th state to abolish the death penalty, with the state Supreme Court ruling that capital punishment is unconstitutional because “it is imposed in an arbitrary and racially biased manner.”
If you’re already seeing parallels to arguments for ending drug prohibition, you’re not alone. Many of the same points the court made in their ruling against the death penalty ring true for the war on drugs, too. For example, the court argued that death sentences have been disproportionately carried out against black defendants, at a rate more than four times higher than it is for white defendants....
Similarly, drug reform advocates have long maintained that prohibition is racially discriminatory given disproportionate rates of enforcement and arrests for drug-related offenses. Black Americans are nearly three times as likely to be arrested for a drug-related crime, compared to white Americans. That’s in spite of the fact that rates of consumption are roughly equal among both groups...
The Washington court said another factor that contributed to their decision concerned “contemporary standards and experience in other states.” “We recognize local, national, and international trends that disfavor capital punishment more broadly. When the death penalty is imposed in an arbitrary and racially biased manner, society’s standards of decency are even more offended.”
The parallel here couldn’t be more clear. If such trends demonstrate a need to review and reform an existing law, the same rationale could theoretically apply to drug prohibition. A majority of states have legalized cannabis for medical or adult-use, and national interest in changing federal marijuana laws has steadily grown in recent years. Beyond marijuana, a broader drug reform push has included calls to abolish mandatory minimum sentences for non-violent drug offenses.
Of course, marijuana is already legal in Washington, and no other states have yet legalized drugs, so this part of the ruling’s applicability to a potential case seeking to strike down broad drug prohibition in the state might not be quite ripe yet. While it’s unclear whether the constitutionality of prohibition could be reasonably challenged on similar legal grounds, the similarities are striking.
The justification for capital punishment was another point of interest for the justices, who noted that the system failed to achieve its “penological goals” of “retribution and deterrence.” For all intents and purposes, drug prohibition too has failed to achieve similar goals. Decades of drug war have not appreciably deterred consumption. From 2001 to 2013, the rate of marijuana use among American adults almost doubled, for instance. The Cato Institute analyzed the impact of the drug war in a 2017 report. It concluded that prohibitionist policies “fail on practically every margin.”...
A last note from the Washington Supreme Court justices: “Under article I, section 14, we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner,” the justices wrote. “Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.” Now swap “death penalty” with “drug prohibition” in that last quote. Fits like a glove.
Prior related post:
Thursday, October 11, 2018
Tennessee Gov grants last-minute reprieve so state can fulfill condemned's request to be executed by electric chair
As reported in this Tennessean article, "three hours before Edmund Zagorski was scheduled to die, Gov. Bill Haslam delayed the inmate's execution so the state could prepare to use the electric chair to kill him." Here is more:
Haslam said a short delay would give the state time to accommodate Zagorski's preference for the electric chair over a controversial lethal injection cocktail. Late Thursday night, the U.S. Supreme Court eliminated two other legal hurdles that might have derailed the execution, making it more likely to move forward soon.
Haslam's temporary reprieve and the high court's decisions came after several days of rapid-fire developments put the state on the defensive and put the timing of Zagorski's execution in question. Haslam's reprieve was for 10 days, but it could take longer for a new execution date to be set by the Tennessee Supreme Court.
The U.S. Supreme Court struck down two stays Thursday night, essentially ending his remaining legal options to avoid execution:
The high court vacated a stay from the 6th Circuit Court of Appeals. The appeals court had planned to weigh whether Zagorski may pursue claims his trial attorneys made errors in representing him.
A majority of justices rejected a request from Zagorski’s attorneys for another stay so the high court could review a constitutional challenge to Tennessee’s lethal injection protocol.
Justices Sonia Sotomayor and Stephen Breyer dissented, saying they would have reviewed the lethal injection protocol. In her dissent, Sotomayor said Tennessee's lethal injection method, which experts say leads to torture, should be scrutinized....
Zagorski sued this week to force the state to use the electric chair for his execution, saying the pain of electrocution would be preferable to the controversial lethal injection. A federal judge issued an order temporarily barring the state from executing him by lethal injection while that suit is pending. The suit could be moot if the state agrees to move forward with the electric chair.
Haslam specifically cited the electric chair suit in his reprieve, suggesting that a delay would give the state time to prepare to execute Zagorski using the electric chair. “I take seriously the responsibility imposed upon the Tennessee Department of Correction and me by law, and given the federal court’s decision to honor Zagorski’s last-minute decision to choose electrocution as the method of execution, this brief reprieve will give all involved the time necessary to carry out the sentence in an orderly and careful manner,” Haslam said in a statement....
The state initially refused Zagorski's request to be executed by the electric chair, saying he was too late and hadn't given two weeks' notice. But District Judge Aleta Trauger at noon Thursday said the state could not use lethal injection until she had considered Zagorski's claim.
Zagorski, 63, faces death for the April 1983 murders of John Dale Dotson and Jimmy Porter. He shot them, slit their throats and stole their money and a truck, prosecutors say. The two men had expected to buy 100 pounds of marijuana from Zagorski.
Verna Wyatt, an advocate with Tennessee Voices for Victims, has been in contact with Dotson’s family as the challenges and uncertainty piled up. “What this process does to the victims’ families is barbaric,” Wyatt said. “Thirty-four years, they don’t get justice and it’s an ongoing reliving of their grief and what happened to their loved one. If they won’t fix this system, it should be abolished. This is not justice on any level. It’s outrageous.”
Justice Sotomayor's dissent on the lethal injection claim is available at this link and it ends this way:
I accordingly would grant Zagorski’s request for a stay and grant certiorari to address what renders a method of execution “available” under Glossip. Capital prisoners are not entitled to pleasant deaths under the Eighth Amendment, but they are entitled to humane deaths. The longer we stand silent amid growing evidence of inhumanity in execution methods like Tennessee’s, the longer we extend our own complicity in state-sponsored brutality. I dissent.
Washington Supreme Court strikes down state's death penalty based on its arbitrary administration
I am on road and so unable to read or comment on this big unanimous opinion. I hope to be able to do so before too long.
UPDATE: Here is how the opinion for the court in Washington v. Gregory starts and ends:
Washington's death penalty laws have been declared unconstitutional not once, not twice, but three times. State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972); State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979); State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981). And today, we do so again. None of these prior decisions held that the death penalty is per se unconstitutional, nor do we. The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of the death penalty is unequally applied — sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution....
Under article I, section 14, we hold that Washington's death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner. Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals. Pursuant to RCW 10.95.090, "if the death penalty established by this chapter is held to be invalid by a final judgment of a court which is binding on all courts in the state, the sentence for aggravated first degree murder ... shall be life imprisonment." All death sentences are hereby converted to life imprisonment.
Wednesday, October 10, 2018
"Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row"
The death penalty is all but extinct in North Carolina. Juries have recommended only a single new death sentence in the past four years. The state hasn’t carried out an execution since 2006. Yet, North Carolina has the sixth largest death row in the nation, with more than 140 men and women. It is a relic of another era.
More than 100 of N.C.’s death row prisoners — about three-quarters — were sentenced in the 1990s, under wildly different laws. During those years, North Carolina juries sent dozens of people a year to death row, more than Texas. The state’s courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.
Beginning in 2001, after investigations and DNA testing began to reveal innocent people on death row, a wave of reforms transformed the landscape. New laws guaranteed capital defendants such basic rights as trained defense attorneys and the right to see all the evidence in their cases. A court mandate requiring prosecutors to seek death for virtually every first-degree murder — the only such requirement in the nation — was ended.
Today, the death penalty is seen as a tool to be used sparingly, instead of a bludgeon to be wielded in virtually every first-degree murder case. Yet, new laws and shifting public opinion have had little impact on prisoners sentenced in another era. The bulk of North Carolina’s death row is now made up of people who were tried 15, 20, even 25 years ago. They are prisoners of a state that has moved on, but has refused to reckon with its past.
CDPL’s report, Unequal Justice, finds that out of 142 death row prisoners in North Carolina:
92% (131) were tried before a 2008 package of reforms intended to prevent false confessions and mistaken eyewitness identifications, which have been leading causes of wrongful convictions across the country. The new laws require interrogations and confessions to be recorded in homicide cases and set strict guidelines for eyewitness line-up procedures.
84% (119) were tried before a law granting defendants the right to see all the evidence in the prosecutor’s file — including information that might help reduce their sentence or prove their innocence.
73% (104) were sentenced before laws barring the execution of people with intellectual disabilities. Despite a promise of relief for these less culpable defendants, disabled prisoners remain on death row.
73% (103) were sentenced before the creation of a statewide indigent defense agency that drastically improved the quality of representation for poor people facing the death penalty, and a law ending an unprecedented requirement that prosecutors pursue the death penalty in every aggravated first-degree murder. Before these changes, prosecutors did not have the ability to seek life sentences in these cases and poor people often received a sub-standard defense.
Tuesday, October 09, 2018
On eve of execution, Tennessee Supreme Court rejects challenge to state's execution protocol
As reported in this legal news story, "Tennessee’s execution method is not cruel and unusual, the state supreme court ruled Monday, three days before the state’s next execution, because inmates challenging its three-drug lethal injection protocol did not present a viable alternative." Here is more on the ruling and a link to the full opinion:
Twenty-seven death-row inmates claimed the execution protocol violates the Eight Amendment because midazolam, a sedative, does not counteract the burning and suffocating effects of the next two drugs: vecuronium bromide, a paralytic, and potassium chloride to stop the heart.
But in the 4-to-1 ruling Monday, Chief Justice Jeffrey Bivins wrote: “(T)he Plaintiffs failed to carry their burden to establish that Tennessee’s current three-drug lethal injection protocol constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution or article 1, section 16 of the Tennessee Constitution. As a result, we need not address the Plaintiffs’ claim that the three-drug protocol creates a demonstrated risk of severe pain.”
That burden, Bivins said, included offering a viable alternative, as laid out by the U.S. Supreme Court in Glossip v. Gross (2015), which unsuccessfully challenged Oklahoma’s virtually identical execution protocol.
The Tennessee inmates said at trial that the state could execute them through Tennessee’s other execution protocol: one lethal dose of pentobarbital. Texas and Georgia executed people that way this year.
But the Tennessee Supreme Court disagreed and sided with the state, which said it could not obtain pentobarbital. Many pharmaceutical companies refuse to provide the drug for executions. Bivins also ruled that the court could not “establish new law” by accepting the inmates’ argument that Tennessee secrecy laws involving death penalty protocols affected their ability to argue their case.
Tennessee is scheduled to execute Edmund Zagorski on Thursday, October 11.
Saturday, October 06, 2018
"Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"
The title of this post is the title of this new paper authored by Kevin Morrow available via SSRN. Here is its abstract:
With the declining ability to use lethal injection in executions, states are beginning to take serious consideration of using nitrogen gas in capital punishment. The article first examines the recent shift away from lethal injection and whether nitrogen hypoxia will survive under current legal jurisprudence. Next, the article identifies human studies on accidental deaths from nitrogen. Third, the article examines the recent rise in nitrogen use in suicides and by right to die advocates. Finally, the article compares the use of nitrogen as an execution method with its use as a euthanizing agent in veterinary medicine.
Tuesday, October 02, 2018
Challenging issues for SCOTUS in criminal cases that may impact only a few persons ever and the entire structure of government always
On the second oral argument day of the new Supreme Court Term, criminal law issues are front and center. Here is SCOTUSblog's overview via this round-up post:
Today the eight-justice court will tackle two more cases. The first is Gundy v. United States, in which the justices will consider whether a provision of the federal sex-offender act violates the nondelegation doctrine. Mila Sohoni previewed the case for this blog. Kathryn Adamson and Sarah Evans provide a preview at Cornell Law School’s Legal Information Institute, while Matthew Cavedon and Jonathan Skrmetti look at the case for the Federalist Society Review. Today’s second case is Madison v. Alabama, an Eighth Amendment challenge to the execution of a death-row inmate who has dementia and cannot remember his crime. This blog’s preview, which first appeared at Howe on the Court, came from Amy Howe. Lauren Devendorf and Luis Lozada preview the case for Cornell. Subscript Law’s graphic explainer is here. Tucker Higgins reports on the case for CNBC.
As the title of this post suggests, I think the Madison capital case is likely to impact only a few persons ever: only a few dozen of murderers are these days subject to real execution dates each year and only a very few of those persons are likely to able to make a credible claim of incompetence to seek to prevent the carrying out of a death sentence. The jurisprudential and philosophical issues in Madison still are, of course, very important and lots of SCOTUS cases may end up impacting only a few persons. But I cannot help but note what seems to me to be relatively small stakes in Madison.
I stress the limits of Madison in part because, as my post title suggests, I think the Gundy case could be the sleeper case of the Term because a major ruling on the nondelegation doctrine could radically reshape the entire modern administrative state. In this post last month, the original commentary of Wayne Logan concerning Gundy highlighted that SCOTUS has "not invalidated a congressional delegation in over eighty years ..., [and] the issue [taken up in Gundy could be] clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies."
Prior related preview posts:
- SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"
- Another effective preview of coming SCOTUS review of SORNA delegation in Gundy
- Previewing the two capital punishment administration cases before SCOTUS this fall
- Previewing SCOTUS consideration of capital competency (and making a case for abolition)
UPDATE via SCOTUSblog: The transcript of oral argument in Gundy v. United States is available on the Supreme Court website; the transcript in Madison v. Alabama is also available; and authored by Amy Howe here, "Argument analysis: A narrow victory possible for death-row inmate with dementia?"
October 2, 2018 in Collateral consequences, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)
Monday, October 01, 2018
Previewing SCOTUS consideration of capital competency (and making a case for abolition)
The Supreme Court is scheduled to hear oral argument in Madison v. Alabama on Tuesday morning, and Amy Howe has this argument preview at SCOTUSblog titled "Justices to consider competency in capital cases." Her post starts this way:
It has been over 33 years since Vernon Madison shot and killed Julius Schulte, a police officer in Mobile, Alabama. Schulte had come to Madison’s house to protect Madison’s former girlfriend and her daughter while they moved out; Schulte was sitting in his car when Madison shot him twice in the back of the head. Madison was convicted of capital murder and sentenced to death, but next week the Supreme Court will hear oral argument on whether it would violate the Constitution to execute Madison when he has no memory of his crime.
Madison, now in his late 60s, has been on death row for over 30 years. During that time, he has had several strokes, which have left him with significant brain damage. Madison suffers from dementia and long-term memory loss; he is also legally blind and can no longer walk without assistance. Since Madison’s stroke, his lawyers tell the Supreme Court, Madison “has repeatedly asked for his mother to come and visit him even though she has been dead for years.”
Madison also cannot remember any of the details of the crime that put him on death row, including Schulte’s name, the events surrounding the crime, or his trial. After his execution was scheduled for January of this year, Madison went to state court to challenge his competency to be executed, armed with evidence that a court-appointed expert who had evaluated him, and whose findings had played a key role in earlier rulings that Madison was competent to be executed, was abusing narcotics and was eventually suspended from practicing psychology. The state court would have allowed Madison’s execution to go forward, but the Supreme Court stepped in and — over the objection of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — put the execution on hold while it considered Madison’s request for review.
Interestingly, the National Review has published this notable commentary authored by George Will discussing this case under the headline "America Should Strike Down the Death Penalty." Here are excerpts:
The mills of justice grind especially slowly regarding capital punishment, which courts have enveloped in labyrinthine legal protocols. As the mills have ground on, life has ground Madison, 68, down to wreckage. After multiple serious strokes, he has vascular dementia, an irreversible and progressive degenerative disease. He also is legally blind, his speech is slurred, he has Type 2 diabetes and chronic hypertension, he cannot walk unassisted, he has dead brain tissue, and urinary incontinence. A nd he no longer remembers the crime that put him on death row for most of his adult life. This is why on Tuesday, the Supreme Court will hear oral arguments about the constitutionality of executing him....
The court has said that “we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.” For many people, the death penalty for especially heinous crimes satisfies a sense of moral symmetry. Retribution — society’s cathartic expression of a proportional response to attacks on its norms — is not, however, the only justification offered for capital punishment. Deterrence is another. But by now this power is vanishingly small because imposition of the death penalty is so sporadic and glacial. Because the process of getting from sentencing to execution is so protracted, currently averaging 15 years, senescent persons on the nation’s death rows are going to be problems as long as there is capital punishment....
Sixty years ago, Chief Justice Earl Warren wrote that the Eighth Amendment — particularly the idea of what counts as “cruel” punishments — “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Concerning which, two caveats are apposite: “evolving” is not a synonym for “improving,” and a society can become, as America arguably is becoming, infantilized as it “matures.” That said, it certainly is true that standards of decency do evolve and that America’s have improved astonishingly since 1958: Think about segregated lunch counters and much else.
Conservatives have their own standards, including this one: The state — government — already is altogether too full of itself, and investing it with the power to inflict death on anyone exacerbates its sense of majesty and delusions of adequacy.
UPDATE: I just saw this interesting new OZY piece discussing Madison and related issues under the headline "Why the Battle over Dementia Patients on Death Row? Better Lawyers."
Wednesday, September 26, 2018
Texas with back-to-back executions scheduled for this week
There has not been an execution in the United States for more than a month, but as detailed this local article, Texas is slated to have its machinery of death in operation twice in the coming days:
The East Texas man convicted of drowning a former housemate and stuffing her body into a barrel of lime is slated to die Wednesday in the first of two consecutive executions in the Lone Star State.
If both punishments go through as planned, it'll be the first time in just over six years that Texas has put to death two prisoners in two nights.
Both men say they're innocent, and the pair of impending executions — first of Troy Clark, then of Daniel Acker — has attracted attention from actress Susan Sarandon, author Mary Buser and renowned death penalty abolitionist Sister Helen Prejean. "Texas plans to execute Troy Clark on Wednesday but there are some serious problems with his case," Prejean tweeted. "Troy has always maintained his innocence. Someone else made a detailed confession and then completely changed her story in exchange for a reduced sentence."
Clark was sentenced to die in 2000 for killing Christina Muse out of fear the young mother would snitch on him for his drug use, according to court records. He was convicted in part due to the testimony of his then-girlfriend Tory Bush, who admitted to the crime then fingered Clark — even though there was no physical evidence connecting him to the murder....
In the years since he was sent to death row, Clark has argued that he suffered bad lawyering, didn't get to show evidence rebutting claims he would be a future danger to society, and that his girlfriend's testimony was self-serving and unreliable — especially considering she once confessed to the crime herself....
But the Board of Pardons and Paroles on Monday afternoon denied his request for clemency. As of early Tuesday, he had no pending appeals, his attorneys said.
A day after Clark's scheduled date with death, Acker is slated for execution. The Sulphur Springs man was sent to death row in 2001 after he was convicted of strangling his girlfriend and pushing her from a moving car — though the state abandoned the strangulation theory after trial.
The Lone Star State has already executed eight men this year, and another nine death dates are on the calendar.
Friday, September 21, 2018
Why is the Sessions' DOJ now taking death penalty off the table for Donald Fell after so much cost and agony for victims?
The question in the title of this post emerges from this notable federal capital news, headlined "Accused killer Donald Fell to take plea deal, avoid death penalty," emerging from Vermont in a long-running multiple murder case. Here are the basics:
Nearly 20 years after he allegedly kidnapped and murdered a Vermont grandmother, accused killer Donald Fell is changing his plea and will avoid the death penalty.
Terry King, 53, was arriving for work at the Rutland Price Chopper in 2000 when police say Donald Fell and Robert Lee carjacked her, drove her to New York and killed her on the side of the road.
Fell was convicted and sentenced to death in 2005. But his federal conviction was overturned due to juror misconduct and a new death penalty trial was set to begin.
But now there is a plea deal that takes the death penalty off the table. Court documents show Fell will plead guilty to four federal crimes, including carjacking and kidnapping with death resulting. In exchange, he will spend the rest of his life in prison without the possibility of parole. A judge must still accept the agreement.
Fell's alleged accomplice, Robert Lee, never stood trial. He killed himself in prison. Fell and Lee were accused of two other murders that night. Police say before kidnapping Terry King, the men murdered Fell's mother, Debra, and her friend, Charles Conway in Rutland. But those killings took a back seat to King's murder because the feds were charging the men in that case since they brought King across state lines. The feds also had the death penalty to bargain with. The state of Vermont does not have a death penalty.
As highlighted via prior posts below, Fell's legal team has been making an aggressive case against his continued capital prosecution. But I sincerely doubt federal prosecutors found any of their claims compelling or really worried that federal judges would. So I am inclined to assume that federal prosecutors just concluded, presumably with the blessing of Attorney General Jeff Sessions, that throwing more federal taxpayer dollars after the pursuit of federal death sentence was just not a good investment of limited resources (perhaps especially because the feds have not executed anyone in over 15 years).
That all said, I still find this decision especially striking because the victims here are vocally against this plea resolution. This local article, headlined "Victim's family says justice not served with Fell plea deal," explains the family's reaction while also suggesting federal prosecutors had to work had to talk them into being content with this resolution:
The family of Terry King says justice is not being served. That's their response to news a plea deal has been reached with King's accused killer, Donald Fell. The deal means Fell will avoid the death penalty. "I mean they beat her to death. Beat her to death while she prayed for her life. And yet he is allowed to live? What justice is that?" demanded Barbara Tuttle, Terry King's sister.
Tuttle is talking about Donald Fell, the man accused of the brutal murder of Terry King. The North Clarendon grandmother was kidnapped on her way to work back in 2000. "It is a total embarrassment for the U.S. government as far as I am concerned, a total embarrassment," Tuttle said. And King's sister says she speaks for the entire family....
"If you are going to have the death penalty, then enforce it. If you are not going to use it, then why is the law there? Why all these appeals over and over and over again? Eighteen years of this," Tuttle said.
Tuttle says her family has known a plea deal was in the works for several weeks. Under the deal, Fell will plead guilty to four federal crimes including carjacking and kidnapping with death resulting. Tuttle says her family was convinced by prosecutors it was the best way to go to avoid another lengthy trial and appeal process. "I would just as soon go to court all over again if I knew that he would come out with the death penalty. And it was actually be enforced and we wouldn't have to go through 18 more years of appeals," she said. "It is ridiculous."
Tuttle says at least she won't have to keep being reminded of the case once Fell is sentenced to life without parole. She hopes if any good can come of the story, maybe it can lead to changes in the system. "They are always talking about criminal justice reform. Let me tell you, this is a perfect example of why our system is broken," she said....
It is important to note that a federal judge still needs to approve this deal. The case goes back to court Sept. 28.
I doubt the family member speaking here would be content with abolition of the death penalty as a way to fix this part of a broken capital criminal justice system. But I find it so telling that the "tough-and-tougher" federal administration that Prez Trump advocates and that AG Sessions seeks to implement ultimately gave up here on what should not be a uniquely hard capital prosecution. Another notable data point to support the view that the long-running litigation war against the death penalty is ever closer to a complete victory.
Prior related posts:
- Vermont killer makes broadside constitutional attack on federal death penalty prior to capital retrial
- Federal District Judge says federal death penalty "operates in an arbitrary manner" but still rejects broadside constitutional challenge
- Notable federal capital defendant claims his killing age (20) should make him ineligible for death penalty
Thursday, September 20, 2018
"Judged for More Than Her Crime: A Global Overview of Women Facing the Death Penalty"
The title of this post is the title of this new report from the Cornell Center on the Death Penalty Worldwide. Here are excerpts from its executive summary:
We estimate that at least 500 women are currently on death rows around the world. While exact figures are impossible to obtain, we further estimate that over 100 women have been executed in the last ten years — and potentially hundreds more. The number of women facing execution is not dramatically different from the number of juveniles currently on death row, but the latter have received a great deal more attention from international human rights bodies, national courts, scholars, and advocates.
This report aims to shed light on this much-neglected population. Few researchers have sought to obtain information about the crimes for which women have been sentenced to death, the circumstances of their lives before their convictions, and the conditions under which they are detained on death row. As a result, there is little empirical data about women on death row, which impedes advocates from understanding patterns in capital sentencing and the operation of gender bias in the criminal legal system. To the extent that scholars have focused on women on death row, they have concluded that they are beneficiaries of gender bias that operates in their favor. While it is undeniable that women are protected from execution under certain circumstances (particularly mothers of infants and young children) and that women sometimes benefit from more lenient sentencing, those that are sentenced to death are subjected to multiple forms of gender bias.
Most women have been sentenced to death for the crime of murder, often in relation to the killing of family members in a context of gender-based violence. Others have been sentenced to death for drug offenses, terrorism, adultery, witchcraft, and blasphemy, among other offenses. Although they represent a tiny minority of all prisoners sentenced to death, their cases are emblematic of systemic failings in the application of capital punishment....
Our research also indicates that women who are seen as violating entrenched norms of gender behavior are more likely to receive the death penalty. In several cases documented in this report, women facing the death penalty have been cast as the “femme fatale,” the “child murderer,” or the “witch.” The case of Brenda Andrew in the United States is illustrative. In her capital trial, the prosecution aired details of her sexual history under the guise of establishing her motive to kill her husband. The jury was allowed to hear about Brenda’s alleged extramarital affairs from years before the murder, as well as details about outfits she wore. The trial court also permitted the prosecutor to show the underwear found in the suitcase in her possession after she fled to Mexico, because it showed that she was not behaving as “a grieving widow, but as a free fugitive living large on a Mexico beach.” As one Justice of the Court of Criminal Appeals of Oklahoma noted, Brenda was put on trial not only for the murder of her husband but for being “a bad wife, a bad mother, and a bad woman.”...
Our country profiles aim to provide a snapshot of women facing the death penalty in several major regions of the world. The stories of women on death row provide anecdotal evidence of the particular forms of oppression and inhumane treatment documented in this report. It is our hope that this initial publication, the first of its kind, will inspire the international community to pay greater attention to the troubling plight of women on death row worldwide.
Tuesday, September 18, 2018
Previewing the two capital punishment administration cases before SCOTUS this fall
Garrett Epps has this lengthy new commentary at The Atlantic under the headline "The Machinery of Death Is Back on the Docket: Two Supreme Court cases this fall pose hard questions about the death penalty." Here are some excerpts:
Madison v. Alabama, to be argued on October 2, asks whether states can execute demented murderers who no longer remember their crimes; Bucklew v. Precythe asks when, if ever, a prisoner’s individual physical condition makes execution by lethal injection “cruel and unusual.”...
[Vernon] Madison’s legal team — led by Bryan Stevenson of the Equal Justice Initiative—argues that “No penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.”
Alabama’s response is that the goals of capital punishment — retribution for the wrong and sending a warning to possible future offenders—are served as long as Madison knows why he is being executed, even if he doesn’t remember committing the acts. Madison’s particular condition may have been verified by doctors, the state argues, but dementia has many causes. Future claims of dementia and memory loss will be too easy to fake.The high court has already held that states may not execute the mentally ill or the intellectually disabled; the leap to the demented would seem inevitable. But Justice Anthony Kennedy, the force behind these limits, has left the court, and death jurisprudence, as of the first Monday of next month, will likely be more volatile than usual.
In November, the court will take up the case of Russell Bucklew, whom the state of Missouri seeks to execute for the 1996 murder of Michael Sanders.... Bucklew doesn’t contest his guilt, nor does he claim that Missouri’s lethal-injection protocol is in itself “cruel and unusual.” His is what lawyers call an “as applied” challenge. What that means is this: Though lethal injection may pass muster for most executions, he argues, in his individual case, because of his unusual physical condition, the injection will cause him intense and intolerable pain.
He suffers from a rare medical condition call cavernous hemangioma. The condition has given rise to multiple blood-filled tumors in his head and mouth. These make it difficult to breathe and are prone to bloody rupture. He must sleep sitting up to avoid choking on his own blood. Being strapped flat to a gurney will subject him to suffocation, he argues. In addition, since his blood vessels are affected, he says, those administering the drugs will probably have to use a lengthy and painful procedure called a “cutdown” before the drugs can be administered, prolonging the agony....
Bucklew did offer an alternative already provided in Missouri law — a gas chamber filled with nitrogen gas, which would render him unconscious and then dead without the agony of suffocation. The Eighth Circuit said that he did not prove the gas chamber would be better. The court below had heard from two expert witnesses — one who described the agony of lethal injection and another who stated that gas would kill him more quickly. A trial court could compare the two descriptions and reach its own conclusion about relative agony. Not good enough, said the appeals court; Bucklew was required to provide one expert who would offer “comparative testimony” — in effect, a single witness to say that one method is less cruel than another....
The Bucklew case, however it is resolved, shows how fully the court has become enmeshed in the sordid details of official killing. As the population of death row ages, issues of age-related disease and dementia will become more important in assessing individual death warrants, and the court will be the last stop for those challenged.
The court seems likely to be hostile to prisoners’ claims, however. In recent years, when the high court stepped in to halt executions, Justice Anthony Kennedy was usually the deciding vote. Kennedy will almost certainly be replaced by Brett Kavanaugh. Kavanaugh is formally an unknown on the issue. His conservatism in general, however, is orthodox, and conservative orthodoxy is hostile to new claims that executions are “cruel and unusual.”
September 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)
Monday, September 10, 2018
Notable review of Japan's modern administration of its death penalty
This new press piece under the headline "Cruel yet popular punishment: Japan's death penalty" provides an accounting of capital punishment's operation and reception in the only major modern democracy other than the US using it. Here are excerpts:
Years waiting on death row, inmates told their fate just hours before their execution, and guards paid extra to do an "unbearable" job –- Japan's capital punishment system is criticized as cruel and secretive yet remains popular. Unusually for an major industrialised power, capital punishment in Japan enjoys broad public support with few calls for its abolishment.
Inmates are executed not by professionals but by ordinary prison staff who may have been guarding the condemned for months or even years, and who receive extra pay of 20,000 yen each. "It's awful, the body bounces like a 70-kilogram object on a nylon rope," said Toshio Sakamoto, who witnessed noosed inmates plunge to their deaths, and described the process as "unbearable."
Blindfolded convicts, usually those who have killed more than one person, are led to a spot with their feet bound and hands cuffed. Then, a trapdoor opens below. The mechanism is triggered by a button in an adjacent room, pressed simultaneously by several officers, although none is told which button is the "live one" that will cause the prisoner's fall....
Japan is the only major industrialised democracy other than the United States to carry out capital punishment. The system was thrust into the international spotlight in July when the country hanged 13 doomsday cultists but the secretive methods have come under fire for being cruel for criminals, families and guards.
Under law, the death sentence should be carried out six months after confirmed by the top court. In reality however, prisoners languish on death row for many years -- Japan has a total of 110 awaiting execution. "Prisoners are typically only given a few hours' notice before execution, but some may be given no warning at all," said Amnesty International in a recent statement.
"Inmates are kept in isolation suffering the anguish of never knowing when they are going to be put to death -– sometimes for decades," added the pressure group. Families are only informed after the execution, noted Amnesty.
The government cites broad public support as a reason to maintain capital punishment but there is little public debate as the whole process is veiled in secrecy. The authorities have just once allowed a 30-minute media visit inside the glass-walled execution room in the Tokyo Detention House, arguably the best-kept among Japan's seven facilities with gallows.
A 2014 government survey of around 1,800 people showed 80 percent thought capital punishment was "unavoidable", with only one in 10 in favor of abolishing it. But 38 percent thought it should be abolished if Japan introduces life imprisonment without parole -- something the penal code does not currently allow.
One 62-year-old businessman in Tokyo said it would be "insane" to think of scrapping capital punishment. And Mika Koike, a 29-year-old IT engineer, said: "Taking the victims and their families into consideration, I think there is no other clear, absolute way to punish the offenders." Kotaro Yamakami, a 25-year-old politics student, said murderers should pay in kind....
For now, there is no sign that Japan's leaders are pondering any changes. On July 5, the eve of executions of seven Aum cultists, a smiling Prime Minister Shinzo Abe was photographed in a drinking party with fellow politicians, giving the thumbs-up for a collective snapshot with his justice minister who had signed off on the hanging orders.
Thursday, September 06, 2018
"Nikolas Cruz’s birth mom had a violent, criminal past. Could it help keep him off Death Row?"
The title of this post is the title of this very lengthy Miami Herald article which gets started this way:
Nikolas Cruz had two mothers: his birth mom, who gave him life, an almond-shaped head and auburn hair — and his adoptive mom, who gave him all the advantages of an upscale, suburban upbringing.
His birth mother, Brenda Woodard, was sometimes homeless, and panhandled for money on a highway exit ramp. His adoptive mother, Lynda Cruz, stayed home to manage a 4,500-square-foot, five-bedroom house in the suburbs, with a two-car garage and a sprawling yard. A career criminal, Woodard’s 28 arrests include a 2010 charge for beating a companion with a tire iron; she also threatened to burn the friend’s house down. Lynda Cruz had a clean record.
Woodard was so gripped by addiction she was arrested buying crack cocaine while pregnant with Nikolas. Lynda Cruz was known to drink wine, though not excessively.
Conventional wisdom suggests that Nikolas Cruz should have taken after the woman who raised him from birth, rather than the one who shared only his DNA. But little of Cruz’s story is conventional. While, by most accounts, Lynda Cruz was thoughtful and disciplined, her adoptive son was violent and impulsive — characteristics he seems to share with the birth mother he never knew.
Now the history of his birth family — sealed by statute and never before reported — could become a factor in his desperate attempt to stay off Florida’s Death Row.
Many of the details of Cruz’s difficult childhood and stormy adolescence emerged in the months following his deadly Feb. 14 attack on Marjory Stoneman Douglas High School in Parkland that left 17 students and staff members dead: He was a poor student prone to sometimes violent outbursts. He had an unhealthy obsession with guns. He shot and tortured animals. But where Cruz came from, genetically, has remained a missing piece of the puzzle.
Though Nikolas was raised in comfort — Lynda Cruz apparently believed that indulging her son with video games and weapons would soften his moods — the shadow of his genetic heritage seemed to loom over his life.
Experts in criminal law say the Broward Public Defender’s Office will likely explore Cruz’s genetic makeup and childhood development in their effort to keep the 19-year-old from being executed. His birth mother could be called to testify during the sentencing phase of his trial on 17 charges of first-degree murder and 17 charges of attempted murder.
Prior related posts:
- Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz
- Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty?
- In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida
Saturday, September 01, 2018
Could Gov Jerry Brown really be tempted to commute all of California's death row on his way out of office?
The question in the title of this post is prompted by this recent Fox News article headlined with a similar question, "Will Jerry Brown commute sentences of every death row inmate in one of his last acts as California governor?". Here are excerpts:
[A]s Jerry Brown’s tenure as governor of California draws to a close in January, capital punishment supporters have raised the specter that he could commute many, if not all, of the sentences.
On March 28, California’s Supreme Court issued an administrative order making it possible for Brown to commute the sentences or grant clemency.
Michele Hanisee, president of the Association of Deputy District Attorneys in Los Angeles County, told the Orange County Register earlier this week that this removes any impediment Brown may have faced. Before that, a governor had to get the approval of the majority of the state Supreme Court in the case of an inmate with two or more felony convictions. “They basically have green-lighted the governor to grant clemency to anyone…and said they won’t interfere,” she said.
California has the largest death row population in the country, but only 13 have been executed since capital punishment was reintroduced to the state in 1978, with the last one occurring in 2006. Appeals that drag out for many years are common. Last year, there were 400 death penalty appeals pending.
Despite its liberal reputation, more than half of California’s residents have expressed support for the death penalty, striking down referenda calling for it to end.
Brown, a former Jesuit seminarian who as a young man demonstrated against capital punishment, made his opposition to it clear during his political campaigns, but also said he’d respect the law regarding it while serving as attorney general and governor.
Asked if the governor was considering commuting death sentences, a spokesperson for Brown told Fox News: “A request for commutation is a serious matter, and every applicant is carefully and diligently vetted. The Governor issued commutations earlier this month… California inmates can petition to have their sentence reduced or eliminated by applying for a commutation of sentence. To be clear, no individuals on death row have received commutations.”...
Kent Scheidegger, an attorney who argued for Proposition 66 – a measure to speed up executions – said that anything is possible as far as Brown and California politics, but he believed the governor would not commute death sentences. “Despite his personal opinion, he said he’d enforce the death penalty,” said Scheidegger, who is legal director of the Criminal Justice Legal Foundation in California. Scheidegger expressed concern about the state high court’s order appearing to give Brown more sway over commuting death sentences, telling Fox News: “That’s worrisome.”
Since executions rarely have been carried out in California and elsewhere, some have called the death penalty symbolic, and pointless. Scheidegger said he disagrees. “It’s important because there are some crimes for which anything less is simply not justice.”
Monday, August 27, 2018
"Capital and punishment: Resource scarcity increases endorsement of the death penalty"
The title of this post is the title of this new paper in the journal Evolution and Human Behavior authored by Keelah Williams, Ashley Votruba, Steven Neuberg, and Michael Saks. Here is its abstract:
Faced with punishing severe offenders, why do some prefer imprisonment whereas others impose death? Previous research exploring death penalty attitudes has primarily focused on individual and cultural factors. Adopting a functional perspective, we propose that environmental features may also shape our punishment strategies. Individuals are attuned to the availability of resources within their environments. Due to heightened concerns with the costliness of repeated offending, we hypothesize that individuals tend towards elimination-focused punishments during times of perceived scarcity.
Using global and United States data sets (studies 1 and 2), we find that indicators of resource scarcity predict the presence of capital punishment. In two experiments (studies 3 and 4), we find that activating concerns about scarcity causes people to increase their endorsement for capital punishment, and this effect is statistically mediated by a reduced willingness to risk repeated offenses. Perceived resource scarcity shapes our punishment preferences, with important policy implications.
Friday, August 17, 2018
In dissent, Arizona jurist explains why he "would hold, as a matter of state law, that the death penalty is unconstitutional"
A helpful reader made sure I saw the remarkable opinions handed down yesterday by the Arizona Supreme Court in Arizona v. Bush, No. CR-11-0107-AP (Az. Oct. 16, 2018) (available here). This case looks like it was shaping up to be a fairly standard capital appeal, until one judge (sitting by designation to replace a recused Justice) decided to start a constitutional brush fire. Specifically, Judge Lawrence Winthrop of Arizona Court of Appeals authored a lengthy dissenting opinion that expands on these introductory assertions:
The historical implementation of the death penalty bears little resemblance to its current administration. In distant times when the death penalty was quickly imposed, the execution was open for public viewing, and there was minimal evidence to contradict the accuracy of a defendant’s conviction, the death penalty may have served as an efficient method of not only enforcing criminal law but also advancing legitimate policy goals. Society, however, has evolved and no longer administers the death penalty in this manner.
Instead of taking weeks, prisoners on death row, and the victim’s families, often wait for decades for the sentence to be administered. Further, over the years, numerous studies have criticized the death penalty as disproportionally affecting defendants of color and, with increasing frequency, in part due to advancements in technology, we have become aware of defendants who have been wrongly convicted and whose death sentences have ultimately been commuted―either due to their own actual innocence or because of incurable procedural flaws from their trial. Some of these wrongful convictions were obtained because of overzealous prosecutors who pursued conviction and imposition of the death penalty at the expense of candor; some convictions were obtained because of the failures of defendants’ resource-deprived appointed counsel; some convictions were obtained because of jurors’ biases; and some may have been fortuitously imposed simply because of the county in which the defendant committed the crime. Each conviction obtained through these means highlights the flaws in administering the death penalty, and our historic inability to devise a method to implement the death penalty free from human bias and error.
Additionally, the death penalty has not been conclusively shown to deter criminal behavior, a primary rationale of criminal law and sentencing. Moreover, taxpayers are spending millions of dollars to prosecute, convict, and sentence defendants to death. As further explained below, the death penalty has been shown to be cruel and unusual, to not have any notable deterrent effect, to impose unintended trauma on the victim’s family and friends, and to be cost prohibitive.
Although current United States Supreme Court jurisprudence rejecting Eighth Amendment attacks on the death penalty preclude a state court from interpreting the United States Constitution to provide greater protection than the Court’s own federal constitutional precedents provide, Arkansas v. Sullivan, 532 U.S. 769, 772 (2001), state courts “are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.” Arizona v. Evans, 514 U.S. 1, 8 (1995). Because we may interpret Arizona’s Constitution to provide greater protections to Arizona citizens, I would hold, as a matter of state law, that the death penalty is unconstitutional.
Unsurprisingly, the majority of the court in Bush was disinclined to leave the dissent's assertions unaddressed, and here a concluding part of the majority's response:
In sum, the dissent’s resort to article 2, section 15 to support its view that Arizona’s death penalty is unconstitutionally “cruel and unusual” is difficult to reconcile with the relevant text, history, and caselaw. Cf. Glossip, 135 S. Ct. at 2747 (Scalia, J., concurring) (noting that “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible,” largely because “[i]t is impossible to hold unconstitutional that which the Constitution explicitly contemplates” under the Fifth Amendment). And even if relevant facts might exist to support the dissent’s critique in some respects, they certainly are not in this record as no such evidence was presented here....
Absent a constitutional violation, the propriety of Arizona’s capital scheme is strictly a matter of policy, which is outside our purview under our constitution’s separation of powers. See Ariz. Const. art. 3 (“[T]he legislative, the executive, and the judicial . . . departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.”). The dissent incorrectly suggests that we would defer to the legislature on matters of constitutional interpretation and application, abdicating our constitutional authority and responsibility. But that mischaracterizes our position and conflates constitutional issues, appropriate for judicial resolution, with purely policy choices, appropriate for the law-making role of the legislature and governor, or the people themselves.
The dissent’s various criticisms of the death penalty and its alleged flaws — the time and cost involved in pursuing and administering capital punishment; its arbitrary application and disproportionate or discriminatory impact on minorities; implicit and explicit biases, including racial and geographic disparities; and lack of any measurable deterrent effect — are arguments that have been raised over the years for total abolition of capital punishment. See, e.g., Maloney, 105 Ariz. at 358–59. But these are largely policy-laden factors that are proper subjects for legislative consideration, debate, and decision, not appropriate topics for judicial resolution in the absence of any evidence or argument. See, e.g., Endreson, 108 Ariz. at 370 (stating that “the question of the abolishment of the death penalty under the Arizona Constitution is a question properly left to the legislature or the people of this State through constitutional amendment”); State v. Alford, 98 Ariz. 124, 132 (1965) (declining to “pass upon whether capital punishment, as a public policy, is effective” because under Arizona’s separation of powers, “[w]e are limited to the judicial function of faithfully and impartially interpreting the law as enacted by the legislature”).
Wednesday, August 15, 2018
"The American Execution Queue"
The title of this post is the title of this new interesting article by Lee Kovarsky now available via SSRN. Here is its abstract:
The modern death penalty presents a puzzle: law and norms heavily constrain how American jurisdictions impose death sentences, but not how they select death-sentenced inmates for executions. In this Article, I explain why this strange void persists, argue that its presence undermines equality, and offer workable institutional responses. In short, I advance a comprehensive theory of the American execution queue — the process by which death penalty jurisdictions decide which condemned inmates will actually die.
My first objective is explanatory. Because executing a death-sentenced inmate now entails both significant litigation and extensive coordination among under-motivated state institutions, the process takes ten times as long as it did fifty years ago. Modern executions have become “scarce,” as American jurisdictions simply cannot kill all of their condemned offenders. Even though the state must make choices, there are no rules for choosing. Because there is little consensus around decision-making criteria, the process operates with few constraints. By the time the state must decide which condemned inmates to execute, the capacity of familiar decision-making criteria to meaningfully sort inmates by death-worthiness — things like offense conduct, blame, or future danger — has been exhausted during prior phases of the capital punishment sequence.
My second objective is normative. I specify several preferred institutional design strategies, anchored to interests in legitimacy, transparency, fairness, and equality. First, jurisdictions should centralize the process by which they select death-sentenced inmates for executions; localities should have no role in setting execution dates. Second, a centralized entity should engage in administrative-law-like rulemaking in order to develop transparent, legitimate selection criteria. Third, jurisdictions should separate the power to determine execution priority from the power to schedule execution dates. By shifting to a centralized process grounded in transparent rulemaking and rational decision-making criteria, jurisdictions can curb the arbitrariness that plagues the existing system.
Tuesday, August 14, 2018
Nebraska completes its first ever lethal injection, which is first US execution to include use of the opioid fentanyl
The lengthy local article, headlined "'A monumental day'; Nebraska executes Carey Dean Moore in state's first lethal injection," reports on a milestone capital punishment even in the heartland today. Here are a few details:
Nebraska carried out its first execution in 21 years on Tuesday, using four drugs to end the life of double murderer Carey Dean Moore.
Moore, 60, became the first condemned inmate in the state put to death by lethal injection. He had served 38 years on death row for the 1979 killings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland. Helgeland and Van Ness were shot five days apart as Moore targeted cabdrivers because he knew they carried cash. Both men were 47 years old, fathers and military veterans.
Corrections Director Scott Frakes said the first of four execution drugs was administered at 10:24 a.m. The Lancaster County coroner declared Moore dead at 10:47 a.m. Frakes said the execution was carried it out with "professionalism, respect for the process and dignity for all involved."
The scene outside the Nebraska State Penitentiary, where the execution occurred, was subdued on Tuesday morning amid on-and-off rain showers. Only about a dozen death penalty opponents prayed outside the prison; only three capital punishment proponents attended. Many more state troopers and media members stood nearby.
Gov. Pete Ricketts, who helped lead an effort to overturn a 2015 repeal of the death penalty by the Nebraska Legislature, spent the morning in a meeting with state agency officials. “Today, the Nebraska Department of Correctional Services carried out the sentence the court ordered in accordance with the will of the people of Nebraska," Ricketts said in a prepared statement. "The death penalty remains a critical tool to protect law enforcement, corrections officers and public safety.”
Outside the governor's mansion in Lincoln just after the execution, a handful of protesters stood in the rain, one carrying a sign reading "Ricketts has blood on his hands.”
Among the death penalty supporters who came to the prison were Vivian Tuttle, whose daughter was slain inside a Norfolk bank in 2002. "I'm here to support the victims," Tuttle said. "That's the ones I have to stand for." Standing with her was Pierce County Sheriff Rick Eberhardt, who, along with Tuttle, collected hundreds of signatures to allow voters to restore the death penalty in 2016.
Tuttle's daughter, Evonne Tuttle, was one of five people killed in a bank robbery in Norfolk on Sept. 26, 2002. Evonne Tuttle, a single mother, went to the bank in Norfolk to cash a $64 check. Three gunmen from the robbery, Jose Sandoval, Jorge Galindo and Erick Vela, all are on death row. "I think it's important that we have voices that still say it's important that we stand for the death penalty. And for the families of victims," Tuttle said.
Moore — who had served the longest time on Nebraska's death row — was led to the execution chamber at 10 a.m. After he was strapped to the execution table, he mouthed the words "I love you" multiple times toward his official witnesses, which included a brother and a niece.
His final words were delivered in a handwritten statement: He hoped that lawyers could get his younger brother, Donald, released from parole, and urged death penalty opponents to pursue claims of innocence by four others on Nebraska's death row....
The four official media witnesses to the execution said that Moore's face gradually turned slightly red, then purple, as the four drugs were administered. The execution was the first using the four drugs obtained by Nebraska, over legal objections by death penalty opponents and some drug manufacturers. The curtain to the execution chamber was lowered at 10:39 a.m. after the fourth drug was administered. The curtains reopened eight minutes later after he was pronounced dead....
Duggan called the execution "a monumental day" after the many debates in the state over capital punishment. The death penalty was restored by voters in 2016 by a 61-39 percent margin after a petition drive, in large part funded by Ricketts, placed the issue on the ballot. "There's no question it's a significant day in the state's history," the reporter said.
In a statement, Nebraska Attorney General Doug Peterson said, "Our sympathy is extended to the families of Reuel Van Ness and Maynard Helgeland for the loss of their loved ones nearly thirty-nine years ago. Today's somber event serves to provide a measure of closure for what has been a lengthy enactment of justice."
Nebraska has now carried out 38 state-sanctioned executions. Moore was put to death using a previously untried four-drug combination of diazepam, fentanyl, cisatracurium and potassium chloride.
He is the first inmate executed using the drug fentanyl, a powerful narcotic painkiller that has contributed to the nation's epidemic of drug overdoses. He was put to death despite two federal lawsuits filed last week by drug companies seeking to keep their products from being used. The state's last execution before Tuesday took place in 1997, when the electric chair was the method. Lethal injection was adopted in 2009 after the state Supreme Court outlawed electrocution as cruel and unusual punishment.
Highlighting how many states have the death penalty in the books without an active execution chamber
John Gramlich at Pew Research Center has this new FactTank piece headlined "11 states that have the death penalty haven’t used it in more than a decade." Here are excerpts (with a few facts highlighted):
Tennessee carried out its first execution since 2009 this month and Nebraska soon may carry out its first since 1997. The two states underscore the fact that while a majority of jurisdictions in the United States have capital punishment on the books, a considerably smaller number of them use it regularly.
Overall, 31 states, the federal government and the U.S. military authorize the death penalty, while 19 states and the District of Columbia do not, according to the Death Penalty Information Center, an information clearinghouse that has been critical of capital punishment. But 11 of the states that allow executions — along with the federal government and the U.S. military — haven’t had one in at least a decade.
Nebraska, in fact, is among seven states that have the death penalty but haven’t carried out an execution in at least 15 years. New Hampshire hasn’t executed an inmate since 1939; the other states in this category are Kansas (last execution in 1965), Wyoming (1992), Colorado and Oregon (both 1997), and Pennsylvania (1999). Executions have occurred somewhat more recently — though still more than a decade ago — in California, Montana, Nevada and North Carolina (all in 2006).
The last federal execution also took place more than 15 years ago, in March 2003. While the U.S. military retains its own authority to carry out executions, it hasn’t done so since 1961.
All 11 states that have the death penalty but haven’t used it in at least a decade have inmates on death row, as do the federal government and U.S. military. The size of these death row populations ranges from just one inmate each in New Hampshire and Wyoming to 744 in California, which has by far the largest death row in the nation.
California’s death row has grown by nearly 100 inmates, or 15%, since January 2006, when it carried out its last execution, and by nearly 30% since 2000, according to the NAACP Legal Defense and Educational Fund, which tracks death row populations for all states. The increase reflects the fact that California juries have continued to sentence convicted defendants to death even as executions themselves have been on hold in recent years amid legal and political disputes....
The federal government’s death row has also grown substantially since the last federal execution. There are currently 63 federal inmates sentenced to death, up from 26 in January 2003 (just before the federal government’s most recent execution).
I have highlighted the federal piece of this notable story of execution desuetude because I had thought that Prez Donald Trump and AG Jeff Sessions might seriously try to make America execute again. But I have not seen any effort or even any discussion by federal officials to have any federal death sentences actually carried out. As I have noted before, this Death Penalty Information Center list of federal death row prisoners reveals that some sentenced to death have been languishing on death row for a full quarter-century and a number of others have been that for at least two decades. Because I doubt that Prez Trump and AG Sessions are secret abolitionists, I suspect that there is something going on behind the scenes that is keeping federal justice delayed. But I still find it notable and a bit curious that the federal death penalty still now does not really exist, practically speaking.
Sunday, August 12, 2018
While I was on road, did others notice that we "stopped being a civilized nation and accepted barbarism"?
The question in this title of this post is my somewhat tongue-in-check reaction after getting a chance to finally read Justice Sotomayor's remarkable dissent from the denial of the application for stay in Irick v. Tennessee handed down last week. This dissent, which assailed the Court's refusal to stay an execution that Tennessee carried out this past Thursday, concluded this way:
In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent.
Because no other justice joined this dissent and Irick's execution did in fact go forward around at 7:30 p.m. CDT on Thursday, August 9, 2018, it seems that last Thursday night according to Justice Sotomayor we "stopped being a civilized nation and accepted barbarism." And, notably, this local report on Irick's execution (and the crime that prompted it) reports that the execution was not completed smoothly:
The execution began later than scheduled. The blinds to the execution room lifted at 7:26 p.m., 16 minutes later than expected. Irick, with nearly shoulder-length hair, a scraggly beard and dressed in a white prison jumpsuit and black socks, was coughing, choking and gasping for air. His face turned dark purple as the lethal drugs took over.
Thursday, August 02, 2018
Pope Francis official changes Catholic teachings on death penalty to work for abolition worldwide
As reported in this CNN piece, "Pope Francis has declared that the death penalty is never admissible and that the Catholic Church will work towards its abolition around the world, the Vatican formally announced Thursday." Here is more:
The change, which has been added to the Catechism of the Catholic Church, makes official a position that the Pope has articulated since he became pontiff. The Church now teaches that "the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person" and states that it will "work with determination towards its abolition worldwide," the Vatican said.
The Catholic Church's teaching on the death penalty has been slowly evolving since the time of Pope John Paul II, who served from 1978 to 2005. In his Christmas message in 1998, he wished "the world the consensus concerning the need for urgent and adequate measures ... to end the death penalty." His successor Benedict XVI, in a document published in November 2011, called on society's leaders "to make every effort to eliminate the death penalty."
Francis then wrote in a letter to the President of the International Commission Against the Death Penalty in March 2015 that "today capital punishment is unacceptable, however serious the condemned's crime may have been." He added that the death penalty "entails cruel, inhumane and degrading treatment" and said it was to be rejected "due to the defective selectivity of the criminal justice system and in the face of the possibility of judicial error."
Monday, July 30, 2018
Notable review of capital clemencies by Ohio governors
The AP has this interesting new piece, headlined "Gov. Kasich spares record number of death row inmates," that reviews the current and past Ohio gubernatorial records on the death penalty and capital clemencies. Here are excerpts:
Ohio Gov. John Kasich has finished dealing with executions for the remainder of his time in office following a modern-era record of death penalty commutations. The Republican governor spared seven men from execution during his two terms in office, including commutations on March 26 and July 20. Kasich allowed 15 executions to proceed, including the July 18 execution of Robert Van Hook for strangling, stabbing and dismembering a man he met in a Cincinnati bar more than 30 years ago.
Not since Democrat Mike DiSalle spared six death row inmates in the early 1960s has an Ohio governor spared so many killers during periods when the state had an active death chamber. DiSalle allowed six executions to proceed. Democratic Gov. Richard Celeste commuted eight death sentences just days before leaving office in 1991, but none of those inmates' executions was imminent....
Kasich's immediate predecessor, Democratic Gov. Ted Strickland, commuted five death sentences and allowed 17 executions during his four-year term. Ohio resumed executions in 1999 under Gov. Bob Taft after a 36-year gap. Taft, a Republican, allowed 20 executions to proceed and spared just one inmate based on concerns raised by DNA evidence not available at the time of trial.
Nationwide, governors have spared 288 death row inmates since the U.S. Supreme Court upheld the constitutionality of capital punishment in 1976, with a handful spared each year over the past decade. That doesn't include mass clemencies in states — such as New Jersey in 2007 — where the death penalty was abolished and entire death rows were emptied.
Sparing inmates is not the political death knell it might have been in decades past, thanks to concerns about innocence raised by DNA testing and the role of severe mental illness on some offenders' behavior. "Kasich's decisions to commute reflect a societal shift away from an unquestioning belief in the value of the death penalty or at least the value in every case," said Lori Shaw, a University of Dayton law professor....
Taft said he's now opposed to capital punishment except in the most severe cases, such as acts of terrorism, multiple victims or the killing of a police officer. He also backs findings of a state Supreme Court commission that recommended against the death penalty for inmates suffering severe mental illness at the time of the crime, and in cases where a homicide was committed during other crimes such as burglaries or robberies. "The climate is a little different in regard to the death sentence today," Taft said. "Governors have more latitude or leeway to consider a number of factors that may not have been considered in prior times."
I noted in this prior post that Gov Kasich's capital record was notable, and I find the comments of former Ohio Gov Taft especially interesting here. (N.B.: the AP needs to fact-check Taft's executions record, as I am pretty sure he presided over 24 executions.) When Taft says "Governors have more latitude or leeway to consider a number of factors that may not have been considered in prior times," he is not talking about any change in the legal standards or procedures for clemency in Ohio. Rather, Taft is referencing a purely political evolution that now make it much less politically risky for a Governor to grant lots of capital clemency.
Saturday, July 28, 2018
State judge rejects constitutional attack on Tennessee's lethal injection protocol
The state of Tennessee has not conducted an execution in nearly a decade, but it has three scheduled for later this year including one slated for August 9. The prospect of these executions going forward got more likely this past week after, as reported in this local article, a state judge rejected a suit brought by many death row inmates challenging the constitutionality of the state's lethal injection protocol. Here are the basics:
Tennessee can use controversial drugs to execute inmates on death row despite concerns from defense attorneys and experts that doing so is "akin to burning someone alive," a Nashville judge ruled Thursday. The ruling is a blow to 33 death row inmates who had challenged the state's lethal injection protocol, saying it led to cruel and unusual punishment forbidden by the U.S. Constitution. Among them is Billy Ray Irick, who is scheduled to be executed Aug. 9.
But the ruling won't be the final word. The inmates' attorneys quickly announced they would appeal.
Davidson County Chancellor Ellen Hobbs Lyle issued the 51-page ruling on the case Thursday evening, forcefully denying the inmates' claims and saying they failed to meet two critical bars necessary to overturn an execution method.... "Although dreadful and grim, it is the law that while surgeries should be pain-free, there is no constitutional requirement for that with executions," Lyle wrote, echoing an argument made by attorneys for the state....
The inmates, who filed the suit against the state in February, did not argue against the death penalty itself. Instead, they focused on the use of midazolam, the first drug in the state's new protocol, that is meant to put an inmate to sleep before two other drugs stop the heart and lungs.
Experts who testified on the inmates' behalf said midazolam is often ineffective, leaving people awake and aware of the acidic poison that kills them. The experts pulled examples from executions across the country, in which witnesses saw inmates thrashing, moaning and crying as the drugs coursed through their veins. "That is akin to burning someone alive. That is not hyperbole. That is not an exaggeration," said Henry. "That's avoidable."
Lyle acknowledged that the inmates' case included testimony from "well-qualified and imminent experts," and she conceded "the inmate being executed may be able to feel pain from the administration of the second and third drugs."... But, Lyle wrote, the inmates' attorneys did not prove that the three-drug protocol would lead to prolonged periods of "needless suffering," one of the key factors that could lead to unconstitutional torture. She pointed to the relatively brief executions cited by the inmates' attorneys, which ended after an average of 13.55 minutes.
Deputy Attorney General Scott Sutherland, who represented the state and the Department of Correction, tied midazolam to ongoing work to make executions more humane. He pointed to rulings from the U.S. Supreme Court and other judicial panels that upheld executions using midazolam. And he said that the inmates had failed to prove pentobarbital was readily available to be used instead of the three-drug protocol.
Lyle agreed. "It is not enough, the United States Supreme Court has held, for the inmate to claim that the State’s method of execution is cruel and unusual," Lyle wrote. "The inmate must also make a claim in the lawsuit he files and must prove at trial in his case that there is a known and available method to execute him that, in comparison to the State’s execution method, significantly reduces a substantial risk of pain."
The state court ruling referenced in this article is available at this link, and here is a portion of the introduction to the 50-page opinion:
The law of the United States requires that to halt a lethal injection execution1 as cruel and unusual, an inmate must state in his lawsuit and prove at trial that there is another way, available to the State, to carry out the execution. That is, the inmate is required to prove an alternative method of execution. Glossip v. Gross, 135 S. Ct. 2726, 2732-33 (2015). Absent proof of an alternative method, an execution can not be halted....
Thus, whether a lethal injection method is unconstitutional is a comparative analysis. To halt a lethal injection execution as cruel and unusual, an inmate must prove not only that there is a better drug for lethal injection but that the better drug is available to the State. That proof has not been provided in this case.
The Inmates who filed this lawsuit have failed to prove the essential element required by the United States Supreme Court that there exists an available alternative to the execution method they are challenging. On this basis alone, by United States law, this lawsuit must be dismissed.
Tuesday, July 24, 2018
Louisiana Attorney General suggests pursuing alternative execution methods in letter to Governor
This local article, headlined "Electrocution, firing squads should be options for death penalty in Louisiana, AG Jeff Landry tells Gov. Edwards," reports on an interesting letter about the death penalty in the midst of a kind of intramural fight between Louisiana office-holders of different parties. Here are the basics:
In their ongoing bickering over the death penalty, Louisiana’s Republican attorney general Tuesday asked the Democratic governor to support bringing back hanging, firing squads and the electric chair.
After the back and forth over capital punishment last week between the two possible rivals in next year's gubernatorial race, Attorney General Jeff Landry issued a letter Tuesday [available here] saying Gov. John Bel Edwards’ statements on why Louisiana hasn’t moved forward on executing convicted murderers are “both intentionally misleading and cold comfort to victims’ families.”
Landry again demanded Edwards say where he personally stood on the death penalty. Then Landry proposed legislation that would change the state's capital punishment law to allow for different forms of execution other than just lethal injection. He recommended the Legislature pass a law that would allow the state Department of Corrections to choose between hanging, firing squads, and electrocution to put condemned criminals to death if other methods are unavailable. He asked for Edwards' support.
"Mr. Landry is accurate in that new legislation must be proposed to solve the death penalty issue. However, in the past three legislative sessions Mr. Landry’s office has not presented any legislation to help alleviate this roadblock, until now," Department of Corrections Secretary James M. LeBlanc said. Only a legislator can submit a bill for consideration of becoming law. The next legislative session is scheduled to begin April 8.
Edwards has consistently ducked stating his personal view on capital punishment, saying instead that he has sworn to uphold state and federal laws. “But I am not going to pretend that we have the ability to do something we don’t have. It’s not about scoring political points. It’s about being realistic in the way we govern,” Edwards told reporters Monday, the day before Landry’s letter was released publicly.
In answering questions during a highway project groundbreaking ceremony on Monday, Edwards said he specifically did not favor hangings or firing squads. "I am not inclined to go back to methods that have been discarded (when) popular sentiment turned against methods that were deemed to be barbaric and so forth. We have a law in place we will continue to try to search for solutions around that law," which allows execution by lethal injection, the governor said.
After Landry’s letter was released to a television station Tuesday, the governor’s spokesman, Richard Carbo, said in a prepared statement: “We are pleased that he has conceded that current law, not the governor, is standing in the way of the state resuming executions, which have been on hold since 2010. Quitting the very lawsuit that was meant to bring justice for these families was never the answer, so his commitment to re-engage is welcome news.”...
Louisiana last executed an inmate, who volunteered to be put to death, in 2010. Before that the last person executed was in 2002 during Gov. Mike Foster’s administration. Seventy-two inmates are on death row at the Angola penitentiary awaiting execution....
Landry would change the law to say that if lethal injection is unavailable then the method would be nitrogen hypoxia. That mode basically fills an air tight mask on the condemned with nitrogen gas, thereby causing death by a lack of oxygen. Oklahoma legislators have looked at that method of execution as a way around the inability to purchase the drugs needed for lethal injections. If nitrogen hypoxia is found unconstitutional or becomes otherwise unavailable, then Corrections Department secretary could choose between hanging, firing squad or electrocution, under Landry’s proposal.
Three+ years after death sentencing, lawyers for Boston Marathon bomber Dzhokhar Tsarnaev have "flagged roughly 30 issues" for his appeal
It seems like it has been a long time since I blogged by the Boston Marathon bomber, Dzhokhar Tsarnaev. And indeed it has been: a jury handed down Tsarnaev death sentence back in May 2015, a full month before Donald Trump had even announced he was running for President. But now more than three years after his death sentencing, Tsarnaev is in the news via this Boston Globe story headlined "Lawyer for Boston Marathon bomber maps out appeal of death penalty sentence." Here are excerpts:
Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev have flagged roughly 30 issues they plan to raise when he appeals his death sentence, according to a recent legal filing. A motion filed last week with the US Court of Appeals for the First Circuit in Boston said the attorneys have “identified approximately 30 appellate claims to consider raising in Mr. Tsarnaev’s [appellate] brief.”
Tsarnaev’s lawyers requested that the Aug. 20 deadline for filing their highly anticipated brief be pushed back to Nov. 18, citing their ongoing analysis of some 10,000 pages of transcripts in the case. “Even relative to other federal capital appeals and terrorism appeals across the country, the record here is voluminous,” David Patton, a member of Tsarnaev’s appellate team, wrote in the motion.
Tsarnaev, 25, was convicted in 2015 for his role in the April 2013 Marathon bombings, which killed three people including an 8-year-old boy and wounded more than 260 others. He was sentenced to death and is currently incarcerated at a federal supermax prison in Colorado. Tsarnaev and his older brother and accomplice, Tamerlan, also killed an MIT police officer while they were on the run. Tamerlan Tsarnaev was killed in a confrontation with police in Watertown days after the bombings....
Patton listed additional issues that Tsarnaev’s team expects to raise on appeal. “Counsel have completed drafts of a substantial portion of the remaining claims, including issues concerning venue, multiple errors in the selection of the death-qualified jury, the admission of evidence obtained through the use of Mr. Tsarnaev’s involuntary confession, the lawfulness of certain counts of conviction . . . the exclusion of relevant mitigation material, improper prosecutorial arguments, and the admission of victim impact evidence from survivors,” Patton wrote. “But, despite continuous effort, a number of issues identified and determined to be sufficiently weighty for inclusion remain to be drafted.”
I would expect the First Circuit to give Tsarnaev's lawyers into the fall to complete their brief, and I would also guess the feds will need at least a few extra months to complete a response. Consequently, the First Circuit argument in the case will surely be heard no sooner than 2019, and I would not expect an opinion from the First Circuit until probably early 2020. Then surely comes en banc petition, a cert petition and likely at least one 2255 motion.
Sunday, July 22, 2018
Noting new challenges in securing death sentences now that juror unanimity is required in Florida
This extended local article, headlined "South Florida killers avoiding death row under new law," spotlights the new capital realities in Florida now that the state was forced by new constitutional rulings to require unanimous jury verdicts to secure death sentences. Here are excerpts:
South Florida juries appear to be less likely, so far, to send convicted killers to death row under the state’s newest death penalty law. Two juries in Broward County decided to spare the lives of convicted killers in the past week in cases where capital punishment would have seemed likely just a few years ago.
On July 16, convicted cop killers Bernard Forbes, Eloyn Ingraham and Andre Delancy learned they would not face execution for the 2006 ambush murder of Broward Sheriff’s Deputy Brian Tephford. And on July 19, Eric Montgomery’s life was spared by the same jury that convicted him of fatally shooting his stepdaughter in the face, chasing down her terrified mother and shooting her to death while his own grandmother physically tried to stop him, taking a bullet in the process.
In three first-degree murder trials in Palm Beach County since September, juries have recommended life sentences for the men they convicted. The challenge appears to be the stringent requirement of the death penalty law passed in the spring of 2017. The state now requires juries to unanimously find at least one aggravating factor justifying the imposition of the death penalty, and a second unanimous vote recommending it....
Simple majorities were required before 2016, but a combination of federal and state supreme court decisions found that without a unanimous verdict, Florida’s death penalty process was unconstitutional.
Since the newest law was enacted, Broward juries have rejected the death penalty in three of four cases. In each of those cases, the defense put up a fight, calling witnesses and urging jurors to show mercy. The unanimous death decision came against Peter Avsenew, convicted of killing a Wilton Manors couple near Christmas 2010, using their credit cards, stealing their car and trying to hide out at his mother’s house in Polk County. After his conviction, Avsenew fired his defense lawyers and represented himself in front of the jury, making no effort to plead for his life or show a hint of remorse. “I have no regrets in my life and I am proud of the decisions I’ve made,” he said.
Defense lawyers and prosecutors agree that it’s too soon to determine whether the new law will result in a long term reduction in the number of capital sentences. According to the state corrections department, Florida sent 12 inmates to death row in 2014 and 2015. From 2017 to 2018 so far, four have been condemned: one each from Collier, Polk, Duval and St. John’s County. But in Palm Beach, prosecutors have not gotten a death penalty since 1998, even under the old law....
“Whenever you have 12 people in a room, it’s hard to get them to agree on anything,” said former Broward prosecutor Marjorie Sommer, now a jury consultant with Focus Consulting Services.
Potential jurors in death penalty cases are typically removed if they have philosophical objections to capital punishment. But sometimes they slip through. Last year, a Broward jury convicted Jacqueline Luongo of killing her roommate for insurance money, stuffing her body in a closet for days while disguising herself as her victim to make bank withdrawals.
When it came time to deliberate over the penalty, juror Sarah Miller said she was stunned to learn that a fellow panelist had no intention of even considering death. “She faked her way onto the jury,” said Miller. “It was so unfair to the victim’s family. It didn’t sit well with me. We didn’t do justice.” The vote, Miller said, was 11-1. Luongo was sentenced to life in prison.
The outcome of that case has Miller worried that securing a death penalty in Broward will be impossible under the new law. Miller lives in Parkland and is a 2012 graduate of Marjory Stoneman Douglas High School, scene of last February’s mass shooting. She worries that if the shooter is convicted, he will escape the death penalty because of the new law. “It’s very scary to me to think that ... another dishonest juror pretends to be open minded about it,” she said.
Friday, July 20, 2018
Following execution, Ohio Gov John Kasich closes his capital record with commuted death sentence and reprieve
As reported in this local article, "Ohio Gov. John Kasich spared death row inmate Raymond Tibbetts, who was convicted of killing his wife and landlord in Cincinnati more than two decades ago." Here is more on a (surprising?) decision, which was one of two notable capital changes today:
Kasich — going against the recommendation of the Ohio Parole Board — said that there were "fundamental flaws" in sentencing Tibbetts. Jurors didn't learn about Tibbett's background as a neglected and abused child. Kasich commuted Tibbetts' sentence to life in prison without the possibility of parole. Tibbetts had been set to be executed Oct. 17.
Tibbetts had been sentenced to death for beating his wife, Sue Crawford, to death and fatally stabbing his landlord, Fred Hicks, on the same day in 1997 in Over-the-Rhine.
The Ohio Parole Board had given Tibbetts' case a second look after a former juror, Ross Geiger of Loveland, wrote a letter to Kasich, expressing concern that jurors didn't know more about Tibbett's background before sentencing him to death. But the parole board voted 8-1 against clemency.
Kasich disagreed. In a news release, the governor explained that "the defense’s failure to present sufficient mitigating evidence, coupled with an inaccurate description of Tibbetts’s childhood by the prosecution, essentially prevented the jury from making an informed decision about whether Tibbetts deserved the death penalty."
This press release from Gov Kasich's office also reports that "Gov. John R. Kasich granted a reprieve to delay the execution of Cleveland Jackson" with this accounting for this decision:
Cleveland Jackson was convicted for the 2002 murder of 17-year-old Leneshia Williams and three-year-old Jayla Grant in Lima. The reprieve will delay his execution until May 29, 2019 to allow his newly appointed legal counsel sufficient time to review the case and properly prepare for his clemency hearing before the Parole Board. Jackson’s previous court-appointed counsel withdrew their representation just four months prior to his initially scheduled execution after admitting that they failed to do any work to prepare his clemency application over the course of the previous four years.
With this commutation and reprieve, which follow an execution earlier this week which was Ohio's 15th execution during Gov Kasich's two terms in office, I believe Gov Kasich has closed out his capital record because there a now no more executions scheduled during his remaining time in office. (Interestingly, Ohio Gov Robert Taft presided over 24 executions from 1998 to 2006, and Ohio Gov Ted Strickland presided over 17 execution from 2007 to 2010.)
Thursday, July 19, 2018
Another look at how Justice Kennedy shaped capital jurisprudence and what his departure entails
I noted here a few weeks ago a short piece on how death penalty jurisprudence is likely to be impacted considerably by a coming SCOTUS transition, and another longer piece in the same vein now comes from Matt Ford at The New Republic. The piece is headlined "America Is Stuck With the Death Penalty for (at Least) a Generation," and here are excerpts (with links from the original):
With Kennedy now gone, it’s virtually certain that the Supreme Court won’t abolish the death penalty for at least a generation. Earlier this month, President Donald Trump nominated Brett Kavanaugh, a reliably conservative judge on the D.C. Circuit Court of Appeals, to fill Kennedy’s seat. While Trump himself is an unusually enthusiastic proponent of the practice, Kavanaugh’s own views on the death penalty are unknown. The D.C. Circuit’s narrow geographic jurisdiction means that it almost never hears death-penalty cases compared to the other federal appellate circuits.
As a result, there is no clear record for how Kavanaugh approaches the practice as a judge. Justices Clarence Thomas and Samuel Alito are resistant to curtailing capital punishment, and Justice Neil Gorsuch has voted alongside them during his first term on the court. If Kavanaugh votes in a similar manner, the court’s posture toward the death penalty would shift decisively away from limiting its scope. “The immediate impact of Kennedy’s retirement in terms of Eighth Amendment law is that it’s now whatever Chief Justice Roberts decides that it is,” Dunham said.
Roberts generally sides with the rest of the court’s conservatives on death-penalty matters. He has also joined the court’s liberals on occasion to rule in favor of defendants in certain egregious cases. In the 2017 case Buck v. Davis, he sided with a death-row prisoner after an expert testified during the sentencing phase that he posed a greater threat of “future dangerousness” because he is black. Though the exchange was a brief part of the overall trial, Roberts said in his majority opinion that it was still too much. “Some toxins are deadly in small doses,” he wrote.
Death-row prisoners will still bring cases to the Supreme Court, but Steiker said that the future of abolition efforts will now turn to the state and local level. “States are really where the story is happening,” she told me. “There are state constitutional challenges that can be brought. Seven state legislatures have voted to abolish the death penalty in the past ten or twelve years.” She also noted that a growing number of district attorneys are declining to seek the death penalty in cases where they otherwise could.
A local focus makes sense given the current geography of capital punishment. Death sentences increasingly come from only a handful of counties scattered across the country. Though state legislatures allow or forbid the death penalty as a matter of law, local prosecutors often decide in practice whether a defendant will face it. Cities like Houston and Philadelphia that once handed down dozens of death sentences have recently seen the election of district attorneys who are more skeptical of it.
For now, the rulings written by Kennedy will continue to mark the outer limits for American executions on a national level—unless the justices of a future generation choose to push them even further. “The law that Justice Kennedy leaves behind offers something of a blueprint for a future Supreme Court if it wanted to continue this project of reassessing the death penalty and its concordance—or not—with evolving standards of decency,” Steiker said.
Prior related post:
Wednesday, July 18, 2018
Ohio completes its first execution since botched execution of another inmate late last year
As reported in this local article, Ohio managed to get its machinery of death functioning again this morning. Here are the details and context:
Robert Van Hook horrifically murdered a Cincinnati man, but he seemed remorseful as he died by lethal injection on Wednesday at the Southern Ohio Correctional Facility.
Van Hook, 58, was strapped to the gurney in Ohio’s death house and the lines carrying the deadly drugs had been inserted in his arms when he turned his head to three witnesses from the family of his victim, David Self....
Van Hook served a violence-plagued 32 years in prison after a death-penalty conviction for what now could be considered a hate crime — of the utmost violence.
On Feb. 18, 1985, Van Hook met Self in a gay bar in downtown Cincinnati and went home with him. Van Hook’s clemency report says he lured Self into a vulnerable position and strangled him into unconsciousness. “He then took a paring knife from the kitchen and stabbed the victim behind the right ear, aiming the thrust upward toward the brain, accompanied by a blade-twisting movement,” the report said....
During his incarceration Van Hook amassed a disciplinary record of more than two dozen incidents, including stabbing another inmate in the face and chest, threatening to kill corrections officers and damaging property.
Joe D’Ambrosio served 22 years on death row with Van Hook until D’Ambrosio was exonerated and released in 2010. “He had mental problems, I don’t care what anyone says,” said D’Ambrosio who was at the prison Wednesday to protest Van Hook’s execution. “He would go for long periods of time and then he would explode.”
In their unsuccessful bid for clemency, Van Hook’s attorneys cited his difficult childhood. His mother, who had a history of mental illness, abused alcohol and drugs and became enmeshed in repeated, mutually abusive relationships. His father also drank heavily, beat Van Hook and was a virulent homophobe, the lawyers wrote.
Van Hook’s father, a musician, introduced his son to alcohol and drugs when Van hook was 11 or 12, his lawyers said. At 14, Van Hook moved with his father to Florida and eventually ran away. He lived on the streets, sometimes supporting himself by having sex for money with men....
D’Ambrosio said there was no point in killing Van Hook. “It was unneeded, unnecessary, cruel, unusual,” he said. “It’s barbaric.”
But three members of Self’s family, who sat quietly holding hands through the execution, wanted Van Hook to die. They declined comment on Wednesday. But Self’s sister, Janet Self, told the parole board that her brother’s murder reduced him in the public mind to nothing more than a gay man in a bar, when in reality he was an intelligent, witty person. She also noted that Self was abused by his own father and had to face prejudice because he was gay.
Van Hook’s execution was the first in Ohio in 2018. The last attempted execution — of Alva Campbell in November — was called off when corrections workers could not find a suitable vein for intravenous drugs. He died earlier this year of natural causes.
Gary Otte and Ronald Phillips were executed last year. They were the first to be killed in Ohio’s death chamber after a three-year moratorium following the 2014 execution of Dennis McGuire, 53, who gasped, choked, clenched his fists and appeared to struggle against his restraints for about 10 minutes before being pronounced dead.
Van Hook was the 56th man to be executed in Ohio since 1999. Two more executions are scheduled for later this year. A total of 137 people remain under death sentences in Ohio.
Texas completes eighth execution of 2018 despite complaints about clemency process
This Texas Tribune article, headlined "Texas executes Chris Young, who fought the state parole board in a final appeal," reports on the latest lethal injection and litigation in the Texas capital system. The subheadline summarizes the heart of the story: "The death row inmate claimed that the parole board likely rejected his clemency petition because he was black. The argument highlighted a long-standing criticism of clemency in Texas." Here are excerpts from a lengthy piece:
In his final fight before his execution Tuesday evening, Chris Young targeted Texas’ secretive clemency process.
On Friday, the Texas Board of Pardons and Paroles unanimously rejected Young’s clemency petition — often the final check in the death penalty process before an inmate is sent to the death chamber. Hours later, Young’s lawyers filed suit against the board members, claiming that they likely voted against a recommendation to reduce his sentence or halt his execution because he is black.
The appeal was a long shot, and one he ultimately lost in federal court Tuesday, hours before the state put him to death for the 2004 robbery and murder of Hasmukh Patel at Patel's San Antonio store. At 6:13 p.m., Young, 34, was injected with a fatal dose of compounded pentobarbital and pronounced dead 25 minutes later....
Though unsuccessful, the late filing highlighted a long-established criticism of Texas clemency — the reasoning for the board’s decision is unknown to the public, and individual members usually cast their votes remotely without comment or a hearing. Though members must certify that they do not cast their votes because of the inmate’s race, they also don’t have to give any reason for their decision....
Young was 21 when he entered Patel’s San Antonio store in 2004 and fatally shot Patel during an attempted robbery, according to court records. He was convicted of capital murder and sentenced to death in 2006.
In his recent petition to the parole board asking for a sentence of life instead of death, his lawyers cited his growth in prison — they claim he prevented both an inmate’s assault on a guard and a suicide and that he eased racial tensions on death row — and the fact that Patel’s son, Mitesh, also pleaded for the state to spare his father’s killer.
They tried to draw comparisons between Young and another young man whose life was recently spared by the board and Gov. Greg Abbott — Thomas Whitaker, who was convicted in the planned deaths of his family in 2003, killing his mother and brother and wounding his father in a plot to get inheritance money....
The state responded to Young’s allegations of racial discrimination in court Sunday, claiming Young’s case for clemency was “far weaker” than Whitaker’s. Assistant Attorney General Stephen Hoffman highlighted factors left out of Young’s petition, including an alleged sexual assault just before Patel’s murder, previous misdemeanor convictions and disciplinary reports from death row. The response also notes that, unlike Young, Whitaker wasn’t the triggerman in his relatives’ murders....
Since 1998, a Texas governor has spared the life of someone facing imminent execution only three times, according to data obtained from the parole board. In the same two decades, there have been more than 400 Texas executions....
Abbott’s predecessor, Republican Rick Perry, chose to reduce a death sentence to life in prison for only one inmate (U.S. Supreme Court decisions forced him to reduce other sentences) in his 14-year tenure. He also rejected board recommendations in at least two other cases. The Whitaker clemency was the first and only board recommendation under Abbott so far.
Because of the minuscule success rate of these cases and the secrecy that surrounds the process, attorney groups and several lawmakers have criticized Texas clemency procedures in capital cases for decades. In 1998, U.S. District Judge Sam Sparks called it “extremely poor and certainly minimal.” Sparks railed on how the public is kept from the board’s dealings and said no member fully reads the petitions, stating “a flip of the coin would be more merciful than these votes.”...
But for Young, the attempt to draw parallels between himself and Whitaker seemingly fell flat with the members of the parole board. Instead of being moved off death row to another prison, he was sent to the death chamber, becoming the eighth person executed in Texas this year, and the 13th in the nation.
Tuesday, July 17, 2018
"McCleskey V. Kemp: Field Notes from 1977-1991"
The title of this post is the title of this notable paper authored by John Charles Boger available now via SSRN. Here is its abstract:
This Essay is an expanded version of a keynote address to a Symposium hosted by the Northwestern University School of Law. It examines the handiwork of the Supreme Court in the McCleskey v. Kemp (1987) case and the adverse impact of McCleskey on the subsequent judicial consideration of statistical evidence -- even of widespread racial discrimination -- in the capital and criminal justice systems.
As one member of the legal team who brought the McCleskey case, my contribution was to speculate on how and why the Court might have disregarded such meticulously documented and unrebutted patterns of racial disparities in capital sentencing, despite the Justices’ formal condemnation of racial discrimination in principle and their occasional intervention to curb particularly egregious acts of racial injustice. This Essay ends by encouraging social scientists and legal scholars to continue to uncover and oppose patterns of racial discrimination that remain widespread in the administration of criminal justice.
Friday, July 13, 2018
"'Finding' a Way to Complete the Ring of Capital Jury Sentencing"
The title of this post is the title of this paper newly posted on SSRN and authored by Maria Kolar. Here is its abstract:
In the modern death penalty era in America, two findings have emerged as generally required before a murderer can be sentenced to death. First, the decisionmaker must find that the murder was especially egregious, due to specific, statutorily-defined characteristics of the murder or the murderer — typically referred to as “aggravating circumstances.” Second, the decisionmaker must find that any aggravating circumstances in the case “outweigh” any “mitigating circumstances,” i.e., anything that makes the crime or the defendant seem less deserving of death. Remarkably, regarding the second finding (the weighing finding) it remains unclear who “the decisionmaker” must be and how convinced the decisionmaker must be — even though the Supreme Court held back in 2002, in Ring v. Arizona, that the Sixth Amendment mandates that the decisionmaker for the aggravating circumstance finding must be a jury and that the jury must be convinced “beyond a reasonable doubt.”
This Article asserts that Ring’s use of the word “fact” to describe the kind of determination that must be made by a jury has completely undermined the functional and elements-based approach of Ring. This approach, properly understood, mandates that the Sixth Amendment jury requirement applies to any finding (not just “fact”) that is required for a death sentence. This Article traces the Court’s use of the term “finding” in this context — from the beginning of the modern death penalty era in 1976, through Apprendi v. New Jersey in 2000, Ring in 2002, and Hurst v. Florida in 2016 — and asserts that the Apprendi Court’s use of the broader term “finding” in this arena is more faithful to the Sixth Amendment and to substantive state law. This Article catalogs how state supreme courts and federal circuit courts overwhelmingly concluded (post-Ring) that the capital weighing finding is not subject to the Sixth Amendment, because it is not a “fact” under Ring — aided by the Court’s Eighth Amendment “death eligibility” doctrine, which misleadingly suggests that defendants become “eligible” for a death sentence based solely on the finding of an aggravating circumstance.
The Court’s broader approach in Hurst does provide some hope in this realm and has led to momentous changes in Delaware, Florida, and Alabama. And all but two states now insist that a jury make all the findings that are required for a death sentence under state law. Nevertheless, while nearly 75% of the current thirty-one death penalty states require a weighing-type finding for a valid death sentence, almost 75% of these states still fail to require that this finding be made beyond a reasonable doubt, as the Sixth Amendment mandates. There is still much work to be done.
Wednesday, July 11, 2018
Drug company succeeds in getting Nevada execution using its drug postponed
As reported in this local article, "Nevada’s plan to execute a convicted murderer with a never-before-used combination of drugs is on hold for at least 60 days." Here is more:
The state was planning to use three drugs — midazolam (a sedative), fentanyl (the high-potency opioid) and cisatracurium (a paralytic) — to execute Scott Dozier on Wednesday night.
Clark County District Judge Elizabeth Gonzalez ruled in favor of the company that makes midazolam, which sued the state, saying Nevada had illegitimately acquired the product for the execution. It wants the state to return its stock of the drug to the company. Gonzalez granted a temporary restraining order. “If the state is permitted to use the midazolam manufactured by plaintiff, plaintiff has shown a reasonable probability it will suffer irreparable damages,” Gonzalez said in her Las Vegas court.
The drug maker, Alvogen, and the state are scheduled to return to court September 10 for another hearing in the case.
The execution would have been the first time that fentanyl, one of the central drugs in the US opioid epidemic, has been used in a capital punishment case in the United States, said Robert Dunham, executive director of the Death Penalty Information Center. It would likely have been a first for cisatracurium to be used as well, he said.
Dozier, 47, is not making legal challenges to halt his execution. “Life in prison isn’t a life,” he told the Las Vegas Review-Journal. “This isn’t living, man. It’s just surviving.”... His attorney, Thomas Ericsson, told CNN that his client wants to be executed.
Although Dozier is not trying to stop his execution, there is opposition to the drug cocktail the state plans to use in carrying out the death sentence. “Nevada should not use prisoners as guinea pigs in experimental executions, even if they ask to die,” tweeted the ACLU of Nevada.
Dozier was convicted of first-degree murder in the death of Jeremiah Miller, who was killed and dismembered in 2002. The victim’s torso was found in a suitcase dumped in a trash bin in Las Vegas, according to the Nevada Department of Corrections. Dozier was also convicted of second-degree murder in the death of another victim found buried in the Arizona desert.
Prior related posts:
- Will any state really start conducting executions with opioids?
- Nevada defense attorney loses latest battle, but may still be winning war, in effort to preclude an execution defendant apparently seeks
- Nevada now scheduled to conduct execution, its first in a dozen years, using an opioid lethal injection cocktail
- Drug maker sues Nevada seeking to prevent state from using its drug in state's first execution in a dozen years
"Intellectual Disability, The Death Penalty, and Jurors"
The title of this post is the title of this new paper on SSRN authored by Emily Shaw, Nicholas Scurich and David Faigman. Here is its abstract:
In Atkins v. Virginia (2002), the United States Supreme Court held that intellectually disabled defendants cannot be sentenced to death; but since then, the Court has continued to grapple with how intellectual disability should be legally defined. Typically, however, it is jurors who determine whether a defendant is intellectually disabled and therefore categorically ineligible for the death penalty. Very little is known empirically about how jurors reason about and make these decisions.
This Article presents the results of a novel experiment in which venire jurors participated in an intellectual disability hearing and a capital sentencing hearing. The diagnosis of a court-appointed expert was experimentally manipulated (defendant is or is not intellectually disabled), as was the provision of information about the crime (present or absent). Jurors were considerably more likely to find the defendant not disabled when the expert opined that the defendant was not disabled. They were also more likely to find the defendant not disabled when they learned about the details of the crime. Similarly, jurors were more likely to sentence the defendant to death after learning about the details of the crime, which increased perceptions of both the defendant’s blameworthiness and his mental ability. These findings highlight the reality that jurors’ assessments of intellectual disability are influenced by crime information, contrary to pronouncements made by the United States Supreme Court, and they support the use of bifurcated disability proceedings, as some states have recently adopted.
Tuesday, July 10, 2018
Drug maker sues Nevada seeking to prevent state from using its drug in state's first execution in a dozen years
As reported in this local article, the "maker of a sedative set for inclusion in a Nevada execution on Wednesday — the state’s first in 12 years — is suing to stop it from being used to kill Scott Dozier." Here is more:
American pharmaceutical company Alvogen filed a lawsuit Tuesday in Clark County District Court, saying the Nevada Department of Corrections purchased the drug on false pretenses even though they knew Alvogen objected to its use for executions. The company is asking a judge for a temporary restraining order, for the drug midazolam to be impounded and for it to be barred from any use in capital punishment.
“Defendants intentionally defrauded Alvogen’s distributor by, on information and belief, concealing the April 2018 letter from the distributor and/or the fact that Defendants intended to use the Alvogen Midazolam Product for purposes of an execution,” the lawsuit said. “Defendants omitted relevant information and implicitly made the false representation that they had legitimate therapeutic rationale to purchase the Alvogen Midazolam Product.”
A spokeswoman for the Nevada Department of Corrections didn’t immediately respond to a request for comment on Tuesday, and it’s unclear whether the suit — filed a little more than 24 hours before the execution — will prompt a delay.
Alvogen says on its website that it tries to prevent its product midazolam from use in executions. But the Nevada Department of Corrections announced last Tuesday that it was adding midazolam to its three-drug lethal injection combination after another drug expired, and on Friday it distributed photos of the packaging with Alvogen labels — a response to a request from the American Civil Liberties Union of Nevada for more information about the drugs’ origins.
The pharmaceutical company said it learned its product would be used when it started to receive press inquiries on July 7. “Alvogen does not market, promote or condone the use of any of its approved prescription drug products, including midazolam, for use in state sponsored executions,” spokesperson Halldór Kristmannsson said in a statement on Monday. “To avoid any improper, off label use of our products, Alvogen does not accept direct orders from prison systems or departments of correction. Alvogen works with our distributors and wholesalers to restrict any resale, either directly or indirectly, of our midazolam product to any prison system or department of correction.”
Alvogen’s suit said the state has refused to return the products, and added that the prison agency “was aware of and actively fought disclosure of certain execution-related information because such information had been used to persuade manufacturers to cease selling their products for executions.” NDOC’s actions “have caused, and will continue to cause unless enjoined, substantial and irreparable injury to Alvogen, its reputation, and its goodwill,” the lawsuit said.
The 80-page complaint can be found at this link.
Prior related posts:
- Will any state really start conducting executions with opioids?
- Nevada defense attorney loses latest battle, but may still be winning war, in effort to preclude an execution defendant apparently seeks
- Nevada now scheduled to conduct execution, its first in a dozen years, using an opioid lethal injection cocktail
Monday, July 09, 2018
Texas proves, yet again, where there is a will to get executions drugs, there seems to be a way
This local article from Texas, headlined "With 7 execution dates on the calendar, Texas just got more lethal injection drugs," spotlights yet again how the folks in Texas are uniquely able to continue with capital justice without much of a hitch. Here are the details and some context:
Amid speculation about its ability to carry out the flurry of new executions on the calendar, state records show the Texas prison system in recent weeks received 15 more doses of the powerful barbiturate used in its Huntsville death chamber. The additional vials ensure that the state can now carry out all the currently scheduled death dates, but some experts say it raises questions about how officials obtained new doses of pentobarbital at a time when drug-makers have backed away from its use in executions.
"That I'm aware of, there is no legal source for pentobarbital, compounded or otherwise. None," said Maurie Levin, a defense attorney with expertise in lethal injection litigation. "All the companies that previously provided compounded pentobarbital are now subject to end-use controls by the manufacturers and if they are distributing it to a prison for use in executions they are violating that contract."
The state pushed back against that suggestion. "The Texas Department of Criminal Justice complies with all state and federal laws," said department spokesman Jeremy Desel.
But whatever the provenance of the added supplies, the fact that they exist could impact death-sentenced inmates in other states. Weeks before the new doses showed up on the state's logs, a group of prisoners in Arkansas asked Texas to turn over the name of its lethal injection supplier, in the hope of convincing their own state to switch to the drug the Lone Star State uses. Midazolam, one of the drugs currently used in Arkansas, has been repeatedly linked to "botched" executions.
Since 2012, Texas has relied on a single drug — compounded sodium pentobarbital — to carry out lethal injections. The state came close to exhausting its supplies with executions still on the calendar in spring 2015. But in the end, TDCJ got more without needing to push back any death dates, prison officials said previously.
Then in January of this year, the state's stash of drugs was set to expire days before a scheduled execution. The state replenished its supply in time. But it wasn't immediately clear whether they'd obtained new doses or established a new expiration date for the ones they already had, a possibility that's been raised repeatedly in lawsuits seeking to challenge the state's lethal injection procedures.
Again by May, Texas seemed poised to run out of drugs with three executions scheduled beyond the expiration date of the drugs. Then on June 18, records show the addition of 15 five-gram vials.
In recent years, drug-makers have put up roadblocks to states seeking execution drugs, forcing states to switch protocols in some places. "Every major pharmaceutical manufacturer in the U.S. has policies against the distribution of its medicines for unapproved medical purposes, and killing prisoners has never been an approved medical purpose," said Robert Dunham, executive director of the Death Penalty Information Center. Many drug-makers, he said, also specifically prohibit the sale of their drugs for use in executions.
"If Texas is getting these drugs legally that's important to know for death penalty cases across the country," Dunham said. "If they're getting them illegally or by making misrepresentations to pharmaceutical distributors that's also important to know because states should not be violating the law or breaching contracts in the name of law enforcement."
It's not clear exactly where the state is getting its drugs, and state secrecy laws keep the department from revealing its source.
Sunday, July 08, 2018
Notable federal capital defendant claims his killing age (20) should make him ineligible for death penalty
The name Donald Fell is likely familiar to capital punishment followers: Fell was convicted and sentenced to death in federal court for the November 2000 abduction and slaying of Teresca King,but his initial conviction and sentence were thrown out after revelations of juror misconduct. Prior to his retrial, his attorney's have brought a series of challenges to the federal death penalty. This local article, headlined "Fell seeks to avoid death penalty based on age," reports on their latest filings:
Lawyers representing Donald Fell, who was charged in the 2000 homicide of a North Clarendon woman, are asking a federal judge to rule out the death penalty because Fell was 20 years old at the time of the alleged murder. A second trial is pending for Fell, 38, for the carjacking and kidnapping of 53-year-old Terry King.
Fell is accused of kidnapping King from the Rutland Shopping Plaza. Police said Fell and his friend, Robert Lee, took King to New York where she was bludgeoned to death. Fell was convicted of the crimes with which he’s now charged in 2005 and he was sentenced to the death penalty in 2006. However, Fell’s attorneys found evidence of juror misconduct and Fell’s conviction was overturned in 2014....
The motion by Fell’s attorneys, filed on Tuesday, referred to a 2005 U.S. Supreme Court decision from 2005 that found capital punishment is unconstitutional if the person convicted committed the crime before he or she was 18. The motion, filed by San Francisco attorney Michael Burt, a member of Fell’s defense team, said the question of whether Fell was too young at the time he allegedly killed King had not been heard.
“Mr. Fell has had no opportunity to show that Roper‘s age-18 cutoff does not account for the current medical and scientific consensus that brain development is not completed by age 18, and that Mr. Fell’s particular development at age 20 is insufficient to justify capital punishment. Simply put, his evidence will show that at the time of the offenses, Mr. Fell did not function as an adult with sufficient moral culpability for capital punishment,” the motion said.
Dr. James Garbarino also filed a brief discussing his findings working with young people dealing with severe violence. He said doctors who had previously examined Fell found psychological problems but the science of brain development was not advanced enough at the time to recognize Fell’s problem was “developmental brain immaturity” from developmental delays. “In the case of Donald Fell, his social history indicates he is just such an individual — growing up with much adversity, including psychological adversity such as experiences of parental rejection, and physical maltreatment, including physical traumas which may have resulted in insults to his brain,” Garbarino wrote....
The second half of the motion argued that society opposed the execution of young criminals. “Executing individuals barely old enough to vote or drink, unable to rent a car, unable to serve in Congress, and still in the throes of cognitive development — based upon now-disregarded views of culpability — undermines the Supreme Court’s commitment to dignity, and the possibility of rehabilitation and redemption,” the motion said.
Fell, through his attorneys, requested a hearing on the issue, followed by an order precluding the government from seeking the death penalty. Prosecutors have not yet responded to the 550-plus page motion. Many of the exhibits in the motion were papers on the adolescent brain or court rulings on defendants who committed crimes while young, although only Kentucky was cited as banning the death penalty for someone younger than 21 rather than someone younger than 18.
Another motion, more than 1,100 pages long, was filed Tuesday seeking to stop prosecutors from having a mental health professional testify during the sentencing if Fell is convicted.
Prior related posts:
- Vermont killer makes broadside constitutional attack on federal death penalty prior to capital retrial
- Federal District Judge says federal death penalty "operates in an arbitrary manner" but still rejects broadside constitutional challenge
Thursday, July 05, 2018
"Police, Race, and the Production of Capital Homicides"
The title of this post is the title of this new paper now available via SSRN and authored by Jeffrey Fagan and Amanda Geller. Here is the abstract:
Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines.
This article backs up the research on racial disparities to an earlier stage of capital case processing: the production of capital-eligible cases beginning with the identification of potential defendants by the police. It seeks to trace these sentencing disparities to examining earlier stages in the processing of homicides. Using data from the FBI’s Supplementary Homicide Reports, we examine every homicide reported between 1976 and 2009, and find that homicides with white victims are significantly more likely to be “cleared” by the arrest of a suspect than are homicides with minority victims. We estimate a series of hierarchical regressions to show that a substantial portion of this disparity is explained by social and demographic characteristics of the county in which homicides take place. Most notably, counties with large concentrations of minority residents have lower clearance rates than do predominantly white counties; however, county characteristics do not fully explain the observed race-of-victim disparities. Our findings raise equal protection concerns, paving the way for further research into the production of capital homicides and the administration of the death penalty.
Friday, June 29, 2018
A quick look at how Justice Kennedy's retirement might impact capital punishment jurisprudence
This new HuffPost piece, headlined "Justice Kennedy’s Retirement Is A Setback For Death Row Inmates," provides a quick account of one area of sentencing jurisprudence likely to be impacted considerably by a coming SCOTUS transition. Here are excerpts:
President Donald Trump’s likely choice of a deeply conservative justice to replace Anthony Kennedy on the Supreme Court could have a significant impact on death penalty cases, experts say.
“Death row inmates will find it substantially more difficult to prevail,” said John Blume, a law professor at Cornell Law School and director of the Cornell Death Penalty Project. “Justice Kennedy was conservative on criminal justice and capital punishment matters, but most or all of the names being bandied about as his replacement are most likely going to be more to much more conservative.”
Though Kennedy was a reliable vote in allowing executions to proceed in cases involving the methods of execution, he was the only Republican appointee who frequently aligned himself with the more liberal justices in cases that limited the circumstances in which states could impose capital punishment. “Kennedy was often the deciding vote in [death penalty] cases, sometimes on one side, sometimes the other,” David Menschel, a criminal defense attorney and activist, told HuffPost. “Now I would expect SCOTUS to show even more complete deference to the states and to allow executions to proceed with little concern whether states are acting lawfully.”
Kennedy was the key swing vote in the court’s 2005 decision to prohibit the execution of juvenile defendants. He was the deciding vote in the 2008 decision that barred the use of the death penalty in cases where a defendant raped, but did not kill, a child. And his vote was key in the 2014 ruling that established that a Florida law that set a strict IQ cutoff for determining intellectual disability in capital punishment cases was unconstitutional. The Florida law, Kennedy wrote for the majority, “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”...
“The most profound effect is likely to involve those death penalty cases that involve the application of the evolving standards doctrine,” said Robert Dunham of the Death Penalty Information Center, a group doesn’t take a position for or against death penalty, but has been critical of how it has been administered. The “evolving standards of decency” doctrine Dunham was referring to was coined by Chief Justice Earl Warren in a 1958 case in which the court recognized that the interpretation of what constitutes fair and cruel punishment is not static under the Eighth Amendment.
“In essence, the Eighth Amendment meant whatever Justice Kennedy thought it meant,” Dunham said. “Now, it will mean whatever Chief Justice [John] Roberts thinks it means. That’s where I think it will have the most significant impact.”
The final quote by Robert Dunham here rightly flags that Chief Justice Roberts in now likely to be the closest thing to a swing vote in capital cases (and maybe in an array of criminal cases). The Chief has voted along with Justice Kennedy and the liberal justices in more than a few capital cases (see DPIC case list here) as well as one some other criminal justice issues, and his criminal jurisprudence has just become a lot more important to a lot more defendants and their lawyers.
Prior posts on Justice Kennedy's retirement (including one from MLP&R):
- Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more
- Just a few Justice Kennedy sentencing jurisprudence highlights
- "Betting Odds for Next Supreme Court Justice: Who Will Replace Anthony Kennedy?"
- With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?
Thursday, June 28, 2018
Some GVRs, summary reversal of the Ninth Cirucit and Justice Breyer dissenting to contend "the death penalty today lacks requisite reliability"
This lengthy final order list finishing up the current SCOTUS Term has its most exciting news for criminal justice fans from the single line granting cert in Gamble v. United States so the Justices can reconsider the Double Jeopardy Clause's "dual-sovereignty doctrine" (discussed here). But the order list also includes a number of GVR cases citing Carpenter and Rosales-Mireles and a number of notable summary reversals and statements concerning the denial of cert. Of greatest interest to sentencing fans are:
This per curiam summary reversal of the Ninth Circuit judgment in Sexton v. Beaudreaux, No. 17-1106 (which led to Justice Stephen Breyer dissenting without opinion). Here is how the lengthy summary reversal starts:
In this case, the United States Court of Appeals for the Ninth Circuit reversed a denial of federal habeas relief, 28 U.S.C. §2254, on the ground that the state court had unreasonably rejected respondent’s claim of ineffective assistance of counsel. The Court of Appeals’ decision ignored well-established principles. It did not consider reasonable grounds that could have supported the state court’s summary decision, and it analyzed respondent’s arguments without any meaningful deference to the state court. Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is reversed.
This dissent from the denial of certiorari in Jordan v. Mississippi authored by Justice Breyer (which did not garner any additional votes). Here is how his lengthy dissent starts:
In my dissenting opinion in Glossip v. Gross, 576 U.S. ___ (2015), I described how the death penalty, as currently administered, suffers from unconscionably long delays, arbitrary application, and serious unreliability. Id., at ___ (slip op., at 2). I write to underline the ways in which the two cases currently before us illustrate the first two of these problems and to highlight additional evidence that has accumulated over the past three years suggesting that the death penalty today lacks “requisite reliability.” Id., at ___ (slip op., at 3).
Texas completes execution of serial killer, its seventh of 2018
As reported in this local article, headlined "'Burn in hell for eternity': Houston serial killer Danny Bible executed in Huntsville," Texas completed another execution last night. Here are the details:
Shaking from Parkinson's tremors, voice quavering as he muttered "it hurts," Houston serial killer Danny Bible took his last gasping breaths on the gurney in Huntsville before closing one eye, snoring and falling forever silent. He offered no final statement Wednesday night, but protesters outside shouted angrily into a megaphone, defending the aging four-time killer.
Afterward, in a quiet conference room above the warden's office, the family of one of Bible's victims offered a final word. "Danny Paul Bible is as a vile and evil a person that has ever drawn breath," said Larry Lance, whose sister fell prey to Bible's wrath in 1983. "We are glad to have witnessed him draw his last breath. I know that he will burn in hell for eternity."
Despite concerns about the difficulty of finding a vein on the ailing murderer, the lethal injection team hooked up IV lines in under 15 minutes. After the lethal dose began at 6:17 p.m., Bible started breathing heavily before saying it "burned." He stopped moving three minutes later and was pronounced dead at 6:32 p.m. He was the seventh killer to die in Huntsville this year.
Bible was sent to death row in 2003 after a crime spree zig-zagging across the country for the better part of 20 years. Though he murdered two other women and a baby, raped five young relatives and claimed an assortment of other violent crimes, it was his first killing -- back in 1979 -- that sent him to the death chamber....
In the weeks leading up to his scheduled execution, his defense team launched a flurry of legal claims, arguing that the aging prisoner might be too sick to execute by injection. Instead, they said, he should die by firing squad or nitrogen gas. In the end, the lethal injection team found viable veins in Bible's hands.
The so-called ice pick killer had a "galaxy of medical issues" that raised the possibility of a prolonged and painful lethal injection process his lawyers argued would violate the Eighth Amendment's ban on cruel and unusual punishment. "Texas will almost certainly join Alabama and Ohio and add itself to the unconscionable list of botched executions in America," his attorney Jeremy Schepers predicted beforehand....
Bible's attorneys on Wednesday took his case all the way up to the Supreme Court. Denying his challenge, they argued, could shut the door on any other similar claims from ailing prisoners who could suffer botched executions. But the high court denied his plea just after 5:30 p.m....
The Lone Star State has now executed seven men this year, including another Houston serial killer, Anthony Shore. There are seven other death dates on the calendar in Texas.
Notably, Texas only had seven executions through all of 2017, but it has hit that number through just the first part of 2018.
Monday, June 25, 2018
Seven years in development, Pennsylvania task force issues huge report on state's (dormant) capital punishment system
As reported in this local press article from Pennsylvania, a "long-awaited report reviewing the state's death penalty has been released that could affect the death penalty moratorium that Gov. Tom Wolf imposed shortly after taking office in 2015." Here is more:
The 270-page report, commissioned by a 2011 Senate resolution and compiled by the Pennsylvania Task Force and Advisory Committee on Capital Punishment along with the Justice Center for Research at The Pennsylvania State University and the Interbranch Commission on Gender, Racial and Ethnic Fairness, evaluates the pros and cons of the state's capital punishment law.
Specifically, it was charged with looking at the cost, bias, impact on and services for family members of death penalty inmates; mental illness, counseling, alternatives, and more. Work began on the study in 2012. It was to have been completed by the end of 2013. However, delays in appointing members and in information gathering as well as conflicting work schedules of task force members bogged down the process, according to Glenn Pasewicz, executive director of the Joint State Government Commission, which oversaw the task force and advisory committee's work.
Despite the report's completion, don't expect an immediate decision by Wolf on whether the moratorium will be lifted. He has indicated the moratorium will remain in place until the recommendations and concerns that the report raises are satisfactorily addressed, his spokesman J.J. Abbott said.
Wolf's Republican gubernatorial opponent Scott Wagner has said he supports the death penalty and indicated in February he would pursue a mandatory death penalty for any school shooter who kills someone although legal analyst say laws like that have been ruled unconstitutional.
Pennsylvania has a death penalty law on the books since 1978, but its death row has shrunk to 149 men and only three people have been executed since capital punishment was reinstated in the 1970s. All three had voluntarily relinquished their appeals. The most recent execution was in 1999 when Philadelphia torture killer Gary Heidnik was put to death. The last time an inmate was executed involuntarily in Pennsylvania was 1962.
Penn State's Justice Center for Research, which conducted a study that was incorporated into this report, concluded death sentences are more common when the victim is white and less common when the victim is black. Among other findings, that study indicated prosecution of death penalty cases varies widely by county and defendants represented by public defenders were more likely to get a death sentence than those with privately retained lawyers.
Marc Bookman, a longtime public defender and co-director of the Atlantic Center for Capital Representation, issued an immediate reaction to the study's findings. He said the study confirms his belief that life without parole is "fairer, quicker, and more cost-efficient than capital punishment."...
But the Pennsylvania District Attorneys Association President John Adams' initial reaction to the report suggested it was not an objective look at the issue and fails to give proper consideration of victims of the crimes that result in death sentences as well as supporting data that suggests capital punishment is not disproportionately targeted against minorities.
The full massive report is available at this link, and it would likely take me the rest of the day just to fully and fairly consume the reports executive summary (which itself runs 30+ pages). For students of the modern administration of the death penalty, I see a lot of interesting and important work within this report. But, as the quotes in the press article reveal, I doubt this massive undertaking is going to change many (or any) personal or political perspectives on the application of the ultimate punishment in Pennsylvania.
Thursday, June 21, 2018
New Hampshire Gov (finally) vetoes state legislature's repeal of the state's death penalty
Back in April, as reported here, New Hampshire's legislature voted to repeal the state's rarely used death penalty. But, as reported in this new article, "Gov. Chris Sununu delivered Thursday morning on his promise to veto a measure passed in the New Hampshire House and Senate to repeal the state's death penalty law." Here is more:
The governor was flanked by law enforcement officials from departments across the state as he vetoed the bill. "To repeal the death penalty today would deprive future victims of the justice they deserve," Sununu said. "Abolishing the death penalty would send the wrong message to those who would commit the most heinous offenses within our state borders."
The House passed Senate Bill 593 in April, but the vote fell short of the two-thirds supermajority that would be needed to override the veto. "While I very much respect the arguments made by the opponents of this bill, I stand with crime victims, members of the law enforcement community and advocates for justice in opposing this bill," Sununu said....
The last time a convicted murderer was put to death in New Hampshire was in 1939. State lawmakers last sent a death penalty repeal bill to the governor's desk in 2000, when then-Gov. Jeanne Shaheen vetoed it.
"We have made our arguments in front of both houses in the Legislature, and we believe that this is the right thing to do," Franklin Police Chief David Goldstein said.
Barbara Keshen, who chairs the Coalition to Abolish the Death Penalty, said many of the victims her group represents are against capital punishment. "They don't want to be part of a system that creates another grieving family, which is what the death penalty does," Keshen said. "That is not justice. Life in prison is sufficient justice for them."
The bill will head back to the Legislature, but death penalty opponents would need to get more votes in the House and Senate to reach the two-thirds majorities needed to overturn the veto.
Nevada now scheduled to conduct execution, its first in a dozen years, using an opioid lethal injection cocktail
This new AP piece, headlined "Nevada sets 1st execution in 12 years after fight over drugs," reports on the latest development in Nevada's efforts to restart its machinery of death. Here are details:
Nevada plans to carry out its first execution in 12 years using a never-before-tried combination of drugs that drew a court challenge over concerns that a convicted murderer could suffer during the lethal injection. Scott Raymond Dozier is scheduled to die July 11, Department of Corrections spokeswoman Brooke Santina said Wednesday, a day after a judge in Las Vegas signed the death warrant.
It comes after the state Supreme Court decided last month not to stop the execution on procedural grounds despite challenges by lawyers and a rights group, who argued that the procedure would be less humane than putting down a pet. There also were concerns that some of the state's drugs would have expired. "We have what we need to complete the execution order," Santina told The Associated Press. "The same three drugs. We have some that are not expired."
Dozier's death warrant was signed Tuesday by Clark County District Court Judge Jennifer Togliatti, who last November blocked the scheduled execution over concerns that one drug in the three-drug cocktail would immobilize the inmate and mask any signs of pain and suffering. The warrant didn't address her previous concerns.
Batches of the disputed muscle paralytic called cisatracurium began expiring April 1, but Santina has said the state had supplies that were good until Nov. 30. The sedative diazepam, the powerful painkiller fentanyl and the paralytic cisatracurium have never been used for lethal injections in any state. Diazepam is commonly known as Valium. Fentanyl is synthetic opioid that has been blamed for overdose deaths nationwide during an opioid epidemic....
Dozier, 47, has been on death row since 2007 for convictions in separate murders in Phoenix and Las Vegas. He has said repeatedly that he wants to be put to death as soon as possible and doesn't care what drugs are used. Dozier, who also used the name Chad Wyatt, would become the first person put to death in Nevada since 2006. His death would mark the first lethal injection since a new execution chamber was completed in 2016 at Ely State Prison, 250 miles (402 kilometers) north of Las Vegas.
Aides to Republican Gov. Brian Sandoval and state Attorney General Adam Laxalt did not immediately respond to messages Wednesday. Jonathan Van Boskerck, a chief deputy Clark County district attorney involved in nearly a year of court hearings over Dozier's fate, pointed to the death sentence by a jury and the state high court ruling last month. "The decision of this jury deserves respect," he said.
Prior related posts:
- Will any state really start conducting executions with opioids?
- Nevada defense attorney loses latest battle, but may still be winning war, in effort to preclude an execution defendant apparently seeks
Tuesday, June 19, 2018
"Whether the Bright-line Cut-off Rule and the Adversarial Expert Explanation of Adaptive Functioning Exacerbates Capital Juror Comprehension of the Intellectual Disability"
The title of this post is the title of this new paper on SSRN authored by Leona Deborah Jochnowitz. Here is its abstract:
This paper examines a sample of Capital Jury Project (CJP 1) cases with available trial transcripts in which jurors were presented with mitigating intellectual disability evidence and may have been confused by issues of proof, definitions, and extralegal factors. It tests the hypothesis that jurors’ receptivity to mitigating intellectual disability (ID) was limited by their difficulties with the adversarial mental proof and clinical definitions needed to establish it. Further the juror decision-making may have been obscured by distractions from extralegal factors, unrelated to the evidence like premature decision-making and heuristic shortcuts, pro-death bias, and racial prejudice. It also examines whether the bright line cut-off rule, followed in some sample states prior to the Supreme Court decision in Hall v. Florida (2014), exacerbated jurors’ understanding of the disability, and encouraged popular stereotypes and misconceptions about intellectual disability.
In Kentucky, a state with the bright line cut-off rule, at the time these cases were decided, jurors were confused about a range of IQ scores and intellectual declines during developmental years. “IQ was perhaps not above what we consider a moron? I think they were contending that he had an IQ of 70 or 76 or so, had been tested as high as the 80s I recall.” (CJP KY death case #531, juror #725). Even in non-bright line sample States like South Carolina, with no ID exemption at the time, jurors misunderstood the range of numerical IQ evidence. The study concludes that juror assessment of intellectual disability (ID) is variable. Some jurors view ID as a more “organic” sympathetic disorder than other mental disorders, and they seem to understand it in practical, lay terms. Yet, capital juror decision making is marred by extra-legal factors that impair consideration of the mitigating evidence.
The study concludes that juror misunderstanding regarding mitigating evidence has stubbornly persisted throughout the history of the Capital Jury Project and arises from shortcomings in human cognition which impede jurors’ moral consideration of intellectual disability evidence. In light of these flaws, it may be impossible to avoid the unacceptable risk that persons with intellectual disability will be executed. This study suggests that mildly intellectually disabled persons were indeed executed because jurors misunderstood the ID evidence and were persuaded by extralegal racial biases and premature decision making.
Monday, June 18, 2018
Ailing "ice pick killer" in Texas, seeking to halt his scheduled execution, points to failed efforts in Alabama and Ohio
As reported in this Reuters piece, headlined "Too frail for death row? Texas inmate seeks execution reprieve," a notorious capital defendant has a notable new claim in federal court in an effort to avoid execution. Here are the details:
After two recent botched U.S. executions of inmates with compromised veins, a convicted murderer and rapist is arguing he is too ill to be put to death by lethal injection in Texas later this month. Lawyers for Danny Bible, a 66-year-old inmate set to be executed on June 27, said in a federal court filing in June that his health and vein access were worse than inmates in Alabama and Ohio whose executions were called off after IV placements failed.
The cases have capital punishment critics questioning whether justice is served by executing a person convicted of horrific crimes but who is now too weak or sick to be considered a threat.... Some death penalty proponents counter that sympathy should not be shown to inmates who they accuse of trying to game the system by filing appeals that take decades to wind through the courts, denying justice to the victims’ families.
The average age of death row inmates has increased in the United States as the number of executions has trended downward, as fewer states conduct lethal injections and appeals take more time. More than 40 percent of U.S. death row inmates are 50 years of age or older, according to U.S. data and the nonprofit Death Penalty Information Center.
In recent years, death row inmates were just as likely to die awaiting execution as they were to be executed. Last year, 24 death row inmates across the country died in prison awaiting execution, mostly due to natural causes, while 23 inmates were executed, according to data compiled by Reuters.
Of the first group, six of those inmates died awaiting executions in California, which has the largest death row of 746 inmates but has not conducted an execution since 2006.
In 2016, there were 19 non-execution deaths and 20 executions in the United States, according to the Bureau of Justice Statistics.
Bible was sentenced to death in Texas for a string of rapes and murders that started in the Houston area in 1979 and earned him the nickname “ice pick killer” for the weapon he used.
His lawyers now are seeking to halt his execution, saying he is confined to a wheelchair after he fractured his spine in a prison bus crash in 2003 and has coronary artery disease, diabetes and hypertension. “Under the current circumstances, attempts to place IVs in Mr. Bible would be futile and likely result in significant pain and suffering,” his lawyer wrote in their court filing.
The Texas Attorney General’s Office did not respond to a request for a comment, and the Texas Department of Criminal Justice said it had full confidence in its ability to complete Bible’s execution.
Lawyers for the inmates whose lethal injections were aborted in the past year say those cases offer a cautionary tale. The execution of convicted murderer Doyle Hamm, 61 and suffering from terminal cancer and chronic illnesses, was called off in February after medical personnel tried for 2-1/2 hours to place an intravenous line. The effort left Hamm with more than a dozen puncture wounds, court records showed, and came after his lawyers argued that any lethal injection attempt would be futile due to his compromised veins.
Ohio also called off the execution of convicted murder Campbell, 69, because death chamber personnel could not find a suitable vein in the inmate, frail from cancer and other diseases. Campbell died about four months later in prison.
Recent prior related posts:
- Alabama joins Ohio as only modern state to truly botch an execution
- After botched effort last month, Alabama agrees not to try again to execute Doyle Lee Hamm
- Ohio unable to complete execution for elderly murderer once called death penalty “poster child”
- Reviewing Ohio's unique execution difficulties ... which perhaps explains seemingly ho-hum reaction to latest botched Ohio execution
- With death of Alva Campbell, Ohio need no longer worry about trying to execute ill prisoner after first botched attempt
Thursday, June 14, 2018
Kentucky Supreme Court finds state's statute for assessing intellectually disability in capital cases does not comply with Eighth Amendment
As reported in this local article, the "Kentucky Supreme Court ruled Thursday that the state's practice for determining if someone is intellectually disabled and not eligible to receive the death penalty is “unconstitutional” and has established new guidelines." Here is more about the ruling:
The order changing Kentucky’s rules on capital punishment came in the case of Robert Keith Woodall, who was sentenced to death for raping and killing a 16-year-old girl in Greenville two decades ago. The high court ordered a lower court to hold a hearing to determine if Woodall is intellectually disabled, preventing him from being executed.
It is unconstitutional to sentence a mentally disabled person to death – which has been defined in Kentucky as someone with an IQ below 70. However, Kentucky's high court ruled a person cannot be found intellectually disabled simply because they have an IQ of 71 or above. Instead, the justices determined defendants must undergo a “totality of the circumstances test,” including whether they have the ability to learn basic skills and adjust their behavior to circumstances, among other guidelines.
Those standards are in line with guidelines established by the U.S. Supreme Court that take other factors into account, according to the ruling. The federal court, for example, bars states from using a single, strict IQ standard to determine a prisoner's death penalty status.
In its ruling, the Kentucky high court found the state's current law to be “an outdated test for ascertaining intellectually disability." Kentucky was one of only a few states still using the fixed score cutoff to determine mental disability.
The full ruling from the Kentucky Supreme Court is available at this link, and here are few key paragraphs from the majority opinion:
Admittedly, the U.S. Supreme-Court has not provided crystal-clear guidance as to what exactly constitutes a constitutional violation regarding the determination of whether a defendant is intellectually disabled to preclude the imposition of the death penalty. It is also true that the U.S. Supreme Court seems to suggest that a defendant's IQ score, after adjusting for statistical error, acts as the preliminary inquiry that could foreclose consideration of other evidence of intellectual disability, depending on the score.
Two things are clear, however: 1) regardless of some of the statements the U.S. Supreme Court has made, the prevailing tone of the U.S. Supreme Court's examination of this issue suggests that a determination based solely on IQ score, even after proper statistical-error adjustments have been made, is highly suspect; and 2) prevailing medical standards should be the basis for a determination as to a defendant's intellectual disability to preclude the imposition of the death penalty.