Sunday, June 25, 2017

Could mental illness be the next big battle-front in debates over capital punishment?

The question in the title of this post is prompted by this lengthy Washington Post article headlined "He’s a killer set to die. But his mental illness has set off a new death penalty battle."  Here are excerpts:

Someone was trying to kill him. William C. Morva was certain of it.  He couldn’t breathe and he was withering away, he told his mother in a jailhouse call.

“Somebody wants me to die and I don’t know who it is,” he said.  “They know my health is dwindling, okay?” He sounded paranoid. His voice grew more frantic with each call over several months on the recorded lines.

“How much more time do you think my body has before it gives out?” he asked just months before he escaped from custody, killing an unarmed guard and later a sheriff’s deputy before his capture in woods near Virginia Tech’s campus.

Morva faces execution July 6 for the 2006 killings. With the date looming, Morva’s family, friends and lawyers are pressing for clemency from Virginia Gov. Terry McAuliffe (D) in what has become a broader national push to eliminate capital punishment for people with severe mental illnesses such as Morva’s delusional disorder....

The Supreme Court in recent years has ruled that juveniles, whose brains are not fully developed, and people with intellectual disabilities are not eligible for the death penalty.  Lawmakers in eight states, including Virginia, Tennessee and Indiana, have introduced bills that would expand the prohibition to people with severe mental illnesses.

A vote on an Ohio measure pending in the state legislature is expected this fall.  It is backed by a coalition of providers of mental-health services, social justice groups, religious leaders, former state Supreme Court justices and former Republican governor Bob Taft.  The bills address punishment, not guilt or innocence.  If lawmakers in Columbus sign off on the measure, Ohio would become the first state to pass an exclusion for severe mental illness among the 31 that retain the death penalty....

Advocates for reform say the penalty was not intended for people who are incapable of distinguishing between delusions and reality, and that jurors often misunderstand mental illness.  The reformers’ efforts have met with resistance mostly from prosecutors and law enforcement officials who say jurors already can factor in mental illness at sentencing and that the exemptions are too broad.

June 25, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (0)

Friday, June 23, 2017

"People keep voting in support of the death penalty. So how can we end it?"

The title of this post is the notable headline of this notable new commentary by noted death penalty abolitionist Austin Sarat.  The first sentence of the headline highlights an important political reality, and the commentary goes on to review recent political developments and to emphasize the political challenges that abolitionists face.  I recommend the commentary as a modern recap on the state of capital politics and as providing insights on how abolitionists can seek to develop a claim that capital abolition is not anti-democratic.  I found found this little piece of political history especially interesting:

Since the beginning of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once.  From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968, during the height of America’s tough-on-crime, law-and-order era.

In a few of those elections, voters have been asked only to approve technical changes in their state’s death penalty law. In others, like last year in Oklahoma, they had to decide whether to change their state constitutions to protect or reinstate the death penalty.

Sometimes death penalty abolitionists have led the way in pushing for a referendum. More often, especially since 1968, voters have been asked to respond to a legislative, judicial or executive action which threatened to end, or ended, the death penalty. In those circumstances, the issue generally has been put on the ballot by pro-death penalty politicians.

Yet whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.

Let’s consider the three times opponents of capital punishment won. In Oregon, abolitionists prevailed in 1914. But, just six years later, another referendum brought the death penalty back — only to have it voted down again in 1964. Arizona voters rejected the death penalty in 1916, but brought it back in 1918.

Abolitionists have consistently lost in even supposedly progressive states like Massachusetts, which voted in favor of the death penalty in 1968 and 1982.

June 23, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Monday, June 19, 2017

By a 5-4 vote, SCOTUS decides failure of Alabama courts to provide expert mental health assistance to capital defendant was unreasonable

The Supreme Court handed down a notable split decision in a capital case this morning in McWilliams v. Dunn, No. 16-5294 (S. Ct. June 19, 2017)(available here). Justice Breyer authored the opinion for the Court for the usual coalition of Justices most skeptical of application of the death penalty, and that opinion starts this way:

Thirty-one years ago, petitioner James Edmond McWilliams, Jr., was convicted of capital murder by an Alabama jury and sentenced to death.  McWilliams challenged his sentence on appeal, arguing that the State had failed to provide him with the expert mental health assistance the Constitution requires, but the Alabama courts refused to grant relief. We now consider, in this habeas corpus case, whether the Alabama courts’ refusal was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). We hold that it was.  Our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” Id., at 83.  Petitioner in this case did not receive that assistance.

A sharp dissent in McWilliams, which runs longer than the majority opinion, is authored by Justice Alito (and joined by the newest Justice), and it starts this way:

We granted review in this case to decide a straightforward legal question on which the lower courts are divided: whether our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that an indigent defendant whose mental health will be a significant factor at trial is entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.

The answer to that question is plain: Ake did not clearly establish that a defendant is entitled to an expert who is a member of the defense team.  Indeed, “Ake appears to have been written so as to be deliberately ambiguous on this point, thus leaving the issue open for future consideration.” W. LaFave, Criminal Law § 8.2(d), p. 449 (5th ed. 2010) (LaFave).  Accordingly, the proper disposition of this case is to affirm the judgment below.

The Court avoids that outcome by means of a most unseemly maneuver.  The Court declines to decide the question on which we granted review and thus leaves in place conflicting lower court decisions regarding the meaning of a 32-year-old precedent.  That is bad enough.  But to make matters worse, the Court achieves this unfortunate result by deciding a separate question on which we expressly declined review.  And the Court decides that factbound question without giving Alabama a fair opportunity to brief the issue.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

SCOTUS summarily reverses Sixth Circuit reversal of Ohio death sentence

The US Supreme Court this morning issued this order list that did not include any grants of certiorari, but did include a summary reversal in the Ohio capital habeas case of Jenkins v. Hutton, No. 16-1116 (S. Ct. June 19, 2017) (available here).  Here are some key passages from this brief per curiam opinion: 

According to Hutton, the court gave the jurors insufficient guidance [when deciding on whether to recommend a death sentence] because it failed to tell them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase.  Hutton, however, had not objected to the trial court’s instruction or raised this argument on direct appeal, and the District Court on federal habeas concluded that his due process claim was procedurally defaulted....

Nonetheless, the Sixth Circuit held that the [miscarriage of justice] exception justified reviewing his claim. The court gave two reasons: First, Hutton was not eligible to receive a death sentence because “the jury had not made the necessary finding of the existence of aggravating circumstances.” 839 F.3d, at 498–499.  And second, since the trial court “gave the jury no guidance as to what to consider as aggravating circumstances” when weighing aggravating and mitigating factors, the record did not show that the jury’s death recommendation “was actually based on a review of any valid aggravating circumstances.” Id., at 500....

The Sixth Circuit was wrong to reach the merits of Hutton’s claim.... Hutton has not argued that the trial court improperly instructed the jury about aggravating circumstances at the guilt phase.  Nor did the Sixth Circuit identify any such error. Instead, the instruction that Hutton contends is incorrect, and that the Sixth Circuit analyzed, was given at the penalty phase of trial.  That penalty phase instruction plainly had no effect on the jury’s decision — delivered after the guilt phase and pursuant to an unchallenged instruction — that aggravating circumstances were present when Hutton murdered Mitchell.

The Sixth Circuit’s second reason for reaching the merits rests on a legal error.  Under Sawyer, a court may review a procedurally defaulted claim if, “but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.”  505 U.S., at 336 (emphasis added).  Here, the alleged error was the trial court’s failure to specify that, when weighing aggravating and mitigating factors, the jury could consider only the aggravating circumstances it found at the guilt phase.   Assuming such an error can provide a basis for excusing default, the Sixth Circuit should have considered the following: Whether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating circumstances.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Sunday, June 11, 2017

"Are 18-year-olds too immature to face the death penalty?"

The question in the title of this post is part of a headline of this local Kentucky article describing an effort to extend the reach of the Supreme Court's Roper ruling. The article's headline continues with the phrase "Lexington attorney says yes." Here are excerpts from the article:

Fayette Circuit Judge Ernesto Scorsone will soon decide whether to exclude the death penalty for a murder defendant who was 18 when he was charged with murder and robbery.

In a 2005 decision, the U.S. Supreme Court ruled that the execution of people who were younger 18 at the time of their crimes violated the federal constitutional guarantee against cruel and unusual punishments. The defense team for Travis Bredhold wants Scorsone to extend that exclusion to people 21 and younger. Bredhold, 21, was 18 when he was charged Dec. 13 with murder and robbery in the fatal shooting of Marathon gas station attendant Mukheshbhai Patel.

Police said surveillance camera footage indicates that Patel, 51, was trying to comply with a robber’s demand for cash when he was shot. He died later at University of Kentucky Chandler Hospital.

Bredhold was “only five months and 13 days older than the limitation” established by the U.S. Supreme Court, public defender Joanne Lynch said. More importantly, Lynch said, research indicates that people’s brains don’t mature until they are in their mid-20s. The Supreme Court ruled that people who are young and immature and who are likely to be more impulsive are not as culpable as a group and shouldn’t be up for the death penalty.

Bredhold’s defense team is asking to extend the exclusion “because people under the age of 21 are almost completely like people under the age of 18. You really don’t mature until you are in your mid-20s,” Lynch said.

Fayette Commonwealth’s Attorney Lou Anna Red Corn argued during a hearing Friday that there isn’t a “national consensus” on whether to extend the death-penalty exclusion to defendants 21 and younger.

June 11, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (17)

Saturday, June 10, 2017

Is adequate due process for capital cases "arguably impossible"?

The question in the title of this post is prompted by this San Francisco Chronicle editorial complaining about the prospect that the state of California might try to give effect to the voter initiative passed in the Fall, Proposition 66, intended to try to get the state's death penalty operational again.  Here are excerpts from the editorial, headlined "California should not speed up death penalty," which concludes with the phrase quoted in the title of this post:

Voters last fall narrowly approved Proposition 66, which sets a deadline for court review of capital-punishment appeals and takes other steps to restart a capital punishment machine that ground to a halt a decade ago. Fortunately, the state’s Supreme Court justices, who are considering a challenge to the initiative, have expressed appropriate doubts.

Efforts to prevent wrongful or torturous executions have slowed or stopped executions in many states as attorneys wrangle over challenges to convictions, court procedures and killing methods. The delays inevitably suggest one of two diametrically opposed political solutions: ending executions or expediting them. California voters rejected death penalty abolition and supported acceleration.

The constitutional amendment they approved sets a five-year deadline for each of two stages of death penalty appeals, which would shorten the average appeal by several years. With some 750 prisoners on Death Row and a backlog of more than 300 appeals, the justices noted, that would substantially shift court resources toward capital punishment and away from all other cases.

Prop. 66 also attempts to force more defense attorneys to take on capital cases, raising questions about how many of them would be qualified and eager to do so. Another provision would curtail review of lethal-injection procedures; California stopped executions in 2006 amid claims that its drug cocktail caused cruel and unusual punishment, and the state has yet to devise a new protocol.

The trouble with all these execution-efficiency measures is that they add up to an assault on the level of due process the death penalty requires, which is at least extraordinary and arguably impossible.  Barriers to carrying out the death penalty have their roots in serious questions about its irreversibility, arbitrariness and immorality.  Executing prisoners more quickly is exactly the wrong answer to those questions.

I understand all sorts of variations on abolitionist arguments, but I am sometimes troubled this notion that it is "arguably impossible" to provide capital cases with sufficient due process.  Recent high-profile federal and state capital cases involving Dzhokhar Tsarnaev (Boston Marathon bomber) and James Holmes (Aurora mass shooter) provide good examples of mass murderers getting plenty of process. Of course, if a jurisdiction is trying to secure many hundreds of death sentences every year, it is certainly possible (perhaps even likely) that a kind super due process would not be provided in every case.  But still, as long-time readers know well, I generally worry a lot more about lesser criminals not getting much process at all than about modern capital defendants not getting enough procedural protections.

June 10, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (27)

Friday, June 09, 2017

Alabama carries out second execution in as many weeks using midazolam as first lethal injection drug

A couple of weeks ago, as noted here, Alabama carried out the death sentence of Tommy Arthur for a 1982 murder-for-hire.  Last night, as this AP article reports, the state executed a "man convicted of killing three people during the 1994 robbery of an Alabama fast-food restaurant." Here are the basics:

Robert Melson, 46, was pronounced dead at 10:27 p.m. CDT Thursday at a southwest Alabama prison, authorities said. The execution was the state's second of the year. State prosecutors said Melson and another man who used to work at the restaurant, robbed a Popeye's in Gadsden, 60 miles northeast of Birmingham, and Melson opened fire on four employees in the restaurant's freezer. Nathaniel Baker, Tamika Collins and Darrell Collier were killed.  The surviving employee, Bryant Archer, crawled for help and was able to identify one of the robbers as the former worker which led police to Melson.

Collins' family members wore a badge with her photograph and the phrase "In Our Hearts Forever."  Her family issued a statement saying that three young people lost their lives for "a few hundred dollars" and criticized court filings on behalf of Melson that challenged the state's execution procedure as inhumane. Collins' mother and two sisters witnessed the execution. "He has been on death row for over 21 years being supported by the state of Alabama and feels he should not suffer a little pain during the execution. What does he think those three people suffered after he shot them, leaving them in a freezer?" the statement said.

Melson shook his head no when the prison warden asked if he had a final statement.  A prison chaplain knelt with him. Melson's hands quivered at the start of the procedure and his breathing was labored, with his chest moving up and down quickly, before slowing until it was no longer perceptible.

Melson's attorneys had filed a flurry of last-minute appeals seeking to stay the execution.  The filings centered on Alabama's use of the sedative midazolam which some states have turned to as other lethal injection drugs became difficult to obtain.  The U.S. Supreme Court temporarily delayed the execution to consider Melson's stay request, but ruled after 9 p.m. that the execution could go forward....

"Robert Melson's decades-long avoidance of justice is over. For twenty-three years, the families of the three young people whose lives he took, as well as a survivor, have waited for closure and healing. That process can finally begin tonight," Attorney General Steve Marshall said in a statement after the execution.

I have stressed in my post title the drug Alabama has used in its recent executions in part because that drug is sure to be at the center of discussions next week when the full en banc Sixth Circuit considers a current stay on Ohio executions based in part on concerns with the use of the drug midzolam. For basic background on that story, one can check out these posts:

June 9, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5)

Monday, June 05, 2017

Gearing up for big state court argument on the state and fate of California's death penalty

The San Francisco Chronicle has this new article about the new issues the California Supreme Court is facing concerning the state's old death penalty problems. The piece is headlined "State high court ruling on death penalty could restart executions<" and here are excerpts:

The California Supreme Court hears many high-stakes cases on issues such as individual rights, taxes, and the lawmaking powers of the state and its voters. But it has seldom confronted a case with such potentially dramatic consequences as Tuesday’s hearing on the Proposition 66 death-penalty initiative.

If the court — traditionally deferential to the will of the voters — upholds the central provisions of Prop. 66, it will open the door to the resumption of executions in a state that last put a prisoner to death in January 2006. Nearly 750 condemned inmates inhabit the nation’s largest Death Row, and about 20 have run out of appeals to their conviction and sentence.

Prop. 66 also seeks to speed up future executions, in part by requiring the state’s high court to decide all death-penalty appeals within five years of sentencing — more than twice its current pace. If the court upholds that requirement, one of the most hotly contested in the case, it may have to reconfigure itself as a tribunal that gives priority to capital cases over all other types of criminal and civil law disputes in the nation’s most populous state.

California has long been what one expert calls a "symbolic death penalty state," one of 12 that has capital punishment on the books but has not executed anyone in more than a decade. Prodded by voters and lawsuits, the nation's most populous state may now roll back toward allowing executions, though observers are split on how quickly they will resume, if at all.

The justices could reject the deadlines while upholding other Prop. 66 provisions aimed at shortening the death-penalty process, such as limiting prisoners’ appeals and requiring more lawyers to accept capital cases. But opponents say the proposed timetables for court action are the heart of an initiative that seeks to hamstring judicial authority over state law.

Neither lawmakers nor voters can “force the courts to prioritize a certain type of case at the expense of all other types of cases,” said Christina Von der Ahe Rayburn, a lawyer in the suit to overturn Prop. 66. The requirement to move death cases to the front of the line, she said, would “impair the court’s inherent function of giving fair and equal treatment to (all) litigants.”

Not so, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and an author of Prop. 66. He said the measure would actually relieve the state Supreme Court of some of its current death-penalty workload by transferring some hearings to trial courts. It sets a five-year deadline that he says the court could meet if it eliminated needless delays. “If our side wins, we can get back to having a death penalty that actually works and really see some executions being carried out,” probably before the end of this year, said Scheidegger, who will argue in defense of the measure along with Attorney General Xavier Becerra’s office at the hearing in Los Angeles.

Rayburn said an unrelated federal court case would probably delay any executions in California by at least six months, even if Prop. 66 were upheld. If the court overturns most or all of the initiative, executions will remain on hold for a year or longer as challenges to proposed new lethal-injection procedures work their way through state and federal courts....

Prop. 66 passed with 51 percent of the vote on the same November ballot in which a rival measure to repeal the death penalty in California was rejected by about seven percentage points, nearly twice the margin of defeat for a similar measure in 2012. While the votes were close, the message seemed clear: Californians want the death-penalty law enforced.  But the far-reaching provisions of Prop. 66, which received little attention during the campaign, have evidently raised concerns among the justices, who put the measure on hold while they consider a lawsuit seeking to overturn it....

Another provision of the measure seeks to expand the pool of defense lawyers by requiring attorneys to take capital cases if they already accept court appointments to represent defendants in other criminal cases.  Supporters say the change would ease the shortage of available lawyers, one of the chief reasons appeals take so long.  Opponents say it would put condemned inmates’ fates in the hands of unqualified lawyers and prompt many lawyers to refuse future assignments.

Prop. 66 would also speed up the state’s switch from three-drug executions, in use from 1996 to 2006, to lethal injections of a single barbiturate. Gov. Jerry Brown’s administration proposed procedures for one-drug executions last year in settlement of a lawsuit by relatives of murder victims.  Prison officials are still reviewing those procedures under a long-standing law that requires them to consider public comments.  The commenters have included organizations that say the proposed drugs are untested in executions and the procedures are unreliable....

Two of the court’s seven justices, Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, have removed themselves from the case because they are members of the state’s Judicial Council....  Their replacements are two randomly selected appeals court justices, Andrea Hoch of the Sacramento court, an appointee of Gov. Arnold Schwarzenegger, and Raymond Ikola, appointed to the court in Santa Ana by Gov. Gray Davis.

June 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, June 03, 2017

"Is the death penalty dying in Dallas County?"

The question in the title of this post is the headline of this local article which documents a trend that leads me to think that the death penalty is never again likely to be a significant part of American criminal justice systems (if it every really was in the recent past).  Here are excerpts:

The crimes were heinous but Dallas County jurors couldn't condemn the convicted killers. A college student killed three people at a drug house in a premeditated robbery. A former special education teacher and U.S. Army veteran killed his girlfriend, her teenage daughter, his estranged wife, her adult daughter and severely wounded four children in a two-city rampage.

But neither killer received the death penalty, a punishment reserved for the "worst of the worst." Statewide, juries have declined death sentences in nearly half of the cases presented to them in the past two years.

So, what does it take to win a death penalty sentence? "You gotta be perfect probably these days," said Edwin King, a special prosecutor in one of the Dallas County cases.

Jurors couldn't agree to the death sentence in the two recent capital murder trials. They were the first Dallas County cases in which the state sought the death penalty since 2014.

The decision to seek the death penalty is based on the the severity of the crime, criminal background and what the victim's family wants, said Dallas County District Attorney Faith Johnson. "Our office only seeks the death penalty in the most heinous and serious of crimes," Johnson said....

"Even in Texas, the death penalty is dying," said Jason Redick of the Texas Coalition Against the Death Penalty. In the 15 death penalty cases tried in Texas since 2015, jurors have sent only eight men to death row. Death sentences peaked in the 1990s. Between 2007 and 2013, Dallas County led the state in defendants sent to death row. During that time, the county sentenced 12 people to death. Executions in Texas are also declining because of legal reforms that give prisoners more chances to have their sentences reviewed.

Jurors are only selected after they agree that they can give the ultimate punishment. Even so, they appear to be split on the issue in recent years. "We know these aren't folks who are anti-death penalty folks," Redick said. "At one point, they said they could hand out a death sentence."

June 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Thursday, June 01, 2017

"Will the Death Penalty Ever Die?"

The title of this post is the title of this new article in The New York Review of Books authored by Judge Jed Rakoff and reviewing of the book "Courting Death: The Supreme Court and Capital Punishment" by Carol and Jordan Steiker. Here is the intriguingly personal start to what then becomes a fairly standard review of the modern death penalty debate:

When my older brother Jan David Rakoff was murdered in 1985, bolts of anger and outrage not infrequently penetrated the black cloud of my grief.  Though I knew almost nothing about Jan’s confessed murderer except his name, I wished him dead.

My brother, aged forty-four, had just begun to come into his own.  His innovative educational theories were starting to attract attention, and, just as important, he had come to terms with his homosexuality, which for many years he had struggled to suppress.  While on a trip to Manila, he engaged the services of a male prostitute, but at the end they quarreled over money.  In a fit of rage, the prostitute assaulted my brother with a pipe burner and an ice pick, bludgeoning and stabbing him to death.  To cover his tracks, the prostitute then set fire to the bungalow where my brother was staying; but the smoke attracted the attention of a security guard, who apprehended the fleeing assailant.  Later that evening, the prostitute provided a full written confession.

When my brother’s body arrived back in the United States, his face and head were barely recognizable, so vicious had been the assault.  My heart cried out for vengeance. Although the death penalty was then available in the Philippines, the defendant, taking full advantage of a corrupt legal system, negotiated a sentence of just three years in prison.  Had, instead, the prosecutor recommended the death penalty, I would have applauded.

It took many years before I changed my mind.

The law professors Carol S. Steiker and Jordan M. Steiker (sister and brother) have written a revealing book about the history of the death penalty in the US and, in particular, the continued difficulties the Supreme Court has had in attempting to regulate capital punishment so that it conforms to constitutional standards.  If I have a criticism of their otherwise trenchant account, it is of their failure to give more than passing attention to the moral outrage that provides much of the emotional support for the death penalty — outrage felt not only by the family and friends of a murder victim, but also by the many empathetic members of the public who, having learned the brutal facts of the murder, feel strongly that the murderer has forfeited his own right to live.

For the Steikers, the debate over the death penalty is “first and foremost” a symbolic battle over cultural values, with a strong current of racism running just below the surface.  This may well be true, but unless one acknowledges that rational human beings can feel such revulsion at the taking of an innocent life as to wish the taker dead, one misses part of the reason that the death penalty continues to enjoy significant popular support, even in many of the states and countries that have banned it.

June 1, 2017 in Death Penalty Reforms | Permalink | Comments (5)

Saturday, May 27, 2017

"What will happen to Pennsylvania's death penalty?"

The title of this post is the headline of this lengthy local article. Here are excerpts:

Five times a year, Pennsylvania corrections officials meet inside a white block masonry field house on the grounds of the prison near Penn State, and carry out a mock execution. They escort the “inmate” to the execution chamber. They strap that person onto the gurney. And then they simulate injecting a lethal dose of drugs into his body.

They perform this drill even though capital punishment in the commonwealth remains indefinitely on hold while government officials await a report, now years in the making, analyzing capital punishment’s history, effectiveness and cost in Pennsylvania.

The death sentence imposed last month on Eric Frein, the Poconos survivalist who killed a State Police trooper and injured another in September 2014, has reignited questions – and in some cases, criticism – about why the state has taken so long to decide whether to continue or stop, once and for all, executing criminals....

And state Sen. Scott Wagner, a York County Republican hoping to unseat the governor next year, has signaled it’s an issue he’ll press on the campaign trail. “I can assure you, when I’m governor, within the first 48 hours, I’ll be up there reversing that moratorium,” Wagner said in an interview Friday....

In Pennsylvania, ... Wolf, a Democrat, [imposed] a moratorium on the death penalty after taking office in early 2015. He argued the state should await the results of a long-awaited report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment before putting any more criminals to death. The report is expected to analyze more than a dozen factors involving the death penalty, such as cost, bias and effectiveness.

Wolf’s decision has drawn backlash from organizations like the Pennsylvania District Attorneys Association, which in 2015 called it “a misuse of [the governor’s] power” that ignores the law. The study itself has also come under fire, particularly for how long it’s taking to complete: It was ordered up by the state Senate in 2011 and was supposed to be completed by 2013....

Meanwhile, tax dollars still go toward keeping prisoners on death row. Each of the state’s 165 death row inmates — from Frein, who was sentenced last month, to Henry Fahy, who has been awaiting his punishment since November 1983 — cost Pennsylvania $10,000 more a year to house than a convict sentenced to life in prison. This does not account for the additional legal fees associated with capital cases: Some estimate prosecuting and litigating a capital murder case can cost up to $3 million more than a non-capital murder case....

“We have spent billions of dollars having a death penalty – including maintaining a death facility – and we have not executed someone who did not ask to be executed” since 1962, Sen. Daylin Leach, a Montgomery County Democrat and one of four members of a Senate task force awaiting the report, said last week. Leach is an unapologetic opponent of the death penalty. He has introduced bills to abolish it since 2009, arguing that it is “immoral and barbaric,” and calling the cost of capital punishment “troubling” – including the cost of maintaining the execution complex.

May 27, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Friday, May 26, 2017

Alabama finally carries out death sentence for Thomas Arthur

As reported here by CNN, "Alabama executed death row inmate Tommy Arthur early Friday after a lengthy court battle that included multiple lethal injection delays." Here is more:

Arthur, 75, was convicted in the 1982 murder-for-hire of romantic rival Troy Wicker. The inmate, who was nicknamed the "Houdini" of death row because he'd had seven prior execution dates postponed, died by lethal injection at the Holman Correctional Facility at Atmore.

The Supreme Court issued a temporary stay Thursday, then lifted it later that night, leading to his execution.

"No governor covets the responsibility of weighing the merits of life or death; but it is a burden I accept as part of my pledge to uphold the laws of this state," Gov. Kay Ivey said in a statement. "Three times Tommy Arthur was tried, convicted, and sentenced to death. Each time his case was reviewed thoroughly at every level of both our state and federal courts, and the appellate process has ensured that the rights of the accused were protected."

Arthur's lawyers had filed motions arguing that Alabama's method of execution was cruel and unusual, and that the attorneys should have access to a cellphone while witnessing the execution. Before the Supreme Court decision, stay requests had been rejected by the 11th US Circuit Court of Appeals, the Alabama Court of Criminal Appeals and the governor....

Arthur was convicted of killing Wicker of Muscle Shoals by shooting him in the right eye on February 1, 1982, according to court documents. He was a work release prisoner at that time. He had been convicted of killing his sister-in-law in 1977, also by shooting her in the right eye.

May 26, 2017 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (7)

Thursday, May 25, 2017

"Capital Punishment and the Courts"

The title of this post is the title of this commentary/book review authored by Jonathan Mitchell and available via SSRN. Here is the abstract:

In Courting Death, Professors Carol Steiker and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s capital-punishment jurisprudence.  They present data and anecdotes showing that capital punishment today is no less “arbitrary” than it was before the Supreme Court started regulating capital punishment in 1972 — leaving us with a regime that imposes costly, arcane, and highly technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking.  The Steikers also observe that many of these court-created doctrines suffer from vagueness and indeterminacy.  And they even suggest that the Supreme Court’s efforts to restrict the death penalty have had the paradoxical effect of strengthening and entrenching the institution of capital punishment.

Yet the pathologies with the Court’s capital-punishment doctrines go even beyond what the Steikers have identified.  The Court’s “proportionality” doctrine, for example, rests on a non sequitur: That capital punishment is rarely applied to juveniles or people with mental disabilities does not indicate that a national consensus exists against any use of capital punishment in those situations.  It is also wrong for the Court to infer “evolving standards of decency” from a state’s decision to establish minimum age or IQ thresholds for the death penalty.  Governments often choose to legislate by rule for reasons that have nothing to do with standards of decency.  Finally, the Court’s “proportionality” doctrine creates perverse incentives for prosecutors and elected officials, because it threatens to eliminate capital punishment across the board — or at least as applied to specified categories of offenders — unless the government produces enough executions to defeat a claim that a death sentence is no longer consistent with “evolving standards of decency.”  The Steikers are right to criticize the Court’s efforts to regulate capital punishment, but the problems go beyond what they identify in their thorough and comprehensive book.

May 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, May 24, 2017

After nearly 35 years, is Alabama finally going to carry out death sentence in case showcasing capital punishment's myriad difficulties?

As detailed in this New York Times piece, headlined "Alabama Inmate Hopes to Dodge Death for an Eighth Time," an execution scheduled for tomorrow in Alabama is notable for many reasons. Here is the Times accounting of some of these reasons:

Tommy Arthur, who was first sentenced to death in 1983, has long imagined what could be his end: time in a so-called death cell, a choice of a last meal, the final telephone calls and then a lethal injection.  That end could come Thursday, his eighth execution date in a case that has spanned the tenures of eight Alabama governors, starting with George Wallace.  If it does, it will conclude a legal odyssey that quietly became, for death penalty supporters and critics alike, a symbol of the troubles of the capital punishment system in the United States.

“It’s one of those cases in which nobody is happy,” said Robert Dunham, the executive director of the Death Penalty Information Center, a research group that has voiced concerns about the application of capital punishment.  “People who simply want the execution are unhappy because of the passage of time,” he said.  “People who oppose the death penalty are unhappy because they don’t want Tommy Arthur executed. People who want fairness are unhappy because, despite the length of time this case has been in the courts, the process has never been fair.”

In Alabama, where 58 people have been put to death since Mr. Arthur was sentenced for the 1982 murder of Troy Wicker, the most pressing issue these days seems to be how long it takes to carry out capital sentences.  If Mr. Arthur, 75, is executed on Thursday, his death will come one week after the Legislature gave final approval to a plan to reduce the length of appeals in capital cases....

Mr. Arthur confessed to one murder but was given a death sentence for a second that he insists he did not commit.  In regards to the latter, the state authorities contend that Mr. Wicker’s wife, Judy, hired Mr. Arthur, her lover, to carry out the killing so she could collect an insurance payout.  Ms. Wicker, who was found guilty and spent about a decade in prison before being released on parole, ultimately testified against Mr. Arthur, who was on work release from a life sentence for another killing when Mr. Wicker was murdered. (A woman who answered the phone at a number connected to Ms. Wicker hung up on a reporter.)

Near the end of a trial in the early 1990s, Mr. Arthur proclaimed his innocence but asked for a death sentence that he said would allow him greater opportunities for appeal. “I will not be executed,” Mr. Arthur said, according to a transcript of the proceedings.  “I’m totally positive of that. I wouldn’t dare ask you for it if I thought for a minute that I would be executed.”

He had already won two new trials by then. In the years that followed, Mr. Arthur’s case began to stand out to some scholars and lawyers because he so frequently staved off scheduled executions.  Mr. Arthur, whose lawyers have not raised intellectual disability or mental health claims, maintained his innocence and sought new forensic testing of evidence.  He argued his sentence was unconstitutional and that his claims of ineffective counsel were never fully considered.  He raised questions about Alabama’s execution methods, including a challenge to a lethal injection drug, midazolam.

Another prisoner once admitted to Mr. Wicker’s murder, but a judge found that Mr. Arthur and the inmate had “engaged in an attempt to defraud” the court with a false confession.  A defense lawyer for Mr. Arthur, Suhana S. Han, said that litigation had still not led to a full airing of the facts and rulings on the merits of Mr. Arthur’s claims of innocence.  Instead, Mr. Arthur’s supporters see a government increasingly desperate to put a man to death....

State officials regard Mr. Arthur as someone who will do anything to avoid his death sentence.  “I think there’s just an attitude by the other side to basically file anything that they can whether it has any merit or not,” said Clay Crenshaw, chief deputy attorney general and a former leader of his office’s capital litigation division. “I think he and his lawyers have successfully manipulated the system.”...

Alabama has moved to limit the risk of protracted cases in the future, and on Friday, Gov. Kay Ivey is scheduled to sign a measure requiring capital defendants to pursue their direct and post-conviction appeals simultaneously in the state’s courts. Under existing law, defendants have been allowed to bring a new appeal after an earlier effort failed.

The Alabama attorney general, Steven T. Marshall, said the proposed changes, similar to provisions already in force in at least four other states, would benefit people affected by capital crimes without trampling on constitutional rights.  “This is victim-driven for us,” Mr. Marshall said.  “We’ve heard the stories. We’ve seen the anguish. Victims do not sense, in a capital setting, that their voices are heard fully.  This is an opportunity for us as a state to be able to say that we’re going to allow defendants to have their fair opportunity to be heard in court for their claims to be evaluated, but we’re going to do it in a timely way.”

But Mr. Dunham of the Death Penalty Information Center, who noted that 60 percent of death row exonerations since 2012 involved cases at least 20 years old, suggested that quickening the pace to the death chamber would very likely lead to more executions of innocent people.  In 2015, Alabama released an innocent man, Anthony Ray Hinton, after he spent almost 30 years on death row; the state had spent years resisting demands that investigators conduct new tests on an alleged murder weapon.  “This is not about having more efficient judicial review,” Mr. Dunham said. “This is about expediting executions at the expense of fairness and accuracy.”

The Arthur case only lurked in the background of the legislative debate, but Mr. Marshall, a local prosecutor until February, acknowledged that Mr. Arthur’s history had long attracted attention.  “It’s the example of how the system has failed victims, and how he’s manipulated, through various filings, the court system to delay what should have occurred long ago,” Mr. Marshall said.

May 24, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, May 19, 2017

"An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases"

The title of this post is the title of this new paper authored by Lauren Sudeall Lucas now available via SSRN.  Here is the abstract:

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty.  More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability.  Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove their intellectual disability beyond a reasonable doubt at the guilt phase of the trial to be legally exempted from execution.

This article is the first to provide an empirical assessment of Georgia’s “guilty but mentally retarded” (GBMR) statute, including its beyond a reasonable doubt standard of proof.  In doing so, it fills a critical gap not only in the scholarly literature on the subject, but also for those who continue to litigate the issue.  Its analysis reveals that no defendant facing the death penalty in Georgia has ever received a GBMR verdict for malice murder from a jury in the statute’s nearly thirty-year existence.  Prior to Atkins, only one capital defendant had ever received a GBMR jury verdict at trial, in a felony-murder case, by meeting this extremely high standard of proof, thus exempting herself from the death penalty.

The absence of any successful GBMR jury verdict in a malice murder case and the absence of any successful GBMR verdict in any capital case post-Atkins, in combination with Georgia’s lone status in imposing such a procedure, all contribute to the argument that the beyond a reasonable doubt standard, and the jury’s decision regarding intellectual disability in the guilt phase create, in the words of the Court, an “unacceptable risk” that capital defendants with intellectual disability will be executed in violation of the Eighth Amendment.

May 19, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, May 16, 2017

In last-minute appeal, condemned Georgia inmate urges extension of bar on juve capital punishment to those under 21

As reported here, "a Georgia inmate scheduled to be executed Tuesday has filed an appeal with the U.S. Supreme Court arguing that it is wrong to sentence an offender less than 21 years old to death."  Here is more on the effort to halt an execution scheduled to take place a quarter century after the crime:

J.W. "Boy" Ledford Jr., now 45, was 20 years old when he was sentenced to death after being convicted of killing a doctor who had given him a ride in Georgia in 1992. Ledford is scheduled to be the first Georgia inmate executed in that state this year. The Georgia Supreme Court earlier Tuesday declined to halt the execution.

"Intelligence testing shows Ledford to have, at best, borderline intellectual functioning," attorneys for Ledfrod wrote in their petition to the U.S. Supreme Court. It argues that the execution violates would violate Eight Amendment protections against cruel and unusual punishment and 14th Amendment guarantees of due process.

The petition argues that other rulings barring the death penalty for juvenile offenders apply to those who commit crimes from the ages of 18 to 21 — "a period in life during which, new scientific investigation forcefully shows, individuals suffer from the same impairments in judgment and self-control that prompted this Court to ban the application of capital punishment to juvenile offenders."

Ledford killed Dr. Harry Johnston after the physician gave him a ride, leaving the victim nearly decapitated. He then went to the doctor's home and tied up and robbed his wife. She has since died.

Lawyers for the state said the argument that Ledford was too young to be sentenced to death had not been raised before. The state said arguments of "evolving standards of decency" about the age of sentenced offenders are vague, and laws about juveniles don't apply to Ledford's case.

Ledford had previously argued that a firing squad would be a more humane way to die than the lethal injection planned by the state. A federal appeals court on Monday denied a request for a stay of execution.

UPDATE: As reported here, "Georgia carried out its first execution of the year early on Wednesday, putting to death a man convicted of killing a 73-year-old neighbor in 1992. J.W. Ledford Jr., 45, was pronounced dead at 1:17 a.m. at the state prison in Jackson, more than six hours after his initial execution time. The delay was waiting for a ruling from the U.S. Supreme Court, which denied his request for a stay."

May 16, 2017 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (10)

Saturday, May 13, 2017

"Courting Abolition"

The title of this post is the title of this new book review authored by Deborah Denno and now available via SSRN. Here is the abstract:

Forty-five years ago capital punishment was nearly eliminated in Furman v. Georgia, where the Supreme Court held that the imposition of the death penalty in the cases before it violated the Eighth and Fourteenth Amendments.  The Furman Court’s abrogation was short-lived, however.  The 1976 decision of Gregg v. Georgia ended the 1967–1976 moratorium that had existed on executions by ruling that the death penalty was not a per se violation of the Eighth Amendment and by upholding newly passed, guided-discretion statutes.  As Professors Carol Steiker and Jordan Steiker contend in their book, Courting Death: The Supreme Court and Capital Punishment, the Supreme Court’s subsequent efforts to entrench capital punishment have involved the Court’s “top-down” regulation of states’ application of the death penalty by enforcing federal constitutional law, thereby attempting to establish a middle ground between completely abolishing capital punishment and allowing it to run amok.  According to the Steikers, this “experiment” with the death penalty has failed due to the Court’s cumbersome and complex regulatory mechanisms.

Courting Death, which builds on the authors’ prior work from their 1995 article, Sober Second Thoughts, as well as their report to the American Law Institute, is a markedly compelling book that captures the complicated story of the death penalty and explores the factors that would both shape and stymie capital punishment’s future.  The book includes a detailed history of the death penalty in the United States, its deep connection with southern racial oppression and the factors that prompted national judicial regulation, as well as the shortcomings and issues created by that regulation.

This Review of Courting Death offers a different take on two of the Steikers’ major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty.  The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge.  In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers’ prediction — that, when abolition seems right, it will come by way of a “Furman II” Supreme Court decision — to readily comport with the death penalty’s trajectory over the last fifty years.

May 13, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, May 11, 2017

Eleventh Circuit rejects effort to attack Alabama's lethal injection by suggesting hanging or firing squad as alternative execution methods

As reported in this local article, "condemned inmate Anthony Boyd asked the state of Alabama to carry out his execution by either hanging him or putting him in front of a firing squad. But the federal appeals court in Atlanta on Tuesday rejected Boyd’s request and cleared the way for his execution by lethal injection."  The Eleventh Circuit's lengthy ruling in Boyd v. Warden, No. 15-14971 (11th Cir. May 9, 2017) (available here), gets started this way:

It is by now clear in capital cases that a plaintiff seeking to challenge a state’s method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state’s planned method of execution.  Appellant Anthony Boyd, an Alabama death row inmate, appeals the district court’s dismissal of his federal civil rights lawsuit challenging the constitutionality of Alabama’s lethal injection protocol.  Boyd filed this lawsuit pursuant to Section 1983, alleging, among other things, that Alabama’s new lethal injection protocol, which substituted midazolam hydrochloride for pentobarbital as the first of three drugs, violates his Eighth Amendment right to be free from cruel and unusual punishment.  Notably, however, he did not allege that execution by a lethal injection protocol generally is unconstitutional.  Currently, Alabama law provides inmates sentenced to death with a choice between two methods of execution: lethal injection or electrocution. Instead of identifying an alternative method of lethal injection that would be feasible, readily implemented, and substantially less risky than the midazolam protocol or opting for death by electrocution, however, Boyd alleged that Alabama should execute him by hanging or firing squad.

The district court determined that Boyd had failed to state a claim under the Eighth Amendment because Boyd’s proposed alternative methods of execution -- firing squad and hanging -- are not authorized methods of execution under Alabama law and, therefore, are neither feasible nor readily implementable by that state.  It further held that Boyd’s remaining claims challenging Alabama’s execution protocol, the execution facilities, and the state’s decision to keep certain information about the protocol secret were time-barred by the statute of limitations.  Finally, the district court ruled that amending these claims would be futile and dismissed Boyd’s complaint.

We agree with the district court that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain.  The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution.  But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses an unconstitutional risk of pain.  Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.  We also agree that Boyd’s remaining claims were filed well beyond the two-year statute of limitations governing § 1983 claims in Alabama.  Accordingly, we affirm.

May 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, May 08, 2017

A lethal Ohio procedural question: are there any formal rules on when new circuit judges are to be involved in pending en banc matters?

The question in the title of this post came to mind this morning in the wake of the news that, as discussed here, two of President Trump's latest judicial nominees are slated to fill open slots on the Sixth Circuit: Justice Joan L. Larsen and John K. Bush.   As noted here a few months ago, Prez Trump's very first circuit court nomination was also to the Sixth Circuit via the naming of Judge Amul Thapar.  Assuming relatively swift and successful confirmations, the Sixth Circuit could have three new judges within the next few months.

Meanwhile, as regular readers may recall from this post, also scheduled to take place in the next few months in the Sixth Circuit is the rehearing en banc the State of Ohio's appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  The Sixth Circuit has scheduled oral argument on these matters for June 14, and the full court will probably try to issue a ruling in the matter not too long thereafter given that Ohio has a long-postponed execution now scheduled for July 26.

I am inclined to guess that Judge Thapar — who has already coasted through his confirmation hearing — will be a member of the Sixth Circuit by the time of the en banc oral argument in June.  Given that Justice Gorsuch at SCOTUS has apparently been fully participating in cases in which oral argument took place after the time he joined the Court, I would further guess that everyone will think Judge Thapar can and should fully participate in the Sixth Circuit's en banc consideration of Ohio's lethal injection protocol if he is there in time for oral argument.

But what should happen if Justice Larsen and/or Mr. Bush are both confirmed in, say, late June.  Could they and should they be involved in the consideration of these lethal Ohio matters?   Adding to the potential intrigue and head-counting is the fact that I believe Judge David McKeague is technically now still an active judge, but will be only until his successor if confirmed. Arguably, Judge KcKeague should not be part of the en banc decision-making once and whenever Justice Larsen gets confirmed to the Sixth Circuit.

Perhaps the Sixth Circuit has some clear rules on these kinds of en banc transition issues, and I would welcome any and all input from knowing en banc mavens.  In addition, it is quite possible that there are sufficient votes currently on the Sixth Circuit one way or the other to make these transition issues relatively inconsequential to the outcome in this important en banc case.  Still, when it comes to review of lethal injection protocols or just about anything else dealing with the death penalty, it does not seem that anything ever really becomes inconsequential.  

(In addition, and surely not to be overlooked as the buzz over another SCOTUS retirement grows, if and when Judge Thapar and Justice Larsen join the Sixth Circuit, this court will have three of the remaining 20 persons from Prez Trump's SCOTUS short lists.  This fact alone makes anything the Sixth Circuit does in the coming months even that much more interesting.)

Prior recent related posts:

May 8, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Sunday, May 07, 2017

Reflecting on decreasing death sentences and increasing life sentences

The Washington Post has this "trendy" article headlined "The steady decline of America’s death rows," which reviews some of the latest notable numbers about death sentences and executions and also throws in a paragraph about life sentences based on this week's new Sentencing Project report on the topic (discussed here).  Here are excerpts:

Capital punishment in the United States is slowly and steadily declining, a fact most visible in the plummeting number of death penalties carried out each year.  In 1999, the country executed 98 inmates, a modern record for a single year.  In 2016, there were 20 executions nationwide, the lowest annual total in a quarter-century.

Death sentences also sharply declined. Fewer states that have the death penalty as a sentencing option are carrying out executions, a trend that has continued despite two U.S. Supreme Court rulings in the past decade upholding lethal injection practices. States that would otherwise carry out executions have found themselves stymied by court orders, other legal uncertainty, logistical issues or an ongoing shortage of deadly drugs. Fewer states have it on the books than did a decade ago, and some that do retain the practice have declared moratoriums or otherwise stopped executions without formally declaring an outright ban....

Another way to see the changing nature of the American death penalty: The gradual decline of death row populations. At the death penalty’s modern peak around the turn of the century, death rows housed more than 3,500 inmates. That number is falling, and it has been falling for some time. New Justice Department data show that death-row populations shrank in 2015, marking the 15th consecutive year with a decline.

There were 2,881 inmates on state and federal death rows in 2015, the last year for which the Justice Department has nationwide data available. That was down 61 from the year before.  States carried out 28 death penalties in 2015, but nearly three times as many inmates — 82 — were removed from death rows “by means other than execution,” the Justice Department’s report states. (Another 49 inmates arrived on death row in 2015.)

In some cases, inmates left death row after being cleared of the crimes for which they were sentenced. Five people sentenced to death were exonerated in 2015, according to the National Registry of Exonerations, a project of the University of Michigan Law School and the Northwestern University School of Law. Other inmates died of other causes before their executions could occur. In Alabama, three inmates died of natural causes in 2015 and a fourth hanged himself that year inside a prison infirmary, according to corrections officials and local media reports. North Carolina officials say one death-row inmate died of natural causes that year, another was resentenced to life without parole and a third had his death sentence vacated and a new trial ordered. Death sentences were thrown out in some cases. Four death-row inmates in Maryland had their sentences commuted to life in prison without parole in 2015, a decision made by then-Gov. Martin O’Malley after that state formally abolished the death penalty....

Another shift also has occurred: The number of people sentenced to life in prison has ballooned, reaching an all-time high last year, according to a report released this week from the Sentencing Project. The report states that more than 161,000 people were serving life sentences last year, with another 44,000 people serving what are called “virtual life sentences,” defined as long-term imprisonment effectively extending through the end of a person’s life. Similar to overall prison populations, people of color are disproportionately represented; black people account for nearly half of the life or virtual-life sentences tallied in the report.

Long-time readers likely know that these numbers provide one of the primary reasons why I have long worried that some criminal justice reforms advocates worry far too much about capital punishment and worry far too little about extreme prison sentences.  The fact that there are seven times as many persons serving life sentence as are on death row leads me to believe that nearly any and every concern raised about death sentencing may well be a problem of far greater magnitude with respect to lifers.

Most critically for those concerned about proportionate sentencing, every one of the almost 3000 persons on death row is an adult who was convicted of some form of aggravated murder and had a chance to argue to a jury for a lesser sentence.  But, according to the Sentencing Project data, nearly "12,000 people have been sentenced to life or virtual life for crimes committed as juveniles" and over "17,000 individuals with [some kind of life sentence] have been convicted of nonviolent crimes" and a significant percentage of lifers were subject to a mandatory sentencing scheme that required imposition of a severe prison sentence without any input by a jury or a judge.  

Though I fully understand why the death penalty has so much salience for both advocates and the general public, I still wish some portion of the extraordinary attention and energy always given to capital punishment might be redirected toward lifer laws, policies and practices.  

May 7, 2017 in Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5)

Monday, May 01, 2017

Ohio Gov Kasich officially pushed back nine executions as lethal injection litigation comes before en banc Sixth Circuit

As noted in this post, last week the en banc Sixth Circuit took up the current stay in Ohio blocking executions, but set oral argument for a month after Ohio's scheduled execution.  Thus, unsurprisingly and as reported in this local piece, "execution dates for nine death row inmates have been delayed while the state continues its appeal of a court decision blocking use of its lethal injection protocol."  Here is more:

Nine executions were pushed back in a revised schedule released Monday by Gov. John Kasich. The next execution, of Akron child killer Ronald Phillips, was rescheduled for July 26.

On Jan. 26, a federal magistrate judge found the state's three-drug injection cocktail to be unconstitutional and stayed the next three executions. A three-judge panel for the U.S. 6th Circuit Court of Appeals agreed with the lower court and kept the stay in place. The full Cincinnati appeals court last week agreed to rehear the state's appeal. A hearing has been set for June 14.

The state had planed to execute Phillips and Gary Otte, who killed two people to death in back-to-back robberies in Parma, before that date. Otte's execution was moved to Sept. 13. The state has scheduled 33 executions through March 2021.

I think it reasonable for Gov. Kasich to expect the full Sixth Circuit to rule on the state's execution protocol within roughly a month after hearing oral argument.

Prior recent related posts:

May 1, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, April 29, 2017

"Is the death penalty un-Christian?"

The question in the title of this post is the headline of this recent commentary authored by Mathew Schmalz, ans Associate Professor of Religion at the College of the Holy Cross and published in The Conversation. Here are excerpts:

As a Catholic scholar who writes about religion, politics and policy, I understand how Christians struggle with the death penalty -- there are those who cannot endure the idea and there are others who support its use.  Some Christian theologians have also observed that capital punishment could lead to the conversion of criminals who might repent of their crimes when faced with the finality of death.

Is the death penalty anti-Christian?

In its early centuries, Christianity was seen with suspicion by authorities.  Writing in defense of Christians who were unfairly charged with crimes in second-century Rome, philosopher Anthenagoras of Athens condemned the death penalty when he wrote that Christians “cannot endure even to see a man put to death, though justly.”  But as Christianity became more connected with state power, European Christian monarchs and governments regularly carried out the death penalty until its abolition in the 1950s through the European Convention on Human Rights....

In the Hebrew Bible, Exodus 21:12 states that “whoever strikes a man so that he dies shall be put to death.” In Matthew’s Gospel, Jesus, however, rejects the notion of retribution when he says “if anyone slaps you on the right cheek, turn to him the other also.”  While it is true that the Hebrew Bible prescribes capital punishment for a variety of offenses, it is also true that later Jewish jurists set out rigorous standards for the death penalty so that it could be used only in rare circumstances.

At issue in Christian considerations of the death penalty is whether the government or the state has the obligation to punish criminals and defend its citizens.  Saint Paul, an early Christian evangelist, wrote in his letter to the Romans that a ruler acts as “an avenger who carries out God’s wrath on the wrongdoer.”  The Middle Ages in Europe saw thousands of murderers, witches and heretics put to death.  While church courts of this period generally did not apply capital punishment, the church did turn criminals over to secular authorities for execution.

Thirteenth-century Catholic philosopher Thomas Aquinas argued that the death penalty could be justified for the greater welfare of society.  Later Protestant reformers also supported the right of the state to impose capital punishment.  John Calvin, a Protestant theologian and reformer, for example, argued that Christian forgiveness did not mean overturning established laws....

Among Christian leaders, Pope Francis has been at the forefront of arguing against the death penalty. Saint John Paul II also maintained that capital punishment should be reserved only for “absolute necessity.”  Pope Francis observes that the death penalty is no longer relevant because modern prisons prevent criminals from doing further harm. Pope Francis speaks of a larger ethic of forgiveness.  He emphasizes social justice for all citizens as well as the opportunity for those who harm society to make amends through acts that affirm life, not death.

For many, the debate is about the relationship between Christ’s call for forgiveness and the legitimate powers of the state.  Those Christians who support capital punishment argue that Jesus was talking about heavenly realities, not the earthly matters that governments have to deal with.  Christians who oppose the death penalty say that being Christian means bringing heavenly realities to the here and now.  This debate is not just about capital punishment, but about what it means to be a Christian.

April 29, 2017 in Death Penalty Reforms, Religion | Permalink | Comments (21)

Friday, April 28, 2017

Arkansas completes fourth execution in a week, but not without apparent problems

As reported in this new NBC News article, the "lawyer of a convicted killer who was put to death by lethal injection Thursday has demanded an investigation after his client repeatedly convulsed during the 'horrifying' execution." Here is more:

Media witnesses reported "coughing, convulsing, lurching, jerking" for a 10 to 20 second period during the execution of Kenneth Williams at the Cummins Unit, where the Arkansas death chamber is housed.

The allegations come amid questions around the use of the controversial lethal injection drug midazolam. The state's stocks of the drug were due to expire and it has been racing to execute a record number of inmates — Williams was the fourth to be executed inside of a week.

"This is the most I've seen an inmate move three or four minutes in," said Associated Press reporter Kelly Kissel, who witnessed his tenth execution Thursday night. Kissel explained that Williams "lurched" 15 times in quick succession, followed by five slower lurches, three minutes after the sedative midazolam was introduced.

Kissel said two other witnesses from local media organizations agreed with his assessment and also said that Williams could be heard after the microphone to the death chamber was turned off. Williams' attorney called for an investigation and called the descriptions "horrifying."

"This is very disturbing, but not at all surprising, given the history of the risky sedative midazolam, which has been used in many botched executions," said Shawn Nolan, an attorney who had taken up Williams case two weeks prior to the execution. "What's important right now is that all the information about tonight's execution must be meticulously documented and preserved so that we can discover exactly what happened in that execution chamber."

State officials pushed back against the allegations that the execution might have been "botched" and allegations it did not follow the protocol. J.R. Davis, spokesman for Arkansas Gov. Asa Hutchinson, described the lurches as "involuntary muscular reaction to the midazolam." Though he had not witnessed the execution, he said the medical community supported the drug's safe use and that this reaction did not mean the procedure had been painful....

Nolan, called Davis' explanation "trying to whitewash the reality of what happened" and he called for a full investigation. "We tried over and over again to get the state to comport with their own protocol to avoid torturing our client to death, and yet reports from the execution witnesses indicate that Mr. Williams suffered during this execution," Nolan said in a statement.

"Any amount of movement he might've had was far less than any of his victims," said Jodie Efird, one of the victim's daughters who attended the execution. Williams had been serving a life sentence for the Dec. 1998 murder of a University of an Arkansas-Pine Bluff cheerleader. Then 20, the inmate escaped after only serving a month at the Cummins Unit by hiding inside a barrel of pig slop that a garbage truck had removed from the prison grounds. The former gang member shot and killed Cecil Boren, stole his truck, led police on a high-speed pursuit and killed another man, Michael Greenwood, in a resulting car accident. A jury sentenced Williams to death for the 1999 murder of Boren, a 57-year-old former warden of the prison where Williams was executed....

Arkansas Department of Correction Spokesman Solomon Graves said that the lethal injection was administered at 10:52 p.m. local time (11:52 p.m. ET) and Williams was declared dead at 11:05 p.m. Williams, 38, was scheduled to die at 7 p.m. local time (8 p.m. ET). Williams' execution was delayed more than three hours because of attempts by his lawyers before a state court and the U.S. Supreme Court to stop it. Shortly after 10 p.m. the U.S. Supreme Court declined to stop the execution.

April 28, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (23)

Wednesday, April 26, 2017

Sixth Circuit to review en banc Ohio's execution protocol ... on a pace likely to preclude executions for at least a few more months

As indicated in this short order, yesterday the Sixth Circuit announced that it would be rehearing en banc the State of Ohio's appeal of the lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  A few weeks ago, a divided three-judge panel upheld the trial court's stay, but now the full Sixth Circuit (apparently absent one recused judge) will hear oral argument on these matters on June 14.

One key issue in the Ohio lethal injection litigation concerns that state's plan to use midazolam as the first drug in the execution process.  The apparent recent success that Arkansas has had with a similar protocol using midazolam now seems likely to be part of the discussion and debate before the full Sixth Circuit.

Because the lower court stay remains in place as the full Sixth Circuit take up this issue, Ohio's Gov Kasich is certainly going to have to reschedule at least two slated executions.  As detailed on this Execution Schedule page from the Ohio Department of Rehabilitation & Correction, Ronald Phillips is currently scheduled for execution on May 10, and another inmate has a June 13 execution date.  Though it seems likely the en banc Sixth Circuit will seek to rule not long after it hears oral argument (and it usually makes sense to assume that a vote for en banc review will lead to a different outcome than the prior panel decision), I am not sure it would be wise for Ohio to assume it will have an execution green light by its July 26 execution date.

As the Ohio DRC execution page details, Ohio has already scheduled executions for 33 Ohio inmates(!) running all the way through 2021(!).  So if the Sixth Circuit (and ultimately the Supreme Court) eventually upholds the state's latest execution protocol, Ohio could be on a path to having more executions in the next few years than perhaps any and every other state in the nation.

Prior recent related posts:

April 26, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Tuesday, April 25, 2017

Oklahoma commission recommends continued moratorium on executions due to "volume and seriousness of the flaws" in state's capital punishment system

Report-of-the-OK-DP-Review-Commn_April-2015-1As reported in this local article, "two years after the state of Oklahoma last carried out an execution, a commission spearheaded by former Gov. Brad Henry has recommended extending a current moratorium on the death penalty in Oklahoma."  Here is more:

"Due to the volume and seriousness of the flaws in Oklahoma's capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished," Henry said in a news release.

Executions in Oklahoma have been on hold since Oct. 1, 2015, the day after Richard Glossip received his third stay of execution because the Oklahoma Department of Corrections did not have the right drugs as specified in the DOC’s lethal injection protocol. A multicounty grand jury issued a highly critical report nearly a year ago related to multiple agencies’ handling of Glossip’s case and the January 2015 execution of Charles Warner, and it doesn’t appear as though anyone involved is any closer to being able to resume the use of capital punishment.

The Oklahoma Death Penalty Review Commission had 10 full-day meetings, held numerous conference calls, commissioned independent studies and conducted interviews with people from all sides of the issue, including with family members of people who were wrongfully convicted. "Many of the findings of the Commission's investigation were disturbing and led members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death," Henry said in the release.

The commission is making 40 recommendations to address systemic problems in forensics, innocence protection, the execution process, and the roles of the prosecution, defense, jury and judiciary, according to the news release.

The full report from the Oklahoma Death Penalty Review Commission runs nearly 300 pages and is available at this link.  Here is a passages from the report's executive summary:

In light of the extensive information gathered from this year-long, in-depth study, the Commission members unanimously recommend that the current moratorium on the death penalty be extended.

The Commission did not come to this decision lightly. While some Commission members had disagreements with some of the recommendations contained in this report, there was consensus on each of the recommendations.  Due to the volume and seriousness of the flaws in Oklahoma’s capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished.

Many of the findings of the Commission’s year-long investigation were disturbing and led Commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death. Commission members agreed that, at a minimum, those who are sentenced to death should receive this sentence only after a fair and impartial process that ensures they deserve the ultimate penalty of death.  To be sure, the United States Supreme Court has emphasized that the death penalty should be applied only to “the worst of the worst.”  Unfortunately, a review of the evidence demonstrates that the death penalty, even in Oklahoma, has not always been imposed and carried out fairly, consistently, and humanely, as required by the federal and state constitutions.  These shortcomings have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma.

April 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

"Designed to Break You: Human Rights Violations on Texas' Death Rows"

The title of this post is the title of this new report released yesterday by the Human Rights Clinic of the University of Texas School of Law. Here is part of its executive summary:

This report demonstrates that the mandatory conditions implemented for death row inmates by the Texas Department of Criminal Justice (TDCJ) are harsh and inhumane. Particular conditions of relevance include mandatory solitary confinement, a total ban on contact visits with both attorneys and friends and family, substandard physical and psychological health care, and a lack of access to sufficient religious services. Investigation into these conditions reveals that current TDCJ policy violates international human rights norms and standards for confinement.  Conditions on death row at TDCJ’s Polunsky Unit must be remedied posthaste.

In 1999, Texas reintroduced the practice of mandatory solitary confinement for every individual convicted of capital murder.  Solitary confinement involves total segregation of individuals who are confined to their cells for twenty-two to twenty-four hours per day, with a complete prohibition on recreating or eating with other inmates.  An average cell is no bigger than 8 feet by 12 feet, and contains only a sink, a toilet, and a thirty-inch-wide steel bunk with a thin plastic mattress.  Inmates are rarely provided with adequate blankets and often suffer from ongoing physical pain due to the mattress provided.  The majority of cells include a small window, but inmates are only able to see out by rolling up their mattress and standing on it.  This fact paired with the lack of adequate outdoor recreation time means that daily exposure to natural light is rare.  Every individual on Texas’ death row thus spends approximately 23 hours a day in complete isolation for the entire duration of their sentence, which, on average, lasts more than a decade.  This prolonged solitary confinement has overwhelmingly negative effects on inmates’ mental health, exacerbating existing mental health conditions and causing many prisoners to develop mental illness for the first time.  In addition to the detrimental effects of isolation, the practice of setting multiple execution dates means that many prisoners are subjected to the psychological stress of preparing to die several times during their sentence.

Inmates on death row experience severe barriers to accessing medical care, in part due to being housed in solitary confinement and being less able to effectively self-advocate. Inmates are not offered regular physical or psychological check-ups, and must rely on the guards to communicate and facilitate any healthcare appointments.  Such requests for care are, at best, responded to within a few days, but can go several weeks without a response and are often ignored or forgotten about.  In terms of psychological healthcare -- an issue of great importance given that a large majority of inmates on death row suffer from some form of psychological illness -- only inmates who were already taking psychiatric medication are able to meet regularly with psychiatrists.  Of those inmates who are eventually given access to psychological care, they are generally only prescribed some form of psychiatric medication, thus exacerbating the unmet need for some form of counseling or non-pharmaceutical therapy. Inmates with mental illness who do not necessarily want or need prescription drugs are essentially provided with only two options: take unwanted medication, or forgo psychological healthcare entirely.

Another major issue of concern is the lack of access to religious services on death row.  The extent to which inmates are able to access religious text is limited, as Christian bibles are the only material available from the prison chaplain.  Although Christian inmates can request such materials, they are rarely given access to ministers until the holiday season.  For inmates of different faiths, such as Islam or Judaism, the situation is more difficult as they must solely rely on outside sources for their religious materials.  They are provided with no access to practice their chosen faith, and are often met with contempt when seeking such access.  This has created a harsh environment for inmates who do not adhere to Christianity, and has enabled a discriminatory system on the basis of religion on Texas’ death row.

This report, prepared by the Human Rights Clinic at the University of Texas School of Law, concludes that current conditions in TDCJ facilities constitute a violation of Texas’s duty to guarantee the rights to health, life, physical integrity, and dignity of detainees, as well as its duty to prevent cruel, inhuman or degrading treatment of its inmates. These duties are recognized by human rights instruments such as the Universal Declaration of Human Rights, and the American Declaration on the Rights and Duties of Man.  The Inter-American Commission on Human Rights and other human rights bodies have repeatedly issued opinions decrying the inhumane conditions present at the Polunsky Unit. Particularly, international human rights bodies had considered that the prolonged and mandatory use of solitary confinement is “disproportionate, illegitimate, and unnecessary”.

April 25, 2017 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (5)

"An Indigent Criminal Defendant is Entitled to 'An Expert of His Own'"

The title of this post is the title of this short and timely new piece authored by Fredrick Vars now available via SSRN. Here is the abstract:

The Supreme Court yesterday (April 24, 2017) heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.

For more on the issue presented and SCOTUS oral argument in McWilliams v. Dunn, folks can check out this recent SCOTUSblog posting by Amy Howe titled "Argument analysis: Nine justices, with five votes for death row inmate?" and/or this new Slate commentary by Dahlia Lithwick titled "Back at the Supreme Court, After Garland: It’s strange being back in this place, and stranger still to hear them debate lunacy."

April 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, April 24, 2017

Arkansas successfully completes two execution in one night

As reported in this AP article, Arkansas has completed the nation's first double execution in nearly two decades.  Here are the basic details:

Arkansas has put to death inmate Marcel Williams, marking the first double execution in the United States since 2000.

Williams was pronounced dead at 10:33 p.m. Monday, 17 minutes after the procedure began at the Cummins Unit in southeast Arkansas. Inmate Jack Jones was executed earlier in the evening.

Williams was sent to death row for the 1994 rape and killing of 22-year-old Stacy Errickson, whom he'd kidnapped from a gas station in central Arkansas....

Attorneys for Marcel Williams had questioned whether the night's first execution of Jack Jones went properly. U.S. District Judge Kristine Baker issued the stay for Williams, then, lifted it about an hour later — at 9:22 p.m....

Jones was pronounced dead at 7:20 p.m. Monday at the state's Cummins Unit in southeast Arkansas.... Jones was sent to death row for the 1995 rape and killing of Mary Phillips.  He was also convicted of attempting to kill Phillips' 11-year-old daughter and was convicted in another rape and killing in Florida.

UPDATE:  Bill Otis over at Crime & Consequences has this extended new post contending that the double execution in Arkansas "may be remembered as the moment the movement to abolish the death penalty started back downhill after many years of gaining ground."

April 24, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (12)

Capital procedure day at SCOTUS .... perhaps from early morning until late at night thanks to Arkansas

The Supreme Court this morning is hearing oral argument in two capital cases.  Here are the basics and previews via SCOTUSblog:

McWilliams v. Dunn

Issue: Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.

Argument preview: What kind of help does the Constitution require for defendants in capital cases?

Davila v. Davis:

Issue: Issue: Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Argument preview: Another Texas capital case raising a nested ineffective assistance of counsel issue 

Meanwhile, as detailed in this AP report, two condemned inmates scheduled to be executed tonight in Arkansas have been pressing unsuccessfully a variety of claims in an effort to halt their executions.  Here are the basics on two cases now all but certain to be before the Justices of the Supreme Court in some posture before the night is over:

Two Arkansas inmates scheduled to be put to death Monday in what could be the nation's first double execution in more than 16 years asked an appeals court on Sunday to halt their lethal injections because of poor health that could cause complications. Lawyers for Jack Jones and Marcel Williams asked the 8th Circuit Court of Appeals on Sunday to grant them stays of execution.

Jones' lawyers say he suffers from diabetes and is on insulin, has high blood pressure, neuropathy and had one leg amputated below the knee. He is on heavy doses of methadone and gabapentin. They say he may be resistant to the lethal injection drug midazolam because of the drugs he is taking for his maladies and could suffer a "tortuous death." Lawyers for Williams say he weighs 400 pounds and it will be difficult to find a vein for lethal injunction, so the drugs are unlikely to work as intended.

The state said the appeals are just delaying tactics and should be denied. It was not clear when the appeals court will rule....

Also on Sunday, two lower court federal judges ruled against inmates in separate cases. Judge Kristine Baker denied a request from several inmates, including Jones and Williams, that the rules for witnesses to view the executions be changed. Judge J. Leon Holmes denied a stay of execution for Williams saying that the matter should be dealt with by the 8th Circuit Court of Appeals, because the inmate had already been appealed to the higher court.

Jones and Marcel Williams are scheduled to die on Monday and another inmate, Kenneth Williams, is set for execution Thursday. Both Jones and Williams have admitted they are guilty. Williams was sent to death row in 1994 for the rape and murder of Stacy Errickson. Jones was given the death penalty for the 1995 rape and murder of Mary Phillips.

April 24, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Interesting final phrase in Justice Breyer's latest pitch for SCOTUS to consider whether whether capital punishment is now unconstitutional

Via a dissent in Glossip v. Gross back in 2015, Justice Breyer explained at great length why he thought "it is now time to reopen the question" of "whether the death penalty violates the Constitution."  Since that time, Justice Breyer has made a fairly regular habit of dissenting or commenting on the denial of certiorari in capital cases with administrative problems along the lines he stressed in his Glossip dissent.  Today's SCOTUS order list includes another such statement by Justice Breyer in Smith v. Ryan, a case that involves a prisoner who has been on death row in Arizona for more than 40 years.  Here is a paragraph from the heart of Justice Breyer's statement that captures the essence of many of his capital statements since Glossip:

What legitimate purpose does it serve to hold any human being in solitary confinement for 40 years awaiting execution?  What does this case tell us about a capital punishment system that, in my view, works in random, virtually arbitrary ways?  I have previously explored these matters more systematically, coming to the conclusion that this Court should hear argument as to whether capital punishment as currently practiced is consistent with the Constitution’s prohibition of “cruel and unusual punishment.”  Amdt. 8. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting).  The facts and circumstances of Smith’s case reinforce that conclusion.

Because statements by Justice Breyer like this one have become fairly common, I would not have blogged about this latest effort save for one little phrase in Justice Breyer's final sentence that struck me as new and unusual.  Here is the final sentence with my emphasis added on the phrase that caught my attention:

Smith’s confinement reinforces the need for this Court, or other courts, to consider in an appropriate case the underlying constitutional question.

I took a quick look at some other capital case statements from this Term by Justice Breyer and did not see this "other courts" phrase anywhere in his prior calls for the Supreme Court to take up the constitutionality of capital punishment.  I suspect that Justice Breyer has now come fully to realize, perhaps due in part to the new addition of Justice Gorsuch, that he is not going to be able to cajole his colleagues into taking up the constitutionality of capital punishment on their own and now the issue will likely get before SCOTUS only if a lower court takes up the issue in a bold, high-profile way.

I suspect I am reading way too much into three words in a little single Justice statement concerning the denial of cert.  Still, especially with talk of a new SCOTUS vacancy this summer, I do not think I am wrong to view the next few months and years as a potential turning point in the history of capital punishment in the US.  Justice Breyer has demonstrated his interest in playing a central role in defining the future of the death penalty, and this latest little statement perhaps reflects a realization that his window of opportunity to do so may be closing.

April 24, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, April 23, 2017

Six months after voting to speed executions, is California really getting any closer to carrying out death sentences?

The question in the title of this post is prompted by this new AP article headlined "California moves — slowly — toward resuming executions."  Here are excerpts:

California has long been what one expert calls a “symbolic death penalty state,” one of 12 that has capital punishment on the books but has not executed anyone in more than a decade.

Prodded by voters and lawsuits, the nation’s most populous state may now be easing back toward allowing executions, though observers are split on how quickly they will resume, if at all.

Corrections officials expect to meet a Wednesday deadline to submit revised lethal injection rules to state regulators, trying again with technical changes after the first attempt was rejected in December.

The California Supreme Court, meanwhile, is expected to rule by August on challenges to a ballot initiative narrowly approved by voters in November that would speed up executions by reducing the time allowed for appeals....

California could come close to resuming executions in the next year, said law professor Robert Weisberg, co-director of the Stanford Criminal Justice Center, though others say too many variables and challenges remain to make a prediction.... The state’s proposed lethal injection regulations are patterned after a single-drug process that already passed muster with the U.S. Supreme Court, Weisberg said.

Corrections officials submitted the regulations only after they were forced to act by a judge’s ruling on behalf of crime victims angered at the state’s three-year delay. But the regulations replacing California’s old three-drug method are likely to be approved at some point, Weisberg said.

Deborah Denno, a professor at Fordham University School of Law and an expert on lethal injections, was among those who said recent revisions to the state’s proposed regulations still don’t cure underlying problems that can lead to botched executions....

California voters have eased penalties for many crimes in recent years but have repeatedly rejected efforts to end the death penalty. They did so again in November, when 51 percent approved Proposition 66, designed to speed up death penalty cases. Fifty-three percent of voters defeated a competing measure that would have abolished the death penalty. The state Supreme Court quickly blocked Proposition 66 while it considers challenges.

Appellate lawyer Kirk Jenkins, who studies the court, expects the justices will reject the proposition’s five-year deadline for deciding death row appeals because it violates the separation of powers. Death penalty appeals average at least a decade from the time a condemned inmate is assigned a post-trial lawyer to a final decision by the state’s high court, he said, and the justices already have a backlog of about 300 capital cases. “There is no possible way that the court could meet the deadlines in Prop. 66” without putting aside virtually all other decisions, Jenkins said.

The initiative also makes it easier for corrections officials to adopt new lethal injection procedures. But even a complete rejection of Proposition 66 would not derail the executions of inmates whose appeals are exhausted, Weisberg said. Those executions could proceed once the state has an approved lethal injection process.

Experts said the delays may give opponents time to mount another campaign next year asking voters again if they want to abolish the death penalty. “In California, it’s become a symbolic death penalty state,” Denno said. “Whether that is going to change or not is unpredictable.”

April 23, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, April 21, 2017

Arkansas finally navigates litigation to complete one execution

As reported in this new Washington Post piece, "Arkansas late Thursday night carried out the state’s first execution in more than a decade after the U.S. Supreme Court, in a last-minute series of orders, rejected requests by a death-row inmate to stay his lethal injection." Here is more:

The execution followed a wave of criticism and tumult in Arkansas, which had set an unprecedented scheduled of executions, plans that were imperiled by a series of court orders halting at least some of the eight lethal injections originally set for April.

As part of its aggressive scheduling, which the state attributed to expiring lethal-injection drugs, Arkansas had planned to carry out back-to-back executions on Thursday night at a state prison southeast of Little Rock.  But that was abandoned when a state court blocked one of those lethal injections, and officials instead focused solely on plans to execute Ledell Lee, 51, by lethal injection.

Lee was sentenced to death in 1995 for the killing of Debra Reese, who was beaten to death in her home two years earlier. According to court petitions and his attorneys, Lee has long denied involvement in Reese’s death, and he was seeking DNA testing to try and prove his innocence.

Lee’s execution was confirmed by state officials. His time of death was 11:56 p.m. local time, according to the Associated Press, which had a reporter serve as a media witness. He is the seventh person executed in the United States so far this year....

Appeals filed ... for Lee hoping to delay his execution were rejected by the U.S. Court of Appeals for the 8th Circuit after that court briefly stayed the lethal injection. Lee’s attorneys also petitioned the U.S. Supreme Court, not long after justices on Thursday night denied other stay requests filed by several Arkansas death-row inmates. The attorneys filed a volley of appeals at the high court seeking a stay of execution, saying that technology exists now that could verify his innocence and arguing that he has an intellectual disability that should prevent his execution.

The Supreme Court ultimately denied his stay requests in orders released by the court just before 11:30 p.m. at the Arkansas prison, following an hours-long delay imposed by Justice Samuel A. Alito Jr. so the high court could review the inmate’s appeals. Alito, who is assigned cases from the federal circuit covering Arkansas, then issued an order delaying Lee’s lethal injection “pending further order of the undersigned or of the Court.” He vacated his order after the justices declined all of the requests.

According to the orders, Alito referred the stay requests to the court, which denied them all without explanation. No justices logged dissents, though some had earlier Thursday said they would have granted stay requests from Lee and other inmates. Lee was pronounced dead about 30 minutes later....

Several death-row inmates in Arkansas, including Lee, appealed to the U.S. Supreme Court to stay the executions, but the justices earlier Thursday night released orders denying these requests. This marked the first time Justice Neil M. Gorsuch, who joined the court earlier this month, voted to create a conservative majority. In one of the orders, the court was split 5-4, with Gorsuch joining the majority in denying the stay and the court’s four liberal members saying they would have granted it.

Justice Stephen G. Breyer, who has previously questioned the “arbitrary” nature of the death penalty’s implementation, authored a critical dissent of Arkansas’ stated desire to carry out executions before its drugs expire. “I have previously noted the arbitrariness with which executions are carried out in this country,” he wrote. “And I have pointed out how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a ‘rule of law.’ The cases now before us reinforce that point.”

The brief dissents authored by Justices Breyer and Sotomayor in one of the capital cases coming from Arkansas are available here and here.

April 21, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (28)

Thursday, April 20, 2017

Virginia Gov commutes death sentence of defendant who has claimed innocence in murder-for-hire crime

As reported in this new Washington Post piece, "Virginia Gov. Terry McAuliffe (D) has commuted the death sentence of Ivan Teleguz, a 38-year-old man who was set to be executed Tuesday in the murder-for-hire of his former girlfriend." Here is more:

Teleguz has maintained his innocence in the 2001 slaying of 20-year-old Stephanie Yvonne Sipe in Harrisonburg.  His lawyers have argued that two key witnesses have recanted their testimony, calling his guilt into question.  Multiple courts have deemed those recantations unreliable, and the man who killed Sipe has never wavered in saying that Teleguz paid him to commit the murder.

McAuliffe said Thursday that while he believes Teleguz is guilty, the sentencing phase of his trial was “terribly flawed and unfair.”  Teleguz will now serve life in prison without a chance of parole.

In their clemency petition, attorneys for Teleguz stressed that jurors were falsely told that Teleguz also was involved in a Pennsylvania murder — but that purported killing never occurred. Prosecutors pointed to testimony of that supposed crime as evidence that Teleguz “solves problems” with murder.  “The jury acted on false information,” McAuliffe said.

In making his decision, McAuliffe said he reviewed over 6,000 pages of documents, including letters from Sipe’s family.  He called her relatives before his news conference Thursday afternoon.  “My heart aches for the family of Stephanie Sipe,” he said, “but the Virginia Constitution and our sacred values of due process under law require me to act.”

McAuliffe personally opposes the death penalty, citing his Catholic faith. But this marks the first time he has commuted a death sentence.  As governor, he has presided over three executions, and at the behest of correctional officials he has pushed for more secrecy in the lethal injection process....

Teleguz’s plea for a commutation attracted high-profile support, including from billionaire Richard Branson and former Maryland governor Robert L. Ehrlich, Jr.

Investigators and Sipe’s family, however, are confident of Teleguz’s guilt.  “There's no doubt in my mind that he hired these people to kill my sister,” Sipe's sister, Jennifer Tilley, told the Harrisonburg television station WHSV last week.  “And it blows my mind, it really does, that he is still trying to fight and plead for his life.”...

The last time a Virginia governor commuted a death sentence was in 2008, when then-Gov. Timothy M. Kaine (D) stopped the execution of triple murderer Percy L. Walton. Kaine commuted Walton’s sentence to life in prison without parole, saying that Walton was mentally incompetent and that putting him to death would be unconstitutional.

Prior related post:

April 20, 2017 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Wednesday, April 19, 2017

After Monday stays, Arkansas officials seemingly on path to complete next pair of scheduled executions... OR NOT, as updated below....

As reported in this new AP piece, "two Arkansas inmates set to die this week in a double execution filed more legal challenges Wednesday, but so far the pair is hitting roadblocks as a judge weighs a new attempt to prevent the state from using one of its lethal injection drugs in what would be the state's first executions in nearly a dozen years."  Here is more about the continuing litigation as the next set of execution dates approach:

Unless a court steps in, Ledell Lee and Stacey Johnson are set for execution Thursday night, and state prison officials have already moved them from death row to the nearby prison that houses the death chamber. It's the second time this week that Arkansas has moved forward with what originally had been a plan to execute eight men before April 30, when its supply of the drug midazolam expires.

On Monday, the Arkansas Supreme Court blocked the executions of two men set to die that night. A third man has received a stay from a federal judge over issues with his clemency schedule. Five inmates still face execution over the next two weeks, and they've filed a series of court challenges in hopes of stopping that.

The latest request, filed Wednesday, asks the U.S. Supreme Court to take the inmates' case that challenges the use of midazolam, a sedative used in flawed executions in other states. It's one of three drugs Arkansas plans to use in its executions. In 2015, justices upheld Oklahoma's execution protocol that used the same drug. "As pharmaceutical companies become increasingly resistant to allowing their products to be used in executions, states are likely to continue experimenting with new drugs and drug combinations, and death-row prisoners may challenge these new protocols as violating their constitutional rights," the filing before the U.S. Supreme Court said.

The Arkansas attorney general's office countered in a court filing Wednesday that the inmates' request was a last-minute effort to "manipulate the judicial process."...

Another case that could trip up Arkansas' plan was filed Tuesday by the medical supplier McKesson Corp., which says it sold the drug vecuronium bromide to the Arkansas Department of Correction for inmate medical care, not executions. The company sued to stop Arkansas from using the drug in the planned lethal injections, and a hearing over that issue was underway in Little Rock on Wednesday afternoon.

A state prison official testified that he deliberately ordered the drug last year in a way that there wouldn't be a paper trail, relying on phone calls and text messages. Arkansas Department of Correction Deputy Director Rory Griffin said he didn't keep records of the texts, but McKesson salesman Tim Jenkins did. In text messages from Jenkins' phone, which came up at Wednesday's court hearing, there is no mention that the drug would be used in executions.

Lee and Johnson both faced setbacks Tuesday in their quest to get more DNA tests on evidence in hopes of proving their innocence. Lee claims tests of blood and hair evidence that could prove he didn't beat 26-year-old Debra Reese to death during a 1993 robbery in Jacksonville. Johnson claims that advanced DNA techniques could show that he didn't kill Carol Heath, a 25-year-old mother of two, in 1993 at her southwest Arkansas apartment....

"It is understandable that the inmates are taking every step possible to avoid the sentence of the jury; however, it is the court's responsibility to administer justice and bring conclusion to litigation," Gov. Asa Hutchinson said Tuesday in an emailed statement. "It is that process that we are seeing played out day by day, and we expect it to continue."

UPDATE: This new Washington Post article, headlined "Arkansas courts stay execution, block state from using lethal injection drug," reports on why I reported too soon on the latest execution plans in Arkansas. Here are the latest details:

Arkansas courts on Wednesday dealt another pair of blows to the state’s plans to resume executions Thursday night, the latest in a series of legal rulings imperiling the scheduled flurry of lethal injections.

In one case, a state court halted an execution scheduled for Thursday night, while a state judge separately barred the use of a lethal injection drug, potentially blocking all of the planned executions.

The rulings come as Arkansas, seeking to carry out its first executions since 2005, has become the epicenter of capital punishment in the United States because of its frantic schedule. Gov. Asa Hutchinson (R) originally scheduled eight executions in 11 days, an unprecedented pace, which drew national scrutiny and criticism....

After the first planned executions were halted, Arkansas officials pointed to legal victories they won the same day and vowed to press on with them, beginning with two scheduled for Thursday night. “There are five scheduled executions remaining with nothing preventing them from occurring, but I will continue to respond to any and all legal challenges brought by the prisoners,” Arkansas Attorney General Leslie Rutledge (R) said in a statement after the U.S. Supreme Court denied her request to allow one execution to proceed Monday. “The families have waited far too long to see justice, and I will continue to make that a priority.”

Challenges to the executions are not only being brought by the inmates. McKesson, the country’s largest drug distributor, said a court on Wednesday granted its request for a temporary restraining order keeping Arkansas from using a drug the company says was obtained under false pretenses. The judge issued a verbal order from the bench, according to the Arkansas Democrat-Gazette; no injunction was filed in court records by early Wednesday night. A spokesman for Rutledge did not immediately have a comment on this order, but it is expected that she would appeal to the state Supreme Court....

The Arkansas Supreme Court also stopped one specific execution set for Thursday, saying just over 24 hours before it was scheduled to occur that it was staying it without explanation. In its order, the state Supreme Court narrowly blocked the execution of Stacey E. Johnson, 47, who has been on death row since 1994. The court said Johnson should be allowed to press on with his motion for post-conviction DNA testing. Johnson was sentenced to death for the murder of Carol Jean Heath, a woman brutally killed in her home.

Three justices dissented from the decision, with all three joining in a dissent saying the stay in this case “gives uncertainty to any case ever truly being final in the Arkansas Supreme Court.”...

Johnson is one of two inmates facing execution Thursday night. The other, Ledell Lee, has appealed his execution, arguing that he has an intellectual disability and seeking to prove his innocence. Both men are also among a group of death-row inmates who have petitioned the U.S. Supreme Court to stay the executions, one of several legal battles being waged between the state and the inmates.

April 19, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Monday, April 17, 2017

Lots of litigation leading to lots of uncertainty as Arkansas execution dates arrive

This CNN article, headlined "Arkansas inmate has last meal as courts decide fate," reports on some of the still-in-development litigation in the Natural State as it tries to get its machinery of death operational. Here are the highlights:

After the Arkansas Supreme Court stayed the execution of two inmates, the state's attorney general asked the US Supreme Court to overturn the ruling so the execution of one could proceed.

While Bruce Ward has one other stay in place, Don Davis -- who had his last meal -- could be the first executed over the next 10 days if Attorney General Leslie Rutledge prevails with the U.S. Supreme Court.

Amid the flurry, the 8th U.S. Circuit Court of Appeals overturned a Saturday ruling by a federal judge that temporarily halted all eight executions.

That U.S. District Court judge had ruled that the prisoners will likely succeed in demonstrating the state's proposed method of lethal injection is unconstitutional. But the appeals court said the use of the method of execution, which includes the drug, midazolam, did not create undue severe pain.

The executions were set for this month because Arkansas' supply of midazolam expires on May 1.

Gov. Asa Hutchinson issued a statement Monday evening that said, in part, "We have asked the US Supreme Court and hope to get a decision later tonight."

The attorney for Davis and Ward requested stays of execution until the US Supreme Court rules on an upcoming case concerning inmate access to independent mental health experts. The justices are set to hold oral arguments on April 24....

Late Monday, the Arkansas Supreme Court also overturned a temporary restraining order, issued by a state judge, that prevented Arkansas from using vecuronium bromide it had purchased from McKesson Medical-Surgical in executions. The company had argued the medication was not meant to be used in capital punishment.

The Arkansas Supreme Court had already blocked Ward's execution due to questions about his mental competency. As of Monday evening, that stay remained.

As officials awaited further court action, Davis had his "last meal" at the Cummins Unit, where the execution chamber is located. According to the Arkansas Department of Correction, Davis chose fried chicken, rolls, great northern beans, mashed potatoes and strawberry cake.

Davis' current execution warrant expires at 1 a.m. ET (midnight CT).

UPDATE: This New York Times article provides a more fulsome accounting of all of Monday's litigation that ended up with two scheduled executions being stay. And the lengthy article ends with a preview of what the rest of this week holds:

A spokesman for the state prison system, Solomon Graves, said the Arkansas authorities would be prepared to carry out the other executions that Mr. Hutchinson set.

“The Department of Correction’s attention now shifts to the executions that are scheduled for Thursday,” Mr. Graves said. “We are under the impression, and under the assumption, that those executions will be carried out as scheduled.”

They are scheduled for 7 p.m. on Thursday.

April 17, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, April 14, 2017

Is Arkansas really going to carry out seven (uneventful?) executions over the next two weeks?

The question in the title of this post is a slight variation on a question a student posed to me yesterday, and I really did not have a confident prediction.  But these two new pieces discussing Arkansas's plans highlight that others are feeling somewhat more confident about what lies ahead in the Natural State:

From the Arkansas News, "Arkansas governor confident executions will go smoothly"

Gov. Asa Hutchinson on Thursday said he is confident the state Department of Correction can successfully carry out seven executions over an 11-day span starting Monday and defended his decision to set the unprecedented schedule.

In a news conference at the Governor’s Mansion, Hutchinson also expressed confidence in the ability of the sedative midazolam to render the inmates unconscious and said he retains the option to halt any of the executions but does not expect to do so.

The governor told reporters he paid a visit Wednesday to the Department of Correction’s execution chamber in Lincoln County and was satisfied the staff can carry out the plan successfully. Arkansas last executed an inmate in 2005. “I’m not going to go into which staff is doing what at the Department of Correction, but as I was there yesterday, they are experienced, they work on it, they practice it, they don’t take it lightly,” he said. “They know what they’re doing.”

The plan has drawn international attention and has been criticized by groups and individuals who have called it an “assembly line” and a “train wreck.”

From the Washington Post, "Arkansas plans to execute 7 men in 11 days. They’re likely to botch one."

On April 17, Arkansas is scheduled to execute seven men over a period of 11 days. If carried out, that will be the most executions performed in such a short time since the modern death-penalty era began in 1976.

The reason: Arkansas’ supply of the controversial drug it is using for executions, midazolam, is set to expire April 30. Midazolam is medically used as an anti-anxiety sedative, not an anesthetic. Experts have concerns about the drug’s ability to render a person fully unconscious, heightening the risk of an unconstitutionally cruel punishment. The lawyers defending the men scheduled for death are arguing that the short time will limit their ability to provide effective counsel and that the execution team will be so stressed that they will probably make mistakes.

UPDATE: There have been consequential legal developments in Arkansas since I authored this post roughly 24 hours ago. This local article provides the highlights in its opening paragraphs:

A federal judge issued an injunction early Saturday to halt the executions of several condemned Arkansas inmates, creating another barrier to the state's plan to put them to death over an 11-day period starting Monday.

The Arkansas Attorney General's office called the decision "unfortunate" and filed a notice of appeal with the 8th U.S. Circuit Court of Appeals.

The ruling came a day after the Arkansas Supreme Court first issued an emergency stay blocking Bruce Ward's execution. That order didn't affect the other 6 condemned men, but Pulaski County Circuit Judge Wendell Griffen ruled a short time later that a separate complaint filed by a medical supplier was cause to issue a temporary restraining order blocking all the executions. The state Attorney General, though, on Saturday asked the state Supreme Court to reverse Griffen and to remove him from the case.

U.S. District Judge Kristine Baker's ruling, issued shortly after 6 a.m., applies to all of the scheduled executions. Click here to read the full order 📄.

Baker wrote that "there is a significant possibility that plaintiffs will succeed on the merits of their Eighth Amendment challenge to Arkansas’s lethal injection protocol."

April 14, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12)

Thursday, April 13, 2017

"Three Reasons Why Virginia May Execute an Innocent Man"

The title of this post is the headline of this notable new commentary authored by LawProf Cara Drinan.  Here are excerpts:

In 2006, a jury convicted Ivan Teleguz of hiring someone to kill Stephanie Sipe, his ex-girlfriend and the mother of his child. Now, more than a decade later, Virginia is scheduled to execute Teleguz on April 25, 2017, and there is substantial evidence suggesting that Teleguz is innocent.

How is that possible in the United States – the land of the free, where a poor person is entitled to legal counsel and a criminal defendant has numerous chances to be heard in court? Actually, it happens with some ease, and in part, it happens because of conscious choices we have made about our legal system. There are at least three reasons for this counter-intuitive reality.

1. Prosecutors, Not Judges or Juries, Resolve Most Criminal Cases in America ...

Teleguz’s case demonstrates this phenomenon well. There was no physical evidence connecting him to the murder of Ms. Sipe; the prosecution’s case was based on the testimony of three witnesses. Since his trial, two of those witnesses have recanted their testimony and have admitted that they lied when they implicated Teleguz in exchange for favorable treatment from the government. The Commonwealth repeatedly told the third witness, Ms. Sipe’s actual killer, that he would face the death penalty unless he “cooperated” with them by agreeing to testify against Teleguz in Ms. Sipe’s murder and sticking to that story. Not surprisingly, he did just that and he is serving out a life sentence while Teleguz faces imminent death.

2. The Myth of the Right to Counsel ...

Teleguz suffered at the hands of a broken system. Counsel in death penalty cases are held to a heightened standard of performance, and as part of that standard, they are expected to conduct extensive, careful investigation to prepare for the sentencing phase of the trial. Teleguz’s trial counsel was far from diligent, and as a result, the jury heard evidence that Teleguz was involved in another arranged murder. This evidence persuaded the jury to vote for the death penalty. Here’s the wrinkle: not only was Teleguz not involved in such a crime, the crime never happened. Years after his trial, that fact came to light, and the government has now acknowledged that the alleged prior murder did not happen. But the jury verdict stands.

3. Not So Appealing Appeals Process ...

Surely, the multi-layered appellate process would ferret out an error of this magnitude and provide a remedy? Not necessarily. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and in the process “gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned.” Today, the American appellate process is an intricate web of procedural rules, and, in fact, "we have purposefully designed our system of appellate review to examine almost everything but factual guilt or innocence."

That might be defensible if we could be confident in the accuracy of our criminal justice system, but we can’t be. Since 1989, there have been more than 2,000 exonerations in the United States.  In 2015 alone, 58 people were exonerated of homicide convictions. Like many of those individuals, Teleguz has consistently maintained his innocence. Today there is new evidence to support that claim that no court has fully examined.

In the next few days, Governor Terry McAuliffe can’t do much about prosecutorial overreach, problems with indigent defense, and the complex appellate process.  But he can recognize that, because of these systemic failures, there is substantial doubt about Teleguz’s guilt. Governor McAuliffe should grant clemency and stop Teleguz’s execution.

This recent AP article, headlined "Conservatives urge Virginia governor to spare inmate's life," highlights that it is not only a law professor urging Gov McAuliffe to act in this capital case.

UPDATE: A commentor has usefully noted that the Fourth Circuit opinion in this case, which is available here, provides a different perspective on this case and Teleguz's claims of innocence.

April 13, 2017 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Wednesday, April 12, 2017

Might Dylann Roof have claimed ineffective assistance of counsel if he didn't get sentenced to death?

Most murderers who get sentenced to death at some point claim their lawyers were constitutionally ineffective. But this new local article, headlined "Dylann Roof calls his lawyers 'sneakiest people I ever met,' says mental health defense was 'a lie'," suggests one high-profile condemned mass murderer might have claimed his lawyer was ineffective if he wasn't sentenced to death. The full article is fascinating, and here is how it gets started:

Calling his attorneys "the sneakiest group of people I have ever met,” Dylann Roof reached out to federal prosecutors on the eve of his hate crimes trial in an effort to scuttle a planned mental health defense aimed at sparing him the death penalty.

Roof blistered his legal team in a three-page jailhouse letter, accusing them of tricking him into undergoing tests to challenge his competency to stand trial for killing nine black worshippers at Charleston's Emanuel AME Church in June 2015. Roof told prosecutors he wanted no part of this strategy, which he labeled "a lie."

"Because I have no real defense, my lawyers have been forced to grasp at straws and present a pathetic, fraudulent excuse for a defense in my name," he wrote in early November. "They have regularly told me in an aggressive manner that I have no say in my own defense, that my input doesn't matter, and that there is nothing I can do about it."

Roof's letter was among more than 70 filings that U.S. District Court Judge Richard Gergel unsealed Tuesday – one day after the 23-year-old white supremacist pleaded guilty to nine counts of murder in state court. Though Roof’s federal trial ended in January with a death sentence, Gergel had been reluctant to release records about his mental status while the state case was pending.

The newly unsealed documents show procedural disagreements over how Roof’s mental health would be evaluated and growing discord between the killer and his top-flight legal team of capital defense specialists. Roof railed at their “slick” tactics, and they in turn expressed frustration with a “delusional” client who seemed preoccupied with fantasies that white supremacists would break him out of prison and make him governor of South Carolina, the documents show.

In the handwritten November letter to “Prosecution,” Roof alleged that his legal team had told him he was being tested to determine if a thyroid condition had affected his brain when they were really compiling evidence to challenge his competency. He said he wanted the people trying to convict him to know that “what my lawyers plan to say in my defense is a lie and will be said without my consent or permission.”

“My lawyers have purposely kept me in the dark about my defense until the last minute in order to prevent me from being able to do anything about it, which is why I have been forced to write to you,” he stated. “Throughout my case they have used scare tactics, threats, manipulation, and outright lies to further their own, not my, agenda.” He warned prosecutors not to let his legal team “fool you or the court like they’ve fooled me.”

Prosecutors notified Roof's lawyers after receiving the letter, and lead defense attorney David Bruck agreed that Gergel, the trial judge, needed to see the missive, according to a chain of emails. After a closed-door meeting on Nov. 7, Roof's lawyers pleaded with the judge to delay planned jury selection in the case so Roof could undergo an extensive mental competency review. They repeatedly described Roof as delusional, and noted his "depression, extreme anxiety and autism spectrum disorder."

They stated that their tenuous working relationship with him had suffered "a severe rupture" when he "openly attempted to sabotage his own case" by reaching out to prosecutors. "(W)e are now faced with a client who would rather die than be labeled mentally ill or neuro-developmentally impaired, and who would rather communicate and ally himself with those who propose to execute him than us," his attorneys wrote.

The attorneys stated that Roof believed "the very white nationalists whom he considers his allies" would turn on him and persecute him for his "perceived infirmities" if he were to be labeled incompetent. They stated that Roof had "an irrational belief that being labeled mentally impaired will affect the defendant's standing with some hypothetical white nationalists whom the defendant has never met or communicated with — and cannot even name — but whom he believes may appoint him to a high government position some day."

They attached notes indicating that Roof had been so distracted by his delusional ideas that he was unable to respond to the basic needs of his defense. Among his odd notions was a fantasy that white supremacists would stage a prison break to rescue him from captivity, they said. "His single-minded focus on being rescued and made governor of South Carolina makes salient to him things that are irrational and he cannot rationally assist counsel as a result," they stated.

April 12, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Monday, April 10, 2017

Amnesty International releases report on global death sentences and executions in 2016

Amnesty International has released this new report on the worldwide use of the death penalty in 2016. This AI webpage provides a kind of summary of some of the full report's most salient facts and figures.  Here are some of those numbers:

At least 1,032 people were executed in 23 countries in 2016. In 2015 Amnesty International recorded 1,634 executions in 25 countries worldwide — a historical spike unmatched since 1989. Most executions took place in China, Iran, Saudi Arabia, Iraq and Pakistan — in that order.

China remained the world’s top executioner — but the true extent of the use of the death penalty in China is unknown as this data is considered a state secret; the global figure of at least 1,032 excludes the thousands of executions believed to have been carried out in China.  Excluding China, 87% of all executions took place in just four countries — Iran, Saudi Arabia, Iraq and Pakistan.

For the first time since 2006, the USA was not one of the five biggest executioners, falling to seventh behind Egypt. The 20 executions in the USA was the lowest in the country since 1991.

During 2016, 23 countries, about one in eight of all countries worldwide, are known to have carried out executions. This number has decreased significantly from twenty years ago (40 countries carried out executions in 1997). Belarus, Botswana, Nigeria and authorities within the State of Palestine resumed executions in 2016; Chad, India, Jordan, Oman and United Arab Emirates — all countries that executed people in 2015 — did not report any executions last year.

141 countries worldwide, more than two-thirds, are abolitionist in law or practice.

In 2016, two countries — Benin and Nauru — abolished the death penalty in law for all crimes.  In total, 104 countries have done so — a majority of the world’s states.  Only 64 countries were fully abolitionist in 1997.

Commutations or pardons of death sentences were recorded in 28 countries in 2016.  At least 60 people who had been sentenced to death were exonerated in 9 countries in 2016: Bangladesh (4), China (5), Ghana (1), Kuwait (5), Mauritania (1), Nigeria (32), Sudan (9), Taiwan (1) and Viet Nam (2).

Amnesty International recorded 3,117 death sentences in 55 countries in 2016, a significant increase on the total for 2015 (1,998 sentences in 61 countries).  Significant increases were recorded in 12 countries, but for some, such as Thailand, the increase is due to the fact that the authorities provided Amnesty International with detailed information.

At least 18,848 people were on death row at the end of 2016.  The following methods of execution were used across the world: beheading, hanging, lethal injection and shooting.  Public executions were carried out in Iran (at least 33) and North Korea.

April 10, 2017 in Data on sentencing, Death Penalty Reforms, Sentencing around the world | Permalink | Comments (10)

Sunday, April 09, 2017

Poll suggests Arkansans generally support state plans for multiple executions in coming weeks

This new local article, headlined "Poll: Arkansans’ support for death penalty unfazed by upcoming execution schedule," reports on a new local poll showing support for the notable execution plans in the works in the Natural State. Here are excerpts from part of the poll and some analysis provided in the article:

Arkansas voters remain firmly committed to the death penalty despite an upcoming quick execution schedule, advances made in DNA testing, and a national trend towards ending the practice. A new Talk Business & Politics-Hendrix College survey suggests more than 2-to-1 support for the death penalty versus life without parole....

Arkansans are also unfazed by the upcoming rapid execution schedule which involves seven executions over an 11-day period. At the time the poll was conducted, eight inmates were scheduled for execution in the 11-day time span....

As Arkansas’s move to carry out eight (and, following a federal court ruling in recent days, seven) executions via lethal injection moves toward reality at the end of the month, Arkansas is gaining increasing national and international attention as state officials race to beat the expiration deadline for a drug used in the state’s lethal injection formula.

We asked a series of questions about Arkansans’ opinions regarding the death penalty, generally, and this historic number of executions in particular. Arkansans’ unshakeable commitment to the death penalty is shown by the survey results. Most generally, Arkansans solidly support the application of the death penalty with over six in ten respondents favoring the death penalty while fewer than three in ten support life without parole for those convicted of capital offenses....

Finally, we focused on the extraordinary number of executions planned by the state of Arkansas at the end of the April. At the time of our survey, eight executions were planned. At the time of this writing, seven of those executions remain on track (the eighth has been delayed by federal District Judge Price Marshall because of a favorable clemency recommendation by the State Parole Board).

Just at one in four Arkansans are troubled by this aggressive stance while a strong majority of Arkansans either favor this move by the state to ensure the executions are carried out before the drug expiration (51%) or say it makes no difference (17%). While slight majorities of African-Americans and Democrats oppose the mass executions, the most noticeable variance across social groups is shown between men and women. A nearly 20 point gender gap (61% for men versus 42% for women) is shown on support for the late-April series of executions.

All told, this pattern of survey responses on the death penalty shows the breadth and depth of Arkansans support for death as an appropriate punishment in capital cases. While national survey research shows some erosion of support for the death penalty, all signs are that the death penalty will remain in favor in Arkansas for the foreseeable future.

Some prior related posts:

April 9, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Saturday, April 08, 2017

"Cruel Techniques, Unusual Secrets"

The title of this post is the title of this new paper authored by William Berry and Meghan Ryan now available via SSRN. Here is the abstract:

In the recent case of Glossip v. Gross, the Supreme Court denied a death row petitioner’s challenge to Oklahoma’s lethal injection protocol.  An important part of Justice Alito’s majority opinion highlighted the existence of a relationship between the constitutionality of a punishment and the requirement of a constitutional technique available to administer the punishment.

Far from foreclosing future challenges, this principle ironically highlights the failure of the Court to describe the relationship under the Eighth Amendment between three distinct categories of punishment: (1) the type of punishment imposed by the court — i.e., death penalty, life without parole, life with parole, (2) the method of punishment — the tool by which the state administers the punishment, and (3) the technique of punishment — the manner in which the state administers the punishment.  Because, as Justice Alito insists, a constitutional method and technique must exist for a constitutionally approved punishment, there is a constitutional relationship between these categories.

As such, this Article articulates a holistic model for applying the Eighth Amendment on three levels — the punishment type, method, and technique.  This Article develops this taxonomy, making explicit the concepts implicit in a number of Eighth Amendment cases.  To be sure, the Court has assessed types of punishments, punishment methods, and punishment techniques individually, but it has never offered a holistic framework by which to understand these related constitutional inquiries.  This Article develops such an approach.

In light of the applicable framework, the Article then explores the Court’s application of the Eighth Amendment with respect to the three categories, demonstrating how the Court deviates from its doctrine when considering punishment techniques.  It next describes use of secrecy in the context of lethal injection, uncovering the manner in which this secrecy frustrates the application of the Eighth Amendment framework.  Further, the Article argues that the state-instigated secrecy does more than create a doctrinal smokescreen — it raises serious constitutional and legitimacy questions concerning lethal injection protocols.  Finally, the Article concludes by exploring what transparency in execution methods might mean both in terms of restoring dignity to death row prisoners and for the future of capital punishment in America.

April 8, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Thursday, April 06, 2017

Split Sixth Circuit panel uphold injunction blocking Ohio lethal injection protocol

A split Sixth Circuit panel today In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. April 6, 2017) (available here), upheld a preliminary injunction blocking Ohio from moving forward with a number of scheduled executions. Here is how the majority opinion authored by Judge Moore gets started:

Ohio’s current execution protocol allows for execution by lethal injection using a three-drug combination of (1) midazolam; (2) either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and (3) potassium chloride, which stops the heart.  R. 667-1 (Ohio DRC Execution Protocol, 01- COM-11 at 2) (Page ID #19813).  The purpose of the first drug is to ensure that the person being executed is insensate to the pain that the second two drugs cause. It is undisputed that if the first drug does not “render the prisoner unconscious,” then “there is a substantial, constitutionally unacceptable risk of suffocation . . . and pain” from the second two drugs. Baze v. Rees, 553 U.S. 35, 53 (2008) (plurality op.).  The ultimate question in this case is whether use of midazolam as the first drug in this three-drug protocol “entails a substantial risk of severe pain” as compared to “a known and available alternative.”  Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). The question before us at this preliminary stage, however, is much narrower.  We ask only whether the district court abused its discretion by granting a preliminary injunction to allow for further litigation regarding midazolam’s efficacy before Ohio executes Ronald Phillips, Raymond Tibbetts, and Gary Otte.  For the reasons discussed below, we AFFIRM the judgment of the district court granting the preliminary injunction.

Here is how the dissenting opinion by Judge Kethledge gets started:

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed.  See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995). Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head. Two nights later, Otte pushed his way into a woman’s home and did the same things to her.  After each murder Otte went out partying.  See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).  Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back.  His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby.  See State v. Tibbetts, 749 N.E.2d 226, 237–39 (Ohio 2001).

Phillips, Tibbetts, and Otte now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment.  In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted).  The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court refused to invalidate in Glossip.  Yet the district court thought we should likely invalidate that procedure, and today the majority agrees.  I respectfully disagree and would reverse the district court’s grant of a preliminary injunction.

A lengthy faculty meeting and a coming class mean I will not have a chance to read this extended opinion until late tonight, but I can already confidently predict that the State of Ohio will seek en banc review of this ruling and perhaps even Supreme Court review, if necessary.

April 6, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Arkansas Parole Board recommends clemency for one of eight condemned scheduled for execution later this month

As reported in this AP piece, the "Arkansas Parole Board on Wednesday recommended that Gov. Asa Hutchinson alter the state's unprecedented execution schedule and grant mercy to a death row inmate who directed the torture and murder of a teenager more than two decades ago." Here is more:

Jason McGehee, 40, is one of eight inmates scheduled to die in four double executions this month. Hutchinson, who is not bound by the board's finding that McGehee should have his sentence cut to life without parole, can intervene at any time before the execution begins on April 27. The Republican governor not said when he will make a decision.

Until Wednesday, the state Parole Board had rejected every death row clemency request presented to it since 1990.

With a key lethal injection drug expiring at the end of the month, the Arkansas Department of Correction hopes to execute eight men in a 10-day period beginning April 17. Only Texas has executed that many inmates in a month, doing it twice in 1997. Seven executions in a month would still be a record for Arkansas.

Prosecutors say McGehee, who had just turned 20, directed the fatal assault of Johnny Melbourne Jr., a 15-year-old who had told police about a northern Arkansas theft ring. In voting 6-1 in favor of McGehee's clemency request, the Parole Board considered letters and testimony from the judge from McGehee's trial, a former Correction Department chief, members of McGehee's family and the victim's father.

"The death of John Melbourne, Jr. was the tragic result of a group-dynamic gone wrong," retired Circuit Judge Robert McCorkindale wrote, according to documents released by the state Parole Board. McGehee was one of several people who participated in the attack, but was the only defendant sentenced to death, and the retired judge called it "an excessive punishment."

Former Department of Correction Director Ray Hobbs told the panel at a 40-minute hearing Friday that McGehee had become a model prisoner. "He still has value that can be given to others if his life is spared," Hobbs said.

Linda Christensen, the inmate's aunt, said in an affidavit filed with the board that McGehee suffered psychological abuse as a teenager, such as when his stepfather killed the boy's dog after the dog fought with another dog for food. The stepfather "got up and kicked Dusty in the side with his cowboy boots as hard as he could," Christensen wrote. "He lay and suffered and the kids had to watch him die slowly. ... Jason was never the same after that."

Melbourne's father had asked the board to reject McGehee's clemency request. "John didn't have this. Even though he was begging for his life and was hurting. He didn't have this and he begged for his life too. He didn't have y'all," the elder Melbourne said.

Board Chairman John Felts voted against clemency. He said McGehee's death sentence wasn't excessive considering the inmate had orchestrated the Aug. 19, 1996, attack. The boy was beaten and tortured at a house in Harrison, then bound and driven to an abandoned farmhouse outside Omaha, a town in northern Arkansas. He was later strangled while his hands were tied with an electrical cord.

April 6, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Wednesday, April 05, 2017

Alabama poised to ban judicial override of jury life recommendations in capital cases

As reported in this local article, the "law in Alabama is about to change so that juries will have the final say on whether to impose the death penalty or life in prison in capital murder cases." Here is more on this notable capital development:

The House of Representatives this afternoon passed a bill that would end the authority of judges to override jury recommendations in capital cases. Alabama is the only state that allows a judge to override a jury's recommendation when sentencing capital murder cases.

The bill, by Sen. Dick Brewbaker, R-Montgomery, passed the House on a vote of 78-19 and is now headed to Gov. Robert Bentley, who said he plans to sign it into law after it undergoes a standard legal review.

Rep. Chris England, who had a similar bill in the House, substituted Brewbaker's bill for his on the House floor today, allowing it to get final passage....

According to the Equal Justice Initiative. Alabama judges have overridden jury recommendations 112 times. In 101 of those cases, the judges gave a death sentence. "Having judicial override almost undermines the constitutional right to trial by a jury of your peers," England said.

England's bill, as introduced, would also have required the consent of all 12 jurors to give a death sentence. Current law requires at least 10 jurors. Brewbaker's bill leaves the threshold to impose the death penalty at 10 jurors.

England said there was not enough support to pass the bill with the requirement for a unanimous jury to impose the death penalty. He said ending judicial override was the main objective this year but he might propose the unanimous jury requirement again in the future. He said he still thinks the change is needed. "Why would it take a unanimous jury to convict but less than a unanimous jury to send someone to death?" England said....

England said the fact that Alabama had become the last state to allow judicial override helped build support for the bill this year. England also said there was some question about whether Alabama's death penalty law could be found unconstitutional in the future.

Ebony Howard, associate legal director for the Southern Poverty Law Center, issued a statement applauding the bill's passage. "Alabama should do everything it can to ensure that an innocent person is never executed," Howard said. "The bipartisan effort to pass a bill that would keep a judge from overriding a jury's vote in capital cases is a step in the right direction. As of today, Alabama is one step closer to joining every other state in our nation in prohibiting judicial override in the sentencing phase of death penalty cases."

The Supreme Court's decision in Hurst last year striking down, as violative of the Sixth Amendment, Florida's quirky approach to jury involvement in death sentencing surely paved the way for this notable change in Alabama procedure. Notably, in Florida, Hurst was ultimately interpreted to also preclude death sentencing based on only a 10-juror recommendation. Apparently legislators in Alabama feel more confident that capital cases can roll that way in the Yellowhammer State.

April 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, April 04, 2017

Could Proposition 66 turn the California Supreme Court into a specialty death penalty appeals court?

The question in the title of this post is prompted by this recent lengthy Los Angeles Times article headlined "Trying to speed up executions could deal 'mortal blow' to California Supreme Court." Here are excerpts:

If a November ballot measure to speed up executions goes into effect, the California Supreme Court will have to decide hundreds of death penalty appeals in rapid succession. That mandate would turn the state’s highest court into what analysts say would be “a death penalty court,” forced for years to devote about 90% of its time to capital appeals.

Proposition 66, sponsored by prosecutors and passed by 51% of voters, gave judicial leaders 1½ years to make new legal rules and then five years to decide a crushing backlog of appeals. “Prop. 66 would require the California Supreme Court to decide virtually nothing but death penalty appeals for at least the next five years — almost no civil cases at all and no criminal cases other than capital murder,” said Jon Eisenberg, president of the California Academy of Appellate Lawyers.

Legal analysts and four bar associations say the measure would inundate all the courts with extra work but hit the top court’s seven justices hardest.  In a friend-of-the-court brief, 11 law professors and a nonprofit legal center contended Proposition 66 would “grind the wheels of justice to a halt” in California.

Death penalty advocates acknowledge the measure would mean extra work for the courts, but say that it is necessary to fix a system that has produced the largest death row in the country and no executions in more than a decade.  They contend the workload will be tolerable, and that the courts will have some flexibility in meeting the deadlines.

The California Supreme Court is considering whether the measure can go into effect. Two opponents of the measure sued in November, contending it illegally usurped the powers of the judicial branch and violated a constitutional rule that says ballot measures must deal with one subject only. The California Supreme Court put the measure on hold until the justices resolve the case, probably within the next few months.

The appellate lawyers’ academy takes no position on the death penalty but opposed the initiative on the grounds that it would disrupt the courts and prevent litigants in civil matters from having their cases decided in a timely manner. It joined the bar associations of Los Angeles, Beverly Hills and San Francisco in a January letter written to the state Supreme Court saying that Proposition 66 “threatens to deal a mortal blow” to California’s courts....

Given a backlog of more than 300 death penalty appeals already at the court, the justices would have to decide at least 66 of them each year for the next several years just to catch up, Eisenberg said. Calculations based on the court’s typical annual production indicate the justices would be spending 90% of their time on capital cases, Eisenberg said. Civil case rulings would decline from about 50 a year to just a handful, he said. “That leaves virtually no time for anything other than death penalty cases,” Eisenberg said....

UC Berkeley's David A. Carrillo, director of a center that studies the California Constitution, described the initiative as a new unfunded mandate. "There is no way the courts can get through the existing backlog in five years with their current resources," Carrillo said.

Law enforcement groups have filed several friend-of-the-court briefs in favor of the initiative, arguing that voters have made their will clear. “California voters have elected to retain the death penalty every time the issue has been placed before them,” the leaders of several county prosecutor groups reminded the court in one brief.... “Despite the abiding and long-standing will of the voters, death penalty opponents have used the legal process as a mechanism to frustrate imposition of the death penalty,” the prosecutors argued in their brief.

Kent Scheidegger, who helped write Proposition 66, said the portrait of court chaos predicted by the bar associations and some analysts was overblown. Although the measure would require the California Supreme Court to move quickly to dispatch the backlog of capital appeals, the initiative would also shift initial responsibility for habeas challenges from the high court to trial judges, he noted. That provision, Scheidegger argued, would save the court time.

Rulings by Superior Court judges on those cases would likely be appealed to intermediate appellate courts and up to the state Supreme Court, but Scheidegger said the trial judges would do the heavy lifting. “I know that all judges hate time limits, but I do think that moving the habeas cases is a reform that most of the justices probably would agree with,” said Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates for the death penalty.

Even if the Supreme Court were to strike down the measure’s deadlines, other requirements of the initiative would still speed up executions, he said. He cited a provision that would limit public review of the state’s lethal injection method. Legal challenges involving the method have kept the execution chamber empty since 2006. Eighteen inmates who have exhausted their appeals could be executed immediately once that part of the initiative took effect, he said.

Former El Dorado County Supervisor Ron Briggs and the late former Atty. Gen. John Van de Kamp, who filed the lawsuit, argued that the entire measure should be tossed because it violated the rule limiting initiatives to a single subject. In addition to setting new deadlines and easing approval of an execution protocol, Proposition 66 would require death-row inmates to work to pay compensation to victims’ families and bar medical associations from disciplining doctors who participate in executions. It also would place a state agency assigned to represent death row inmates under California Supreme Court control and permit the corrections department to distribute condemned inmates among the general prison population.

I find so many interesting elements to this story, ranging from the telling reality that it has already taken five months to move along litigation about the status of an initiative designed to move along litigation to the interesting conflict created by state Supreme Court judges having to decide a case that will determine whether and how they have to decide a lot more cases a lot more quickly.  In the end, though, this story confirms my long-standing belief that unless and until a lot of elected officials in California start having a very strong interest in moving forward with a large number of executions, the death penalty will exist in the state more as a sentence on paper than as a sentence that actually gets carried out for any significant number of condemned murderers.

April 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, April 03, 2017

Latest SCOTUS order list includes one complicated capital case grant

The Supreme Court via this order list granted cert in two cases, including a capital case out of Texas, Ayestas v. Davis. SCOTUSblog has this case page for Ayestas, where one can find this cert petition, where one can find the complicated question on which cert was granted:

2. Whether the Fifth Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an IAC claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made.

April 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Charleston Church shooter Dylann Roof slated to plead guilty to state charges to avoid second capital trial

As reported in this local article, "mass killer Dylann Roof will plead guilty to state murder charges on April 10, sparing his nine victims' loved ones a second grueling death penalty trial and ensuring he spends the rest of his life in prison."   Here is more:

Roof, 22, was convicted in January of 33 federal charges, including hate crimes, and sentenced to death for killing nine black worshippers at Emanuel AME Church. However, 9th Circuit Solicitor Scarlett Wilson also was pursuing the death penalty for nine state murder charges, proceedings that had been on hold since the end of Roof's federal trial.

She let families of Roof's victims know early Friday she is accepting a guilty plea instead. "I write with great news that the state’s case is ready to wrap up. As I told you towards the end of trial and in other updates, at this point our goal is to provide an insurance policy to the federal conviction and sentence. The most effective way to do that is to secure a guilty plea for a life sentence and get the defendant into federal custody," Wilson wrote in a letter obtained by The Post and Courier.

Reached Friday, Wilson said the move will take the death penalty off the table in the state case and assist with moving the white supremacist along to federal prison. "The goal is to get him into federal custody so their sentence can be imposed," she said. She had no further comment on the decision, saying her letter speaks for itself.

After his April 10 plea, Roof likely will be moved from the Charleston County detention center to a federal Bureau of Prisons facility. Male prisoners sentenced to death usually are housed at a prison in Terre Haute, Ind., site of the federal execution chamber.

Loved ones of those killed have waited since the gut-wrenching federal trial's close to find out Wilson's plans. Many don't support the death penalty on religious grounds and several said they didn't want to go through a second trial.

The Rev. Sharon Risher, whose mother died in the shooting, was among them. Wilson called to tell her the news. "I totally appreciated that," Risher said. "I'm feeling glad we don't have to endure another trial. I believe in my heart that this is the right thing to do. He won't ever be able to step outside again. He won't ever feel the sun on his skin again."

April 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, March 31, 2017

New report spotlights concerns with disabilities and bad lawyering for eight Arkansas condemned scheduled for execution next month

In this post last year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation.   The latest timely report from FPP is titled "Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering," and here is how it gets started:

Since the Supreme Court reinstituted the death penalty in 1976, Arkansas has executed just 27 people.  It has not sent an inmate to the death chamber since 2005.  But beginning on April 17, Arkansas intends to execute an unprecedented eight men in just ten days.

This report examines the cases of those condemned men, and what we found is devastating.  At least five of the eight cases involve a person who appears to suffer from a serious mental illness or intellectual impairment.  One of these men was twenty at the time of the crime, suffered a serious head injury, and has a 70 IQ score.  Another man suffers from paranoid schizophrenia and believes that he is on a mission from God.  He sees both his deceased father and reincarnated dogs around the prison.  A sixth condemned inmate endured shocking sexual and physical abuse–he was burned, beaten, stabbed, and raped, and his mother pimped him out to various adults throughout his preteen and teen years.  In the two remaining cases, there is no evidence to suggest that the attorneys ever conducted even a minimally adequate mitigation investigation to determine if their clients had any illnesses or disabilities.

Across the eight cases, the quality of lawyering that we detected falls short of any reasonable standard of effectiveness–one lawyer was drunk in court, while another struggled with mental illness. Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest. Taken together, these cases present a foundational challenge to the legitimacy and integrity of the death penalty in Arkansas.  The Governor should declare a moratorium on executions so these legal deficiencies can be given a closer look, or else the Courts must intervene to stop these executions in order to preserve public confidence in the rule of law.

March 31, 2017 in Death Penalty Reforms, Offense Characteristics, Who Sentences? | Permalink | Comments (7)

Perspectives on some changing prosecutorial perspectives

This New York Times article, headlined "Lock ’Em Up? Prosecutors Who Say ‘Not So Fast’ Face a Backlash," discusses the debate over a new local Florida prosecutor's announcement that she will not pursue capital cases together with the broader dynamic that more local prosecutors are running and winning on a criminal justice reform platform. (The companion piece briefly profiles "5 Prosecutors With a Fresh Approach.") Here are excerpts:

In Tampa, the top prosecutor says too many children are charged as adults. In Houston, the district attorney will no longer press charges in low-level marijuana cases. And in Chicago, prosecutors will no longer oppose the release of many nonviolent offenders who cannot afford to post bond. Two more newly elected prosecutors, in Denver and Orlando, have vowed not to seek the death penalty, even for the most egregious killers.

They are part of a new vanguard that has jettisoned the traditional lock-’em-up approach, instead winning over voters by embracing alternatives to harsh punishment. But in their eagerness to enact changes, some are facing a backlash from law enforcement groups and more conservative politicians.

In Texas, Lt. Gov. Dan Patrick, a Republican, warned that failing to punish drug crimes would make Houston akin to a “sanctuary city” for illegal enterprise. In Chicago, a suburban police chief warned that a move to classify more shoplifting cases as misdemeanors was “a slippery slope.”

But nowhere has there been more vitriol than in Florida, where a battle over the death penalty shows just how volatile an issue capital punishment remains, especially when the death of a police officer is involved....

The new breed of prosecutors was helped into office by voters skeptical of wrongful convictions, mass incarceration and evidence of racial bias in law enforcement. As candidates, many received help from the liberal billionaire George Soros, who spent millions on campaigns in states including Arizona, Mississippi and Missouri. Of the 15 candidates supported by his political action committees (including one for sheriff), 12 were victors.

But some change-minded prosecutors won without Soros money, showing that attitudes across the country are changing regardless of outsize political contributions, said David A. Sklansky, a professor at Stanford Law School who closely follows the issue. “It’s now possible in at least some places for district attorneys to campaign successfully and win office on a platform that’s not just harsher, harsher, more, more punishment,” he said. “That was unheard-of 10 years ago.”

Bob Ferguson, the attorney general of Washington State, said, “I think our public’s view of our criminal justice system has evolved.” Speaking out against the death penalty, he added, “is not the third rail people think it is.”

March 31, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, March 30, 2017

Arkansas trial judge finds it "more than shameful" that state Supreme Court ruling required dismissal of condemned inmates suit over lethal injection

As reported in this local article, headlined "Suit over Arkansas execution drug gets dismissal; Griffen: Justices stole men’s rights," a trial judge in Arkansas is none-too-pleased he felt compelled to dismiss a challenge to lethal injection brought by state prisoners in the wake of a state Supreme Court ruling on the matter. Here are the basics of a notable ruling in a state seemingly poised now to conduct eight executions in the coming weeks:

The Arkansas Supreme Court's decision to lift a ban on the death penalty stole the rights of the nine convicted killers who filed suit to challenge the state's execution procedures, and it forces all state courts to continue that theft, Pulaski County Circuit Judge Wendell Griffen said in a ruling Tuesday.

"It amounts to theft of the rights guaranteed by the Constitution of this state and the Constitution of the United States to a trial," the judge wrote.

The ruling issued Tuesday by Griffen, a former Court of Appeals judge known for his outspokenness, formally ends 21 months of state-court litigation over the legality of the state's execution protocols. Griffen's dismissal of the inmates' Circuit Court lawsuit comes as eight of those inmates face lethal injection next month in four two-per-day execution sessions.

The prisoners have filed two federal lawsuits this week attempting to halt the process. On Tuesday, they sued to stop the ongoing clemency hearings, arguing that the state is moving forward with their executions so quickly that their clemency petitions are not getting the consideration required by law. A federal lawsuit that they filed Monday disputes that the anesthetic midazolam will give them the painless death they are entitled to under constitutional protections that bar the infliction of cruel and unusual punishment.

The inmates had disputed the effectiveness of midazolam at preventing suffering as part of their 2015 state-court lawsuit before Griffen. But they were not allowed to present their evidence in court because the Supreme Court ignored "decades" of case law to dismiss their entire lawsuit even before all of the issues the inmates had raised had been decided, Griffen wrote in Tuesday's order and memorandum.

"To think that the highest court in Arkansas would compel every other court in Arkansas to steal the last right condemned persons have to challenge the constitutionality of their execution illustrates the travesty of justice, and the damnable unfairness, this court is powerless to prevent," Griffen wrote.

State lawyers asked Griffen on March 16 to dismiss the killers' lawsuit based on the Supreme Court's June 2016 findings, a 4-3 decision written by Justice Courtney Goodson that reinstated the death penalty after a 10-year hiatus. Arkansas has not carried out an execution since 2005 because of litigation by inmates who have disputed the legality of changes the Legislature has made to the state's execution procedures over the past several years.

On March 17, the inmates' attorneys asked Griffen to rule in their favor on issues in the lawsuit that they stated the Supreme Court holding did not address. But the judge wrote that the Supreme Court decision required him to dismiss the lawsuit.

His 10-page ruling also states that the high court ignored decades of case law to deliberately deny the inmates their rights, and it suggests that the justices violated the oath all attorneys take to uphold the law to reach their conclusions. "It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state. As such, it is more than troubling and more than shameful," Griffen wrote.

March 30, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)