Sentencing Law and Policy

Some notable death penalty headlines from across the pond

The start of a new week brings these interesting new pieces about the death penalty from our friends in the UK and Ireland:

• The Guardian has these new pieces discussing the death penalty in Texas: "Texas accounts for half of executions in US – but now has doubts over death row" and "Texas death row man claims inmates' numbered days are form of torture"

• The Irish Times, meanwhile, has this new piece striking different themes: "Death penalty should be revisited, says ex-judge"

How quickly will Ohio be able to get back to executions after adopting one-drug lethal injection protocol?

As noted in this prior post, roughly two months after Ohio had to stop a botched execution, the state has announced the development of a whole new lethal injection protocol.  This New York Times article provides the basic details, and also sets up the big legal question which now follows:

Breaking ranks with the 35 other states that use lethal injections to execute prisoners, Ohio on Friday became the first state to say it would switch to a single drug, rather than a three-drug cocktail, in its death penalty procedure.

Critics have long argued that using a single drug, the preferred method in animal euthanasia, is more humane than the three-drug cocktail, which involves a short-acting barbiturate to render the inmate unconscious, followed by a paralytic and then a chemical to stop the heart....

Ty Alper, associate director of the Death Penalty Clinic at the University of California, Berkeley, called the change “a significant step forward.” 

“The hope is that other states will realize that there is no need to paralyze inmates before executing them,” he said, “and that, in fact, doing so risks a horribly torturous execution.”

Richard C. Dieter, executive director of the Death Penalty Information Center in Washington, which opposes the death penalty, said that while he saw the policy change as an important step forward, he did not believe that Mr. Broom would be executed any time soon.

He said he anticipated that the new method would be delayed by extensive court challenges, with medical experts lining up to testify on both sides of whether the single-drug method is humane.  “The simple fact is that no one knows whether this method will work on humans,” he said, “and what unforeseen side effects there could be to using the drug in this way.”

It is inevitable that death row defendants will medically question and legally challenge Ohio's new one-drug lethal injection protocol.  But I do not think it is inevitable that these legal challenges should take a very long time to resolve.  As Jeff Gamso notes in this post titled "The Execution Express," Ohio officials have indicated that they are ready, willing and eager to start using the new execution protocol ASAP, and Ohio currently has an execution scheduled for each of the next seven months.

I previously predicted that it was unlikely Ohio would get back in the execution business until 2010, but I had not expected the state to roll out a new one-drug lethal ijection protocol (with a back-up plan) so quickly.  I still would be surprised if Ohio succeeds in getting its death chamber revved up again in a matter of weeks; but the federal courts who've long struggled with these issues may perhaps now will be eager to move this matter quickly now that Ohio has adopted a new execution protocol that seems to respond to the chief complaints about the old lethal injection protocol. 

Some related posts on Ohio lethal injection issues:

• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Split Sixth Circuit panel stays next scheduled Ohio execution
• NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009
• Ohio considering new (and novel) method of lethal injection
• "Ohio GOP lawmakers: Execution process can be fixed"
• Ohio adopting a new one-drug lethal injection protocol

Ohio adopting a new one-drug lethal injection protocol

Big news for lethal injection fans from my home state: as detailed in this local report, "Ohio will switch to a single drug instead of a three-drug cocktail in its new execution procedure, according to documents filed in federal court this morning."  Here are more details:

Executions will use a single drug, thiopental sodium, "in an amount sufficient to cause death," Attorney General Richard Cordray's office said in filing in U.S. District Court in Columbus.  The drug is an anesthetic.  The new procedure will be in place by Nov 30.

The new procedure is similar to one used in euthanizing pets: a massive dose of an anesthetic.  The drug is also sometimes used in medically-induced comas.  Ohio will be the first state in the U.S. to use the one-drug procedure.

The state filing also listed a new backup procedure, if the first one doesn't work or can't be used.  The backup method involves an injection with a needle into a large muscle such as the arm or upper thigh.  It was described as "much like a flu shot."  One of the drugs to be used is Dilaud, a commonly used painkiller.

"I have full confidence that this protocol will allow my staff the ability to fulfill our legally mandated obligation in carrying out the execution process for the state of Ohio," said Terry Collins, director of the Ohio Department of Rehabilitation and Correction....

Ohio would become the first state to make major changes in a three-drug execution process that was essentially copied by 35 states from Oklahoma, where it was developed by an anesthesiologist in 1977.

Seems like Friday afternoon is a bad time to do away with cocktails, but I guess Ohio thinks a shot straight up will now be adequate to do the trick.  (Sorry for the gallows humor, but it is hard to resist on a Friday afternoon.)  In all seriousness, this is big news in the lethal injection protocol debates, and it will be interesting to see how it is received among those who have been most vocal in their objections to the old cocktail approach.

UPDATE:  I was able to get a copy of the new Ohio lethal injection plan submitted in federal court today.  That plan appears as an appendix to a motion in Ohio's on-going lethal injection litigation, and all of this can be downloaded here: Download Ohio new lethal injection plan

"There have been fewer executions in California than deaths by lightning strike "

The title of this post is the first sentence of this new note in the California Law Review, which is titled "Capital Crime: How California’s Administration of the Death Penalty Violates the Eighth Amendment."  Here is more of the piece's abstract:

But what does the death penalty have to do with lightning?  The comparison is drawn from the analysis in the landmark capital punishment case, Furman v. Georgia, which held capital punishment at the time to be unconstitutional.  That analysis, now mostly relegated to sound bite status, suggests that California's capital punishment system is unconstitutional.  In Furman, Justice Stewart compared being sentenced to death with getting struck by lightning, in the sense that sentencing was both arbitrary and capricious.  The Furman court noted that this was not acceptable because it meant that capital punishment could not serve the legitimizing penal purposes of deterrence and retribution.

Now once inmates have been sentenced to death in California, executions are so infrequent that comparison with lightning is generous. Because the execution rate in California is so low, sentencing does not correspond to the actual imposition of the death penalty.  Only 13 inmates have been executed since 1978.  There are currently 677 on death row.  This paper aims to show that as a result of a low execution rate and inmate death row stays averaging around 17 years and growing, capital punishment in California is no longer more retributive or deterrent than the punishment of life without parole.  As such, it is excessive and violates the Eighth Amendment.

Fort Hood shooter formally charged with 13 capital counts of premeditated murder

As detailed in this new New York Times piece, "Military prosecutors have charged Maj. Nadil Malik Hasan with 13 counts of premeditated murder in last week’s shooting rampage at Fort Hood, Tex., a spokesman for the Army criminal investigation division said Thursday." Here are more of the legal details, with a death penalty spin:

The 13 charges against Major Hasan are “initial charges,” said the Army spokesman, Chris Grey, “and additional charges may be preferred in the future, subject to the ongoing criminal investigation.”...

The Uniform Code of Military Justice provides the death penalty as a possible punishment for 15 offenses, many of which must occur during a time of war, the center says. All nine men on the military’s death row were convicted of premeditated murder or felony murder.

There has not been a military execution since 1961, although nine men are on the military’s death row at Fort Leavenworth, Kan., according to the Death Penalty Information Center. The president has the power to commute a military death sentence, and no military prisoner can be executed without the president’s approval.

President George W. Bush approved the execution of one of the nine, Pvt. Ronald A. Gray, on July 28, 2008. Private Gray was convicted by court-martial of two murders, an attempted murder and a series of rapes around Fort Bragg, N.C., more than two decades ago. Lethal injection is now the method of execution, the Death Penalty Information Center says.

The last military prisoner to be executed was Pvt. John A. Bennett, who grew up in southern Virginia and was hanged at Fort Leavenworth on April 13, 1961, three days past his 26th birthday for the rape and attempted murder of an 11-year-old Austrian girl in December 1954.

In 1957, President Dwight D. Eisenhower approved Private Bennett’s execution, and President John F. Kennedy declined to grant clemency, although he did commute one military death sentence in 1962.

Private Bennett’s execution got relatively little attention at the time because the previous day the Soviet Union had launched the first person, Yuri Gagarin, into space, and several days later the Bay of Pigs invasion took place in Cuba.

"In California, Some Want To Be On Death Row; Life Is Better There"

The title of this post is the headline of this new NPR entry, which is itself a follow-up to this important new Los Angeles Times article discussing life on California's death row.  The full headline for the LATimes piece captures the major themes of today's must-read article: "Death penalty is considered a boon by some California inmates: Given the state moratorium on executions and an appeals process that can last for decades, inmates can expect to live a long time, and with privileges other prisoners lack." Here are excerpts from the article:

White supremacist gang hit man Billy Joe Johnson got what he asked for from the Orange County jury that convicted him of first-degree murder last month: a death sentence.   It wasn't remorse for his crimes or a desire for atonement that drove him to ask for execution; it was the expectation that conditions on death row would be more comfortable than in other maximum-security prisons and that any date with the executioner would be decades away if it came at all....

Though death row inmates at San Quentin State Prison are far from coddled, they live in single cells that are slightly larger than the two-bunk, maximum-security confines elsewhere, they have better access to telephones and they have "contact visits" in plexiglass booths by themselves rather than in communal halls as in other institutions.  They have about the only private accommodations in the state's 33-prison network, which is crammed with 160,000-plus convicts.

Death row prisoners are served breakfast and dinner in their cells, can usually mingle with others in the outdoor exercise yards while eating their sack lunches, and have exclusive control over the television, CD player or other diversions in their cells.   "Death row inmates probably have the most liberal telephone privileges of anyone in state custody," said Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation, explaining that they need ready access to their attorneys and can often make calls from their cells over a phone that can be rolled along the cellblock.

The condemned wear the same jeans and chambray-shirt prison garb, eat the same food as prepared in other prisons and enjoy the same access to mail-order and canteen goods paid for by their families, as long as they maintain good behavior, Thornton said.

Those on death row are also allowed more personal property inside their cells, to accommodate their voluminous legal documents without infringing on the 6 cubic feet of snacks and entertainment devices allowed each prisoner, said Lt. Sam Robinson, spokesman for San Quentin.  "It's not that he thinks conditions will be better; they are better," Johnson's attorney, Michael Molfetta, said of his client's request for death row. Johnson, 46, figures that he will be close to 70 by the time his appeals are exhausted, Molfetta said, "and he says he doesn't care to live beyond that."

Students who take my sentencing classes have long heard me say that I would rather be sentenced to death than to life without parole were I to be convicted of a death-eligible crime.  I often make this point when talking about wrongful convictions when suggesting that a wrongfully convicted person sentenced to death likely is likely better able to get media and the public interested in his case than a wrongfully convicted person sentenced to LWOP.  (The on-going debate in Texas as to whether Cameron Todd Willingham was wrongfully convicted seems to confirm this point.)  But this LA Times piece rightly spotlights why even the guilty might prefer a death sentence to an LWOP sentence.

And there are other benefits to death row for the guilty that are not discussed in this piece.  For example, many persons on death row are uniquely able to garner pen pals and other abolitionist supporters from European countries and also are uniquely able to garner press attention (as this LA Times article itself shows).  Put another way, a murderer condemned to death is always going to be more of a celebrity and will have a higher Q-rating than a murderer given an LWOP sentence.

Of course, some guilty murderer still surely will prefer a lower-profile LWOP fate than the higher-profile experience that comes with a death sentence.  Nevertheless, the real-world punishment dynamics discussed here are among the reasons I view LWOP sentences as generally more problematic (and, in turn, generally more "cruel and unusual" for purposes of the Eighth Amendment) than death sentences.

Virginia Gov Kaine denies clemency for DC sniper

This CNN report provides the latest news on the high-profil execution due to take place in Virigina tonight:

Virginia Gov. Tim Kaine denied a last-minute clemency request Tuesday for John Allen Muhammad, the mastermind behind the 2002 sniper attacks that terrorized the the nation's capital and its suburbs.

The denial leaves Muhammad, 48, scheduled to die Tuesday evening by lethal injection at a state prison near Jarratt, Virginia.

Governor Kaine's full statement can be accessed at this link, and here is the key concluding section:

Muhammad's trial, verdict, and sentence have been reviewed by state and federal courts, including the Supreme Court of Virginia, United States District Court for the Eastern District of Virginia, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court.  Having carefully reviewed the petition for clemency and judicial opinions regarding this case, I find no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts.  Accordingly, I decline to intervene.

Eighth Circuit affirms rejection of death row prisoners' attack on Missouri's lethal injection protocol

An Eighth Circuit panel today has ruled on an appeal concerning a constitutional attack on Missouri's execution protocol in Middleton v. Crawford, No. 08-2807 (8th Cir. Nov. 10, 2009) (available here).  Here is the unofficial summary of the ruling from the Eighth Circuit website:

Missouri death row prisoners challenging Missouri's execution protocol did not allege a sufficiently substantial risk of serious harm or a sufficiently imminent danger to state an Eighth Amendment claim, and the district court did not err, as a matter of law, in determining that the prisoners had failed to state a claim for violation of the Eighth Amendment; no error in denying motions to intervene.

Do cases like the DC sniper and the Fort Hood shooter and Ohio serial killer ensure death's vitality?

Reviewing some of the media coverage of sentencing issues this morning confirms my view of why it is always going to be difficult for death penalty abolitionists to convince the majority of Americans to be opposed to the death penalty in all cases for all crimes.  Specifically, this week all the major death penalty talk centers around (1) Virginia's efforts to execution the DC sniper, John Allen Muhammad, and (2) the consideration of capital prosections of the Food Hood shooter, Malik Nadal Hasan, and Ohio's sex offender serial killer, Anthony Sowell.

Notably, in all three of these cases, we all must confront obviously deranged offenders who have committed multiple brutal and senseless murders that have terrorized local communities and the nation as a whole.  In none of these there cases is there any serious basis to doubt the guilt of the offender, and there likewise does not seem to be a good chance that poor lawyering or racial bias or some other procedural defect explains why the case is to be a capital case.

In other words, with such potent capital punishment poster children like Muhammad and Hasan and Sowell garnering much media coverage and capturing most of the public's attention, I suspect it will remain very hard for death penalty abolitionists to change the hearts and minds of average Americans to be opposed to the punishment of death in all contexts.

Virginia clears final big legal hurdle for executing DC sniper on Tuesday

As detailed in this new Washington Post piece, today the Supreme Court "denied John Allen Muhammad's request to stay his execution, clearing the way for Virginia to put to death the man who terrorized the Washington region as the Beltway Sniper."  Here's more: 

Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor objected to the court's haste, saying it "highlights once again the perversity of executing inmates before their appeals process have been fully concluded."  Stevens, writing for the three, said Virginia had short-circuited the process by scheduling Muhammad's execution for Tuesday night, earlier than the court would normally have reviewed his petition for the court to take his case.

I am not sure what I find most remarkable about this case: the fact that Virginia has been successful in getting Muhammad to the door of the death chamber "only" six years after he was sentenced to death for his horrific crimes is almost as remarkable as the fact that the capital review process is usually so cumbersome that we call a six-year appeal process hasty in a seemingly open-and-shut capital case.

SCOTUS summary reversal of Sixth Circuit capital ineffective assistance ruling

As detailed in this SCOTUSblog post, the Supreme Court issued "no new cert. grants this morning ... [but there was a] summary disposition in the case Bobby v. Van Hook(09-144), which was granted and reversed."  The per curiam ruling in Van Hook can be accessed at this link, and here is how it starts:

The Court of Appeals for the Sixth Circuit granted habeas relief to Robert Van Hook on the ground that he did not receive effective assistance of counsel during the sentencing phase of his capital trial.  Because we think it clear that Van Hook’s attorneys met the constitutional minimum of competence under the correct standard, we grant the petition and reverse.

Justice Alito has an interesting one-paragraph concurrence to the ruling in Van Hook.  Here it is:

I join the Court’s per curiam opinion but emphasize my understanding that the opinion in no way suggests that the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney’s performance meets the standard required by the Sixth Amendment.  The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership.  The views of the association’s members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole.  It is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution, and I see no reason why the ABA Guidelines should be given a privileged position in making that determination.

Capital justice greatly delayed (and very costly) in Kentucky

Thanks to How Appealing, I saw this long article from the Louisville Courier-Journal, which is headlined "Kentucky's troubled death-penalty system lets cases languish for decades."  This companion article, headlined "Killer's appeals drag on 29 years," explains how long capital justice gets delayed in the Blue Grass State.  Here are how the main article starts:

Kentucky is spending millions of dollars each year on a capital-punishment system so ineffective that more death-row inmates are dying of natural causes than are being executed. Since the death penalty was reinstated nationwide in 1976, Kentucky's trial courts have sentenced 92 defendants to death. Only three have been executed, compared to the five inmates who have died while their cases were being appealed.

In fact, because of Kentucky's ponderous system, more than one-third of the state's 36 current death-row inmates — 13 in all — have been there at least two decades. That's a higher percentage than in every other state except Tennessee, Nevada and Idaho, according to an analysis of information compiled by the federal Bureau of Justice Statistics.

In addition, 30 other inmates whom Kentucky circuit judges sent to death row over the past 33 years ultimately have seen their sentences reduced as the result of appeals, suggesting widespread flaws at the trial level.

The state Department of Public Advocacy estimates that Kentucky spends as much as $8million a year prosecuting, defending and incarcerating death-row inmates, even as state-ordered budget cuts impair other aspects of the judicial branch of government.

Critics of the capital-punishment system question whether Kentucky can afford to litigate death-penalty cases that drag on interminably and rarely end with an execution, especially when convicted murderers can be sentenced to life in prison without the possibility of parole.

"Suspect Could Face Death Penalty in Fort Hood Shooting"

The title of this post is the headline of this FoxNews piece, which spotlights that the death penalty has entered conversations in the aftermath of the horrible events at Fort Hood earlier this week.  Here is the start of the article:

The Army psychiatrist suspected in Thursday's deadly Fort Hood rampage in Texas could get the death penalty if he is convicted of multiple counts of first-degree murder — and military law experts say the evidence against him will be substantial.

American-born Maj. Nidal Malik Hasan has yet to be charged but is expected to face at least 13 counts of murder, one for each of the victims who died, as well as numerous assault and weapons charges in a court-martial.

"Obviously, we're all guessing, but it's reasonable to believe that he will be convicted and sentenced to death," said retired Navy lawyer Philip Cave, now a military crimes defense attorney.

Cave estimated that Hasan, 39, would spend between five and 15 years in the military's court martial system. "It will be a long charge sheet," military law scholar Richard Rosen told KCBD.com, "one longer than I've ever seen in my life time in the Army."

Amicus filing in SCOTUS habeas cases creating controversy among death penalty crowd

This story from the Boston Globe, which is headlined "Death penalty foes rip Coakley for signing brief," highlights that the politics of the death penalty in Massachusetts in quite different than in other parts of the country.  Here is the start of the story:

Attorney General Martha Coakley, who says she is firmly against capital punishment, has drawn the ire of some death penalty opponents by urging the US Supreme Court to limit federal review of state court decisions, which opponents say could make it harder for defendants on death row to challenge their sentences.

Coakley, along with 18 other attorneys general, signed a friend-of-the-court brief in September asking that the nation’s highest court maintain restrictions on intervention by federal courts.  Death penalty opponents, who are watching the case closely, say if Coakley’s arguments prevail it could be more difficult for federal courts to overturn death sentences, as well as other criminal punishments, handed down in state courts.

The case, which comes as Coakley is battling for votes in the Democratic Senate primary, involves a convicted murderer from Alabama who has appealed his case to the Supreme Court, on the grounds that his state-assigned lawyer failed to introduce crucial evidence that he is mentally retarded.

“There’s no way this kid should be killed," said Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, an organization that opposes the death penalty.  “It’s old-fashioned Southern states’ rights. I was shocked to see that she and the state of Massachusetts had joined that brief."

"Ohio GOP lawmakers: Execution process can be fixed"

The title of this post is the headline of this notable new AP piece discussing Ohio's on-going efforts to try to fix its execution protocol.   Here are excerpts from the piece:

Two Republican lawmakers advising Ohio's Democratic governor on changes to the state's lethal injection process say it shouldn't be hard to fix the system.  The lawmakers, both proponents of capital punishment, are among state legislators helping Gov. Ted Strickland find medical personnel willing to help the state improve its injection process.  Both say they got involved to make sure recent problems with lethal injection don't lead to attempts to eliminate the death penalty.

"We want to make sure our well-established judicial rights to administer capital punishment in appropriate cases are preserved and will not be defeated by new and ingenious means of dodging the executioner," Sen. Bill Seitz, of Cincinnati, said Wednesday.  Seitz said he's talked to lawyers and doctors but has yet to find anyone willing to come forward.  But his conversations have suggested changes Ohio could adopt, ranging from using a retired doctor during executions to requiring that inmates drink enough liquids before an execution to keep their veins healthy.

Sen. Tim Grendell has contacted current and retired doctors looking for advice. "I find it difficult to believe there isn't a functional solution to this problem," said Grendell, of Chesterland.

The death penalty is temporarily on hold in Ohio while the state develops the new policies. The update follows a botched execution on Sept. 15 that was halted when executioners couldn't find a suitable vein on inmate Romell Broom....

Also Wednesday, the Ohio Supreme Court set two new execution dates.  The court set a May 13 execution date for Michael Beuke, 47, convicted of the 1983 murder of Robert Craig, a man he met while hitchhiking on Interstate 275 in southwest Ohio.  The court also set a June 10 execution date for Richard Nields, 59, sentenced to die for the 1997 death of his girlfriend, 59-year-old Patricia Newsome, at their home in Finneytown in southwest Ohio.

Given that Ohio does not seems to be making much progress on a new execution protocol, and given that litigation seems inevitable whenever a new protocol is adopted, I would not bet on these new execution dates holding.  But if there is a persistent will, I suspect Ohio will eventually find a way to get back in the business of executions.

DC Sniper makes (final?) appeal to SCOTUS before scheduled execution

As detailed in this Washington Post article and this SCOTUSblog post, lawyers for "sniper John Allen Muhammad, mastermind of the terrifying 2002 Washington area shooting spree, asked the U.S. Supreme Court on Tuesday to halt their client's execution, saying he was paranoid and delusional during his trial."  Here is how SCOTUSblog describes the legal particulars:

The new petition asked the Supreme Court to review two issues.  Paraphrased, they are: whether the Fourth Circuit was wrong in the standard it used to analyze the performance of his lawyers on the incompetency issue, and whether Congress has set a one-year filing period for the first habeas plea and thus that period cannot be shortened by federal judges.

The first question is a mixture of an inquiry into counsel’s performance, and a question of the scope of prejudice that may result from a flawed performance regarding competency.  Muhammad’s petition contends that, in judging whether Muhammad’s case was harmed when his lawyers failed to bring forth evidence of his incompetence, when the judge was considering whether to let Muhammad act as his own lawyer, the test is whether there was a reasonable chance the accused would have been found incompetent to waive his rights.  The Fourth Circuit, it adds, erred in focusing only on whether there was a reasonable prospect that the trial would have ended differently if Muhammad had not been his own lawyer (for two days of the trial)....

The second issue focuses on what the petition says is a truly novel practice, under which federal District Courts in Virginia routinely deny first-time habeas applicants a full year to prepare their habeas pleas.  Thus, the question raised is whether the one-year time provision in federal habeas law (enacted as part of the Antiterrorism and Effective Death Penalty Act) bars a federal judge from ordering an earlier filing.  Federal judges ordered Muhammad to proceed with plenty of time left in the one-year span, the petition says.

My gut instinct is that it is unlikely that the Justices will take up this high-profile capital case.  But, especially in death penalty settings, unexpected factors can sometimes lead to unexpected results. 

Fascinating newspaper report on the impact of Ring in Idaho

This local article from Idaho suggests that the Supreme Court's 2002 Ring decision concerning jury trial rights in capital cases has had a profound impact on the operation of the death penalty in The Gem State.  The article is headlined "Idaho prosecutors opting not to seek death penalty: Only 2 Idaho counties have asked for the death penalty in murder cases since 2003, and Ada hasn’t pursued it since being denied twice in 2005," and here are excerpts:

[I]n death penalty cases in Idaho since 2003, the jury is the ultimate arbiter.  And rather than take death penalty cases to juries, prosecutors across the state are opting not to pursue executions at all or are agreeing to plea deals that put killers in prison for life.  Prosecutors have to weigh the high costs of pursuing the death penalty and the suffering of victims' families through years of appeals against a sentence that is largely symbolic.

Just one person in half a century has been executed in Idaho — double-murderer Keith Eugene Wells, who dropped all appeals and demanded a lethal injection in 1994.  And since the U.S. Supreme Court in 2002 said that juries, not judges, must issue the death penalty, prosecutors around the state have been forced into a guessing game: Even if jurors believe the accused committed the crime, will they pass a death sentence?

So far, only Ada and Canyon counties have asked juries to issue the death penalty, and less than half of those cases resulted in death sentences.  Not one of Idaho's 42 other counties has taken a death penalty case to trial.  Of the four attempts in Ada County, juries sentenced two men to death and spared the lives of two others — including one in a child-death case....

Recent experience has shown Ada County prosecutors how difficult it is to persuade jurors to hand out a death sentence.   In 2004, juries called for the execution of convicted killers Azad Abdullah and Erick Hall, but in 2005 spared the lives of Jason McDermott and Ignacio Sanchez even after finding both guilty of first-degree murder.

In McDermott's case, one juror out of 12 could not get past defense evidence that showed McDermott had a brain injury from being shot in the head, mitigating his execution-style slaying of 18-year-old Zachariah Street in May 2003.   After Sanchez was found guilty of beating his girlfriend's 2-year-old daughter to death over a period of weeks in 2003, defense attorneys showed he had been physically abused as a child, had battled with depression and other mental illnesses, and had used methamphetamine since he was 12....

Such uncertainty has helped lead to settlements in a number of death penalty cases in Idaho since the 2003 law change.  Former Canyon County Prosecutor Dave Young dropped pursuit of the death penalty against Alofa Time in 2007 in exchange for a guilty plea to first-degree murder.  Time is now serving life in prison, without the possibility of parole, for killing and beheading his ex-wife, Theresa, in 2006.  Young said he made the deal "to spare the family from a lengthy trial and being forced to relive this horrific crime."...

In 2006, Jim Junior Nice avoided the death penalty after cutting a deal with Twin Falls County Prosecutor Grant Loebs to plead guilty to murdering his three young children in Twin Falls the year before.  Prosecutors say Nice used rat poison and over-the-counter medication to kill 6-year-old twins Justin and Spencer and their 2-year-old sister, Raquel.

Loebs said he made the deal in the Nice case for a variety of reasons - including the fact that Nice's guilty plea means he will never leave prison.  But he did say Nice's attorneys would have put on mitigation evidence that their client suffered from mental illness.  Figuring out whether or not to seek the death penalty "is a tough, tough calculation to make," said Loebs. "It's one of the toughest things you have to do as a prosecutor."

"Death penalty cases costly; instead, seek life sentences"

The title of this post is the headline of this commentary coming from The Spokesman Review in reaction to an intriguing debate over a potential capital case in Washington.  Here is how the piece starts:

Stevens County is balking at accepting the death penalty case of Christopher H. Devlin, because of the enormous costs associated with mounting such cases.  It’s a valid concern, because the county is already facing a $1.2 million deficit.

“I have no doubt that the defense cost of Mr. Devlin and the costs to prosecute this case would be a serious blow to the solvency of Stevens County,” county prosecuting attorney Tim Rasmussen told The Spokesman-Review.  He noted that a similar case cost Okanogan County $750,000.

While cost shouldn’t be the only concern in prosecutions, it’s become clear that a death penalty charge imposes a financial burden that isn’t worth it.  That’s also true of larger counties, especially as they try to dig themselves out of deep budgetary holes.  It can mean more pressure to reach plea agreements in other cases or employee layoffs or cutbacks in service.

The Devlin case was investigated by the Spokane County Sheriff’s Office and the death penalty charge was brought by Spokane County, because the body of Daniel D. Heily was found near Deer Park.  But investigators have since heard from a co-defendant who says the killing took place in Stevens County.

Spokane County Superior Court Judge Jerome Leveque ruled last month that because the crimes took place in two counties, the defendant could decide where to mount a defense.  Devlin chose Stevens County.

Rasmussen contends that the judge wants Spokane County to prosecute the case with a Stevens County jury. He says Spokane County should pick up the tab. Spokane County Deputy Prosecutor Dale Nagy says his interpretation is that the entire case — costs included — shifts to Stevens County.

This financial hot potato shows why it is a wiser course to seek life sentences, with no possibility of parole, for defendants like Devlin.

Some recent related posts on the costs of capital punsihment:

• "Budget kills Hinds capital cases: DA says Hinds can't afford death-penalty prosecutions"
• New DPIC report assails costs (and opportunity costs) of death penalty administration
• NY Times editorial assails "High Cost of Death Row"
• Georgia struggles to pay for a costly capital system
• The challenging economics of death causing problems in Chicago
• Great new (though still dated) examination of the death penalty and plea bargaining
• CNN now talking about the costs of the death penalty and state reforms 
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Capital case cost concerns continue to inform reform debate
• Still more discussion of the costs of the death penalty
• "Opponents Focus On Cost In Death Penalty Debate"
• What might 2009 have in store for . . . the death penalty in the US?

Mississippi Supreme Court looking into capital case delays

As detailed in this local article, which is headlined "Death row case delays flagged," the Mississippi Supreme Court is trying to figure out why a number of state capital cases are stuck in the post-conviction appeal pipeline.  Here is how the piece begins:

The Mississippi Supreme Court has asked trial judges why they have not ruled on post-conviction claims of nine death row inmates.  At least four of the cases involve claims of mental disability.

The Supreme Court issued the orders Thursday. The justices said they want to know what is taking so long on the cases and if they should force on the trial judges a timetable to render decisions. In a post-conviction petition, an inmate argues he has found new evidence — or a possible constitutional issue — that could persuade a court to order a new trial.

"The Court has undertaken a systematic review of all pending post-conviction death penalty cases and has sought information on the status of cases for which there appears to be a lack of activity," Chief Justice Bill Waller Jr. said.  He said the reviews will continue. "We will systematically review the status of death penalty post-conviction cases ... to assure that the fair and efficient administration of justice is being carried out.

This story provides a useful reminder of the fact that capital case delays can often be the result of actions by foot-dragging lower courts (or even prosecutors); they are not produced soley by just death row defendants and their defense attorneys (though I suspect many defendants do not much mind such delays).

Murder victims' son seeking to advocate against death penalty

A helpful reader forwarded to me this interesting story out of California, which is headlined "Don't execute killer, slain El Cerrito couple's son says."  Here is the start of the piece:

The 20-year-old son of a slain El Cerrito couple is fighting to speak against imposing the death penalty on the uncle who killed his parents, testing for the first time a state law that gave crime victims a greater voice in legal proceedings.

Eric Rogers is scheduled to testify for the prosecution next week during the penalty phase of the murder trial of Edward Wycoff, a 40-year-old Sacramento County truck driver convicted Monday of two counts of first-degree murder for killing his sister and brother-in-law, Paul and Julie Rogers, on Jan. 31, 2006.

While legal precedent limits Eric Rogers to testifying only to the impact the murders have had on his life, Rogers said he wants to tell jurors that he doesn't want Wycoff executed.  His parents were strongly opposed to the death penalty, as is he, he said. "I think revenge would bring me closer to the status of my uncle and further from the status of my parents," Eric Rogers told the Times.  "To be vengeful in their name would be disrespectful."

Rogers hired Berkeley attorney Ted Cassman to argue that he has a right to voice his opposition to capital punishment under Marsy's Law, also known as Proposition 9 or the Victim's Rights and Protection Act of 2008, which voters approved last November.  Marsy's Law gives victims the right to be heard at any legal proceeding.  Beyond Rogers' belief that the death penalty is wrong, such a sentence would cause Rogers more pain by subjecting him to 10 to 20 years of appeals on Wycoff's behalf, Cassman said.

Wycoff prosecutor, Mark Peterson, argues that case law states that jurors need to decide whether a defendant deserves death, not how a death sentence would impact others.