Monday, October 12, 2015
Does the Sixth or Eighth Amendment matter more for jury's role in capital punishment?
The question in the title of this post is the primary uncertainty likely to impact Supreme Court debate over Florida's capital punishment system during tomorrow's scheduled oral argument in Hurst v. Florida. Helpfully, Lyle Denniston has this lengthy preview post at SCOTUSblog titled "Defining the jury's role on death penalty," and here are excerpts:
For years, the Supreme Court has been engaged in an energetic effort to enhance the role of the jury in criminal courts. No part of that has been more actively pursued than deepening the jury’s involvement in sentencing — a part of the process long dominated by trial judges. A new case from Florida, set for argument at 11 a.m. on Tuesday, provides a new test.
Florida is the last state to hold out against a common requirement that jurors must be unanimous in both specifying why a convicted individual is eligible for a death sentence and recommending a sentence. Juries in Florida death penalty cases have only an advisory role to begin with, and even that influence on the judge is potentially lessened by the lack of unanimity and by the judge’s authority to make the key decisions anyway.
The Court is examining the case of a brutal slaying at a Popeye’s fast-food restaurant in Pensacola, Fla. (Hurst v. Florida), to determine how far a state may go to assign the important decisions on death sentencing to the judge. The Justices attempted to curb that role, and give more of it to the jury, in a 2002 decision but the Florida Supreme Court has essentially exempted the state’s capital punishment process from that ruling.
In Ring v. Arizona thirteen years ago, the Supreme Court ruled that a judge may not make the factual findings about “aggravating factors” — the seriousness of the crime that can make an individual eligible to be sentenced to death — because that role under the Sixth Amendment belongs to the jury. The Court has said repeatedly that, if a potential sentence is to be made more severe, the enhancement must be based upon the jury’s findings.
The Court, however, has never ruled that juries must be used in the sentencing phases of a case in which a death sentence is a possibility, and it has never ruled that a jury recommendation of a death sentence must be by a unanimous vote. It has allowed guilty verdicts by less than unanimous votes in cases involving lesser crimes. The case set for a hearing next Tuesday could provide new interpretations on both of those issues....
Florida law splits up the roles on death sentencing between the jury and the judge. The jury’s advisory role is to ultimately recommend a sentence to the judge. To do that, the jury weighs aggravating and mitigating factors and decides whether to recommend a death sentence. It can make that final recommendation on a split vote — it must be at least seven to five, as it was in Hurst’s case. But there is no need for even a majority of jurors to agree on even one of the aggravating factors the jurors as a group had apparently indicated did exist.
The sentencing duty then shifts to the judge, who does the same weighing process of the two kinds of factors; in doing so, the judge is not bound by what the jury concluded. The judge then decides for or against a death sentence, again with no duty to follow the jury’s recommendation.
The Florida Supreme Court, upholding that process as used in Hurst’s case, found no constitutional problem with the role of either the jury or the judge. The state court divided four to three, with the dissenting justices arguing that the Florida approach violates both the Sixth and Eighth Amendments and deviates from the Supreme Court’s ruling in Ring v. Arizona.
Hurst’s lawyers took the case on to the Supreme Court, raising two multi-faceted questions, with most of them focusing on the split role of judge and jury. The Court granted review in March, rephrasing the issue to be whether the Florida scheme violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.” The order did not specify whether it would consider Hurst’s argument that he also had a claim of mishandling in his trial of a mental disability claim, but the Court did not appear to have accepted that for review and it has dropped out of the case.
Hurst’s brief on the merits largely separates the arguments between the Sixth Amendment, claiming that provision is violated by the jury’s limited role in finding whether Hurst was eligible for a death sentence, and the Eighth Amendment, claiming that provision is violated by allowing the judge to impose the sentence after a split verdict by the jury. However, he also levels a separate Sixth Amendment challenge to the judge’s role in imposing a death penalty....
Florida’s brief on the merits noted that the Supreme Court has examined its capital punishment scheme at least four times before and has not found it to be flawed under the Constitution. The state also insisted that Hurst’s lawyers had exaggerated what is required under Ring v. Arizona. That decision, it contended, only mandates a role for the jury in the death-eligibility analysis, and does not insist that it have a role in the actual selection of the sentence to be imposed.
As fans of Ring v. Arizona should recall, a few of the Justices still on the Court now considered these issues to be primarily of Sixth Amendment concern (Justices Scalia, Thomas and Ginsburg), whereas some other of the Justices still on the Court viewed these issues primarily from an Eighth Amendment perspective (Justices Kennedy and Breyer). And, notably, the four newer Justices have had a lot of distinct (and differing) things to say about both the Sixth and Eighth Amendments in recent years. How all this will add up to a majority ruling in Hurst remains to be seen, but I will suggest that anyone sentenced to death in Florida after a non-unanimous jury recommendation already ought to be getting ready to file a new habeas petition as soon as we get a ruling in Hurst.
Is anyone surprised to learn of government dysfunction as Oklahoma operates machinery of death?
The question in the title of this post is prompted by this latest local story from a state that has spotlighted how jurisdictions are continue to struggle with lethal injection protocols. The piece is headlined "Emails from Gov. Fallin's office show state agencies' struggle to respond to scrutiny over execution," and it begins this way:
An examination of more than 40,000 pages of records released Thursday by Oklahoma Gov. Mary Fallin’s office in response to an open-records request provides a picture of multiple state agencies scrambling under pressure to send coordinated, consistent responses to reporters and each other after an April 2014 execution went awry.
The Tulsa World requested the documents 17 months ago after Clayton Lockett’s April 29, 2014, execution — the first in Oklahoma to be carried out using the sedative midazolam — ended 43 minutes after it began in what records later called a “bloody mess” carried out by inexperienced medical staff who were using the wrong size needles to start IVs in Lockett’s veins.
Lockett was set to die for the murder of 19-year-old Stephanie Neiman of Perry ahead of Charles Warner, who received a death sentence for the rape and murder of 11-month-old Adrianna Waller. The state issued a temporary stay for Warner after realizing Lockett’s lethal injection had gone wrong.
An autopsy report released to the World on Thursday, the contents of which were first reported by The Oklahoman, shows that Warner was executed Jan. 15 using potassium acetate rather than potassium chloride, the latter of which is required according to Oklahoma’s lethal-injection protocol. In correspondence to attorneys representing Lockett and Warner, John Hadden, an assistant attorney general, told them potassium chloride would be used as part of a three-drug cocktail in the lethal injection.
Many of the records provided Thursday had little to do with the World’s or other media outlets’ requests, but the emails exchanged between Fallin’s office, Attorney General Scott Pruitt’s staff and Department of Corrections personnel show numerous people were involved in drafting replies to media inquiries. Officials from each agency appeared not to know on multiple occasions whether they, or a spokesperson from the Department of Public Safety, should comment publicly on questions about the fallout from Lockett’s execution and subsequent DPS investigation.
Saturday, October 10, 2015
Should GOP Prez candidates be questioned on why being pro-life and anti-government doesn't lead to death penalty opposition?
The question in the title of this post is prompted by this The Week commentary authored by Bonnie Kristin and headlined "The rise of the anti-death penalty conservative." Here are excerpts:
[P]rotesting abortion is not all the consistent pro-life ethic entails. As typically expressed, most often in Catholic circles, consistent defense of human life in all its forms also requires opposition to the death penalty and assisted suicide (as well as any involuntary form of euthanasia).
"Life is something that comes from God and shouldn't be taken away by man," explains Father Thomas Reese, a Jesuit priest. Those with a consistent pro-life ethic "are concerned about a person from womb to tomb." For all Christians, consistent pro-lifers argue, "Something is definitely wrong when we claim to follow a man who halted an execution (John 8:1–11) and then was unjustly executed by the state, but still prefer justice over mercy."...
[T]here are some conservatives for whom capital punishment is already a pressing issue. "For those of us who are pro-life and maintain the far-from-radical notion that our government shouldn't kill innocent Americans, the death penalty fails to live up to our standards," argues Marc Hyden of Conservatives Concerned About The Death Penalty (CCATDP), a nonprofit that exists to question "a system marked by inefficiency, inequity, and inaccuracy."
And marked by these difficulties it most certainly is. As CCATDP enumerates, the problems and perils of capital punishment in modern America are many. There's the risk — as in the Glossip case and too many others, like Marlon Howell or Cameron Todd Willingham — of accidentally killing an innocent person. More than 150 people sentenced to die in America have been exonerated in the last four decades, some after spending 30 years or more on death row.
Beyond that, the death penalty is exorbitantly expensive for taxpayers — as much as 10 times more expensive than a life sentence by some calculations. The lengthy process drags out the grief of murder victims' families, endlessly resuscitating it with a new appeal or evidence. And there's no evidence that the threat of death deters crime. Furthermore, capital punishment is implemented in a systemically unfair manner: Factors like where you live, your race and the race of your alleged victim, and even whether your judge is elected or appointed can all influence whether you're sentenced to prison or death.
With inequities like these, Hyden argues, there's nothing "limited or wise about giving an error-prone government the power to kill its citizens, especially when many of us don't trust the state to even deliver mail."
In spite of the evidence that — as conservatives tend to agree in other policy arenas — the government is neither competent nor trustworthy, polling suggests that CCATDP is still in the minority on the right: Only 11 percent of Americans oppose both abortion and the death penalty. There is "no significant correlation between attitudes about the legality of abortion and views on capital punishment," according to Robert P. Jones of OnFaith, and if we zoom in on Tea Partiers, support for a consistent pro-life ethic drops to just 7 percent.
So in 2016, Republican debate moderators looking for a tough but thoughtful question to add to their list should consider question grilling presidential contenders on the death penalty. Thanks to the Planned Parenthood footage — not to mention the cross-partisan popularity of the broader cause of criminal justice reform, as well as the consistently pro-life Pope Francis — the timing is good. And thanks to the clear discrepancies between opposition to big government handing out a license to kill, on the one hand, and support for the death penalty on the other, the chance to catch candidates in hypocrisy is pretty good, too.
Some prior related posts:
- Is there a "growing movement against death penalty – on the right"?
- "Why conservatives should oppose the flawed death penalty, too"
- New talk of abolishing the death penalty in Ohio spurred by pro-life conservative
- Ron Paul at Townhall: "Death Penalty is Big Government at Its Worst"
- Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?
Friday, October 09, 2015
In defense of Ohio officials trying to figure out how to get execution drugs legally
This new AP story, headlined "Ohio Challenges FDA's Stand on Execution Drug," provides more details and context for the notable letter sent today by Ohio officials to the FDA (first reported here). Here are excerpts (with my bold emphasis):
With two dozen scheduled executions in limbo, Ohio sent a forceful letter to Washington on Friday asserting that the state believes it can obtain a lethal-injection drug from overseas without violating any laws.
The letter to the Food and Drug Administration stopped short of suggesting Ohio is moving forward to obtain the powerful anesthetic sodium thiopental. However, the state asked to begin discussing with federal officials about acquiring the substance legally.
The FDA had warned Ohio in June that importing the restricted drug could be illegal as a result of recent federal court decisions, setting up the latest roadblock to carrying out the death penalty.
Ohio hasn't executed anyone since January 2014, when condemned killer Dennis McGuire gasped and snorted repeatedly during a 26-minute procedure with a two-drug method that had yet to be tried. Ohio abandoned that method in favor of other drugs it now can't find.
Pharmaceutical companies have discontinued the medications traditionally used by states in executions or put them off limits for use in lethal injections. Stephen Gray, chief counsel for the Ohio Department of Rehabilitation & Correction, said the state has no intention of violating the law to obtain such drugs — but "the responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly."
Death penalty opponents have seized on trouble with lethal injections, as in McGuire's case, and difficulty in obtaining drugs as further justification for ending it. Supporters of capital punishment encourage states to continue to pursue legal avenues for getting the drugs — or find alternatives — so that condemned killers can be brought to justice.
Ohio's latest correspondence comes as the state is set to resume executions in a little over three months. The state is scheduled to execute Ronald Phillips on Jan. 21 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another 23 executions have been scheduled into 2019.
In part because I know and respect, both professional and personally, a number of Ohio executive officials, I have highlighted parts of the story above that I suspect may have led many of them to feel duty-bound to explain to FDA why Ohio thinks it legally could (and perhaps sensibly should) seek to import lethal injection drugs. Ohio has a long (and sometimes ugly) history with its lethal injection protocols, but Ohio officials have always seemed (at least to me) to be willing and eager to make reasonable efforts to adjust its execution protocols in order to try to carry out lawful death sentences in the most humane way possible. I perceive that an effort to find a legal way to import sodium thiopental is another example of Ohio officials making this effort.
Of course, opponents of the death penalty are often quick to say that no execution is humane and that Ohio's troubles with executions protocols and drug acquisition provide further reasons for the state to get entirely out of the capital business. Ironically, I suspect many Ohio executive officials personally share this perspective, especially because their jobs would surely get easier if they did not have to worry about the next scheduled execution (or the 23 others right behind it). But all executive officials, short of perhaps Ohio Gov John Kasich, are duty-bound to apply the existing law enacted by Ohio's elected representatives, not the law as would serve their own personal interests. (Indeed, in neighboring Kentucky, Kim Davis recently highlighted the ugliness that can ensure when executive officials seek to elevate personal law over the actual law.)
Consequently, unless and until the Ohio General Assembly repeals the death penalty or Gov Kasch uses his clemency authority to create an execution moratorium, it strikes me as defensible (and arguably obligatory) for Ohio executive officials to look to secure drugs needed for execution by any and all lawful means. And it will now be especially interesting to see if FDA official will be willing and able to work with Ohio officials to help the state lawfully secure execution drugs (assuming, as I think all should, that this is what Ohio would like to be able to do).
Prior related post:
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
In this post a few months ago, I reported on a letter sent by the US Food and Drug Administration (FDA) to the head of the Ohio Department of Rehabilitation Correction (ODRC) expressing concern that Ohio might be trying to import illegally the drug it needed to carry out scheduled executions. Now I can report on an interesting official response sent today from ODRC back to FDA. In a four-page letter, ODRC provides an extended explanation for how, in Ohio's view, it could be legal for it to import certain drugs needed to carry out executions.
The full letter from ODRC to FDA, which is available for downloading below, merits a careful read by anyone closely following the challenges many states are having securing needed drugs for executions. As a kind of summary, here is how the ODRC letter starts and concludes:
Your June 26, 2015 letter to Director of the Ohio Department of Rehabilitation and Correction (ODRC), Gary Mohr, referenced some unspecified information you had received about Ohio's "inten[t] to obtain bulk and finished dosage forms of sodium thiopental." Based on this information, you referenced two federal court decisions, Beaty v. FDA, 853 F. Supp. 2d 30 (D.D.C. 2012) and Cook v. FDA, 733 F.3d 1(D.C. Cir. 2013), and sought to "remind [Ohio] of the applicable legal framework" for importation of sodium thiopental. Contrary to the implication in your letter that the importation of sodium thiopental is currently prohibited, there is a legal framework for a state, if it so chooses, to import sodium thiopental in accordance with both the federal Food, Drug, and Cosmetic Act (FDCA) and the June 2012 Court Order issued by Judge Leon in Beaty. Further, please be advised that if at some point in the future the State of Ohio should choose to pursue the importation of sodium thiopental or any other drug that may be used to carry out a sentence of lethal injection, Ohio has no intention of breaking any federal laws or violating any court orders in an attempt to procure the legal drugs necessary to carry out constitutionally approved and court-ordered death sentences....
Given the specific facts and parameters of those [above-referenced] decisions, it is clear that importation of sodium thiopental is not completely prohibited by Judge Leon's 2012 Orders. That is, importation of sodium thiopental is not prohibited provided that [five key conditions are met]....
Thus, we believe that if a state were to attempt to import sodium thiopental under these five conditions, then the specific terms of the Beaty injunction would not apply. In other words, the FDA would not be permanently enjoined from permitting that shipment into the United States, and that it would be lawful and permissible for a state to proceed with such lawful importation.
The responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly. To that end, ODRC has no intention of attempting to procure drugs for lethal injection in a manner that would violate a proper interpretation of the FDCA. And, as the federal agency tasked with enforcing the FDCA and subject to the Court Order in Beaty, we would be happy to begin a dialog with the FDA as to how best achieve this goal.
Prior related post:
Thursday, October 08, 2015
Oops: "Oklahoma used wrong drug in January execution, autopsy report shows"
The title of this post is the headline of this article (with a little extra commentary) from The Christian Science Monitor. Here are the details:
The wrong lethal injection drug was used in an Oklahoma execution in January, an autopsy report obtained by an Oklahoma newspaper shows. The Oklahoman reported Thursday that potassium acetate, instead of potassium chloride as required under the state's protocol, was the final drug administered to stop Charles Frederick Warner's heart during his Jan. 15 execution.
Mr. Warner, convicted of the rape and murder of an 11-month-old in 1997, is the last murderer to be executed at the Oklahoma State Penitentiary in McAlester. His punishment was carried out almost nine months after the execution of murderer Clayton Lockett, whose botched execution triggered an investigation into the combination of drugs used that went all the way up to the Supreme Court on the grounds of Eighth Amendment rights infringement -- that is, whether or not Oklahoma failed to protect Mr. Lockett from “cruel and unusual” punishment....
The same incorrect drug found in Warner’s autopsy report were delivered to corrections officials Sept. 30 for the scheduled execution of another convicted murderer, Richard Glossip. After learning of the mistake, Oklahoma Gov. Mary Fallin granted a last-minute stay and postponed off the executions of two additional death row inmates.
An investigation into the circumstances surrounding Warner's execution was announced by Attorney General Scott Pruitt shortly after. On Wednesday, Mr. Pruitt said the investigation will cover any previous drug mistake, The Oklahoman reports.
“I want to assure the public that our investigation will be full, fair, and complete and includes not only actions on Sept. 30, but any and all actions prior, relevant to the use of potassium acetate and potassium chloride,” Pruitt said.
Governor Fallin said Wednesday night she supports further inquiry into Warner's execution, and told the newspaper it “became apparent” on Sept. 30 when Glossip’s execution was delayed that a similar mix-up may have occurred in Warner’s case....
“It is imperative that the attorney general obtain the information he needs to make sure justice is served competently and fairly,” Fallin said in an email to The Oklahoman. “Until we have complete confidence in the system, we will delay any further executions.”
She said she and the attorney general delayed Glossip's execution as a precaution, despite the doctor and the pharmacist working with corrections officials agreeing that potassium chloride and potassium acetate are medically interchangeable. “The active ingredient is potassium, which, when injected in large quantities, stops the heart,” the governor said.
She said “it became apparent” during the discussions Sept. 30 about a delay that the Corrections Department may have used potassium acetate in Warner's execution. “I was not aware nor was anyone in my office aware of that possibility until the day of Richard Glossip's scheduled execution,” she said. On Tuesday, Fallin said she has hired an outside attorney “to look at the whole process” and provide oversight.
Highligthing that states, despite Glossip ruling, continue to struggle with lethal injections
This lengthy new New York Times article, headlined "Death Penalty States Face Hurdles in Carrying Out Executions," reports on the (surprising?) reality that the Supreme Court's recent Glossip ruling has not made it significantly easier for states to complete scheduled lethal injections. Here are excerpts:
Despite a Supreme Court ruling allowing a controversial drug to be used for lethal injections in Oklahoma, deathpenalty states are finding it harder to carry out executions as they struggle to obtain and properly use limited supplies of everchanging combinations of lethal injection drugs.
Prison officials in Texas and Virginia have improvised a short-term solution by trading drugs for lethal injections. Both Ohio and Nebraska have sought to buy a drug no longer available in the United States from overseas only to be told by the federal Food and Drug Administration that importing the drug is illegal.
Executions in Mississippi have been postponed for months over a federal lawsuit challenging the state’s three-drug protocol. The delay will stretch into next year, with a trial scheduled in July 2016. And in Montana on Tuesday, a judge blocked the state from carrying out executions, ruling that one of the two drugs it planned to use did not comply with the state law governing lethal injections. The only way Montana can resume executions with that drug, the judge said, is by having the State Legislature modify the law.
“Over time lethal injection has become only more problematic and chaotic,” said Deborah W. Denno, a professor at Fordham Law School and an expert on lethal injections.
Oklahoma last week halted the execution of Richard E. Glossip, who was part of the challenge the Supreme Court had turned down, after officials realized two hours before it was to take place that the state’s supplier had sent prison officials the wrong drug. The error led to a court-ordered stay of the three executions scheduled in October and November while officials conduct an investigation....
The scramble for drugs has caused some states to embrace or consider more unusual or more antiquated ways of putting inmates to death. In 2014, Tennessee authorized prison officials to use the electric chair if lethal-injection drugs were unavailable. Gov. Gary R. Herbert of Utah signed a bill into law in March approving firing squads when drugs cannot be obtained.
In April, Oklahoma made nitrogen gas its new backup method. In Louisiana, where executions have been postponed following a federal lawsuit over its lethal-injection system, prison officials recommended in a report in February that nitrogen gas be adopted as an alternative method, through the use of a mask or other device but not a gas chamber.
Wednesday, October 07, 2015
Previewing Kansas capital case day for SCOTUS argument
The Supreme Court will be spending the morning today talking a lot about how Kansas administers its death penalty. (The official nickname for Kansas is the Sunflower State, but perhaps the Justices will be thinking of the state's unofficial nickname of Bleeding Kansas.) Helpfully, SCOTUSblog and Crime & Consequences provides previews. Here are links and leads from their efforts:
The Justices closed out last Term with a high-profile death penalty case, holding that Oklahoma’s lethal injection procedures do not violate the Eighth Amendment’s ban on cruel and unusual punishment. The decision in that case may be best known for Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, in which he suggested that the death penalty itself is unconstitutional. The Eighth Amendment is back before the Court again tomorrow, albeit with lower stakes, this time in a set of challenges to the procedures used to sentence three Kansas inmates to death. The oral arguments and the Court’s eventual decision may tell us more about whether some of the Justices’ discomfort with the death penalty will translate into additional protections for defendants in capital cases or whether the Justices will instead remain — as they were in the Oklahoma case — sharply divided.
Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them. The United States Supreme Court considers such a case tomorrow. It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.
UPDATE: This short post-argument Reuters piece reports that the "U.S. Supreme Court on Wednesday appeared poised to rule against two brothers challenging their death sentences for a 2000 crime spree in Kansas that included the execution-style murders of four people on a snowy soccer field."
Tuesday, October 06, 2015
Texas completes lethal injection not long after Montana judge finds state's lethal drugs problematic
Two notable lethal injection developments in two states on late Tuesday. Here are the headlines and parts of the stories:
Texas on Tuesday executed its 11th inmate of this year — a man who killed a former missionary during an $8 robbery when he was a teenager. Juan Garcia, 35, received a lethal injection and was was pronounced dead at 6:26 p.m. (7:26 p.m. ET). He was executed for the 1998 murder of Hugh Solano, who had just moved to Houston from Mexico to give his children a better education.
The Texas Board of Pardons and Paroles rejected Garcia's clemency bid in a 5-2 vote last week. Garcia in the past fought execution with claims of mental impairment, but had no appeals pending Tuesday morning.
Garcia apologized to Solano's relatives in Spanish ahead of the execution, and Solano's wife and daughter sobbed and told the inmate they loved him. "The harm that I did to your dad and husband — I hope this brings you closure," Garcia said. "I never wanted to hurt any of you all."
As the dose of pentobarbital began, he winced, raised his head and then shook it. He gurgled once and snored once before his movement stopped. He was pronounced dead 12 minutes later.
A Helena district judge on Tuesday ruled that Montana’s method of lethal injection does not comply with state law, effectively staying all executions in the state indefinitely. District Court Judge Jeffrey Sherlock wrote that the state’s current protocol for executing inmates by lethal injection relies on a drug that is not an “ultra-fast-acting barbiturate,” as required by state law.
The challenge to Montana’s execution methods went to trial last month, when attorneys for prisoners Ronald Allen Smith and William Gollehon — Montana’s only two death row inmates — argued that the drug, pentobarbital, does not adhere to a state law requiring that an “ultra-fast acting” barbiturate must be used during execution.
Montana’s lethal injection law calls for use of an ultra-fast acting barbiturate as well as a paralytic agent. The state’s execution protocol lists sodium pentothal as the barbiturate, with pentobarbital as a substitute; however, sodium pentothal is no longer available for use in executions in the United States, and its importation is illegal because it is not approved by the Food and Drug Administration.
The state’s revised protocol indicates it will use pentobarbital as a substitute barbiturate, despite the fact that pentobarbital is an intermediate-acting barbiturate, which isn’t allowed under the state’s lethal injection protocol. In his order, Sherlock wrote that by using the term “ultra” in its statute, the Legislature limited the state to using only drugs in the fastest category of barbiturates. Sherlock ruled that “while pentobarbital may operate in a fast nature, it is not ultra-fast as is required to comply with Montana’s execution protocol.”
Monday, October 05, 2015
Previewing the early criminal law cases on the SCOTUS docket
In this post at the Federalist Society blog, Kent Scheidegger provide an effective preview of the handful of Supreme Court cases dealing with criminal law issues that are to be heard by the Supreme Court in the first few weeks of its new Term. As regular readers know and as Kent notes, a number of the early cases involve the death penalty, and this recent Wall Street Journal article highlights the capital case concentration in an article headlined "Supreme Court Docket Loaded With Death-Penalty Cases."
But before the capital case kvetching gets started in earnest, the first criminal justice case to be heard by the Justices comes on Tuesday with Ocasio v. United States. At SCOTUSblog here, Rory Little has this lengthy preview of Ocasio, which gets started this way:
The Court’s first criminal case of the Term presents a real brain teaser: may a defendant be convicted of conspiracy to commit an offense, when he has the intent necessary to commit the offense but his co-conspirator does not? The case arises in the specific context of the unusual federal Hobbs Act extortion statute, and getting to the specific question initially requires some complex explanation. But unless I misunderstand it, the general question is as old as the common law.
Missouri Gov commutes death sentence at last minute because...............??
The quirky question in the title of this post is my reaction to this notable capital clemency news out of the Show Me state that leaves me wishing the chief executive of the state had showed all of us more about his reasons for communiting a death sentence only days before a scheduled execution. Here are the (somewhat mysterious) details via this local article headlined "Nixon commutes death sentence for convicted murderer Kimber Edwards":
Missouri Gov. Jay Nixon commuted on Friday the death sentence for Kimber Edwards, who was convicted in the 2000 murder-for-hire of his ex-wife, to a life sentence without parole. Edwards had been scheduled to be executed by injection at 6 p.m. Tuesday. His attorneys had recently asked the Missouri Supreme Court to throw out his conviction and death sentence because of doubts raised about his guilt.
Nixon did not explain his surprise decision, other than to say it came after a “thorough review of the facts” and was “not taken lightly.” He said the evidence supported the jury’s decision to convict Edwards of first-degree murder.
“After a thorough review of the facts surrounding the murder of Kimberly Cantrell, I am convinced the evidence supports the jury’s decision to convict Kimber Edwards of first-degree murder. At the same time, however, I am using my authority under the Missouri Constitution to commute Edwards’ sentence to life without the possibility of parole. This is a step not taken lightly, and only after significant consideration of the totality of the circumstances. With this decision, Kimber Edwards will remain in prison for the remainder of his life for this murder.”
Reached later Friday, a spokesman for Nixon said he would not elaborate.
Kimberly Cantrell, 35, was shot twice in the head in her apartment in the 1100 block of Midland Avenue in University City on Aug. 22, 2000. Authorities said Edwards had hired Orthell Wilson to kill Cantrell, Edwards’ ex-wife, to prevent her from testifying in a child-support hearing.
One of Cantrell’s siblings, Chuck Cantrell of San Jose, Calif., said that his family was informed of the decision less than five minutes before it was made public. Cantrell spoke to a legal adviser for the governor but wanted to speak to Nixon himself. “I would think that the governor would certainly understand that his action of this magnitude certainly has impact on the survivors of the victim,” he said. “I just can’t imagine that his office could be so callous. I would hate to think this would be some sort of political maneuver. It doesn’t make a whole lot of sense.”
He said family members had had no plans to witness the execution, but that didn’t mean they didn’t care about the case. He said he and his family had no doubt about Edwards’ guilt and that they knew how Edwards could manipulate a situation to his advantage. Edwards’ attorneys had recently tried to cast doubt on his guilt. They focused on two statements that were central to his case. One was a statement by Wilson, who said Edwards had hired him to kill Cantrell in 2000. The other was a confession from Edwards.
Wilson, who is serving a life sentence without parole, has recanted his statement, telling a Post-Dispatch reporter in April that he had acted alone and had lied about being hired by Edwards. He then signed an affidavit saying so. Edwards claimed at his trial — and ever since — that he was innocent. In new appeals, his attorneys pointed to the possibility that police had coerced his confession. They claimed Edwards has a form of autism that could have made him vulnerable to aggressive interrogation techniques, leading him to make a false confession.
Edwards’ attorney, Kent Gipson of Kansas City, petitioned the state Supreme Court to throw out the conviction for murder and armed criminal action, and the death sentence, and appoint a special master to review Edwards’ innocence claim. The court denied in July a similar request to study Edwards’ claim of innocence. The court has not yet ruled on Gipson’s petition. But he said he made the same case to lawyers from Nixon’s office this week.
“We’re all very happy because (days leading up to an execution are) always a very stressful and difficult time for everyone, the clients, the lawyers and the family,” Gipson said. “It’s a load off everyone’s shoulders, particularly the client, because he’s going to live.”... Gipson said the commutation of the death sentence would give him and Edwards more time to potentially seek a new trial.
In recent days, Gipson had been pressing a claim with Nixon’s office that during the penalty phase after Edwards’ conviction, the prosecutor in the case had inquired whether Edwards would be willing to waive appeals in the case in exchange for life in prison. But his supervisors refused.
According to notes in the attorney’s file from 13 years ago, Judge Mark D. Seigel expressed in chambers that he was unhappy about the lack of a deal to spare Edwards. Reached Friday, Seigel said that he did not remember the conversation and that it “does not sound like something I would have said in chambers or anywhere else.”
I presume that lingering concerns about guilt prompted the Governor's actions here, but it would be helpful if the commutation statement spoke to that possibility or whatever else might have motivated the Governor to act in this way. I think it is entirely appropriate and readily justifiable for a clemency board or a governor to commute a death sentence based on concerns about residual guilt. But I do not consider it appropriate or justifiable for a decision made on this basis (or others) to be hidden behind the kind of cursory statement offered by Gov Nixon in this case.
Friday, October 02, 2015
Top Oklahoma court puts all executions on hold upon state request after drug snafu
As reported in this AP piece, "Oklahoma's highest criminal court unanimously agreed Friday to halt all of the state's scheduled executions after the state's prison system received the wrong drug for a lethal injection this week." Here is more:
The Oklahoma Court of Criminal Appeals granted the state's request and issued indefinite stays of execution for Richard Glossip, Benjamin Cole and John Grant. Oklahoma Attorney General Scott Pruitt requested the stays to give his office time to investigate why the Oklahoma Department of Corrections received the wrong drug just hours before Glossip was scheduled to be executed Wednesday.
Just hours before Glossip was set to die, prison officials opened a box of lethal drugs and realized they received potassium acetate instead of potassium chloride, the third drug utilized in Oklahoma's lethal injection formula. The court ordered the state for status reports every 30 days, "including any proposed adjustments to the execution protocol."
Oklahoma's execution protocols were overhauled after last year's botched execution of Clayton Lockett, who writhed on a gurney and struggled against his restraints before being declared dead more than 40 minutes after the procedure began.
On Thursday, Oklahoma Department of Corrections Director Robert Patton insisted that those new protocols were properly followed. But the attorney general expressed concerns about the department's ability to properly carry out an execution. "Until my office knows more about these circumstances and gains confidence that DOC can carry out executions in accordance with the execution protocol, I am asking the Oklahoma Court of Criminal Appeals to issue an indefinite stay of all scheduled executions," Pruitt said in a statement after requesting the stays.
Virginia completes execution of multi-state serial killer
As reported in this AP piece, last-minute appeals with claims of disability did not thwart Virginia's plans to execute a multiple murder last night:
Virginia has executed a convicted serial killer who claimed he was intellectually disabled. Alfredo Prieto was pronounced dead at 9:17 p.m. on Thursday at the Greensville Correctional Center in Jarrat.
The 49-year-old had fought to prove that he's intellectually disabled to bar the state from putting him to death. But a federal appeals court in Virginia upheld his death sentence in June and the U.S. Supreme Court refused Thursday to block his execution.
Prieto was sentenced to death in Virginia in 2010 for the rape and murder of 22-year-old Rachael Raver and the slaying of her boyfriend Warren Fulton III more than two decades earlier. The El Salvador native had already been on death row in California for the rape and murder of a 15-year-old girl at the time.
Notably, as the Death Penalty Iinformation Center details here, there are three more executions in three states scheduled for next week and over a dozen scheduled in the next six weeks. If only two-thirds of these executions are completed, the US would hit another notable recent low in total executions for the year. But if all the executions scheduled for the next three months are crried out, 2015 could end up having more executions than 2014.
Wednesday, September 30, 2015
Oklahoma Gov grants 37-day "stay" of Richard Glossip's scheduled execution
As detailed in this official press release, "Governor Mary Fallin has issued a 37 day stay of Richard Glossip’s execution to address legal questions raised today about Oklahoma’s execution protocols." here is the rest of the text of the press release:
The stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the state’s court-approved execution procedures.“Last minute questions were raised today about Oklahoma’s execution protocol and the chemicals used for lethal injection,” said Fallin. “After consulting with the attorney general and the Department of Corrections, I have issued a 37 day stay of execution while the state addresses those questions and ensures it is complying fully with the protocols approved by federal courts.”The new execution date will be Friday, November 6.“My sincerest sympathies go out to the Van Treese family, who has waited so long to see justice done,” said Fallin.
Amusingly, as noted here by Kent Scheidegger at Crime & Consequences, Gov Fallin technically granted Glossip a reprieve, not a stay, according to the terms of the Oklahoma Constitution. But I suppose we should not expect a Gov or her legal staff to be concerns about such semantics. Intriguingly, as reported here by Lyle Denniston at SCOTUSblog, this order came after the Supreme Court had formally rejected Glossip's various last-minute appeals and stay requests and only Justice Breyer dissented from that decision.
Georgia finally completes execution of female murderer
As reported in this NBC News article, headlined "Georgia Woman Kelly Gissendaner Sings 'Amazing Grace' During Execution," a flurry of last-minute appeals did not prevent the Peach State from finally carrying out a high-profile execution. Here are the basics:
A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until she was given a lethal injection, witnesses said. Kelly Renee Gissendaner, who graduated from a theology program in prison, was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.
Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me." She was the first woman executed in Georgia in 70 years and one of a handful of death-row inmates who were executed even though they did not physically partake in a murder.
The mother of three was nearly executed in February, but the lethal injection was abruptly called off because the chemicals appeared cloudy. After a new execution date was set, Gissendaner, 47, convinced the Georgia Board of Pardons and Paroles to reconsider her application for clemency.
In an extraordinary turn, Pope Francis — who called for a global ban on the death penalty during his U.S. visit last week — urged the board to spare her life. "While not wishing to minimize the gravity of the crime for which Ms. Gissendander has been convicted, and while sympathizing with the victims, I nonetheless implore you, in consideration of the reasons that have been expressed to your board, to commute the sentence to one that would better express both justice and mercy," Archbishop Carlo Maria Vigano wrote on the pontiff's behalf.
Shortly thereafter, the board announced that it would not stop the execution.
The victim's family was split on whether Gissendaner should live or die: Her children appeared before the parole board to ask that their mom be spared the death chamber, but her husband's relatives said she did not deserve clemency. "Kelly planned and executed Doug's murder. She targeted him and his death was intentional," Douglas Gissendaner's loved ones said in a written statement.
"In the last 18 years, our mission has been to seek justice for Doug's murder and to keep his memory alive. We have faith in our legal system and do believe that Kelly has been afforded every right that our legal system affords. As the murderer, she's been given more rights and opportunity over the last 18 years than she ever afforded to Doug who, again, is the victim here. She had no mercy, gave him no rights, no choices, nor the opportunity to live his life. His life was not hers to take."
In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison....
Jeff Hullinger, a journalist with NBC station WXIA who witnessed the execution, later told reporters that Gissendaner appeared "very, very emotional, I was struck by that." He added: "She was crying and then she was sobbing and then broke into song as well as into a number of apologies ... When she was not singing, she was praying."
Tuesday, September 29, 2015
#BESTEA: "Will the Supreme Court 'peck away at' capital punishment?"
The title of this post is has my silly new SCOTUS hashtag along with the headline of this new ABA Journal article previewing the death penalty cases that the Supreme Court will hear in the next few weeks as it starts #BESTEA. (This silly hashtag is explained in this prior post.) Here is an excerpt:
On Oct. 7, the court will hear arguments in cases from Kansas that raise procedural questions. The key question is whether the Eighth Amendment requires that a jury considering a death sentence be given explicit instructions pointing out that mitigating circumstances do not have to be proven beyond a reasonable doubt. The Kansas Supreme Court concluded that such an instruction was required, and the state asked the U.S. Supreme Court to review Kansas v. Gleason and Kansas v. Carr.
On Oct. 13, the justices are scheduled to hear arguments in Hurst v. Florida, another case that addresses death penalty sentencing procedures. In Florida, a defendant may not be sentenced to death without a factual finding of at least one aggravating factor. The jury weighs aggravating and mitigating factors, and it makes a recommendation to the trial judge about whether death should be imposed. The jury’s recommendation need not be unanimous. But Florida law also requires the judge to independently weigh aggravating and mitigating factors. The judge must give the jury’s recommendation “great weight” under state precedents, but he or she can override the recommendation in extraordinary circumstances.
Monday, September 28, 2015
A busy (and diverse) week for execution plans and capital concerns
Over the next three days, three condemned murderers are scheduled to be executed in three different states, and in each case a different pitch is being made to try to halt the execution. Here are the basics:
Tuesday, September 29: Georgia is scheduled to execute Kelly Gissendaner, who would be the first woman executed by the state in 70 years. She was convicted in February 1997 of conspiring with her lover to kill her husband. (The lover, who took a plea deal and testified against Gissendaner, is serving a life sentence and he will be eligible for parole in 2022.) The Georgia Board of Pardons and Paroles announced today it would consider additional pleas for clemency at a hearing the morning of the scheduled executions.
Wednesday, September 30: Oklahoma is scheduled to execute Richard Glossip, who was the lead litigant in the challenge to Oklahoma's execution protocol which a divided Supreme Court rejected in Glossip v. Gross. He was convicted (again) a 2004 retrial of conspiring with a co-worker to kill their boss. (The co-worker, who took a plea deal and testified against Glossip, is serving an LWOP sentence.) The Oklahoma Court of Criminal Appeals, in a split vote today, declined to halt Glossip's execution after having delayed it earlier this month based principally on renewed claims of Glossip's innocence.
Thursday, Oct 1: Virginia is scheduled to execution Alfredo Prieto, who is a foreign national and whose guilt in a number of killings seems to be uncontested. He was first sent to California's death row for the rape/murder of a teenage girl before being transferred and sentenced to death in Virginia five years ago for the 1988 killing of two college students. His lawyers assert he is intellectually disabled and apparently want him sent back to California to have his disability claim considered on the other coast.
For the sake of assessing my ability to prognosticate in the capital arena, I will on Monday predict that at least one, perhaps two, but not all three of these executions will be completed this week. Anyone else care to make predictions about any or all of these cases on the eve of what will surely be a mid-week full of capital conversations and litigation.
Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?
The silly question in the title of this post is my effort to coin a silly hashtag (#BESTEA = Best Ever SCOTUS Term for Eighth Amendment) for the start of a new Supreme Court Term in which a number of notable Eighth Amendment cases/issues are set to occupy the Justices. Over at SCOTUSblog, Rory Little provides this effective preview of what #BESTEA is all about in this lengthy post titled "As the 2015 Term opens: The Court’s unusual Eighth Amendment focus." I recommend reading Rory's post in full, and here is just a taste (with links from original):
Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.” Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.” Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.” Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.
Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty. All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2). One can expect that the smoldering embers of the Glossip debate will be quickly reignited. This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).
Here is a quick rundown of what is coming up:
1. Gleason and Carr — October 7...
2. Kansas v. Carr and Carr (Question 2) — October 7...
3. Montgomery v. Louisiana — October 13...
4. Hurst v. Florida — October 13...
5. Foster v. Chatman (Warden) — November 2...
After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import. Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions. But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment. In at least some of these cases — with that of the Carr brothers being the best example — there seems to be no doubt about guilt. The horrific character of multiple rapes and murders is undeniable. Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences. Such cases thus starkly showcase the divergent views on the Eighth Amendment — and a nine-Justice Court is not different in this regard from much of America. So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.
In part because I want a short-hand way to describe all these cases, and in part because I am a sill fool, I am likely to turn #BESTEA into an on-going meme in this bloggy space as the Supreme Court Term kicks off. If readers like the idea, I hope folks will tell me so in the comments and perhaps join me in using this short-hand. And if you hate the idea, perhaps I will grow to as well.
Saturday, September 26, 2015
Latest Glossip kerfuffle concerns whether Texas could make and export "better" execution drugs
The latest intriguing issue to arise in the ugly world of execution administration concerns whether Texas could supply "better" lethal injection drugs to other states. This BuzzFeed article about the latest filing in the (never ending?) Glossip case explains:
The state of Texas is making its own execution drugs and has sold them to at least one other death penalty state, an inmate facing execution in Oklahoma alleges in a court filing Thursday. His attorneys point to documents that show the Texas Department of Criminal Justice sold pentobarbital to Virginia in late August.
Pentobarbital is a sedative that many death penalty states, including Oklahoma, have claimed is impossible for them to get their hands on. As a result, some states have turned to midazolam, a drug that critics argue is significantly less effective. The U.S. Supreme Court upheld the use of midazolam in executions this June.
The records submitted as part of the new filing show that Virginia received 150 milligrams of the drug. Under the heading “Name of Supplier,” the Texas Department of Criminal Justice is listed. The labels do not identify the pharmacy that prepared the drug. However, the lawyers for the Oklahoma inmate state that the labels were created by the Texas Department of Criminal Justice, which they also allege “is compounding or producing pentobarbital within its department for use in executions.”
On Friday, Texas confirmed to BuzzFeed News that it sent the execution drugs to Virginia. A spokesman said it was to repay Virginia for having given Texas drugs in the past. “In 2013, the Virginia Department of Corrections gave the Texas Department of Criminal Justice pentobarbital to use as a back up drug in an execution,” spokesman Jason Clark said. “Virginia’s drugs were not used.”
“The agency earlier this year was approached by officials in Virginia and we gave them 3 vials of pentobarbital that [were] legally purchased from a pharmacy. The agency has not provided compounded drugs to any other state. Texas law prohibits the TDCJ from disclosing the identity of the supplier of lethal injection drugs.”...
The lawyers raise these issues to make the argument that Oklahoma could avoid the use of the controversial midazolam drug in its executions. It could do so, they argue, by purchasing pentobarbital from Texas, like Virginia, or by “compounding or producing pentobarbital in the same manner as does TDCJ.”
States have struggled to obtain execution drugs for years after makers enacted more stringent guidelines to keep them away from states that would use them for executions. The idea of a state-run lab making its own death penalty drugs is something Missouri Attorney General Chris Koster raised last year, although many wondered how it could be done. Missouri, like Texas, has had no trouble obtaining pentobarbital.
Friday, September 25, 2015
Notable reactions and commentary after Pope Francis calls again for death penalty abolition
Pope Francis' comments to Congress about his support for the abolition of the death penalty (basics here) has, unsurprisingly, generated lots of buzz from various quarters. Here are some headlines and links to some notable press pieces:
Thursday, September 24, 2015
Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)
I have finished watching the Pope's speech to a joint session of Congress, and these passages from the full text of the speech should be of special interest to sentencing fans (with my emphasis added at end):
Our world is facing a refugee crisis of a magnitude not seen since the Second World War. This presents us with great challenges and many hard decisions. On this continent, too, thousands of persons are led to travel north in search of a better life for themselves and for their loved ones, in search of greater opportunities. Is this not what we want for our own children? We must not be taken aback by their numbers, but rather view them as persons, seeing their faces and listening to their stories, trying to respond as best we can to their situation. To respond in a way which is always humane, just and fraternal. We need to avoid a common temptation nowadays: to discard whatever proves troublesome. Let us remember the Golden Rule: "Do unto others as you would have them do unto you" (Mt 7:12).
This Rule points us in a clear direction. Let us treat others with the same passion and compassion with which we want to be treated. Let us seek for others the same possibilities which we seek for ourselves. Let us help others to grow, as we would like to be helped ourselves. In a word, if we want security, let us give security; if we want life, let us give life; if we want opportunities, let us provide opportunities. The yardstick we use for others will be the yardstick which time will use for us. The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.
This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.
These passages will surely be the focal point for those eager to advocate for the complete abolition of the death penalty, but the language of hope and rehabilitation never being excluded from "just and necessary punishment" is also significant as a criticism of sentences of life without the possibility of parole.
A few prior related posts:
- Pope Francis categorically condemns death penalty as "inadmissible" in today's world
- Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty
Is Justice Scalia saying four (and maybe five) colleagues are now ready to judicially abolish death penalty?
The question in the title of this post is prompted by press reports on Justice Antonin Scalia's speech given at Rhodes College on Tuesday. This BuzzFeed story's extended headlined provides the basics: "Justice Scalia Says He 'Wouldn’t Be Surprised' If Supreme Court Ended Death Penalty: In a speech Tuesday at Rhodes College, the conservative Supreme Court justice said that four of his colleagues think that the penalty is unconstitutional, The Commercial Appeal reported." Here is the full context:
Supreme Court Justice Antonin Scalia told attendees of a speech given Tuesday that four of his colleagues believe the death penalty is unconstitutional and that “he wouldn’t be surprised” if the court ends the penalty, according to reports from the event.
Speaking at Rhodes College, the conservative justice bristled at the concept, believing the penalty to be constitutional and telling attendees that death penalty opponents should go to the states if they want to end it, Jennifer Pignolet of The Commercial Appeal tweeted.
According to Pignolet’s report, Scalia said that “he ‘wouldn’t be surprised’ if his court ruled it unconstitutional, despite his belief that the Constitution allows for it with the establishment of protections like a fair trial.” Specifically, Scalia said that “he now has 4 colleagues who believe it’s unconstitutional,” Pignolet tweeted.
The statements provide new insight into the court’s internal discussions — or at least Scalia’s take on his colleagues — as his comments go further than Scalia’s colleagues have gone themselves.
After the Glossip ruling in June, I was somewhat dismissive of claims by abolitionists that Justice Breyer's dissent suggested that it might only be a matter of time before there could be a majority of Justices ready to decalre the death penalty categorically unconstitutional. But Justice Scalia's comments now suggest that hopes for coming judicial abolition of capital punishment throughout the United States may not be just wishful thinking.
Prior related posts:
- Despite Glossip, hope for judicial abolition of the death penalty endures
- Would a Prez Hillary Clinton lead to the judicial abolition of the death penalty in the US?
Wednesday, September 23, 2015
Investigating how elected judiciary may impact capital punishment's administration
Reuters has this new investigative report exploring the relationship between an elected judiciary and a jurisdiction's administration of the death penalty. The full headline and subheading provide a summary of the themes of the report: "Uneven Justice: In states with elected high court judges, a harder line on capital punishment. Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed, a Reuters analysis finds, suggesting that politics play a part in appeals. Now, the U.S. Supreme Court is about to decide whether to take up the issue in the case of a Ohio cop killer." Here are passages from the report:
Ohio is one of the states where high court judges are directly elected – and that, a Reuters analysis found, makes a big difference in death penalty appeals.
A review of 2,102 state supreme court rulings on death penalty appeals from the 37 states that heard such cases over the past 15 years found a strong correlation between the results in those cases and the way each state chooses its justices. In the 15 states where high court judges are directly elected, justices rejected the death sentence in 11 percent of appeals, less than half the 26 percent reversal rate in the seven states where justices are appointed.
Justices who are initially appointed but then must appear on the ballot in “retention” elections fell in the middle, reversing 15 percent of death penalty decisions in those 15 states, according to opinions retrieved from online legal research service Westlaw, a unit of Thomson Reuters.
Some academic studies over the past 20 years have mirrored the Reuters analysis, showing a relationship between the result in death penalty appeals and how state supreme courts are selected. The U.S. Supreme Court has not addressed these findings in its rulings.
Now, however, at least three current justices are sympathetic to the idea that political pressure on judges is a factor that leads to arbitrary, and perhaps unconstitutional, application of the death penalty. The findings, several legal experts said, support the argument that the death penalty is arbitrary and unconstitutional because politics – in addition to the facts – influence the outcome of an appeal.
Courts have a responsibility to protect a defendant’s constitutional rights without political pressure, especially when the person’s life is at stake, said Stephen Bright, a Yale Law School lecturer who has worked on hundreds of death defenses. “It’s the difference between the rule of law and the rule of the mob,” Bright said....
State supreme courts automatically review every death penalty verdict. Apart from examining whether any legal errors were made, judges must also weigh different factors to decide whether the death sentence is an appropriate punishment. Was it the defendant’s first offense or do they have a history of violent behavior? When a death sentence is reversed, the offender usually gets life in prison instead.
But as the Reuters analysis suggests, external factors may come into play. The election effect was a far stronger variable in determining outcomes of death penalty cases than state politics and even race. Justices in states that supported Democratic President Barack Obama in the 2012 election reversed death sentences at roughly the same rate as those that went for Republican candidate Mitt Romney, at around 14 percent.
African-American defendants had lower reversal rates in both elected and appointed states. Nationally, death sentences were reversed 15 percent of the time for whites, compared with 12 percent for African-Americans, according to the Reuters findings.
Reuters did not analyze the possible impact of the race of the victim on death penalty appeals. The analysis also excluded a category of death penalty appeals known as habeas challenges, because state supreme courts are not required to hear them and overwhelmingly refuse to do so....
In 2013, Justice Sonia Sotomayor cited a study showing that Alabama judges are more likely to impose the death penalty in election years, part of a failed effort to persuade her colleagues to review an Alabama capital case.
Last June, in Glossip vs. Gross, the high court voted 5-4 that the method of execution in Oklahoma is constitutional. In dissent, Justices Stephen Breyer and Ruth Bader Ginsburg cited studies showing capital punishment is arbitrary because of racial bias, as well as political pressure, “including pressures on judges who must stand for election."
Retired U.S. Supreme Court Justice John Paul Stevens, who has said he believes the death penalty to be unconstitutional, said in an interview that the Reuters findings “definitely lend support” to his side of the debate because they show how arbitrary capital punishment can be.
Monday, September 21, 2015
Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?
The question in the title of this post is prompted by this The Week feature article which has a headline promising to go "Inside the growing conservative movement to end the death penalty." Here is how the piece starts and ends:
After years of sitting on death row in Oklahoma, Richard Glossip was scheduled to die on Wednesday. But today, Friday, he's still alive. That's thanks to a last-minute, two-week reprieve — which was granted in no small part because of a growing cadre of conservative activists who oppose the death penalty.
Glossip's case — he was convicted of hiring someone to kill his boss — had exhausted every avenue of appeal, even briefly heading to the Supreme Court last year as the justices weighed the legality of lethal injection. But time and again, state officials and the legal system rejected his team's claims of innocence.
In recent weeks, pressure began to mount from evangelicals, young activists, and figures in the local media who wanted the state to take one last look at his case. The outreach to these groups came largely from an organization called Conservatives Concerned About the Death Penalty. Their outreach specialist is a man named Marc Hyden, a former campaign field representative for the National Rifle Association who argues that opposing capital punishment is a natural philosophical fit for tough-minded conservatives.
"Point to a single government program that works flawlessly. Death penalty supporters have to accept that it's a human-run program and so my question is, how many innocent people are you willing to execute?" Hyden told me.
The fallibility of government is just one of several strategic points from which Hyden and his conservative constituency come at capital punishment. They are also quick to point out that putting someone to death is far more expensive than simply keeping them in prison. Then there's the empirical data challenging whether the threat of execution is truly a disincentive for would-be criminals. Some anecdotal accounts challenge whether families of victims benefit in any measurable way from seeing a perpetrator put to death. And for the truly committed pro-life believer, there is the larger philosophical dilemma of whether a God-fearing society should be empowering the state to execute its citizens....
Conservatives Concerned About the Death Penalty got off the ground in 2010 in Montana, an ideal breeding ground for forward-thinking conservative positions. After all, this is the same state where citizens have tussled with the federal government over using their gun registration cards to purchase medical marijuana.
Conservatives Concerned About the Death Penalty has expanded to states including Florida, Delaware, Tennessee, Kentucky, North Carolina, Texas, Georgia, Connecticut, and Nebraska. The latter two abolished capital punishment this year. Altogether, seven states have banned the death penalty since 2000, by far the biggest shift in American history.
Over the coming days and weeks, Glossip's case will bring an increased spotlight to capital punishment and whether it has a place in modern American society. It's unlikely any one case will prove to be the tipping point, but when you consider that just five years ago, legalized marijuana and gay marriage seemed farfetched to most, it's not crazy to think that with a bipartisan coalition opposing it, the death penalty may soon find itself on life support, too.
Thursday, September 17, 2015
"The Meaning of 'Meaningful Appellate Review' in Capital Cases: Lessons from California"
The title of this post is the title of this notable new article authored by Steven Shatz now available via SSRN. Here is the abstract:
In Furman v. Georgia, the Supreme Court's seminal death penalty case, the Court held that the death penalty, as then administered, violated the Eighth Amendment because the penalty decision was so unguided and the imposition of the death penalty was so infrequent as to create an unconstitutional risk of arbitrariness. The Court's remedy, developed in subsequent decisions, was to require the state legislatures to "genuinely narrow the class of persons eligible for the death penalty" and the state courts to provide "meaningful appellate review" of death sentences. In recent years, a number of scholars have addressed the genuine narrowing requirement with empirical research on particular state schemes.
Less attention has been paid to the appellate review requirement and, in particular to Pulley v. Harris, the Court's key case on the issue. In Pulley, the Court held that comparative proportionality review of death sentences was not constitutionally required in a state's death penalty scheme unless that scheme was "so lacking in other checks on arbitrariness" that it could not otherwise pass constitutional muster. The Court acknowledged, however, that some form of meaningful appellate review was required. Using California as an object lesson, this article examines both aspects of the Court's opinion: what would make a state scheme so lacking in checks on arbitrariness as to require comparative proportionality review; and what would constitute meaningful appellate review by a court which eschews comparative proportionality review.
The article argues that the California death penalty scheme is that scheme imagined in Pulley — a scheme with virtually no checks on arbitrariness, producing arbitrary sentences and arbitrary executions, and, therefore, a scheme where comparative proportionality should be required. The article also argues that, in California, there is no meaningful review of death sentences at all — not once in 593 direct appeals in death penalty cases has the California Supreme Court set aside a death sentence on the ground that it was disproportionate, excessive or otherwise aberrant. Although California is, in this respect, is a distinct outlier, it is not alone among the states in ignoring the Furman requirements. The lesson from California is that the Supreme Court's "meaningful review" of state schemes is long overdue.
Wednesday, September 16, 2015
Oklahoma's top criminal court stays execution of Richard Glossip for two weeks
As reported in local news pieces here and here, Oklahoma Governor Mary Fallin late yesterday refused to delay today's scheduled execution of Richard Glossip amid concerns about his factual guilt. But today the Oklahoma Criminal Court of Appeals issued a stay of execution for death row inmate Richard Glossip. Here are the basics:
Just before 12 p.m. Wednesday, a stay has been granted for him until September 30. Late Tuesday afternoon, Gov. Mary Fallin said she will not grant Glossip a stay of execution. Just before 5 p.m. Tuesday, Glossip’s attorneys filed the appeal with the Oklahoma Court of Criminal Appeals. It's their last avenue to stop the execution.
Court documents released on Wednesday stated that, "Due to Glossip's last minute filing, and in order for this court to give fair consideration to the materials included with his subsequent application for post-conviction relief, we hereby grant an emergency stay of execution for two weeks. The execution of Richard Eugene Glossip shall be reset, without further order, for September 30, 2015."
During a news conference on Wednesday, the Director of Oklahoma Department of Corrections said he does not know the reasons behind the stay, and that at this time, they are shutting down all procedures.
Prior related post:
- New gossip about claim of innocence in Glossip
- Does Glossip case reveal Oklahoma's prosecutors as immoral and its judges lacking in moral fiber?
Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
As reported in this local piece, headlined "Accused gunman in Charleston church shooting proposes guilty plea," a high-profile mass murderer is apparently prepared to cut a plea deal to try to avoid a state capital prosecution. Here are the details and context:
An attorney for the man accused of gunning down nine people at a historic black church in South Carolina said on Wednesday his client is willing to plead guilty to state murder charges if the move would spare him a death sentence.
A guilty plea by Dylann Roof, 21, in exchange for a sentence of life in prison without parole also would spare the victims' families and shooting survivors from the trauma of trial proceedings, attorney Bill McGuire said.
His remarks came during a hearing in Charleston over whether a judge will release 911 calls and police reports about the June 17 massacre during a Bible study meeting at Charleston's Emanuel African Methodist Episcopal church. Judge J.C. Nicholson in July blocked the release of investigative materials in the state's murder case against Roof, who is white, citing concerns about graphic photos of the crime scene and emergency calls that might have recorded the sounds of victims.
Assistant U.S. Attorney Nathan Williams, who is prosecuting Roof in federal court, said the families and survivors were "re-traumatized" every time they heard, saw or read something about the killings. He argued for the documents, including coroner's reports and witness statements, to remain sealed. "It may take years before people are ready to see that," Williams said.
Jay Bender, an attorney for news organizations challenging the gag order, asked the judge to review documents and photos to decide whether some could be released. Media outlets have argued that transparency ensures a defendant's right to a fair trial. "There is an alternative to the imposition of a cloak of secrecy over what has happened in Charleston," Bender said....
In addition to state murder charges, Roof faces 33 federal hate crime and weapons charges that also could result in a death sentence but federal prosecutors have not said if they will pursue that in their case. The federal charges are based on evidence that Roof targeted the black victims because of their race and "in order to interfere with their exercise of religion," U.S. Attorney General Loretta Lynch said.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
Does Glossip case reveal Oklahoma's prosecutors as immoral and its judges lacking in moral fiber?
The qustion in the title of this post is prompted by this provocative Slate commentary authored by Robert J. Smith and G. Ben Cohen which is headlined "Groundhog Day Nightmare: Oklahoma is about to execute a man who is probably innocent." Here are excerpts from the piece, including sections with the forceful rhetoric parroted in the title of this post:
Oklahoma is set to execute Richard Glossip, despite grave doubts about his guilt. A chorus of people that includes Republican former Sen. Tom Coburn; Virgin Group CEO Richard Branson; and Barry Switzer, the beloved former Oklahoma Sooners football coach, has called for Oklahoma Gov. Mary Fallin to grant a stay of execution. If she does not, and if the Supreme Court does not step in, Glossip will be put to death Wednesday....
In 1997, Justin Sneed killed Barry Van Treese, a motel owner for whom both Sneed and Glossip worked. The police found Sneed’s fingerprints all over the bloody crime scene and in the victim’s vehicle. Sneed later confessed to the killing. The prosecution’s theory at Glossip’s trial was that Glossip pressured Sneed into murdering Van Treese. What evidence supported the state’s theory? Not much....
The prosecution gave him a sweetheart deal: In exchange for his testimony against Glossip, the state waived the death penalty. The problem is that the substance of Sneed’s testimony at trial was invented by the state....
It is bad enough that Sneed received a deal in exchange for his testimony. It is worse that the detective “educated” Sneed about Glossip being the mastermind. But what’s not only unforgivable, but downright immoral, is that the prosecution put forward the Glossip-as-mastermind theory in a capital case, with a man’s life on the line, when Sneed couldn’t even keep his story straight....
If Oklahoma proceeds with this execution, Glossip will not, unfortunately, be the only plausibly innocent man put to death....
Did Georgia execute an innocent man when it killed Troy Anthony Davis? Did Texas execute innocent men when it put Cameron Todd Willingham and Lester Bower to death? Will Oklahoma add to this tragic list if neither Gov. Fallin nor the Supreme Court stops the execution of Richard Glossip? We honestly do not know. And that’s the problem. How do we preserve the integrity of our justice system and our courts if we send condemned inmates to the lethal injection chamber with no more certainty of their guilt than a coin flip?
Given all that is known today about wrongful convictions, the fallibility of our criminal justice institutions, and their fallibility in identifying these potentially fatal errors, the question should not be Is this person innocent? but rather: Is this a case of uncertain guilt? Whatever principles the state seeks to uphold, whether it is the finality of its judgments or deference to juries or state courts, nothing trumps the risk of executing a person where there is some serious doubt as to his or her guilt.
In Richard Glossip’s case, there is more than “some” doubt. There is lots of it. No physical evidence ties him to the crime. There is no motive that withstands scrutiny. The detectives in the case engaged in tactics known to increase the likelihood of witnesses providing false statements. And the state’s chief witness, Justin Sneed, was unreliable at best, with clear motives for lying. Few of us would buy a used car from Justin Sneed. Are we prepared to stake the moral fiber of our justice system on his word? If our answer is no, we must stop the execution of Richard Glossip. His life depends upon it, and so does the soul of our nation’s justice system.
I was a bit dismissive in this prior post of eleventh-hour innocence claims here given that Glossip was twice convicted and sentenced to death (his first conviction was reversed for procedural error). But I cannot help but wonder if my eagerness to question claims of innocence here is a result of my own desire to believe that Oklahoma prosecutors would not be immorally eager to condemn to death (twice) a man based on very weak evidence and that Oklahoma and federal courts would have had the moral fiber to intervene if there was real substance to the innocence claims.
That all said, absent "smoking gun" evidence to provide some more confidence in Glossip's guilt, I can understand why the abolitionist crowd has now garnered broad support for their claim that the Glossip execution should not go forward. Still, I continue to be deeply troubled that a case which produced two jury convictions well over a decade ago, and which has been at the center of the national death penalty debate for nearly all of 2015, is only now struggling at the very minute with what is the most fundamental and basic question in any and every criminal case.
Prior related post:
Monday, September 14, 2015
Is a capital case the right kind of vehicle for SCOTUS to consider solitary confinement?
The question in the title of this post is prompted by this new New York Times piece by Adam Liptak headlined "Virginia Has Solitary Confinement Case, if Justices Want It." Here are excerpts:
The Supreme Court seems eager to hear a case on the constitutionality of a distinctively American form of punishment: prolonged solitary confinement. “Years on end of near total isolation exact a terrible price,” Justice Anthony M. Kennedy wrote in a concurrence in a case in June. Justice Stephen G. Breyer echoed the point in a dissent in a case later that month.
An appeal from Virginia materialized almost immediately. Now the justices must weigh whether it has the right features — whether it is, in legal jargon, a good vehicle — to serve as the basis for a major decision on extended solitary confinement, which much of the world considers torture.
On the plus side, the case asks the sort of focused and incremental question that the justices often find attractive: May states automatically put all death row inmates in solitary confinement?
Last week, Mark R. Herring, Virginia’s attorney general, filed a brief urging the court to turn down the appeal. It is, he said, the wrong vehicle to address “the broader concerns recently voiced by Justices Kennedy and Breyer.” For starters, Mr. Herring wrote, “the case is likely to become moot before it can be decided.” That is because the state intends to execute the inmate who brought the challenge, Alfredo R. Prieto, on Oct. 1.
More generally, Mr. Herring wrote, Virginia is the wrong state in which to examine the issue of prolonged solitary confinement on death row because its capital justice system is exceptionally efficient. Inmates in other states can spend decades in solitary confinement, he wrote, but Virginia generally executes condemned inmates seven to 10 years after their convictions.
Mr. Prieto has been on death row for about seven years. But that was enough isolation, he told the justices, to have caused him mental agony. In a 2013 deposition, the warden of the prison where Mr. Prieto is serving his sentence seemed to concede the inhumanity of solitary confinement. “There is real importance to getting out and being with other people, I agree, and not being 24/7 in a cell,” said the warden, Keith Davis. “We, as humans, we don’t survive very well that way with lack of human contact.”
Later that year, a federal trial judge ruled in Mr. Prieto’s favor. “He must spend almost all of his time alone,” deprived of contact even with fellow prisoners, the judge, Leonie M. Brinkema, wrote. In theory, family members could visit on weekends in a room with a glass partition. “In actuality,” she said, “no one ever comes.”
Mr. Prieto, she said, “has not engaged in any of the behaviors that would normally support placement in segregated confinement,” and was “by all accounts a model prisoner.” On the other hand, he has a chilling criminal record. Mr. Prieto was on California’s death row for the 1990 rape and murder of a 15-year-old girl when, in 2005, DNA evidence linked him to a 1988 rape and double murder in Virginia. He was extradited to Virginia and found guilty....
In March, a divided three-judge panel of the federal appeals court in Virginia reversed Judge Brinkema’s ruling, though even the majority said the state’s approach was harsh. “Of course,” Judge Diana Gribbon Motz wrote for the majority, “the Supreme Court could prescribe more rigorous judicial review.”
Last week, Mr. Herring, the state’s attorney general, urged the Supreme Court to defer to prison officials in the case, Prieto v. Clarke, No. 15-31. “Death row offenders are sui generis,” he wrote. “States are entitled to make the judgment that death-sentenced offenders, as a class, should be confined in maximum-security conditions.”...
In June, Justice Kennedy lamented that “the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.” That seemed to change over the summer. In July, President Obama ordered the Justice Department to review the use of solitary confinement in federal facilities....
This month, California settled a lawsuit brought by the Center for Constitutional Rights by agreeing to cut back sharply on solitary confinement. The next day, a group representing the nation’s corrections officials called for “efforts to limit or end extended isolation.”
Things are changing even in Virginia, perhaps as a consequence of Mr. Pietro’s lawsuit. In a sworn statement filed last month in a different case, Mr. Clarke, the corrections official, said death row inmates can now watch television and play games like chess or checkers with up to three other condemned prisoners for an hour a day. They can also have weekly “contact visits” with family members. These can include “one brief kiss, a handshake and/or an embrace.”
Plans are afoot, Mr. Clarke added, for an outdoor recreation yard that will allow small groups of death row inmates to play basketball and exercise together. It should be completed by the end of October, not long after Mr. Prieto’s scheduled execution.
Regular readers likely know that I believe and often lament that capital cases often get too much attention from the Supreme Court (and others) relative to other cases involving much less serious crimes and much more sympathetic offenders. Nevertheless, as this piece notes, Virginia's blanket policy of putting all death-row defendants in solitary might make this case an appropriate (and certainly interesting) setting for a foray into what the Eighth Amendment might say these days about extreme forms of imprisonment.
Is the death penalty on "life support" or about to have a quickened pulse?
The question in the title of this post is prompted by this huge new USA Today article headlined "Courts, states put death penalty on life support." Here are some excerpts from the lengthy article that is well-told in multiple chapters:
If there is such a thing as a lock for the death penalty, the case against Daniel Higgins appeared to be just that. Already sought for sexually assaulting a child, Higgins killed Sheriff's Sgt. Michael Naylor last October with a point-blank shot to the head, making him the only deputy slain in the department's 130-year history. "I wanted him dead," Sheriff Gary Painter says of the murderer.
But Naylor's widow, Denise Davis, said she couldn't bear the likely rounds of appeals that could stretch on for decades. Higgins was allowed to plead guilty and was sentenced to life without the possibility of parole. The death penalty in America may be living on borrowed time.
The emotional and financial toll of prosecuting a single capital case to its conclusion, along with the increased availability of life without parole and continuing court challenges to execution methods, have made the ultimate punishment more elusive than at any time since its reinstatement in 1976.
Prosecutors, judges and juries also are being influenced by capital punishment's myriad afflictions: racial and ethnic discrimination, geographic disparities, decades spent on death row and glaring mistakes that have exonerated 155 prisoners in the last 42 years.
Those trends may be squeezing the life out of the death penalty. That doesn't even take into account the added burden of legal clashes, legislative repeals, and problems finding and administering drugs for lethal injections.
The Supreme Court in June upheld a controversial form of lethal injection by the narrowest of margins, thereby giving Oklahoma the green light to reschedule three executions. But courts in many states continue to wrestle with that issue, and the justices have four more death penalty cases on their docket this fall challenging the roles of Kansas juries, Florida judges and Georgia prosecutors....
Still, the Supreme Court has twice upheld the constitutionality of lethal injection, first in 2008 and again in June, when the justices ruled 5-4 that Oklahoma can use a sedative involved in three botched executions last year. Justice Samuel Alito, writing for the majority, said challengers could not suggest a better alternative.
The ruling gave impetus to states such as Alabama and Mississippi seeking to jump-start executions after a hiatus of several years. But it also rejuvenated legal efforts by groups opposed to the death penalty, who continue to fight against lethal injection protocols in several states....
Several states took the high court's ruling as a reason to rejuvenate the death penalty. Missouri wasted little time resuming executions, putting David Zink to death two weeks later, on July 14. Texas, by far the nation's leader in executions with 528 since the Supreme Court reinstated capital punishment in 1976, followed suit with an execution in August and has six more on tap this year.
States from Florida to Montana that have not killed anyone for several years are in court, seeking to rejuvenate dormant death penalties. Some states are establishing backup methods in case lethal injections become impossible. Eight permit electrocution, three allow gas chambers, three allow hanging, and two would use firing squads -- as Utah did in 2010 and 2013....
Nebraska this year became the first "red" state to ban capital punishment. That law faces potential repeal in 2016 if death penalty proponents can put it to a vote. The attention Nebraska received overshadowed near-misses in Delaware, where Rep. Sean Lynn says the death penalty is applied in discriminatory fashion, and Montana, where Rep. David Moore says the costs are proving to be unaffordable....
The debate over lethal injection has energized legislatures as well as courts and corrections departments. North Carolina and Arkansas, two Southern states seeking to rejuvenate their dormant death penalties, approved laws this year that impose secrecy on the source of lethal injection drugs. Arkansas recently purchased a new supply of drugs.
The problem for the legal system is that it's more of a medical issue. Some drugs, such as sodium thiopental and pentobarbital, no longer can be obtained from European drug makers. That has sent states scurrying to compounding pharmacists, where the drugs they get are not subject to Food and Drug Administration regulation.
But those pharmacists aren't pleased. Its trade group in March discouraged members from "participating in the preparation, dispensing or distribution of compounded medications for use in legally authorized executions." A week later, the American Pharmacists Association called executions "fundamentally contrary to the role of pharmacists as providers of health care."
I would recommend this USA Today article to anyone looking for an effective up-to-date account of the current state of the death penalty in the United States. But while the piece details all the notable barriers and hurdles in the way of continued use of the death penalty and execution, it does not fully note that the Glossip case could well have removed enough legalistic barriers to allow traditional "death belt" states and a few others to conduct multiple executions in the coming months.
Notably, this Death Penalty Information Center scheduled execution page details nine serious execution dates in five different states for the month of October. If all (or even most) of these executions get carried out without any unusual difficulties or Supreme Court intervention, I suspect additional states will feel emboldened to try a bit harder to get its death machinery up-and-running again in 2016. And especially if Ohio can get the drugs it needs to conduct executions, I think 2016 could see a significant uptick in nationwide executions.
Especially with a death penalty referendum on the ballot in Nebraska and a presidential election season in full swing, I think 2016 will be an especially interesting and important year for the future of the death penalty in the United States. Though it is certainly possible to look at recent developments to predict the coming demise of capital punishment, the death penalty in the United States has historically found ways to stay alive and kicking.
September 14, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing | Permalink | Comments (6)
Sunday, September 13, 2015
New gossip about claim of innocence in Glossip
As reported in this New York Times article, the condemned murderer whose name was atop the case in which the Supreme Court recently upheld Oklahoma's approach to lethal injection now has supporters raising questions anew about his factual guilt. The piece is headlined "Oklahoma Inmate the Focus of Renewed Attention as Execution Date Nears," and here are excerpts:
Richard E. Glossip was at the center of a major Supreme Court case this year, arguing along with two other men on Oklahoma’s death row that the state’s choice of lethal injection drugs could cause unconstitutional suffering. The court rejected that claim in a 54 decision in June, clearing the way for Oklahoma to resume executions. Mr. Glossip’s is the first; he is scheduled to die on Wednesday.
Now Mr. Glossip, 52, is again a focus of attention, this time over whether he is guilty of the arranged murder in 1997 of the owner of a rundown motel he was managing. Mr. Glossip’s supporters call his case a striking example of a repeating pattern in American capital punishment, in which a defendant receives inadequate legal representation early on and then, many years later, only as execution nears, higherpowered lawyers and civil rights groups become involved, raising important new issues at the 11th hour, when it may be too late.
Mr. Glossip has won the fervent backing of Sister Helen Prejean, the antideathpenalty campaigner; the actress Susan Sarandon, who played Sister Helen in the film “Dead Man Walking”; and a new legal team, working pro bono, which says his conviction was marred by poor lawyering and unreliable, police-coached testimony.
In a drumbeat of media appearances, Mr. Glossip’s supporters are calling on Gov. Mary Fallin of Oklahoma to delay his execution for 60 days while they explore what they say is important new evidence that they released on Friday and will discuss in a news conference in Oklahoma City on Monday.
The victim, Barry Van Treese, was beaten to death with a baseball bat in a room at the Best Budget Inn in Oklahoma City, a motel that he owned and Mr. Glossip managed. Justin Sneed, a 19-year-old drifter with an eighthgrade education whom Mr. Glossip allowed to stay at the motel in return for maintenance work, admitted to the murder and is serving life without parole.
Mr. Sneed testified that Mr. Glossip had told him to kill Mr. Van Treese in return for thousands of dollars in motel receipts. Prosecutors said Mr. Glossip was a cunning figure who feared he was about to be fired for mismanagement and stealing motel revenues, and persuaded Mr. Sneed to commit the crime....
Mr. Glossip’s appeals to the state and federal Supreme Court have been exhausted. His last hope is for Governor Fallin, a Republican, to stay his execution while his lawyers work to persuade a judge, or the state board of pardon and parole, that significant new evidence warrants a new hearing or clemency. “We are seriously racing against time, as you can imagine,” said one of those lawyers, Donald R. Knight, from Colorado. “We’re trying to do work that should have been done by trial lawyers a long time ago.”
But Governor Fallin has rejected calls to intervene. “His actions directly led to the brutal murder of a husband and a father of seven children,” she said last month in a statement about Mr. Glossip, stressing that he had been convicted in two jury trials and lost multiple appeals. “The state of Oklahoma is prepared to hold him accountable for his crimes and move forward with his scheduled execution.”
Barry C. Scheck, codirector of the Innocence Project in New York, said there were serious “residual doubts” about Mr. Glossip’s guilt. A number of cases in which those sentenced to death were later exonerated, he said, had similarly relied on witnesses who benefited from testimony.
Mr. Glossip was first found guilty and sentenced to death in 1998, but a state appeals court ordered a retrial because his defense lawyers had failed to cross-examine or investigate witnesses effectively. He was again convicted and condemned in 2004, and the courts did not find evidence of deficiencies that would require a new appeal. But Mr. Knight said the new team had identified weaknesses with that second defense as well. By all accounts, Mr. Glossip’s behavior on the day after the murder hurt his case....
The Glossip case reflects a common problem in capital punishment, Mr. Scheck said: a poor defense in the initial trial, which then limits the legal options in later appeals. “What frequently happens in these capital cases is that the really good lawyers only get involved at the end, when it’s too late,” Mr. Scheck said.
Mr. Van Treese’s family is convinced of Mr. Glossip’s guilt and has thanked the governor for standing firm. “Execution of Richard Glossip will not bring Barry back or lessen the empty hole left in the lives of those who loved Barry,” family members said in a statement this week to The Tulsa World. “What it does provide is a sense that justice has been served.”
I use the term gossip in the title of this post in part because I find less than compelling the development of new contentions about innocence a full two decades after the crime was committed given that the defendant was convicted and sentenced to death twice by two different juries. I certainly recognize that juries can get guilt/innocence determinations wrong, but I am ever hopeful it is highly unlikely that a two different juries would both get this critical determination unanimously wrong.
In addition, Mr. Glossip's supporters had to reasonably expect he would have a serious execution date in 2015, and he has not had his death sentence carried out already only because of Oklahoma's difficulties with its lethal injection plans. And, based on the tenor of the the Supreme Court oral argument in Glossip back in April, it should have been especially obvious that Oklahoma would likely have its machinery of death up and running again pretty soon. I find it troublesome that, despite all this extra time to conduct whatever additional investigation might now unearth new concerns about guilt, defense attorneys now assert they need another 60 days to make a more forceful showing of innocence.
Friday, September 11, 2015
Is Arkansas about to jump back seriously into execution business?
The question in the title of this post is prompted by this recent local article from the Natural State, headlined "Dates to die set for 8 inmates: State resuming executions; first two scheduled for Oct. 21." Here are the details:
After nearly a decade since an Arkansas inmate was put to death, Gov. Asa Hutchinson on Wednesday announced the execution dates for eight. Barring intervention from a court, the state will first mete out capital punishment, by lethal injection, to convicted murderers Bruce Ward and Don Davis. They have the earliest of the execution dates, Oct. 21.
Hutchinson said he expects the execution dates to be challenged in court, but he thinks the eight offenders have gotten "finality" in their cases and have exhausted all of their standard appeals.
Hutchinson spokesman J.R. Davis said the governor is "fulfilling" a duty of his office by setting the dates. "It's not something he takes lightly at all," J.R. Davis said. "But these crimes were heinous, and they were sentenced to death because of these crimes. He will carry those out."
Jeff Rosenzweig, an attorney for the eight men, said he will seek a court injunction to delay the executions. He noted that a lawsuit filed in June seeking disclosure of the source of the drugs used in executions is still pending. Act 1096, which was passed during this year's legislative session, prohibits the Arkansas Department of Correction from disclosing the source of the execution drugs, but Rosenzweig said his clients have a right to know who made the drugs. "There are some very serious issues, starting with the fact that the state wants to hide what drugs they're using or where they got them from. They want to hide that," Rosenzweig said. Divulging that information "tells us if it's a legitimate supplier or some fly-by-night operation. If it's a fly-by-night operation, it's torture."...
A combination of legal challenges and a lack of availability of lethal-injection drugs has halted executions in Arkansas for nearly a decade. The state's last execution was that of Eric Nance in November 2005. Nance was convicted of the 1993 murder of 18-year-old Julie Heath of Malvern. He was put to death using a three-drug cocktail of phenobarbital, potassium chloride and a paralytic agent.
As of Wednesday, a Department of Correction spokesman said, there were 26 other inmates on death row.
The eight executions will occur in pairs, J.R. Davis said, because "it's more efficient to do two on one date." He and Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said all eight have exhausted their appeals....
The eight men whose execution dates are now set are challenging in Pulaski County Circuit Court the legitimacy of the state's death-penalty laws.
In 2013, then-Arkansas Attorney General Dustin McDaniel's office reached a settlement with the men, promising to disclose the source of the drugs that would be used in their executions. Act 1096 barred the release of that information, so Rosenzweig and other attorneys sued.
Rosenzweig conceded that several similar challenges have failed in federal courts across the country but said none of those challenges involved a pre-existing agreement between the prisoners and the state to share that information. Rosenzweig argues that his clients have a right to make sure the execution drugs come from a reputable source so that the risk of pain during the executions can be minimized. "We have a situation that the other states didn't have ... it's very different from us wandering into the court and saying 'Tell me this!' We're dealing with a commitment, a contract, an agreement made by the state," Rosenzweig said. "This has ramifications far beyond executions."
Until recently, state officials had difficulties obtaining lethal-injection drugs. In 2011, the state handed over its supply of the execution drug sodium thiopental to federal drug agents after the state's prison department got the drug from a wholesaler operating out of a driving school in London. In June, the state obtained potassium chloride, vecuronium bromide and midazolam at a cost of $24,226.40.
Midazolam's effectiveness as a sedative in executions has been questioned after some botched executions, including that of Clayton Lockett, who struggled and convulsed for 43 minutes during his April 2014 execution in Oklahoma. In June, the U.S. Supreme Court, rejected claims that Oklahoma's use of midazolam violated death-row inmates' Eighth Amendment rights, and ruled that midazolam could continue to be used in executions.
On Aug. 6, the Arkansas Department of Correction formalized its policies and procedures for carrying out executions. On Sept. 1, Rutledge asked that the governor schedule the executions.
Thursday, September 10, 2015
Validity of Pennsylvania Gov halting of death executions considered by state Supreme Court
As reported in this new AP piece, "Pennsylvania Gov. Tom Wolf's lawyers defended his use of death row reprieves to achieve a moratorium on executions, a promise he made on the campaign trail, while prosecutors challenged its constitutionality at a hearing Thursday before the state Supreme Court." Here is more on the hearing:
The lead attorney for Wolf, whose 7-month-old strategy has angered prosecutors and energized death penalty foes, said the only legal question is whether the governor has authority to issue reprieves. "The answer is clearly 'yes,'" said H. Geoffrey Moulton Jr., a deputy in the governor's Office of General Counsel. Moulton acknowledged that Wolf cannot suspend the death penalty but said he can grant temporary reprieves without having to explain his reasons.
A top lawyer for the Philadelphia district attorney's office, which filed a court challenge days after Wolf announced his plan, said the governor is improperly using reprieves by tying them to an overdue report from a legislative task force on capital punishment. "We're waiting for something to be satisfactorily addressed that can never be addressed at all," said Hugh Burns, chief of the office's appeals unit.
"You don't know that," Justice Max Baer interjected. "We don't have the report."
All five justices quizzed the lawyers. Justices Debra Todd and J. Michael Eakin questioned whether Wolf's strategy is technically a moratorium or merely a series of individual reprieves. "He announced a moratorium, not a reprieve," Eakin said.
The case before the state's highest court case revolves around condemned prisoner Terrance Williams, whose scheduled March execution for the tire-iron beating death of another Philadelphia man more than 30 years ago was canceled by the first of three reprieves that Wolf's office says he has granted since February....
Wolf said he intends to continue granting reprieves until the Pennsylvania Task Force and Advisory Committee on Capital Punishment makes its recommendations and they are "satisfactorily addressed."
Some prior related posts:
- Pennsylvania Gov declares moratorium on state death penalty
- Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"
- Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium
- Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania
- Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dysfunctional death penalty
- Pennsylvania Attorney General calls Governor's execution moratorium an "egregious violation" of the state constitution
Wednesday, September 09, 2015
Examining death penalty developments in distinct death penalty states
The death penalty is subject to plenty of attention and scrutiny nationwide and especially in states that have traditionally carried out the most executions like Texas and Oklahoma. But, I have noticed in the last few weeks some headline-making developments and/or notable commentary concerning capital punishment procedures and practices in a lot of distinct states with distinct death penalty histories. Going alphabetically by state, here is a round-up of some of the recent media pieces that have caught my eye:
Delaware: "Judge blasts Delaware death penalty case"
Pennsylvania: "End Pennsylvania’s limbo over death penalty"
Sunday, September 06, 2015
Ohio queue of condemned keeps growing as state struggles with its death machinery
This new AP article, headlined "Ohio Death Row Quandary: 2 Dozen Executions, No Lethal Drugs," highlights the distinctive problem Ohio now has with the administration of capital punishment. Here are the details:
The state now has two dozen condemned killers with firm execution dates, but with four months before the first one, it still doesn't have the lethal drugs it needs to carry them out. The state's inability to find drugs has death penalty opponents calling for the end of capital punishment in Ohio. Supporters say the state needs to keep looking or find alternatives to provide justice for killings that are in some cases decades old.
"Rather than frustrate that process it would seem to me their goal ought to be to carry out that process," said Franklin County Prosecutor Ron O'Brien, who's contacted the prisons department, the attorney general and the governor's office for updates on their progress finding drugs. One option he'd like Ohio to consider: nitrogen gas, approved by Oklahoma in April as an execution alternative.
On Jan. 21, the state is scheduled to execute Ronald Phillips for raping and killing his girlfriend's 3-year-old daughter in Akron in 1993. The Department of Rehabilitation and Correction "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions," said spokeswoman JoEllen Smith, using the same statement the agency has offered for months. "This process has included multiple options."
On Wednesday, the Ohio Supreme Court set a March 2017 date for Gary Otte of Cleveland for the shooting deaths of two people in a 1992 robbery spree. The remaining executions are scheduled clear into 2019.
The state hasn't executed anyone since January 2014, when condemned killer Dennis McGuire gasped and snorted repeatedly during a 26-minute procedure with a then untried two-drug method. Ohio abandoned that method in favor of other drugs it now can't find. Like other states, Ohio has struggled to obtain drugs as pharmaceutical companies discontinued the medications traditionally used by states or put them off limits for executions.
The state's latest attempt, to obtain a federal import license to buy drugs from overseas, ran into a roadblock when the FDA informed Ohio such actions are illegal because the drugs in question aren't FDA-approved.
That's the kind of thing that happens when dates are set without drugs on hand, said Tim Young, the state public defender. "That continual setting of dates seems to bring to bear unfortunate pressure to drive the choices with untested drugs, untested processes," he said.
Gov. John Kasich said other states won't give Ohio their drugs and lawsuits may tie up attempts to import approved drugs. But he said there's still time before the January execution. "I want to continue forward with the death penalty, but if I don't have the drugs it becomes very difficult," Kasich said.
Ohio appears to have the most killers with execution dates because of the state's system for scheduling them. Texas, which still leads the nation in the number of executions annually, sets dates a maximum of 90 days out. Missouri, which has a similar system, has a maximum 60-day window which extends up to 120 days next year.
Connecticut prosecutors seek reconsideration of retroactive abolition of death sentences
This Reuters article, headlined "Prosecutors seek to re-argue case that ended Connecticut death penalty," reports on a notable (and seemingly long-shot) motion filed late last week in the Connecticut Supreme Court. Here are the details:
Connecticut prosecutors asked the state Supreme Court on Friday to reconsider its recent decision on a narrow vote to end the state's death penalty, a clerk for the state Supreme Court said.
Prosecutors late Friday filed a motion asking the justices to allow them to re-argue the case in which justices called the death penalty cruel and unusual punishment and concluded that it "no longer comports with contemporary standards of decency." The ruling, on a 4-3 vote, added Connecticut to the growing list of states backing away from the death penalty, including Nebraska and Maryland most recently. Thirty-one states have the death penalty.
Prosecutors on Friday also asked the court to strike from the record a concurring opinion about racial bias in capital cases they said was barred as merely advisory, the clerk said. In the opinion, Justices Flemming Norcott and Andrew McDonald wrote that racial and ethnic discrimination had "permeated the breadth of this state's experience with capital charging and sentencing decisions."
Prosecutors want to present new arguments in response to the majority opinions, including the rarity of executions in Connecticut, the delay in imposing death sentences and the danger of executing the innocent, the clerk said.
"The Division of Criminal Justice recognizes the complex legal and policy issues that the court confronted in this crucially important case," Chief State's Attorney Kevin Kane wrote in the motion. "The process that the majority followed in reaching its conclusion deprived the division of the opportunity to address the concerns that drove the results and led the majority unaided by the time-tested adversarial process to inaccurate assumptions and errors of law," he wrote....
Connecticut in 2012 abolished capital punishment for future crimes but allowed the death penalty to be imposed for crimes previously committed. The current debate leaves 11 death row inmates in limbo.
I would guess that these sorts of motions for reargument in the Connecticut Supreme Court are almost never granted. But, as long-time readers know, death penalty cases can and often lead to some unusual legal developments.
Prior related posts:
- Connecticut Supreme Court follows legislature's prospective DP repeal with retrospective state consitutional abolition
- Connecticut Supreme Court retroactive abolition of death sentences prompting prosepctive perspectives
Thursday, September 03, 2015
South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
As reported in this new AP piece, the "man accused of killing nine black churchgoers during a Bible study will face the death penalty, according to court documents filed Thursday." Here is more:
The documents said prosecutors would pursue the death penalty against Dylann Roof, 21, because more than two people were killed, and that others' lives were put at risk.
Prosecutors also said they intended to present evidence on Roof's mental state, adult and juvenile criminal record and other conduct, as well as his apparent lack of remorse for the killings.
Roof faces state charges including nine murder counts in the June 17 slayings at Emanuel African Methodist Episcopal Church. He is expected in court again on those charges in October.
He also faces federal charges including hate crimes and obstruction of the practice of religion, some of which are also eligible for the death penalty in that system. U.S. Attorney General Loretta Lynch has said federal charges were necessary to adequately address a motive that prosecutors believe was unquestionably rooted in racial hate. South Carolina has no state hate crimes law.
Wednesday, September 02, 2015
"Share Your Grief But Not Your Anger: Victims and the Expression of Emotion in Criminal Justice"
The title of this post is the title of this notable new paper available via SSRN authored by Susan Bandes. Here is the abstract:
In the recent capital trials of Dzhokhar Tsarnaev for the Boston Marathon bombings and James Holmes for the Colorado theater shootings, victims’ families were permitted to give testimony after the sentence had been announced. Since victim impact testimony in capital cases was upheld by the Supreme Court on the ground that it provides important information to the sentencing jury, hearings after sentencing raise the question of what role the statements are meant to serve.
I argue that although victim impact testimony was originally justified as a means of providing information to sentencing juries, it is now regarded as having two additional purposes. First, it is widely assumed that the statements serve a cathartic or therapeutic role for victims and their families; that they assist in obtaining “closure.” Second, there is a growing tendency toward viewing the statements as a means of confronting the perpetrator in order to elicit remorse, or at least impress on him the gravity of the harm he has caused. Each of these three rationales has different implications for the nature, scope and advisability of allowing victim impact statements.
In this chapter I examine what goals the statements are meant to serve, how those goals should affect the rules governing the statements, and whether the goals are practically achievable or normatively desirable.
Monday, August 31, 2015
India Law Commission urges nation to abolish death penalty for all common crimes
This new article reports on an interesting and notable international sentencing reform development coming from India, a large nation within a continent which has long embraced and preserved a commitment to capital punishemnt. The piece's extended headline provides the basics: "Law Commission recommends abolishing death penalty except in terror cases: In its 272-page draft report, the commission favoured speedy abolition of the death penalty from the statute books, except in cases where the accused is convicted of involvement in a terror case or waging war against the nation."
The full text of this lengthy report from the Law Commission of India, which is titled simply "Report No. 262: The Death Penalty," can be accessed at this link. Here is one of many key passages leading up to the report's final recommendations:
In sum, the death penalty operates in a system that is highly fragile, open to manipulation and mistake, and evidently fallible. However objective the system becomes, since it is staffed by humans, and thus limited by human capacities and tendencies, the possibility of error always remains open, as has been acknowledged the world over, including by the most highly resourced legal systems.
As the instances cited above indicate, while the existence of appellate procedures may reduce the chances of error, these cannot be eliminated altogether. Given the irreversibility of the death penalty, this punishment can only be justified where the entire system works in a fool proof manner, having regard to the highest standards of due process, the fairest of investigation and prosecution, the most robust defence, and the most impartial and astute judges. However, experiences the world over, including in India suggest, that “all it takes is one dishonest police officer, one incompetent lawyer, one over-zealous prosecutor or one mistaken witness and the system fails.” In a perfect criminal justice system, the death penalty may be imposed error free. However, no such system has been devised so far. The death penalty therefore remains an irreversible punishment in an imperfect, fragile and fallible system.
Sunday, August 30, 2015
Gearing up for the Ninth Circuit oral argument concerning California's (capricious?) capital cae review
As I have noted in a few recent posts (linked below), panel oral argument is scheduled for tomorrow, August 31, 2015, in the Ninth Circuit appeal of last year's ruling by US District Judge Cormac Carney in Jones v. Chappell (now Jones v. Davis) that California's administration of capital punishment was unconstitutional. Unsurprisingly, media both old and new are giving significant attention to this appeal in a case that could possibly preclude any further executions in the state with the largest death row, and here are headlines/titles and links to a melange of recent media coverage I have come across recently:
As I have mentioned in prior posts, Jones was an interesting ruling from the federal district court for various reasons, and a lot of interconnected issues are in play on appeal. As revealed via this Ninth Circuit webpage, various amici have submitted briefs to the Ninth Circuit urging reversal or affirmance of the Jones decision. And I believe we can all watch the panel arguments live via this link from the Ninth Circuit tomorrow at 12noon EDT (9am PDT).
Prior related posts:
- Federal district judge declares California's death penalty unconstitutional under Eighth Amendment
- Lots of notable discussion of yesterday's notable decision striking down California's death penalty
- Furman and randomness (not just delay) at heart of California capital ruling
- Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell
- California Attorney General seeking appeal in Jones v. Chappell capital case
- Gearing up for the Ninth Circuit's consideration of the arbitrariness of California's capital punishment system
- Ninth Circuit panel set for California's appeal of its (unconstitutional?) death penalty administration
UPDATE: Here are two more new (old media) pieces previewing today's oral argument in Jones v. Davis:
Thursday, August 27, 2015
Might Tennessee soon have its machinery of death up and running?
The question in the title of this post is prompted by this AP story headlined "Judge upholds Tennessee lethal injection method." Here are the basics:
A Tennessee judge on Wednesday upheld the state's lethal injection process for executing inmates.
Davidson County Chancery Judge Claudia Bonnyman said from the bench that the plaintiffs, 33 death row inmates, didn't prove that the one-drug method led to a painful and lingering death. She also said the plaintiffs didn't show during a lengthy trial that there have been problems in states where the method has been used. "Plaintiffs were not able to carry their burdens ... on any of their claims," Bonnyman said.
Plaintiffs' attorney Kelley Henry said they plan to appeal.
Attorney General Herbert Slatery said in a statement he hoped the families of victims would be comforted by the ruling. "The State of Tennessee has worked very hard to make sure the protocol used is reliable and humane, today the Court recognized that," the statement said. While much of the focus of this case has been on the inmates, we should not forget the victims and the heartache suffered by their families."
Tennessee's protocol calls for the use of pentobarbital mixed to order by a pharmacist, because the only commercial producer of the drug has placed restrictions on its distribution to prevent it from being used in executions. Tennessee has not executed an inmate for more than five years because of legal challenges and problems in obtaining lethal injection drugs.
Lawmakers moved from a three-drug lethal injection method to a one-drug method and to reinstate the electric chair as a backup. Both changes brought challenges, and all previously scheduled executions have been put on hold.
This ruling and the planned appeals by the death row defendants suggests that Tennessee might be a good state to watch to see if the Supreme Court's ruling in Glossip can really help states finally get their death penalty machinery back up and running. In the wake of Glossip and absent any evidence of illicit chicanery by Tennessee officials, any appeals in this case ought to be resolved fairly expeditiously (especially if Tennessee were now set execution dates for some condemned murderers). But, of course, the condemned still have every reason, and surely will seek every opportunity, to continue to extend the lethal injection litigation for as long as possible in both state and federal courts. I have thought that Glossip should speed things along in this state and others, but only time will tell.
Wednesday, August 26, 2015
Nebraska group submits signatures to halt death penalty repeal and set up fascinating 2016 vote
As reported in this new AP article, the "organization campaigning to reinstate Nebraska's death penalty after lawmakers repealed it in May said Wednesday it has collected more than enough signatures to suspend the law before it goes into effect and place it before voters in 2016." Here is more:
Nebraskans for the Death Penalty, which was heavily financed by Republican Gov. Pete Ricketts and his family, said it had gathered 166,692 signatures from all 93 of the state's counties. Nebraska's unicameral Legislature had voted to repeal capital punishment over the objection of Ricketts, becoming the first traditionally conservative state to do so in 42 years.
The pro-death penalty group needed roughly 57,000 valid signatures from registered voters to force a statewide referendum, and double that number to immediately halt the death penalty repeal going into effect. They appear to have exceeded the 10 percent of registered voters hurdle needed to block repeal pending a November 2016 ballot measure on the issue.
"Nebraskans sent a strong message about crime and punishment in our state by signing this petition in extraordinary numbers," said state treasurer and former attorney general Don Stenberg, a co-chair of the petition drive....
Republican Attorney General Doug Peterson, who supports the death penalty, said in a statement that the signatures are "presumptively valid" until determined otherwise. Stenberg said no one will know the exact number of valid signatures for at least a month, but the state constitution makes clear that petitions go into effect on the day they're submitted.
Even if the law is suspended, Nebraska currently has no way to execute any of the 10 men on death row because its lacks two of the three required lethal injection drugs and has struggled to obtain them legally. The state paid $54,400 in May to order the drugs from a broker in India, but federal authorities have said they can't be legally imported.
Nebraska lawmakers voted by the narrowest possible margin, 30-19, to override Ricketts' veto. Ricketts assailed the Legislature as out of touch with the wishes of most residents. The repeal vote was helped by an unusual coalition of conservative state senators and more traditional death penalty opponents who had fought unsuccessfully for decades to eliminate the punishment. Some conservatives said they opposed it for religious and moral reasons, while others cast it as an inefficient government program that wastes tax money....
Nebraska hasn't executed an inmate since 1997, and has never done so using the state's current three-drug lethal injection protocol.
The announcement of the number of signatures caps an 82-day petition drive backed by Ricketts and his father, TD Ameritrade founder Joe Ricketts. The governor had given $200,000 to Nebraskans for the Death Penalty as of the last filing deadline on July 31, while his father had donated $100,000. The group raised a total of more than $652,000 from 40 individual donors and seven groups classified as businesses, political action committees and other entities.
The largest donation in July came from the conservative, Washington-based Judicial Crisis Network, which gave $200,000. Nebraskans for the Death Penalty relied on a combination of paid and volunteer petition circulators, and was aided by an Arizona-based strategist who specializes in ballot campaigns.
I find these developments fascinating, especially because it highlights that the symbolism of the death penalty seems so much more important to so many folks than the practicalities of the death penalty. Practically speaking, with no executions in nearly 20 years, the legislature's abolition largely made de jure what was already a de facto reality in the state. But that largely symbolic decision obviously troubled a lot of Cornhuskers (and motivated some folks to put some serious money into this issue), and now the issue will be decided by direct democracy rather than by representative democracy.
Because I am a huge fan of direct democracy, and especially because it will be very interesting to follow the Cornhusker capital campaigning (and its funders' capital contributions), I am pleased that this crime-and-punishment issue will now come before the voters in 2016. Sadly, because Nebraska is not likely to become a swing state in the broader presidential scene, I doubt the many wanna-be Prez candidates will feel compelled to weigh in on this "local" issue. But it still seems possible that this vote could make Nebraska a significant focal point in the (never-ending) national debate over death penalty policy and practices.
How did Boston bombing jurors not get informed some victims did not favor death sentence for Dzhokhar Tsarnaev?
As regular readers may recall from this post back in April, Bill and Denise Richard, parents of 8-year-old Martin who was one of three people killed in the April 2013 explosions at the Boston marathon's finish line, wrote this stirring Boston Globe commentary about their hopes for the outcome in the federal criminal case against Dzhokhar Tsarnaev. The Richards there expressed disinterest in a death sentence for Tsarnaev because of all the attention and appeals that such a sentence would necessarily bring for the duration of Tsarnaev's life behind bars. As they explained, in order to be able to "turn the page, end the anguish, and look toward a better future," they were calling upon "the Department of Justice [to take] the death penalty off the table in an exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal."
As regular readers know, federal statutory law gives crime victims an inpedendent right to express their views in federal sentencing proceedings. For that reason, and especially because the feelings and desires of all victims seems important, relevant and proper evidence for jurors trying to decide on a life/death capital verdict, I took for granted that anti-death-sentence victim views would get relayed in some way to the jurors deciding on the sentence for Tsarnaev. (Indeed, I had long thought that one of many benefits of the federal Crime Victim Rights Act was to ensure federal court proceedings would regularly incorportate the views and voices of all victims, not just those prosecutors and/or defense attorneys brought forward.)
But this local interview with the first Boston bombing juror to speak publicly suggests that (1) the jurors were unaware of the Richards' perspective on how best to sentence Tsarnaev, and (2) at least one juror might have reached a different verdict if he knew of what the Richards had said. Here is part of the introduction and transcript of the interview with Kevan Fagan, Juror 83, covering this ground:
Kevan Fagan, “Juror 83″ in the trial of Dzhokhar Tsarnaev, sat down for an interview in our studio with WBUR’s Jack Lepiarz and David Boeri, who both covered the trial. The 23-year-old became the first juror to agree to be named, to have his picture taken and to talk about the trial, though he would not discuss the jury’s deliberations.
Fagan told WBUR that he may not have voted for the death penalty had he known that some bombing victims wanted Tsarnaev to get life in prison. He said he likely would have changed his vote had he been aware of opposition to the death penalty by the parents of 8-year-old Martin Richard, the youngest victim killed in the bombing.
“If I had known that, I probably — I probably would change my vote. But then again, if I knew that I wouldn’t be on the jury either,” he said in the interview. The jurors were ordered to avoid media coverage of the trial.
He is co-authoring a book about his experience titled “Juror 83 — The Tsarnaev Trial: 34 Days That Changed Me” that is expected to be released at the end of September....
DB: What impressed you? Did you find anything persuasive in the defense case?
KF: I think it was a very hard case, and I’m not a lawyer, so I don’t know if there have been harder cases to defend. I think they did the best that they could for their client.
DB: You didn’t know at the time that the Richard family and other families had written to the U.S. Attorney and to the Justice Department saying they were opposed to the death penalty?
KF: Oh sure. No, I had no clue about that.
JL: If you had known that, would you have changed your vote?
KF: If I had known that, I probably — I probably would change my vote. But then again, if I knew that I wouldn’t be on the jury either.
DB: What do you mean?
KF: If I went out of my way and disrespected the judge and went against his orders about researching things. That wouldn’t have been very fair or judicious of me.
Because this juror is writing a book about his experience as a juror — and especially because this juror will likely benefit personally from the publicity that provocative interviews will generate — I am a bit suspicious of his suggestion that his sentencing vote would have been different if he had full information about all victim perspectives. Nevertheless, I now am wondering a lot about (a) whatever legal or strategic or practical issues surrounded decisions to keep jurors unaware of the Richards' (and other victims'?) perspectives on how best to sentence Tsarnaev, and (b) whether this jury unawareness, coupled with this juror's comments about the impact such information could have had, will become a key part of direct and collateral appeals of the Tsarnaev death sentence.
I cannot help but note a particular and particularly sad irony here: the commentary authored by the Richards movingly "urge[d] the Department of Justice to bring the case to a close"; but now this commentary, now combined with its failure to get known to the jury during the sentencing proceedings, seems itself likely to continue to generate legal issues and media attention. The commentary not only noted, but now adds the reality that, a death sentence for Tsarnaev is all but certain to ensure this case will not be coming to a close for decades. So sad.
A few prior related posts:
- Parent of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Varied perspectives on the varied challenges facing varied victims
- Capital jury concludes character of crime matters most in death sentencing of Boston bomber
Tuesday, August 25, 2015
Despite Glossip, federal judge orders halt to Mississippi's lethal injection plans
I had thought that the Supreme Court's big Glossip Eighth Amendment ruling a couple of month ago could make it at least somewhat easier for states to get their condemned murderers to execution chambers. But, intriguingly, only two executions have been carried out since Glossip was decided, and the United States thus remains on track in 2015 for the lowest yearly total of executions in a quarter-century.
Moreover, as reported via this (somewhat confusing) AP article, headlined "Federal judge halts executions in Mississippi," even claims that would seem to have been resolved by Glossip are still disrupting state execution efforts in a least one state. Here are the basic details:
A federal judge on Tuesday temporarily blocked the state of Mississippi from using two drugs in executions, shutting down the death penalty in the state for now.
U.S. District Judge Henry T. Wingate issued a temporary restraining order saying Mississippi officials cannot use pentobarbital or midazolam, two drugs used to render prisoners unconscious. Mississippi law requires a three-drug process, with the sedative followed by a paralyzing agent and a drug that stops an inmate's heart.
Jim Craig, a lawyer for two inmates, said Wingate gave the order verbally Tuesday in a phone conference with him and other lawyers. Wingate was supposed to issue a written order, but no written copy was yet available later in the day.
Grace Simmons Fisher, a spokeswoman for the Mississippi Department of Corrections, wrote in an email that the order bars the state from using any drug to execute a condemned inmate. The state quickly filed notice Tuesday saying it will ask the 5th U.S. Circuit Court of Appeal to overturn Wingate's order.
"We are extremely disappointed that the federal court has frustrated the State of Mississippi's lawful duty to enforce its criminal sentence of capital punishment," Attorney General Jim Hood said in a statement. "Just months ago the United States Supreme Court approved Oklahoma's method of lethal injection. Mississippi's method follows that of Oklahoma. We feel strongly that the district court misapplied the law."
Craig expects Wingate to issue a preliminary injunction that could freeze executions until the case is complete. Craig said Wingate told lawyers he would expedite the case.
Mississippi is one of a number of states facing legal challenges to lethal injections. Hood's office asked the state Supreme Court in July to set a Thursday execution for convicted murderer Richard Jordan, one of the plaintiffs in the suit, but the state court never acted.
Prisoners say they face risks of excruciating pain and torture during an execution, and that such pain violates the U.S. Constitution's Eighth Amendment prohibition against cruel and unusual punishment. The suit says there's no guarantee Mississippi can mix a safe and effective anesthetic to knock out prisoners, and even then, prisoners could remain conscious during execution.
As the case was proceeding, Hood's office told Wingate that Mississippi was abandoning its plans to use pentobarbital and instead would use midazolam to knock out prisoners. Mississippi officials have said they've struggled to buy pentobarbital as death penalty opponents pressured manufacturers to cut off the supply.
Ninth Circuit panel set for California's appeal of its (unconstitutional?) death penalty administration
Readers may recall that a little over a year ago, as first reported in this July 2014 post, US District Judge Cormac Carney ruled in Jones v. Chappell (now Jones v. Davis) that California's administration of capital punishment was unconstitutional. That ruling was based on the judge's conclusion that California operated a death penalty "system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed [, and which consequently] serves no penological purpose." This Jones ruling was appealed by the state of California to the Ninth Circuit, and a Ninth Circuit panel is finally scheduled to hear oral argument in the case next week.
As reported in this local article, headlined "3 judges appointed by Democrats will hear California death penalty appeal," a notable troika of circuit judges will be the first to hear California's appeal:
The constitutionality of California’s death penalty system will be reviewed next week by a panel of three Democratic appointees on the U.S. 9th Circuit Court of Appeals. Judges Susan P. Graber and Johnnie B. Rawlinson, Clinton appointees, and Paul J. Watford, an Obama appointee, were randomly assigned Monday to hear an appeal of a federal judge’s ruling that struck down the state’s death penalty law as unconstitutional.
Graber is a former Oregon Supreme Court justice. After joining the federal appeals court, she was once asked to recuse herself from a death penalty case out of Arizona because her father was killed in a carjacking nearly 40 years earlier. One of the teenagers sentenced to death for her father's killing later had his sentence overturned by the U.S. Supreme Court. Graber declined the recusal request in the Arizona case, which also involved a carjacking and killing.
Rawlinson is viewed as one of the most conservative Democratic appointees on the court. A former prosecutor from Las Vegas, Rawlinson was the only member of an 11-judge panel to vote to uphold a felony conviction of Barry Bonds, the former San Francisco Giants baseball player.
Watford, a former federal prosecutor, is viewed as a potential candidate for the U.S. Supreme Court if a seat opens up while President Obama is in office. He is generally described as a moderate.
The three are scheduled to hear arguments in Pasadena on Aug. 31 on last year’s death penalty ruling by U.S. District Judge Cormac J. Carney, appointed by former President George W. Bush.
As detailed in some prior posts below, a number of factors make Jones an interesting ruling for reasons that go beyond its basic significance of declaring unconstitutional the administration of the state capital punishment system with the most persons serving time on death row. And, as revealed via this Ninth Circuit webpage, various amici have submitted briefs to the Ninth Circuit urging reversal or affirmance of the Jones decision.
In the end, I am inclined to assert that the composition of this panel is relatively inconsequential. Whichever side prevails on appeal, the other side is all-but-certain to appeal to the full en banc Ninth Circuit and/or the Supreme Court. And, especially in the wake of all the dissents in Glossip, I think there is a reasonable likelihood SCOTUS will eventually take up this case no matter how the Ninth Circuit first deals with it.
Prior related posts:
- Federal district judge declares California's death penalty unconstitutional under Eighth Amendment
- Lots of notable discussion of yesterday's notable decision striking down California's death penalty
- Furman and randomness (not just delay) at heart of California capital ruling
- Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell
- California Attorney General seeking appeal in Jones v. Chappell capital case
- Gearing up for the Ninth Circuit's consideration of the arbitrariness of California's capital punishment system
Monday, August 24, 2015
Aurora victims present a "parade of pain" at on-going James Holmes sentencing proceedings
One of many benefits I see in giving crime victims certain rights in the criminal justice system is to ensure their voices are heard and their experiences are memoralized in courtroom proceedings even when those voices and experiences may not directly impact sentencing outcomes. In turn, I think it now worth highlighting the on-going proceedings in a Colorado courtroom that are effectively and potently reported in this CNN piece headlined "A parade of pain at James Holmes sentencing." I recommend reading the whole piece, and here are excerpts:
One by one, the wounded and the grieving are telling a Colorado judge how the Aurora movie theater gunman stripped the normal from their lives. Some are sobbing, some are angry. All are shattered by loss. It is a parade of pain that will not change the sentence for the 27-year-old shooter. James Eagan Holmes will spend the rest of his life behind bars.
But the inevitable outcome didn't stop the grieving grandfather of the gunman's youngest victim from making a suggestion: "I would challenge the murderer to do the right thing for once in this trial and petition the court for execution by firing squad," said Robert Sullivan.
He was the doting grandfather of 6-year-old Veronica Moser-Sullivan, who had innocent, shining brown eyes. Her pregnant mother, Ashley Moser, was shot and paralyzed.
Moser said she was looking forward to being a mother of two, but now she's nobody's mommy. She needs constant nursing care. She said she wished Holmes could be sentenced to life as a quadriplegic, just as she and two other shooting victims are.
More than 40 people gave victim impact statements on Monday, and at least 40 more are expected on Tuesday....
[M]any of the victims say they feel cheated, and they appeared to seek comfort in demonizing a defendant who took so much from them. A man whose son was gunned down in the theater referred to Holmes' schizophrenia as "a mental hangnail" and said he was disgusted during the trial by his "smirk." He called Holmes' attorneys "horrible people" and said they "fabricated a defense" to pad their resumes.
Beth Craft, whose brother John Larimer was killed, said, "The defendant may be mentally ill, but he is more evil than anything else."...
The trial, Kathleen Pourciau said, was like watching someone get away with something. It felt out of whack, unbalanced. It didn't feel like justice.
"When justice isn't served, there's a brutal message delivered to the victims," she said. "When the punishment doesn't fit the crime, the message to the victims is that your loss, your pain isn't important. The message was that the state of Colorado values the life of a mass murderer more than the people he murdered.
"How many people do you have to kill to get the death penalty?" Pourciau asked. "Why do you even have a death penalty if you don't use it? What signal does this sentence send to Bonnie Kate and others? We care, but not that much?"
A sentence of 12 life terms topped by hundreds of additional years behind bars is "absurd," she added, "the judicial equivalent of beating a dead horse."
Thursday, August 20, 2015
Connecticut Supreme Court retroactive abolition of death sentences prompting prosepctive perspectives
Because I find a lot of state supreme court sentencing rulings quite interesting and important, I am sometimes troubled that such rulings rarely too garner much media or academic attention. But, as with many stories in the sentencing unverse, these dyanmics change dramatically when the issue is death penalty abolition. So, I am not too surprised that last week's ruling by the Connecticut Supreme Court, which followed up the state's legislature's prospective death penalty repeal with retrospective state consitutional abolition (basics here), has got lots of folks talking a lot. Two recent commentaries especially have caught my attention this morning:
From LawProf Kevin Barry in the Los Angeles Times here, "State by state, the death penalty is losing ground."
A key passage: "Although the State of Connecticut vs. Eduardo Santiago ruling definitively bans capital punishment in Connecticut, it raises three key questions about the death penalty nationally. The first question is for the U.S. Supreme Court: How many states must abolish the death penalty before the high court will strike it down for good?"
From Linda Greenhouse in the New York Times here, "Talking About the Death Penalty, Court to Court."
A key passage: "In the breadth of its perspective on the history and current problematic state of the death penalty, in its cleareyed dissection of the irreconcilable conflict at the heart of modern deathpenalty jurisprudence, the Connecticut Supreme Court not only produced an important decision for its own jurisdiction; but it addressed the United States Supreme Court frankly and directly. The decision engages the Supreme Court at a crucial moment of mounting unease, within the court and outside it, with the death penalty’s trajectory over the nearly four decades since the court permitted states to resume executions."
Meanwhile, Kent Scheidegger at Crime & Consequences also continues to ruminate on what the Connecticut Supreme Court did in these follow-up posts: "Breathtaking Hypocrisy" and "Death-penalty Deception"
Prior related post:
- Connecticut Supreme Court follows legislature's prospective DP repeal with retrospective state consitutional abolition
Wednesday, August 19, 2015
"FDA warns Ohio not to illegally import execution drugs"
The title of this post is the headline of this notable new article in my own Columbus Dispatch. The piece provides both the latest news and effective background on the difficulties Ohio has been facing of late in the operation of its death machinery:
A U.S. Food and Drug Administration official wrote June 26 to Gary Mohr, director of the Ohio Department of Rehabilitation Correction, saying the agency learned the state “intends to obtain bulk and finished dosage forms of sodium thiopental. Since sodium thiopental is not available in the United States, we assume the product would be obtained from an overseas source.”
“Please note that there is no FDA approved application for sodium thiopental,” wrote Domenic Veneziano, the federal agency’s director of import operations, “and it is illegal to import an unapproved new drug into the United States.”
Prisons spokeswoman JoEllen Smith confirmed receipt of the letter, but she would not say if the state followed through with an overseas purchase of the drug used in executions. “DRC continues to seek all legal means to obtain the drugs necessary to carry out court ordered executions. This process has included multiple options,” Smith said. The agency does not yet have drugs for the next execution, she said....
The latest development comes less than five months before Ohio’s scheduled execution of Ronald Phillips of Summit County on Jan. 21, 2016. Another 20 executions have been set through May 2019.
Ohio’s last execution was Jan. 16, 2014, when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of midazolam, a sedative, and hydromorphone, a morphine derivative. The drugs had never been used in combination for an execution anywhere in the U.S. Prison officials subsequently abandoned using those drugs, and turned to the General Assembly for help. The legislature passed a law permitting the agency to buy drugs under a secret contract with a “compounding pharmacy,” typically smaller businesses which mix ingredients to user specifications.
Sodium thiopental is no longer available for purchase in the U.S. The last domestic manufacturer stopped production in 2011, largely because states were using it for executions. Ohio’s revised execution policy calls for using large doses of sedatives, either sodium thiopental or pentobarbital.
Tuesday, August 18, 2015
Three months after jury's death verdict, Tsarnaev lawyers move for new penalty trial
As reported in this AP article, headlined "Lawyers ask for new trial outside Boston for marathon bomber," the Dzhokhar Tsarnaev's attorneys have now moved in federal district court for a new penalty phase trial based mostly their claim that "due to continuous and unrelenting publicity combined with pervasive connections between jurors and the events surrounding the Boston Marathon Bombing that precluded impartial adjudication in both appearance and fact." (This last phrase comes from the start of the papers filed yesterday, which can be accessed at this link thanks to The Marshall Project.)
Here is a partial summary of the filing via the AP piece (including an extra legal twist thanks to the Supreme Court's recent Johnson ruling):
They argued that, because of widespread outrage in Boston after the deadly 2013 attack, jurors in the city couldn't be objective before finding him guilty and recommending a death sentence. As evidence of "continuous and unrelenting publicity," they provided a long list of public events held in honor of the victims, including a new city holiday and several races.
Widespread media coverage featured stories about survivors, including one "powerfully emotional" moment during the 2015 marathon when amputee Rebekah Gregory ran the last 3.5 miles on a prosthetic leg before falling to her knees at the finish line, crying, the filing said. Banners posted around the city urged solidarity. Even on social media, the lawyers wrote, jurors were inundated with posts from relatives and friends.
"Put simply, prejudicial media coverage, events and environment saturated greater Boston, including the social networks of actual trial jurors, and made it an improper venue for the trial of this case," the filing said.
The filing concludes that the atmosphere tainted Tsarnaev's constitutional right to an impartial trial. It asks that his guilty verdict be overturned and that the court provide a new trial to determine his guilt and his penalty....
The defense tried unsuccessfully during the trial to have it moved elsewhere, warning that too many people had personal ties to the marathon or the attack and that anguish in Boston was too powerful to provide a fair trial.
The filing Monday reiterated that request and added new legal arguments, including that a recent U.S. Supreme Court ruling throws many convictions into question. That ruling centered on the legal definition of a "crime of violence," a distinction that can carry heavier penalties. The court ruled that part of the federal definition was unconstitutionally vague and struck it down.
In the Tsarnaev case, jurors were told that 15 of his convictions were for crimes of violence, but the trial court didn't explain which part of the definition they met, according to the filing. Therefore, Tsarnaev should be acquitted for all of those charges, his attorneys wrote. Tsarnaev was charged with placing and discharging an explosive in public, for example, but his lawyers said "the 'delivery' and 'placement' of an explosive do not involve violent force."
Thursday, August 13, 2015
Connecticut Supreme Court follows legislature's prospective DP repeal with retrospective state consitutional abolition
The Connecticut Supreme Court today finally resolved, via a split vote, what is to become of the other capital murderers on te state's death row in the aftermath of the legislative repeal of death penalty back in 2012. Here is the lengthy paragraph that starts the lengthy marjority opinion in Connecticut v. Santiago, No. SC 17413 (Conn. Aug 13, 2015) (available here):
Although the death penalty has been a fixture of Connecticut’s criminal law since early colonial times, public opinion concerning it has long been divided. In 2009, growing opposition to capital punishment led the legislature to enact Public Acts 2009, No. 09-107 (P.A. 09-107), which would have repealed the death penalty for all crimes committed on or after the date of enactment but retained the death penalty for capital felonies committed prior to that date. Then Governor M. Jodi Rell vetoed P.A. 09-107, however, and it did not become law. Three years later, in 2012, the legislature passed a materially identical act that prospectively repealed the death penalty; see Public Acts 2012, No. 12-5 (P.A. 12-5); and, this time, Governor Dannel P. Malloy signed it into law. During the public hearings on both P.A. 09-107 and P.A. 12-5, supporters argued that the proposed legislation represented a measured and lawful approach to the issue. Others raised serious concerns, however, as to whether, following a prospective only repeal, the imposition of the death penalty would violate the state constitutional prohibition against cruel and unusual punishment. Perhaps most notably, Chief State’s Attorney Kevin T. Kane, who serves as this state’s chief law enforcement officer and represents the state in the present case, testified before the legislature that such a statute could not pass constitutional muster. Additionally, the Division of Criminal Justice submitted written testimony, in which it advised the legislature that a prospective only repeal would be a "fiction" and that, "[i]n reality, it would effectively abolish the death penalty for anyone who has not yet been executed because it would be untenable as a matter of constitutional law . . . . [A]ny death penalty that has been imposed and not carried out would effectively be nullified." In the present appeal, the defendant, Eduardo Santiago, raises similar claims, contending that, following the decision by the elected branches to abolish capital punishment for all crimes committed on or after April 25, 2012, it would be unconstitutionally cruel and unusual to execute offenders who committed capital crimes before that date. Upon careful consideration ofthe defendant’s claims in light ofthe governing constitutional principles and Connecticut’s unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose. For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment.
Over at Crime & Consequences, Kent has this post in reaction to the Santiago ruling titled "A Broken Promise In Connecticut."