Sentencing Law and Policy

Governor receives competing death penalty requests in Kentucky

News articles this morning in The Courier-Journal report on competing requests being made of the Governor of Kentucky.  Here is one story's lead: "Gov. Steve Beshear has been asked to halt all executions until a 10-member team of state lawyers and former judges recently appointed by the American Bar Association can assess Kentucky’s flawed death-penalty system."  Here is another story's lead: "Attorney General Jack Conway on Monday asked Gov. Steve Beshear to set execution dates for three death-row inmates."

Though I am inclined to assume that the AG's request for execution dates will surely eclipse the ABA's request for a moratorium, Kentucky has a funny history with respect to executions.  Though many of its neighbors (especially Virginia and Ohio and Indiana) have executed a significant numbers of murderers, Kentucky has had only three executions in the modern era, and I believe two of those who were most recently executed were volunteers who had dropped some appeal opportunities.

Ohio death row defendant claiming new lethal injection protocol involves "human experimentation"

This local article, which is headlined "Lawyer: Ohio's lethal injection a human experiment," shows the argument that a death-row inmate is forced to using now that Ohio has adopted a new one-drug lethal injection protocol.  Here are the details:

The state's new lethal-injection plan is so untested that it would amount to human experimentation if used for the first time in December, an attorney for a condemned inmate said in a Friday court filing.

There is no reason for federal courts to allow the scheduled Dec. 8 execution of Kenneth Biros given the lack of details in the proposed system, which replaces a fatal three-drug cocktail with a single powerful dose of anesthetic, attorney Tim Sweeney said.

Ohio also has proposed a two-drug muscle injection as a backup, but Sweeney said in a filing with the 6th U.S. Circuit Court of Appeals in Cincinnati that there's no evidence of the backup's reliability.

"There is nothing in the record on which this Court can make any legitimate determination as to whether the 'back-up' they have selected is as or more constitutionally problematic than a gunshot to the head," Sweeney wrote. The proposal "is human experimentation, pure and simple," Sweeney said....

Biros killed 22-year-old Tami Engstrom near Warren in 1991. He had offered to drive her home from a bar, then dismembered her corpse and scattered her body parts in Ohio and Pennsylvania. He acknowledged killing her but said it was done during a drunken rage. Trumbull County prosecutor Dennis Watkins called Biros, 51, "a poster person for the death penalty."

Some related posts on Ohio lethal injection issues:

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

UPDATE:  Monday morning's issue of the Cleveland Plain Dealer has this effective new article on this topic.  The piece is headlined "New lethal injection policies put Ohio at center of legal and ethical debate over executions," and here are some key excerpts:

Death row inmates and advocates on both sides of the capital punishment debate across the country have had their eyes on Ohio since the recent announcement that this state will pioneer the use of a single drug to execute inmates....

However, Ty Alper, associate director of the Death Penalty Clinic at the University of California-Berkeley, which serves as a resource for defense attorneys suing states over lethal injection methods, said the one-drug method should cause less pain to the victim than the three-drug cocktail.  "I think this is something that is pretty well accepted," he said. "It's very similar to the way that animals are euthanized -- there's been a lot of testimony about it, and the effects of the anesthetic are pretty well known."

Couldn't (and shouldn't) prosecutors keep going after KSM until the "right" outcome is achieved?

Ever since AG Holder announced the decision to try Khalid Sheikh Mohammed in civilian court in New York City, there has been much hand-wringing in the media (and on this blog) about the possibility that KSM could be acquitted or avoid the death sentence that would seem justified in this case.  But these professed fears fail to appreciate that various limits on double jeopardy would enable prosecutors many bites at the KSM apple, if needed.

First, the federal charges to be brought in New York may just focus on KSM's role in the bombing of the Twin Towers and the deaths that resulted in NYC.  If shrewd, the feds can (and perhaps should) decide not to charge KSM with the the bombing of the Pentagon and the deaths that resulted in Virginia or with the crash of United flight 93 and the deaths that resulted in Pennsylvania.  Then, if the NYC trial does not reach the "right" outcome, the feds can go after KSM again in federal court in Virginia for his role in the Pentagon deaths and again in federal court in Pennsylvania for his role in the flight 93 deaths.

Second, even if the feds decide to bring all of these charges for all of KSM's federal crimes in the planned NYC trials, state prosecutors in New York and Virginia and Pennsylvania can (and arguably should) bring state prosecutions against KSM.  Of course, New York does not have a functional death penalty and Pennsylvania capital system is stuck in arrested development.  But Virginia has a well-functioning death penalty system, and the citizens of that state have every reason to hope (and perhaps demand) that Virginia state prosecutors go after KSM if the results of the planned federal prosecutions do not seem satisfactory.

Usefully, another major modern terror attack on US soil provides recent precedent for potential dual prosecutions.  After the feds only secured a life sentence for Terry Nichols for his role in the Oklahoma City bombing, Oklahoma state officials brought a state capital prosecution in order to seek to vindicate the state interests implicated by this act of mass murder.  (Notably, state jurors were unable to decide to give Nichols a state death sentence, though the fact that Tim McVeigh was sentenced to death and executed for his role in the Oklahoma City bombing probably explains why even state jurors decided to go soft on Nichols.)

Some recent related posts:

• Obama Administration making key decisions on how to prosecute key terror suspects
• "Obama suggests 9/11 suspect will get death penalty"
• "The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"

Texas Gov Perry considering rare capital clemency recommendation

This new AP article, which is headlined "Texas governor to decide condemned killer's fate," reports on a notable new death penalty development in Texas:

The fate of a man facing execution Thursday evening for his role in a fatal robbery is in the hands of Gov. Rick Perry after the state parole board recommended that the death sentence be commuted to life in prison.

The Texas Board of Pardons and Paroles made the rare recommendation Wednesday for 34-year-old Robert Lee Thompson, who was not the triggerman in the fatal shooting of a Houston convenience store clerk. The shooter, Sammy Butler, was convicted and received life in prison.

Perry is not required to follow the recommendation of the board, whose members he appoints. "The governor has received the board's recommendation but has not made a decision," spokeswoman Allison Castle said Wednesday....

The parole board's 5-2 vote Wednesday came in response to a petition from McCann, who argued that the case was similar to that of Kenneth Foster, also convicted and sentenced to die under the law of parties.

Perry two years ago commuted Foster's sentence to life. Foster became only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed. In the first case, in 2004, Perry rejected the board's recommendation and mentally ill prisoner Kelsey Patterson was executed.

Perry's explanation for commuting Foster's sentence was that Foster and his co-defendant were tried together on capital murder charges for a slaying in San Antonio. In Thompson's case, he and Butler were tried separately for the shooting death of 29-year-old Mansoor Bhai Rahim Mohammed.

UPDATE:  As detailed in this new AP piece, "Robert Lee Thompson was executed Thursday evening for his part in a fatal Houston store holdup after the Texas governor rejected a parole board's recommendation to spare him because he wasn't the gunman."  As the piece also notes, "Thompson was the 23rd inmate executed this year in Texas and the second this week."

Russia's highest court essentially abolishes death penalty in that nation

This new Reuters article, which is headlined "Russian court extends moratorium on death penalty," explains why Russia is now pretty close to officially being another European nation without capital punishment. Here are the details:

Russia's Constitutional Court on Thursday effectively abolished the death penalty, extending indefinitely a 13-year-old moratorium on capital punishment. Russia has not executed a criminal since 1996, though a myriad of contradictory legal decisions have helped stoke a heated debate about whether to return the punishment for especially barbarous crimes.

"The Constitutional Court of the Russian Federation recognised that after January 1, 2010 use of the death penalty in Russia is not possible," the court, which is based in Russia's former capital St Petersburg, said in a statement.

Valery Zorkin, the head of the court, announced the decision after 17 judges deliberated for 45 minutes in the 18th Century building that used to house the Tsar's senate and synod.  "I consider that this decision means the abolition of the death penalty," said court spokeswoman Anna Malysheva.

Kremlin chief Dmitry Medvedev, a former corporate lawyer, has pushed for the abolition of the death penalty which, despite the moratorium, is still part of Russia's criminal code.  Recent polls have shown that between 65 and 74 percent of Russians favour resuming executions, carried out before the moratorium by a pistol shot to the back of the head....

Concerns about the return of the death penalty were raised because of a legal loophole under which the punishment cannot be applied until the introduction of jury trials in all regions.  On Jan. 1, 2010, the volatile North Caucasus region of Chechnya will become Russia's last region where juries will replace traditional panels of judges, clearing the final formal obstacle to the death penalty's return.

But the Constitutional Court dismissed those concerns.  "The introduction of jurors over the entire territory of the Russian Federation does not create the possibility to apply the death penalty," it said in its statement.

"Obama suggests 9/11 suspect will get death penalty"

The title of this post is the headline of this new Reuters piece. Here is how the piece starts:

U.S. President Barack Obama suggested on Wednesday the self-professed mastermind of the Sept. 11, 2001, attacks would be convicted and put to death, but later said he was not trying to prejudge the trial.

I am bumming that President Obama did not also predict just when Khalid Sheikh Mohammed would be executed, especially since the administration of the federal death penalty remains in a virtual legal black hole since some scheduled federal executions were stayed way back in 2006 based on pre-Baze concerns about lethal injection protocols. 

Some related posts:

• The notable federal-state disparity in carrying out executions
• What's up with federal executions?
• Why is the Bush Administration (secretly?) accepting a de facto moratorium on federal executions?
• Inequities and uncertainties in federal death penalty
• Is AG Mukasey going soft on the federal death penalty?
• Why the #$@! is AG Mukasey speaking out against execution for 9/11 plotters and suggesting US justice is sadist?
• What might a new administration mean for the federal death penalty?

"Does death for 9/11 plotters offend federalism?"

The question in ths title of this post is the headline of this post from Josh Gerstein in his "Under the Radar" blog at Politico.com.  Here are excerpts from an interesting piece:

The attorney general's call for capital punishment [for certain terrorist defendants] was criticized in some quarters for running the risk that the alleged Al Qaeda men could be seen as martyrs for their cause.  But missing from the commentary on Holder’s announcement was the observation that, by seeking the death penalty in a state which currently does not have it, the attorney general is treading into territory that triggered an outcry from liberal activists against the Bush administration not so long ago.

When Attorney General John Ashcroft ordered a federal death penalty prosecution in Vermont in 2002, there were howls of outrage that Ashcroft was abusing federal authority by essentially forcing the death penalty on a state that didn't have one in local law.  "We've rejected the death penalty as part of our criminal justice system,'' Burlington Mayor Peter Clavelle said at the time. "Many of us resent the imposition of a death penalty as an option in this state by John Ashcroft and his friends from Washington. I think it's an affront to state's rights and is not consistent with the values of a majority of Vermonters.''

Many New Yorkers have welcomed Holder’s decision to seek death in connection with the 9/11 attacks, which killed nearly 3000 people.  However, strictly as a factual matter, it is the case that the Justice Department will be seeking capital punishment in a state which presently doesn’t have that option in its courts.  “If New York itself was to pursue the case, they wouldn’t and couldn’t use the death penalty,” said Richard Dieter, a death penalty critic at the Death Penalty Information Center said in an interview. “That’s how the state law has come down now.”...

Dieter pointed to a couple of distinctions between Ashcroft’s actions and Holder’s decision.  Critics complained that Ashcroft was pursuing the death penalty over the objection of local U.S. attorneys and in cases where there was no particular federal interest. In the 9/11 case, prosecutors appear to be on board and the national quality of the crimes is evident.  “This is not a carjacking that occurred in Vermont. It is more a national terrorism kind of crime that people would probably feel doesn’t raise quite the same federalism issues as prosecuting a local crime would,” Dieter said....

When I asked Holder last month how he might take a different tack than the Bush administration in considering death penalty cases, the top lawman and former U.S. Attorney for Washington, D.C. stressed his respect for local federal prosecutors.  “I will say that based on my experience having been a United States Attorney and given the respect that I have for the career people who handle these kinds of matters, the recommendation that I get from the field carries a great deal of weight with me,” the attorney general said.

As regular readers may recall, I tend to be a big fan of criminal justice federalism.  But, when it comes to the matter of the punishment of death in major criminal cases that generate national attention, I think the nation as a whole and the federal government in particular has every reason and every right to take over a prosecution and subject it to the special (and often better) federal capital procedures.  Indeed, as suggested in some prior posts on this topic (which are linked below), I seriously believe that persons seriously interested in a serious, sound, sober and sensible system of capital punishment ought to be drawn to the idea that all modern capital prosecution ought now to be exclusively federal matters.

Some related (and mostly dated) posts:

• Feds decide to seek death in local(?) killing in state without the death penalty
• "Death penalty decisions loom for Barack Obama"
• More support for an exclusively federal death penalty
• A poster child for the (federal) death penalty?
• The federal law gap in the NJ death penalty report
• The federal death penalty in America's paradise
• Ashcroft's death penalty "legacy"
• Expansion of the federal death penalty?

SCOTUS corrects another circuit capital case error through summary reversal

As detailed in this SCOTUSblog post, following up a similar summary reversal last week in a capital case from the Sixth Circuit (discussed here), the Supreme Court started another week today with another summary reversal in another capital case.  Here is the SCOTUSblog summary of the ruling:

In a summary decision, the Court ruled that a defense attorney had not provided inadequate legal assistance to a California death row inmate in a murder case by carefully composing the offering of favorable evidence so as not to provide an opening for prosecutors to bring in evidence of an earlier brutal murder.   The unsigned ruling in Wong v. Belmontes(08-1263) apparently will reinstate the death penalty against Fernando Belmontes, Jr., for a bludgeoning murder and a robbery in which the killer obtained $100 and used it to buy beer and drugs to consume that same night.  The “Per Curiam” ruling — decided with formal briefing or oral argument — was tightly confined to the specific facts of the case, and did not appear to provide any new legal standard on the effectiveness of criminal trial lawyers’ work.

The Belmontes ruling, which is available here, is so fact-specific that it is hard to find even a broader principle in what is plainly an error-correction ruling from SCOTUS.  Perhaps the only line that might be quoted in later cases is this description of what Strickland's ineffective assistance prejudice standard  means in capital cases: "Strickland does not require th eState to “rule out” a sentence of life in prison to prevail. Rather, Stricklandplaces the burden on the defendant, not the State, to show a 'reasonable probability' that the result would have been different."

Some notable death penalty headlines from across the pond

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

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

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

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

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

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

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

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

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

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

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

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

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

Some related posts on Ohio lethal injection issues:

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

Ohio adopting a new one-drug lethal injection protocol

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Virginia Gov Kaine denies clemency for DC sniper

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SCOTUS summary reversal of Sixth Circuit capital ineffective assistance ruling

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

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

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

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

Capital justice greatly delayed (and very costly) in Kentucky

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

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

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

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

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

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