Thursday, January 19, 2017
Noting that two death row inmates were among the latest batch of commutations by Prez Obama
I am intrigued and a bit surprised that there has not been more media attention surrounding the fact that two of the persons granted clemency by Prez Obama earlier this week were murderers on federal death row. This posting at the Death Penalty Information Center reports on the basics, with also interesting links to some clemency materials:
On January 17, 2017, President Barack Obama commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th.
Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty.
In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment."
Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die.
Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.
This new Marshall Project piece, headlined "How Obama Disappointed on the Death Penalty: Two commutations this week was less than many had hoped for," discusses these two clemencies while also suggesting that they provide only a little succor to the capital abolitionist community.
Using execution protocol with midazolam, Virginia completes second execution of 2017
As reported in this Reuters piece headlined "Virginia inmate executed despite arguments against drug 'cocktail'," Virginia carried out an execution last night that was notable in part because of the type of lethal injection drugs acquired and utilized. Here are the details:
Ricky Gray, 39, died by lethal injection at 9:42 p.m. at the Greensville Correctional Center, Virginia Department of Corrections spokeswoman Lisa Kinney said in an emailed statement.
Gray's lawyers filed an emergency petition with the Supreme Court on Tuesday, saying that the three-drug combination could cause Gray unnecessary suffering and thereby violate constitutional guarantees against cruel and unusual punishment. Kinney told reporters after the execution there did not appear to be any complications with the injection.
According to Gray's stay request, the execution marks the first time a U.S. state has used two of the drugs — midazolam and potassium chloride — provided by a compounding pharmacy. Gray's lawyers argue that compounding pharmacies typically follow an informal recipe attempting to approximate the patented process approved by the U.S. Food and Drug Administration.... Gray's attorneys say that midazolam has already failed to render prisoners unconscious during executions in Alabama, Arizona, Ohio and Oklahoma.
Pharmaceutical manufacturers have stopped making some drugs available for use in executions, and Virginia state law allows the vendor's identity to remain secret. Arizona last month reached a settlement with lawyers for death row inmates that would bar midazolam from use in executions.
Gray was sentenced to die for the 2006 slayings of sisters Ruby Harvey, 4, and Stella Harvey, 9, in Richmond. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39. His accomplice, Ray Dandridge, was sentenced to life. The pair also killed Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys as well as her mother, Mary Tucker, 47, and stepfather Percyell Tucker, 55.
Gray has said he is willing to die by firing squad, which is not an option for executions in Virginia. Gray's execution marks the second in the United States this year.
I believe the execution protocol used in Virginia in this instance is similar to the protocol that Ohio wants to use to get back into the execution game next month, and thus I suspect Ohio correction officials are hoping this execution sets a precedent allowing Ohio to move forward. Ohio, notably, has had only one execution over the last three years because of problems acquiring lethal injection drugs. But if they get these problems worked out, there is every reason to suspect the state may get back into the habit of completing five or more executions every year because it has dozens of death row inmates with "serious" execution dates.
Wednesday, January 18, 2017
Making a provocative case for constitutional amendments to enable more executions to drive down crime
I just noticed this recent commentary by Karl Spence titled "How Donald Trump and Friends Can Crush the Great Crime Wave" with the subheadline "A law-and-order constitutional amendment would speed up the process of justice." The piece is provocative and meandering and a bit dated as it suggests that constitutional protections given to criminals, especially with respect to the death penalty, accounts for the nation's crime problems. I recommend the piece in full because of its notable range of historical and rhetorical flourishes, and here is a taste:
Between 1960 and 1991, the per capita murder rate doubled. Property crime tripled. Robbery and forcible rape more than quadrupled, and aggravated assault — boosted by the same advances in emergency trauma care that retarded the murder rate — more than quintupled. Even after receding from its crest of the early ’90s, violent crime remains twice what it was two generations ago. And today, the mayhem is resurgent.
In the last half-century, crime has killed more Americans than died in all our country’s wars combined, save the Civil War. Its toll dwarfs that of 9/11 — it even dwarfs that of the terrible Indian Ocean tsunami of 2004....
Enter Donald Trump. I was thrilled to hear him pronounce himself “the law-and-order candidate.” Such defiance of the PC gods helped him gain a convincing victory over Hillary Clinton. What remains to be seen is whether Trump will go from talking to thinking about crime, and then to actually doing what is necessary to reach the goal he set forth while accepting the party’s nomination: “The crime and violence that today afflicts our nation will soon — and I mean very soon — come to an end.”...
For decades, some two-thirds of Americans have told pollsters they favor the death penalty for murder. Yet it’s capital punishment’s opponents who get their way nearly all the time. In the past half-century, fewer than 1,500 murderers have been put to death in America; murderers, meanwhile, have killed more than 900,000 of us.
How many of those 900,000 innocent lives were lost needlessly? How many could have been saved by a credible and effective deterrent? Studies have repeatedly shown that the death penalty can be such a deterrent when — and only when — it is actually enforced. Those studies have been rebutted but not refuted, and the stakes in the dispute are these: If the deniers of deterrence are mistaken, then their interference with capital punishment is itself a death sentence for future murder victims....
What of the fact that most criminals stop short of murder? ... How do you reach those people? With a rope. That’s because most robbers depend on the threat of murder to secure their victims’ compliance, as do many rapists. And aggravated assault is, in many if not most cases, simply unsuccessful murder. Hang murderers, and every hoodlum in the land will notice. And, like the outlaws who fled the vigilantes, they will change their behavior....
The ratification of such an amendment [to overturn Fifth and Eighth and Fourteenth Amendment precedents impeding capital punishment] would free the deep-red states to ramp up enforcement of the death penalty until they achieved results even more dramatic and unmistakable than those seen in Texas, where executions increased from zero in 1980 to a record 40 in 2000 — and the murder rate plunged by almost two-thirds, while murder in non-death-penalty states fell only 21 percent. Seeing crime collapse in places where death for murder had become the rule, people elsewhere would clamor for their states to follow suit, and liberals would immolate themselves in a vain attempt to preserve the crime-ridden status quo, with all its injustice, pain, and horror.
Call it the Madison-Roosevelt-Cardozo Amendment. Donald Trump may be fond of boasting, “I alone can fix it,” but if he really wants to restore law and order, “and I mean very soon,” he’ll need all the help he can get.
Tuesday, January 17, 2017
Some notable local death penalty headlines from two very different localities
These two local capital punishment headlines and stories caught my eye this afternoon:
The Georgia story is just a report on an advocacy group that surely faces an uphill battle getting the Peach State to consider seriously the repeal of the death penalty. But abolitionists should be revved up about the Washington story as it seems political forces are lining up to make repeal there a real possibility.
Thursday, January 12, 2017
New report spotlights five Florida counties often condemning to death murderers have mental impairments
A few weeks ago, as noted in this prior post, Harvard Law School's Fair Punishment Project (FPP) released a report detailing and lamenting the composition of Oregon's death row under the title "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments." Today, FPP has this new report bringing a similar analysis and criticism to a portion of a different state. This new report is titled "Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments in Five Florida Counties," and here are excerpts from the introduction:
The Florida Supreme Court recently held that the state’s capital punishment statute is unconstitutional. Approximately 380 people sentenced to death under the now-invalidated sentencing scheme remain on the death row. While litigation is still pending over whether the decision applies to all Florida death sentences, the Court has clarified that the approximately 150 people who were convicted after the Ring v. Arizona decision in 2002 must have their sentences reconsidered. Roughly one-third of these individuals convicted since 2002 come from just five of Florida’s 67 counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas.
This report examines the 48 invalidated death sentences from these five Florida counties. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Florida who are familiar with the individuals on death row.
Our research revealed that 63 percent of these individuals exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Florida’s death row population is significant when evaluating whether the death penalty was the appropriate sentence. Although all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders. Even then, the Constitution and established Supreme Court doctrine have limited application of the death penalty to adults who exhibits mental and emotional functioning that is equal to or exceeds that of the typically developed adult. So, for example, the U.S. Supreme Court has held that, regardless of the severity of the crime, the death penalty cannot be imposed upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults. To do otherwise would be so disproportionate as to violate his or her “inherent dignity as a human being.”
Wednesday, January 11, 2017
Texas completes first execution of 2017
As reported in this new AP piece, "Texas has executed death row inmate Christopher Wilkins, who was convicted of killing two men after one of them mocked him for falling for a phony drug deal." Here is more:
The lethal injection of the 48-year-old Wilkins Wednesday is the nation’s first execution this year. Twenty were carried out in the U.S. last year, the lowest number since the 1980s. Wilkins explained to jurors at his capital murder trial in 2008 how and why he killed his friends in Fort Worth three years earlier, saying he didn’t care if they sentenced him to death.
The Supreme Court declined to block Wilkins’ execution about three hours before the scheduled lethal injection. Wilkins’ attorneys had argued to the Supreme Court that he had poor legal help at his trial and during earlier appeals and that the courts improperly refused to authorize money for a more thorough investigation of those claims to support other appeals and a clemency petition.
In their unsuccessful appeal to the high court, Wilkins’ attorneys contended he had poor legal help at trial and during earlier appeals and that the courts improperly refused to authorize money for a more thorough investigation of his claims. State attorneys said courts have rejected similar appeals and that defense lawyers are simply employing delaying tactics.
Wilkins was released from prison in 2005 after serving time for a federal gun possession conviction. He drove a stolen truck to Fort Worth, where he befriended Willie Freeman, 40, and Mike Silva, 33. Court records show Freeman and his drug supplier, who wasn’t identified, duped Wilkins into paying $20 for a piece of gravel that he thought was a rock of crack cocaine. Wilkins said he shot Freeman on Oct. 28, 2005, after Freeman laughed about the scam, then he shot Silva because he was there. Wilkins’ fingerprints were found in Silva’s wrecked SUV and a pentagram matching one of Wilkins’ numerous tattoos had been carved into the hood.
Wilkins also testified that the day before the shootings, he shot and killed another man, Gilbert Vallejo, 47, outside a Fort Worth bar in a dispute over a pay phone, and about a week later used a stolen car to try to run down two people because he believed one of them had taken his sunglasses. “I know they are bad decisions,” Wilkins told jurors of his actions. “I make them anyway.”...
Twenty convicted killers were executed in the U.S. last year, the lowest number since the early 1980s. That tally includes seven executions in Texas — the fewest in the state since 1996. Wilkins is among nine Texas inmates already scheduled to die in the early months of 2017.
Tuesday, January 10, 2017
Charleston Church shooter Dylann Roof sentencing to death by federal jury
As reported in this local article, only "a few hours after he told a crowded courtroom 'I still feel like I had to do it,' a federal jury sentenced Dylann Roof to death for carrying out a cold, calculated massacre inside Charleston's Emanuel AME Church in a bid to spark a race war." Here is more about an unsurprising verdict:
The 12-member panel – three white jurors, nine black – deliberated for a little less than three hours before unanimously deciding that the 22-year-old white supremacist should die for his crimes rather than spend his life in prison without the possibility of parole.
It will be up to the presiding judge to formally impose that sentence, but he is bound by law to follow the jury’s decision. U.S. District Judge Richard Gergel has scheduled the formal sentencing hearing for 9:30 a.m. Wednesday.
Roof, who sat stone-faced and silent through most of his hate crimes trial, betrayed no emotion as the jury’s verdict was read. During his closing argument earlier in the day, he passed on the chance to argue for his life, saying “I’m not sure what good that will do anyway.”
After the jury announced its verdict, Roof stood and asked the judge if he would appoint him new lawyers to help him file a request for a new trial. Gergel told Roof a significant amount has been spent on the current legal team that Roof sidelined for the trial's penalty phase, a team led by noted capital defense lawyer David Bruck. The judge said he would be "strongly disinclined" to bring in new lawyers at this point, but he will listen to any motions Roof wants to make during Wednesday's proceedings.
Earlier in the day, Roof told the jury that prosecutors don't understand him or the meaning of hate in their quest to put him to death for the June 2015 church massacre. “Anyone, including the prosecution, who thinks I am filled with hate has no idea what real hate is,” Roof said, speaking to jurors from a podium about eight feet away from the jury box. “They don’t know anything about hate."
After Assistant U.S. Attorney Jay Richardson delivered a two-hour closing statement, Roof walked to the podium with a single sheet of yellow notebook paper. He appeared to read from it, pausing at times to glance down. His remarks lasted less than five minutes.
Monday, January 09, 2017
Will new Trump Justice Department seek death penalty for Fort Lauderdale airport mass murderer given apparent mental illness?
The question in the title of this post emerges from the news of federal charges filed and a planned court appearance for Esteban Santiago. This Reuters article, headlined "Florida airport shooting suspect due in court Monday, could face death penalty," provides the details:
The 26-year-old Iraq war veteran accused of killing five people at a busy Florida airport in the latest U.S. gun rampage was due to appear in a federal court on Monday on charges that could bring him the death penalty.
Esteban Santiago, who had a history of erratic behavior, has admitted to investigators that he planned Friday's attack in Fort Lauderdale and bought a one-way ticket from his home in Alaska to carry it out, according to a criminal complaint.
Authorities say they have not ruled out terrorism as a motive and that they are investigating whether mental illness played a role. In November, Santiago went to a Federal Bureau of Investigation office in Anchorage and told agents he believed U.S. spies were controlling his mind.
Bond for Santiago, who is being held at the Broward County Jail in Fort Lauderdale, may be set at the hearing scheduled for 11 a.m. EST on Monday near Fort Lauderdale, and he would be assigned a public defender if he cannot afford his own lawyer. He could face the death penalty if convicted on charges of carrying out violence at an airport, using a firearm during a violent act, and killing with a firearm. But it may be months before prosecutors reveal what lies in Santiago's future.
"They've then got two weeks to indict him, and then they've got to go through the whole death penalty review," said former federal prosecutor David Weinstein, who is now a partner with Miami law firm Clarke Silverglate. Executions have been on hold in Florida since the U.S. Supreme Court struck down the state's death penalty laws a year ago. The Florida Supreme Court overturned a rewritten version in October....
Information surfaced over the weekend that police in Alaska took a handgun from Santiago in November after he told FBI agents there his mind was being controlled by a U.S. intelligence agency. They returned it to him about a month later after a medical evaluation found he was not mentally ill....
Santiago served from 2007 to 2016 in the Puerto Rico and Alaska national guards, including a deployment to Iraq from 2010 to 2011, according to the Pentagon. Relatives have said he acted erratically since returning from Iraq.
The on-going federal capital trial of the Charleston church mass murderer Dylann Roof has prompted a number of folks, especially those in the abolitionist community, to be talking about mental illness and the inappropriateness of sentencing a mentally disturbed individual to death. Those discussions and debates would surely reach another level if (dare I say when) the incoming Trump Administration and its new Attorney General decide to pursue capital charges against Esteban Santiago.
Friday, January 06, 2017
"Facing the Firing Squad"
The title of this post is the title of this notable new piece by Andrew Jensen Kerr available via the Georgetown Law Journal website. Here is the abstract:
The recent Supreme Court decision in Glossip v. Gross affirmed the legality of midazolam for use in lethal injection. The 5–4 majority opinion reads the Constitution to require an available form of execution. But it does little to counter Professor Denno’s claim in “Lethal Injection Chaos Post-Baze” that pragmatic supply-side concerns should dismantle the economy for lethal injection. Off-brand substitutes for lethal injection drugs have led to recent high-profile botches. Both Utah and Wyoming have proposed a return to the firing squad. Lethal injection is comparatively sanitary and bureaucratic. But I respond that the firing squad is more coherent with death penalty administration heuristic concerns of retribution and dignity. The visibility of the firing squad also serves an abolitionist, information-forcing function by requiring a candid look at death penalty process from the perspective of the executed.
Wednesday, January 04, 2017
Florida Supreme Court adds to the mess that is the current Florida death penalty limbo
These three headlines spotlight the remarkable (and still unclear) story surrounding an important death penalty ruling by the Florida Supreme Court which was released and then withdrawn today:
Here are the basics from the first of these linked reports:
Just hours after declaring prosecutors could not seek death sentences under existing state law, the Florida Supreme Court on Wednesday rescinded the order, an uncommon move that casts fresh uncertainty on the state’s death penalty.
The reason: A typo.
In a 5-2 ruling Wednesday morning, the court rejected Attorney General Pam Bondi’s request to let prosecutors seek the death penalty as long as juries voted unanimously. The court threw out the state’s revamped death sentencing law in October because it required only a 10-2 super majority of the jury to put someone to death.
Then at 1 p.m., the Supreme Court rescinded the order, saying it was “prematurely issued,” and deleted it from the court’s website. The Wednesday morning ruling was vacated because of a “clerical error,” said Craig Waters, a spokesman for the court.
Makes me think of the famous words of one of my favorite philosophers.
"Why Dylann Roof Has a Right to the Death Penalty" ... OR "Why Dylann Roof Representing Himself Is A Constitutional Tragedy"
The title of this post is the headline of this effective and timely new NBC News commentary authored by Andrew Cohen. Here are excerpts:
Dylann Roof has a constitutional right not to try to spare his own life....
In the end, despite the drama of a closed hearing in the middle of a capital trial, it likely wasn't a close call as a matter of law to allow Roof to continue to represent himself. The standard for "competency" in these circumstances is low, on purpose, to give defendants the chance to control their own fates. Roof has consistently shown he understands the nature of the proceedings against him. The truth is that Roof's decision not to present mitigating evidence seems entirely consistent with his racist beliefs and with his evident antipathy toward psychiatry and psychology. He wrote in the past that he is "morally opposed to psychology," calling it a "Jewish invention."
Roof also appears to share the mentality of other notable murderers who for one reason or another eschewed a defense their lawyers would have chosen for them. For example, Theodore Kaczynski, the Unabomber, rejected his attorneys' plans for an insanity defense on his behalf before accepting a plea deal that spared him the death penalty. Oklahoma City bomber Timothy McVeigh gave up the rest of his appeals following his capital conviction and opted for an expedited execution, which took place at the federal death chamber in Terre Haute, Indiana, on June 11, 2001. The Beltway Sniper, John Allen Muhammad, also sparred with his own lawyers in Virginia before he was convicted and sentenced to death.
For all the hand-wringing over the constitutionality (and morality) of self-representation in a capital case, for all the arguments that every capital defendant should always present every non-frivolous defense at trial, the truth is that Roof has a constitutional right not to present a defense, to choose to increase the likelihood he'll get the death penalty instead of a life sentence without the possibility of parole.
It is not necessarily a sign of mental illness, or mental instability, or mental incompetence, to take responsibility for one's murderous actions rather than blame them, in some fashion, on some sort of mental disease or defect. Some killers, like McVeigh, saw it as one final act of control over their lives. This may be why Roof on Wednesday in his first direct interaction with jurors chose not to beg for his life but rather to tell the panel: "There is nothing wrong with me psychologically."
Nor is it necessarily a sign of mental incompetency to chose to want to die sooner, rather than later, after spending years in solitary confinement in a federal prison — which is where Roof will be headed no matter what his jury decides. If he doesn't want to save himself, in other words, or if he doesn't want the world ever to perceive him as having been mentally ill when he killed those innocent people inside that church, there is nothing his lawyers can do to save him so long as he's judged competent.
Finally, a point that's been under-reported these past few days: Just because Roof won't put on any mitigating evidence doesn't guarantee he'll get the death penalty. All it would take for the jury to preclude a capital sentence for Roof is for one juror to decide that consigning the 22-year-old defendant to 50 or 60 or 70 years in ADX-Florence, the federal prison in Colorado that Roof soon will call home, is a punishment worse than a death penalty. That, too, is not an unreasonable position to take.
UPDATE: Not more than an hour after I posted the Andrew Cohen commentary above, I learned of this new Huffington Post commentary by lawprof Scott Sundby which has the headline I have added to the title of this post. Here are this piece's final two paragraphs:
The Supreme Court has justified the current death penalty regime on the premise that the jury will act as the conscience of the community. Jurors can only carry out this sacred function, however, if they hear all of the evidence, both for and against imposing a death sentence. Jurors often feel betrayed in cases when they later learn that a defense lawyer’s ineffectiveness meant they did not hear compelling evidence about a defendant’s mental illness or abusive childhood. And well they should. The justice system asked them to make a profoundly difficult moral and spiritual decision and then failed to give them the information that they needed to carry out their mandate.
In Roof’s case, the court may believe that its ruling furthers certain values, but it has missed a far more important constitutional principle: a death sentence should never be imposed unless we have complete confidence that the jury’s decision is a reliable and knowing one based on all of the facts. With Dylann Roof representing himself, that outcome is simply impossible. We owe it to the jurors and to ourselves as the society for whom the jurors speak that they hear all about Roof’s life before we ask them whether he should be sentenced to death.
"Texas sues feds over confiscated execution drugs"
The title of this post is the headline of this notable new Dallas Morning News article reporting on some notably different kind of execution drug litigation. Here are the details:
For nearly a year and a half, the U.S. Food and Drug Administration has detained a shipment of about 1,000 vials of execution drugs headed for Texas' death chamber. On Tuesday, Texas officials demanded an end to the delays, filing a lawsuit that seeks to force the feds to turn over the drugs. "My office will not allow the FDA to sit on its hands and thereby impair Texas' responsibility to carry out its law enforcement duties," Texas Attorney General Ken Paxton said in a statement.
Texas and other states that still execute inmates have been hard-pressed to find lethal injection drugs in recent years. American companies have stopped making the drugs, and European makers have stopped selling them to the U.S. Amid the drug shortage in 2012, Texas switched from the three-drug cocktail it used since 1982 to a single overdosing injection of pentobarbital, a barbiturate, but that drug, too, is in short supply.
In July 2015, the FDA intercepted about 1,000 vials of sodium thiopental, also a barbiturate, that Texas was attempting to import from a foreign seller at the George Bush Intercontinental Airport in Houston. FDA officials said that the drugs lacked the required warnings and directions for use and that they needed federal approval. The state responded to the FDA, explaining that the drugs were legal for importation for law enforcement use. In April 2016, the FDA issued a tentative decision denying admission of the drugs. But since then, the agency hasn't issued a final decision and has kept the drugs.
In the lawsuit filed Tuesday, Paxton argued the delays are unwarranted and should come to an end. "Because FDA's delay is unreasonable, TDCJ requests the Court to declare that the delay is unlawful and compel FDA to render a final admissibility decision," the lawsuit states.
As execution drugs have become harder to obtain, the state has turned to compounding pharmacies to make them, has sought drugs from foreign providers and has sought to restrict public access to information about where and how it gets drugs used in lethal injections....
"The Texas Department of Criminal Justice lawfully ordered and obtained the necessary license to import drugs used in the lethal injection process, yet the Food and Drug Administration stopped the shipment and continues to hold it without justification. This has left the agency with no other recourse than to challenge the unjustified seizure in court," Texas Department of Criminal Justice spokesman Jason Clark said in a statement.
Clark said the TDCJ has enough drugs on hand to complete the nine executions scheduled for the first six months of this year. "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process," Clark said.
Tuesday, January 03, 2017
Death penalty in Pennsylvania so dysfunctional that it cannot complete long-overdue report on its dysfunction
Unless and until the newly enacted reform ballot initiative magically fixes a whole bunch of problems, California will still be able to lay claim to having the most dysfunctional death penalty system in the United States. But this new local article, headlined "Three years late, seminal death penalty report still unfinished," highlights why Pennsylvania come in a pretty close second. Here are excerpts:
Already three years behind schedule, a committee studying flaws in Pennsylvania's death penalty is still a long way away from issuing its much-anticipated report. The stakes for the Senate's Advisory Committee on Capital Punishment are high, ever since Gov. Tom Wolf vowed nearly two years ago to block executions until its recommendations are issued and acted upon.
But elevated from obscurity by Wolf's moratorium, the all-volunteer committee has no individual budget and no dedicated staff members, and has consistently seen its time line pushed further and further into the future, much to the unhappiness of death-penalty backers. The new year will see "meaningful, significant progress" in the panel's work, said Steve Hoenstine, a spokesman for state Sen. Daylin Leach, D-Montgomery, a point man in the effort. But Hoenstine wouldn't commit to the report being completed this year, given the scope of the questions being tackled. "The goal isn't to produce something as quickly as possible that may or may not be correct," said Hoenstine, whose boss is a staunch opponent of capital punishment. "Studying bias in Pennsylvania's death penalty, it is just an enormous undertaking."
Wolf, a Democrat, announced his moratorium in February 2015, when he called the death penalty "error prone, expensive and anything but infallible." He has since issued reprieves to five inmates facing the death chamber, including Lehigh Valley mass murderer Michael Eric Ballard, who stabbed to death four people in a Northampton home in 2010 while on parole for a prior killing. Even without issuing findings, the advisory committee has proven controversial to death-penalty supporters, who charge the makeup of its 27 members is weighted against capital punishment.
Given the moratorium, it is no surprise that the report continues to be delayed, said Northampton County District Attorney John Morganelli, a Democrat who is a vocal death penalty backer. With executions halted, there's no incentive for the committee to finish its work, he said. "I don't think it is ever going to come," Morganelli said. "Why would they release it?"
The committee, approved by the Senate in 2011, is looking into 17 aspects of capital punishment, including its cost, its impact on public safety, its potential for racial or economic bias, and whether there are sufficient safeguards against the innocent being executed. The report originally was due in December 2013. The panel includes judges, defense attorneys, prosecutors, clergy members, college professors, a relative of a murder victim, victims advocates, officials from the American Civil Liberties Union and two other nonprofits, and police and corrections representatives.
Hoenstine said delays have nothing to do with the moratorium. He noted the committee was established while Wolf's predecessor, Tom Corbett, a Republican former prosecutor, was governor. "This is something that happened long before Gov. Wolf took office and, therefore, long before this moratorium took place," Hoenstine said. "It is a bipartisan search for the truth. It is nothing but that."
Like much of the nation, the state has contentiously debated capital punishment, under which scores of Pennsylvania inmates have seen their sentences reversed. None have been executed here against their will since John F. Kennedy was president.
The committee's work is spearheaded by the Joint State Government Commission, a research wing of the Legislature, with assistance from a state commission on fairness in the courts and by researchers from Penn State University. Glenn Pasewicz, executive director of the Joint State Government Commission, has said research has proven laborious, given the need for data collectors to go from county courthouse to county courthouse gathering statistics about homicide cases, when the death penalty is sought and when it is imposed. According to Hoenstine, that work is ongoing. "We want it to be data driven and based on clean data, reliable data," Hoenstine said. "That's a time-consuming process."...
Pennsylvania has 175 prisoners on death row, but it rarely performs an execution, going back well before Wolf's moratorium. Just three men have been put to death in the modern era of capital punishment, and all were volunteers who abandoned legal challenges to their sentences. The last was Philadelphia "house of horrors" murderer Gary Heidnik, who was lethally injected in 1999.
Monday, January 02, 2017
Understanding why Dylann Roof will not present penalty phase evidence at his capital trial
Last week in this post I noted the news that Dylann Roof, at a hearing before the penalty phase of his capital trial, told the district judge that "he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life." This new New York Times article, headlined, "Dylann Roof Himself Rejects Best Defense Against Execution," provides some explanatory backstory. Here is how the lengthy piece begins:
Twenty-two pages into the hand-scribbled journal found in Dylann S. Roof’s car — after the assertions of black inferiority, the lamentations over white powerlessness, the longing for a race war — comes an incongruous declaration.
“I want state that I am morally opposed to psychology,” wrote the young white supremacist who would murder nine black worshipers at Emanuel A.M.E. Church in Charleston, S.C., in June 2015. “It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they dont.”
Mr. Roof, who plans to represent himself when the penalty phase of his federal capital trial begins on Tuesday, apparently is devoted enough to that proposition (or delusion, as some maintain) to stake his life on it. Although a defense based on his psychological capacity might be his best opportunity to avoid execution, he seems steadfastly committed to preventing any public examination of his mental state or background.
“I will not be calling mental health experts or presenting mental health evidence,” he wrote to Judge Richard M. Gergel of Federal District Court on Dec. 16, a day after a jury took only two hours to find him guilty of 33 counts, including hate crimes resulting in death, obstruction of religion and firearms violations. At a hearing on Wednesday, Mr. Roof told the judge that he planned to make an opening statement but not call witnesses or present evidence on his behalf.
The testimony presented by prosecutors during the guilt phase of Mr. Roof’s trial detailed with gruesome precision how he had plotted and executed the massacre during a Wednesday night Bible study in the church’s fellowship hall. It was less satisfying in revealing why he had done it. With his choice to sideline his legal team and represent himself, the second phase — when the same jury of nine whites and three blacks will decide whether to sentence him to death or to life in prison — may prove little different.
Death penalty experts said it was exceedingly rare for capital defendants to represent themselves after allowing lawyers to handle the initial part of a case. Mr. Roof, who also faces a death penalty trial in state court, has not publicly explained his reasoning. But legal filings strongly suggest a split with his court-appointed defenders about whether to argue that his rampage resulted from mental illness.
Saturday, December 31, 2016
Split Sixth Circuit ruling upholding protective order concerning lethal injection drugs might(!?!) enable Ohio to get back into execution game
As this local article reports, in the afternoon of the last business day of 2016, a Sixth Circuit panel "upheld a protective order shielding the state of Ohio from having to disclose the names of those who make or use the state's lethal-injection drugs." Here is more about the ruling and its context:
In a 2-1 decision, the appeals court panel ruled that a district court judge was justified in issuing the secrecy order, which was made on the grounds that it was needed to protect lethal-injection drugmakers from public intimidation and harassment. The lawsuit, brought by more than 65 death-row inmates, contended that the state shouldn't be allowed to use drugs procured from anonymous suppliers and evaluators.
Ohio had postponed its next three executions by several weeks at the behest of a federal magistrate, who feared the appeals court wouldn't make this ruling before a Jan. 3 court hearing for the first three inmates scheduled to die. As a result, Gov. John Kasich delayed the resumption of executions from Jan. 12 to Feb. 15, starting with convicted child killer Ronald Phillips of Akron. It's unclear whether that revised schedule will stay in place now that the appeals court has ruled....
Ohio hasn't executed anyone since January 2014, when killer Dennis McGuire took 25 minutes to die from a previously unused execution drug combination. State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October....
In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs.
The full ruling is available at this link, and the fact that the panel opinion included a dissent could entail further en banc or SCOTUS appeals on just this semi-procedural issue involving a protective order. Even without further appeals, though, there is an evidentiary review on tap for the first week of January concerning Ohio's new execution drug protocol, and that litigation has already led in part to a short delay of scheduled executions. In other words, this Sixth Circuit panel ruling may clear one obstacle for Ohio resuming executions, but there are additional litigation road-blocks still ahead.
Thursday, December 29, 2016
Will Ohio get back in the business of state killing in 2017?
The question in the title of this post is prompted in part by my awareness of lots of messy on-going litigation in the Buckeye State over execution protocols and in part by this new local AP article headlined "Court weighs challenge of order blocking Ohio execution info." Here are excerpts from the AP piece:
A federal appeals court is weighing a challenge by attorneys for death row inmates of a judge's order blocking them from information about Ohio's new lethal injection process. The pending decision by the 6th Circuit Court of Appeals will help determine whether Ohio will proceed with its first executions in three years beginning in February.
Ohio plans to execute Ronald Phillips on Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another execution is scheduled for April.
At issue are new efforts the state is making to shield information about lethal injection in hopes of jumpstarting executions in Ohio, which have been on hold since January 2014. That's when it took condemned inmate Dennis McGuire 26 minutes to die from a never-before-used two-drug method while he repeatedly gasped and snorted.
For example, a 2015 law blocks anyone from getting information about individuals or entities participating in executions, including companies that make or mix drugs. The 6th circuit last year upheld that law while rejecting free speech allegations raised by death row inmates.
What's before the appeals court now is a protective order issued by a federal judge last fall that bars the release of information about lethal injection requested by attorneys for Phillips and two other inmates scheduled for execution in 2017. That order, by retired Judge Gregory Frost, held that the state's need to obtain the drugs outweighs concerns by death row inmates that the information is needed to meaningfully challenge the source of the drugs, such as names of the manufacturers.
Federal Magistrate Judge Michael Merz in Dayton cited the current 6th Circuit case earlier this month when he put executions on hold. He said the hold could be lifted after the court rules. Attorneys for death row inmates argue they can't meaningfully challenge the use of the drugs without the information. They also said the secrecy protections are unnecessary given the history of lawsuits over lethal injection in Ohio....
The Department of Rehabilitation and Correction in October announced plans to use a new three-drug combination — midazolam, rocuronium bromide and potassium chloride — for at least three executions. Phillips and other inmates want to block the new procedure, arguing that it will result in a painful and barbaric death.
Federal military execution seemingly on track for mass rapist/murderer
This CNN article, headlined "US military could carry out first execution in over 50 years," reports on some notable developments in a notable federal capital setting. Here are the interesting details:
A former US Army soldier who has been on death row since 1988 for raping and murdering several women could now face execution after a judge denied his bid for another stay of execution. Judge J. Thomas Marten of the US District Court for the District of Kansas wrote last week that a previously granted stay of execution to Ronald Gray was "no longer in effect," denying his request to further block the military from carrying out the death sentence.
If Gray is put to death, it will be the first military execution since 1961, when John Bennett was hanged at Fort Leavenworth prison in Kansas after he was convicted of raping and attempting to kill an 11-year-old Austrian girl. The current military method of execution is lethal injection.
Gray is one of six former servicemen currently on the military's death row at Fort Leavenworth. The most recent addition to that group is former Army Maj. Nidal Hasan, who was convicted of 13 counts of murder and 32 counts of attempted murder after his 2009 shooting rampage in Fort Hood, Texas.
Gray was convicted and condemned to death in military court in 1988 for two murders and three rapes in the Fayetteville, North Carolina, area while stationed at Fort Bragg and serving as a cook. He pleaded guilty in civilian courts to two other killings and five rapes....
Gray came close to being put to death in 2008, when then-President George W. Bush signed a warrant authorizing his execution. But a federal court gave Gray a last-minute temporary stay.
In 1983, a military appeals court found the death penalty to be unconstitutional because of problems with the armed forces' sentencing guidelines, but President Ronald Reagan soon after reinstated capital punishment in the military. The President has the power to commute a death sentence and no service member can be executed unless the President confirms the death penalty.
While no execution date has yet been set, Army regulations state that a could be set sometime in the next 30 days. Gray's lawyer could not be reached for comment.
Wednesday, December 28, 2016
Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial
As reported in this new AP story, "Dylann Roof told a judge Wednesday he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life for killing nine black worshippers at a Charleston church in a hate crime." Here is more:
But there also is mystery evidence that Roof is working hard to make sure the public never sees in his federal death penalty trial.
Roof, who is acting as his own attorney in the penalty phase to prevent what he thinks would be further embarrassment to himself or his family, again was warned by U.S. Judge Richard Gergel at a hearing Wednesday that being his own lawyer was a bad idea. "That's your decision," Gergel told Roof. "I think that highlights my advice to you that you aren't served by being your own counsel."
Gergel told Roof to talk to his grandfather, who is a lawyer, and other family members one last time. He told Roof he has until the start of the penalty phase Tuesday to change his mind and hire his high-powered, publicly funded defense team back.
The same jurors who convicted Roof earlier this month on 33 counts including hate crimes and obstruction of religion will return next week to decide if he faces life in prison without parole or the death penalty.
Roof spoke for less than 10 minutes of the 35-minute hearing Wednesday. He told Gergel he does plan an opening and closing statement. He then told the judge he objects to prosecutors' plans to present a photograph of evidence in the court's possession. Roof, Gergel and assistant U.S. Attorney Jay Richardson all carefully tiptoed around saying what that evidence was. Gergel did say there was a hearing in which he decided it could be admitted in the penalty phase.
Roof also wanted a jailhouse statement left out of the penalty phase and evidence that involved his mother. No specifics were given. Gergel told Roof to go back to jail and write a motion for him to consider. Roof's ankle chain clanked as he walked back to the defense table in his jail jumpsuit.
Prosecutors also laid out their case. Most of the penalty phase will involve up to 38 people related to the nine people killed and the three people spared when Roof went into Emanuel African Methodist Episcopal Church on June 17, 2015, sat through a 45-minute Bible study in the fellowship hall, then fired 77 shots as many of the worshippers hid under tables.
Gergel, who complained during the guilt phase that prosecutors were repeating themselves at times with witnesses, said he will allow Richardson to call as many witnesses related to the victims as he wants. "The statute provides broad leeway for the victims to be heard, and I plan on honoring that," the judge said....
Gergel spent much of the hearing going over the format of the penalty phase with Roof, warning him several times he was likely doing himself no favors leaving his defense team as just advisers to file briefs. After saying he planned no witnesses, Roof told Gergel he was just answering the same question the judge had asked prosecutors. Gergel said that wasn't necessary. "Don't do them any favors," the judge said. "They aren't going to do you any."
Tuesday, December 27, 2016
New York Times made yet another editorial pitch for judicial abolition of the death penalty
Today's New York Times has this editorial headlined "The Continuing Collapse of the Death Penalty." Here are excerpts:
Piece by piece, the death penalty continues to fall apart. Last week, the Florida Supreme Court invalidated between 150 and 200 death sentences — nearly half of all those in the state — because they were imposed under a law the United States Supreme Court struck down as unconstitutional in January. The law, which required judges and not juries to make the factual findings necessary to sentence someone to die, violated the Sixth Amendment’s guarantee of a jury trial. “A jury’s mere recommendation is not enough,” Justice Sonia Sotomayor wrote for an 8-to-1 majority.
The Florida decision is the most recent sign, in a year full of them, that the morally abhorrent practice of capital punishment is sliding into the dustbin of American history — where it should have been long ago.
Juries around the country imposed 30 death sentences in 2016, a 40 percent drop from last year and fewer than at any time since the Supreme Court reinstated capital punishment in 1976, according to a report by the Death Penalty Information Center, a research group that opposes capital punishment. Twenty people were executed this year, the lowest number in a quarter-century.
The practice is not only increasingly rare, it is concentrated in an extremely narrow slice of the country. Only five states carried out executions in 2016, the report found, and only five imposed more than one death sentence. California sentenced nine people to die, the most of any state, but no one has been put to death there since 2006.
Public support for the death penalty keeps dropping, too — falling below 50 percent for the first time in more than four decades, according to a Pew Research survey. Support falls even further when respondents are given the alternative of a long prison term like life without parole. Though voters in California, Nebraska and Oklahoma last month preserved the death penalty, the overall trend is toward growing discomfort with state-sanctioned killing.
The total abolition of capital punishment, however, will depend on the Supreme Court’s reading of the Eighth Amendment’s ban on cruel and unusual punishments. So far, only one current member of the court, Justice Stephen Breyer, a regular critic of the death penalty, has expressed openness to examining this question.... Justice Breyer is asking the right questions. It is up to a majority of his colleagues to listen closely and bring the only just result: the permanent abolition of capital punishment in America.
Thursday, December 22, 2016
Florida Supreme Court brings back to life some older death sentences
As reported in this local article, headlined "Florida Supreme Court: Death penalty cases finalized before 2002 will stand," it now appears that there is a little bit of life left in some old Florida death sentences. Here are the basics:
Some of the nearly 400 prisoners waiting on Florida's death row will not be allowed a re-sentencing under new death penalty laws, the state Supreme Court ruled Thursday.
The 6-1 ruling in a death sentence appeal by Mark James Asay says that death row inmates are not entitled to a re-sentencing unless their case was finalized after the 2002 ruling in Ring vs. Arizona, which required juries to find aggravating factors to impose the death penalty.
The court also lifted a stay on Asay's execution, previously scheduled for March of this year. It appears executions could commence soon.
Florida's death penalty has been under siege for the past year. In January, the U.S. Supreme Court ruled the state's death penalty scheme unconstitutional in Hurst vs. Florida, prompting the Legislature to re-write sentencing laws. Then, in October, the Florida Supreme Court found that the Hurst ruling required a unanimous vote by the jury to sentence someone to death, rather than a majority or supermajority required under old and existing laws. It was not clear until Thursday's ruling whether these changes entitled people already on death row to a re-sentencing hearing.
The lengthy Florida Supreme Court in Asay v. Florida is available at this link. Here is the key concluding paragraph from the majority opinion:
After weighing all three of the above factors, we conclude that Hurst should not be applied retroactively to Asay’s case, in which the death sentence became final before the issuance of Ring. We limit our holding to this context because the balance of factors may change significantly for cases decided after the United States Supreme Court decided Ring. When considering the three factors of the Stovall/Linkletter test together, we conclude that they weigh against applying Hurst retroactively to all death case litigation in Florida. Accordingly, we deny Asay relief.
There can be little doubt that this ruling will be appealed to the US Supreme Court, though there can and should be much doubt about whether SCOTUS will take up the issue.
UPDATE: A helpful tweeter made sure I did not miss this additional ruling from the Florida Supreme Court that reaches this companion conclusion for cases in which a death sentence was imposed after 2002:
After weighing all of the considerations essential to a faithful Witt analysis, we conclude that Hurst should be applied retroactively to Mosley. The purpose of the holdings in Hurst v. Florida and Hurst is to prevent a violation of the fundamental and critically important right to a trial by jury. See Hurst, 202 So. 3d at 50-51, 55.
Wednesday, December 21, 2016
DPIC releases year-end report highlighting "historic declines" in use of the death penalty in 2016
This press release from the Death Penalty Information Center, titled "Death Sentences, Executions Drop to Historic Lows in 2016," provides a summary of the DPIC's 2016 year-end report on the administration of the death penalty in the United States. Here is the text of the press release:
Death sentences, executions, and public support for capital punishment all continued historic declines in 2016. American juries imposed the fewest death sentences in the modern era of U.S. capital punishment, since the Supreme Court declared existing death penalty statutes unconstitutional in 1972. The expected 30 new death sentences in 2016 represent a 39 percent decline from last year’s already 40-year low of 49. The 20 executions this year marked the lowest number in a quarter century, according to a report released today by the Death Penalty Information Center (DPIC). National public opinion polls also showed support for capital punishment at a 40-year low.
“America is in the midst of a major climate change concerning capital punishment. While there may be fits and starts and occasional steps backward, the long-term trend remains clear,” said Robert Dunham, DPIC’s Executive Director and the author of the report. “Whether it’s concerns about innocence, costs, and discrimination, availability of life without parole as a safe alternative, or the questionable way in which states are attempting to carry out executions, the public grows increasingly uncomfortable with the death penalty each year.”
For the first time in more than 40 years, no state imposed ten or more death sentences. Only five states imposed more than one death sentence. California imposed the most (9) followed by Ohio (4), Texas (4), Alabama (3) and Florida (2). Death sentences continued to be clustered in two percent of counties nationwide, with Los Angeles County imposing four death sentences, the most of any county. But death sentences were down 39 percent, even in those two-percent counties.
This year’s 20 executions marked a decline of more than 25 percent since last year, when there were 28 executions. Only five states conducted executions this year, the fewest number of states to do so since 1983. Two states -- Georgia, which had the most executions (9), and Texas, which had the second highest number (7) -- accounted for 80 percent of all executions in the U.S. Although Georgia carried out more executions than at any other time since the 1950s, juries in that state have not imposed any new death sentences in the past two years.
State and federal courts continued to strike down outlier practices that increased the likelihood a death sentence would be imposed. The United States Supreme Court struck down practices in Florida, Arizona, and Oklahoma that had disproportionately contributed to the number of death sentences imposed in those states. And state courts in Florida and Delaware ruled that portions of their statutes that permitted the death penalty based upon a non-unanimous jury vote on sentencing were unconstitutional.
America’s deep divisions about capital punishment were reflected in voters’ action at the ballot box this year. Voters in California and Nebraska voted to retain the death penalty and Oklahoma voters approved a constitutional amendment regarding capital punishment. At the same time, prosecutors in four of the 16 counties that impose the most death sentences in the U.S. were defeated by candidates who expressed personal opposition to the death penalty or pledged to reform their county’s death penalty practices. In Kansas, pro-death penalty groups spent more than $1 million to defeat four state supreme court justices who had voted to overturn several death sentences, but voters retained all four justices.
DPIC’s review of the 20 people executed in 2016 indicated that at least 60 percent of them showed significant evidence of mental illness, brain impairment, and/or low intellectual functioning. This suggests that, in spite of the constitutional requirement that the death penalty be reserved for the “worst of the worst” offenders, states continued to execute prisoners whose mental illness or intellectual disabilities are similar to impairments the Court has said should make a person ineligible for the death penalty.
I have reprinted above the DPIC graphic emphasizing the continued decline in the number of death sentences imposed each year because, as I have said before, I view that metric as the most significant and consequential in any serious discussion of the present status and future prospects of capital punishment throughout the US.
Tuesday, December 20, 2016
New report spotlights that majority of condemned Oregon murderers have mental impairments
In this post earlier this year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation. The latest report from FPP is titled "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments," and here are parts of the start and heart of the document:
Oregon retains capital punishment mostly as an exorbitantly expensive legal fiction. In practice, as U.S. Supreme Court Justice Anthony Kennedy recently noted, the State falls on the abolitionist “side of the ledger” because “Oregon has suspended the death penalty and executed only two individuals in the past 40 years.” More revealing still: Over the past 10 years, Oregon juries have imposed an average of just one death sentence per year, which translates into less than 1.25% of homicides, a rate far lower than that which prevailed nationally in 1972 when U.S. Supreme Court Justice Byron White concluded that the infrequent use of the death penalty meant that the punishment had “ceas[ed] to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system.” By all functional measures, Oregonians have abandoned the death penalty.
And yet, 35 condemned inmates remain on Oregon’s death row. What do we know about those people, and about the quality of justice that resulted in their death sentences? This report examines the cases of the condemned men and women in Oregon to see how they ended up there, and what patterns, if any, emerged. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Oregon who are familiar with the individuals on death row.
Here’s what we found: In Oregon, two-thirds of death row inmates possess signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Oregon’s death row population is important because though all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders; and even then only when the person who commits the crime is someone who appears to be more culpable than the typically developing adult....
Our research indicates that approximately one-quarter of individuals on Oregon’s death row may have some form of intellectual disability or brain damage. Nine of the 35 (26%) presented evidence of significantly impaired cognitive functioning as evidenced by low IQ scores, frontal lobe damage, and fetal alcohol syndrome....
Approximately one out of every four individuals on Oregon’s death row exhibits symptoms of mental illness, or has a confirmed diagnosis. Some exhibited signs of psychotic disorders with delusions and hallucinations at the time of the crime, one had been in a state run treatment program for individuals with mental illness, and another had signs of post-traumatic stress disorder. Furthermore, the vast majority of the individuals exhibiting signs of mental illness, also presented evidence of secondary impairments such as intellectual disability, extreme childhood trauma, and youthfulness....
[A]pproximately one-third of Oregon’s death row prisoners suffered some form of severe childhood or emotional trauma. One individual was born in prison, another suffered childhood sexual abuse, and several of the individuals were in and out of the foster care system. In many cases, this trauma led to, or was compounded by, other disabilities, such as fetal alcohol syndrome.
The grand capital problems in the Grand Canyon state
This local article, headlined "After 2½-year hiatus, death penalty still up in the air in Arizona," reviews at great length all the legal and practical challenges facing the Grand Canyon state in the arena of the death penalty. Here are excerpts from the start and end of the piece:
A federal judge has kept executions in Arizona on hold for 2½ years, and a flurry of year-end court actions in state and federal courts promise to prolong the chaotic status of the death penalty in the state.
While the state fights to resume executions of convicted murderers, litigation and court decisions challenge the way those executions are carried out, how capital cases are tried and how prosecutors decide when to seek death. Here is a digest of death-penalty issues at the close of 2016.
In July 2014, Joseph Wood snorted and gasped for nearly two hours on an execution gurney at the Arizona State Prison Complex in Florence because one of the drugs injected into him, midazolam, did not work as efficiently as the state of Arizona hoped it would.
U.S. District Judge Neil Wake was called while the execution was in progress. He held a telephonic hearing with attorneys for Wood and the state even as Wood was agonizing. Wake had been generally sympathetic to the Arizona Department of Corrections when it came to executions. But after the Wood execution, he set an injunction against executions in the state and demanded an analysis of the process. A year later, the U.S. Supreme Court approved the use of midazolam in an Oklahoma case despite another problematic execution with midazolam in that state.
More recently, midazolam was used Dec. 8 in a troublesome execution in Alabama, during which the condemned man coughed and flinched and took 34 minutes to die. Before pharmaceutical firms started refusing to sell them, more efficient drugs used to be available that led to death in 10 or so minutes. Those firms now refuse to sell midazolam to Arizona for future executions.
On Dec. 9, the Arizona Attorney General’s Office asked Wake to lift his injunction and declare the issues raised by Wood's case moot because it no longer has, and does not intend to obtain, midazolam. So far, Wake has refused to declare the case moot, reminding the Department of Corrections that it frequently veered from the protocol — the legal term for the specific method and drugs to be used — he had approved in court by changing execution drugs at the last minute. Defense attorneys who brought the case worry that the DOC will have the case mooted and then announce it has obtained a new drug. Corrections has yet to release a new protocol stating how it plans to carry out future executions. Drugs used before midazolam — thiopental and pentobarbital — also are no longer available.
The department has faced scrutiny for handling execution drugs in the past. In 2010, it purchased thiopental that was later ruled illegal from a supplier in England. In 2015, it tried to import the same drug from India. The shipment was stopped by federal officials at Sky Harbor International Airport.
A second federal lawsuit filed by a coalition of media outlets, including The Arizona Republic, seeks to force DOC to be more transparent in how it conducts executions, from revealing drug sources to allowing journalists to view all aspects of the execution, including how the prisoner is strapped to the execution gurney. At present, reporters and other witnesses can watch insertion of the catheters into the prisoner on closed-circuit TV and can watch the prisoner die through a glass window....
Corrections Director Charles Ryan has told reporters that he was looking into using firing squads in the event the state cannot not obtain any suitable drugs for execution by lethal injection. That change would require a voters’ initiative and an amendment to the Arizona Constitution.
Before the general election in November, The Republic polled voters about whether they would approve of firing squads as a means of execution. Sixty-eight percent said no. When respondents were broken down into subgroups, such as male and female, Republican and Democrat, the answer still was no.
UPDATE: This new BuzzFeed article reports on another new development in this arena. The headline and subhead tells the basic story: "After Botched Execution, Arizona Agrees To Never Use A Controversial Sedative Again: The state has agreed to stop using midazolam, a drug similar to valium that was linked to several botched executions in recent years. Without the drug, the state has few options on how to go forward with lethal injections."
Monday, December 19, 2016
Philippine Prez Duterte talking up conducting thousands of executions yearly if death penalty restored
In prior posts here and here, I noted the eagerness of the Philippines new Prez to rachet up a "war on drugs" to almost unheard-of new levels. This article from ABS-CBN News, headlined "Duterte threatens up to 6 executions daily if death penalty is restored," highlights the latest dimension of this story:
President Rodrigo Duterte has issued a grim warning, saying he will carry out daily executions of criminals once the death penalty is restored.
"Ibalik mo sa akin 'yan...araw-arawin ko yan. Lima, anim," he said during Senator Manny Pacquiao's 38th birthday celebration in General Santos on Saturday. (Give it back to me, and I will perform daily executions. Five, six.) "You destroy my country, I destroy you," he added.
The president believes capital punishment failed to deter crime in the past only because only few executions were carried out.
Death penalty in the country was abolished under the 1987 Constitution -- the first Asian country to do so -- but was reinstated under President Fidel V. Ramos in 1993 in response to increasing crime rates. It was again abolished under President Gloria Macapagal-Arroyo in 2006, reducing the harshest penalties to life imprisonment and reclusion perpetua.
Even before being elected in the 2016 polls, Duterte has been pushing for the revival of death penalty, saying it would serve as retribution for those who committed heinous crimes.
In a meeting after it was clear he won the elections, Duterte told some lawmakers he favors hanging over lethal injection as means of execution.
A bill seeking to reinstate the death penalty has recently been approved at the sub-committee level in the House of Representatives, and a principal author is optimistic on an "overwhelming" support from his colleagues. Pacquiao, who had filed Senate Bill 185 proposing that death penalty be reimposed and the penalties be increased for heinous crimes involving dangerous drugs in October, is positive that fellow senators would back the bill.
Prior related posts:
- President-elect in Philippines eager to bring back death penalty "especially if you use drugs"
- New Philippines Prez wasting no time executing deadly "tough on crime" plans
- Remarkable and disconcerning stories emerging from just a few months into Philippine Prez Duterte's aggressive new "war on drugs"
Sunday, December 18, 2016
"Duties of Capital Trial Counsel Under the California 'Death Penalty Reform and Savings Act of 2016'"
The title of this post is the title of this timely and interesting new article authored by Robert Sanger now available via SSRN. Here is the abstract:
Every trial lawyer who is handling a capital case in California or who has handled a capital case for which the decision of the California Supreme Court is not final on a pending habeas corpus petition, needs to be aware of certain specific duties and strategies required by The Death Penalty Reform and Savings Act of 2016, Proposition 66, enacted by the voters on November 8, 2016. The Act imposes new duties on capital trial counsel following a judgment of death, will require more prompt discharge of other duties and may even present an opportunity. While the article focuses on trial counsel, post-conviction counsel will need to be familiar with much of this same information to both effectively work with trial counsel, to seamlessly raise issues and, eventually, to evaluate trial counsel’s conduct.
Trial counsel’s new duties include the duty to proactively assert herself as counsel of record after judgment by objecting and engaging in strategies in the trial court in response to the Act. Trial counsel will have to advise her client during a difficult period and, when habeas counsel is appointed, work closely with that counsel to investigate and file a petition for a writ of habeas corpus. The duty to object, the duty to engage in strategies to protect the client and the duty to counsel the client must be commenced in the trial court by trial counsel as soon as there is a judgment of death. These duties will also extend to cases which may be transferred to the Superior Court by the California Supreme Court. In addition, immediately upon appointment of habeas counsel and throughout the entire course of the habeas proceedings, counsel will have a more urgent duty than she did pre-Act to be available and responsive to assist habeas counsel.
Objections must be made to the Act on statutory grounds as well as both California and United States Constitutional grounds. Some of the objections will be systemic and others will be case specific. There are reasons for the trial court, or, eventually, the higher courts, to find the Act inoperable, unconstitutional or otherwise to stay or delay the process. The Act is inoperable because it is not self-executing and because it is unfunded. The Act is unconstitutional because it violates the right to habeas corpus, interferes with the jurisdiction of the courts generally and specifically regarding capital cases, violates the separation of powers and the single subject rule and, if applied retroactively, violates the ex post facto clause. The Act also contributes to the overall unconstitutionality of the flawed capital punishment system in California.
Under the Act, trial counsel must also take specific action regarding the “offer” of counsel by the trial judge and the “orders” made pursuant to the “offer.” Strategically, delay in implementation of the “offer” and the orders pursuant thereto may be required to assure appointment of qualified counsel, to avoid the premature commencement of the habeas filing limitation and to allow trial counsel to prepare the files, materials and record necessary for habeas counsel to commence work. Trial counsel will have a duty to advise the client regarding the client’s rights following the “offer” which will be critical in light of the trial judge’s apparent power to make a finding that the client has waived habeas counsel, potentially forever.
Finally, trial counsel will have to make critical decisions and will have an important role regarding any potential claims of actual innocence or ineligibility of the client for execution. For instance, trial counsel must decide with the client and habeas counsel what information will or will not be disclosed and what litigation strategy will be employed to resist waiver of privileges that purport to be compelled under the Act. Finally, if there are grounds for factual innocence or ineligibility for the sentence of death, trial counsel must work with habeas counsel in presenting them early enough to obtain additional time to file the initial petition, if appropriate.
Friday, December 16, 2016
Noticing that other states are now messing with Texas for being capital punishment's capital
This new Vice article, headlined "Texas Is No Longer America's Death Penalty Capital," reports on the unique features of 2016 in the modern history of the death penalty in the United States. Here are highlights:
Texas has long been the heartland of the death penalty in America. Since capital punishment was reinstated by the Supreme Court in 1976, the Lone Star State has executed 538 people — more than the next top six states combined. But 2016 saw a precipitous drop in the number of executions in the state. Thanks in part to new judicial scrutiny of death sentences, just seven Texans were executed this year, the fewest since 1996.
For the first time since 2001, Texas is not the most execution-happy state in the country — that grisly title belongs to Georgia, which executed nine people. This is the first year since 1984 that Texas didn't execute a single black person. And juries sentenced just three new Texas defendants to death for the second year in a row. The data was highlighted in a report released Thursday by the Texas Coalition to Abolish the Death Penalty [available here]....
One way to understand the decline is by looking at the people on death row who weren't executed. The Court of Criminal Appeals — the highest criminal court in the state — granted stays of execution to seven people who were scheduled to die this year, a higher number than normal: From 2012 through 2014, the court only granted three stays, according to the coalition. "The rising number of stays suggests that the Court of Criminal Appeals is registering the concerns about the fairness and accuracy of our state's capital punishment system," Kathryn Kase, executive director of the nonprofit criminal justice legal group Texas Defender Service, told me in an email. "These stays give the court opportunities to remedy the failures of past death penalty practices for which Texas has been roundly criticized."
In several of the cases where inmates received stays, the court leaned on a 2013 state law that gives inmates whose convictions were based on discredited science the opportunity for a new trial. Reformers say the law is among the most progressive in the country at fighting junk science in the courtroom.... Gregory Gardner, an attorney who represented two Texas death row defendants who received stays of execution this year — and a third client who was executed — believes the junk science law to be a powerful tool for defendants. "It shows how many convictions in the late 90s and the turn of the century were based on this crappy science that's been discredited," he said. "It's scary because we know people in Texas have been executed because of it in the past."
Of course, just because executions are down doesn't mean the ones taking place aren't still controversial. According to the anti-death penalty coalition's report, almost half of the people executed in the state in the last two years had a significant mental impairment. Similarly, the fact that Texas didn't execute any black people this year doesn't mean the death penalty is suddenly race-blind. All three of the Texas defendants sentenced to death in 2016 were black, and 80 percent of new death sentences in the state over the last five years have been imposed on people of color. Research has also consistently shown that murders of white victims are more likely to result in a death sentence than murders of minority victims....
And it's possible that Texas's slump in executions won't last. The state has already scheduled nine executions in the first six months of 2017. Even so, the reduction in new death sentences may augur a future where seven executions a year isn't celebrated as a noteworthy dip, but questioned as a macabre reality. "The courts are finally being more careful with these cases," Gardner told me. "We've seen the number of death sentences plummet, and I think that trend will continue."
Thursday, December 15, 2016
Post-Hurst hydra chews up all death sentences in Delaware via new retroactivity ruling
Regularly readers know I use the term "post-Hurst hydra" to describe the aftermath litigation in various courts in various states as judges sort ought what Supreme Court ruling in Hurst v. Florida must mean for past, present and future capital cases. Today the post-Hurst hydra took another big bite out the the death penalty in the First State as reported in this AP article:
A Delaware Supreme Court ruling earlier this year declaring the state's death penalty law unconstitutional is retroactive, meaning an inmate convicted of killing a police officer must be resentenced to life in prison, the justices said in a follow-up decision Thursday.
The ruling came in an appeal by Derrick Powell, who was convicted of killing Georgetown police Officer Chad Spicer in 2009, but it likely means that 11 other former death-row inmates also will be spared from execution.
In August, a majority of the justices said Delaware's death penalty law was unconstitutional because it allowed judges too much discretion in sentencing and did not require that a jury find unanimously and beyond a reasonable doubt that a defendant deserves execution.
That ruling came after the U.S. Supreme Court said Florida's death sentencing law, which also gave judges the final say, was unconstitutional. Alabama is the only other state that allows judges to override jury decisions on whether an offender should get life in prison or the death penalty.
In its 15-page decision Thursday, the Delaware court said its August ruling invalidating the state's death penalty law was a "watershed procedural ruling" that must be applied retroactively.
The full opinion in Powell v. Delaware is available at this link.
Unsurprisingly, Dylann Roof gets convicted on all counts by federal jury
As this extended USA Today article reports, a federal "jury in the trial of Emanuel AME Church shooter Dylann Roof on Thursday found Roof guilty of 33 counts, including hate crimes after two hours of deliberations." Here is more:
The verdict came about an hour after they asked to look at a video of his confession, expressing interest in his statements that he didn't know how many people he had shot. The jury of eight white females, one white male, two black females and one black male was sent out initially a little after 1 pm, then recalled to clarify a legal instruction by the judge....
Closing arguments in the guilt phase of the trial ended late Thursday morning. Dylann Roof's chief defense lawyer told the jury that the most important question in the 2015 murders of nine black parishioners is why and he pointed to Roof's internet exploration of racial crimes as an explanation. "That is the why as far as the evidence shows," David Bruck told the jury.
But government prosecutors told the jury there was no mystery to Roof's motivation, which they said stemmed from racial hatred so immense that he was willing to shoot innocent people as they prayed in a church and lay wounded on the floor.
Roof's lawyers called no witnesses when testimony ended this week and Roof has indicated he will take over his defense in the sentencing phase if he is found guilty. Bruck did not contest the evidence in his closing arguments and even offered praise for the FBI's probe in the case. He focused instead on what motivated Roof, sowing seeds of doubt about his intent, an argument that might be useful if jurors deliberate his sentence....
U.S. District Judge Richard Gergel sustained multiple objections from prosecutors during Bruck's closing, as he did during the opening of the trial when prosecutors felt Bruck was attempting to take jurors to the penalty phase of the trial before Roof's guilt was decided. One of the objections came after Bruck attempted to discuss Roof's mental status, a discussion that Gergel said should take place during a penalty phase.
The penalty phase of this trial is due to take place in January.
Wednesday, December 14, 2016
Interesting accounting of who is putting up capital to try to end capital punishment
The publication Inside Philanthropy has this interesting new article headlined "Capital Against Capital Punishment: Who's Fighting the Death Penalty?". Here are excerpts:
This year’s election results don’t bode too well for opponents of the death penalty. A year after they abolished it, Nebraska voters decided to reinstate capital punishment. Oklahoma voters approved “any method of execution” not prohibited by the U.S. Constitution. And California, the nation’s most populous state, struck down a repeal measure, instead approving a measure to make executions easier.
But will this capital punishment comeback last? A cadre of dedicated funders, including Atlantic Philanthropies, Open Society Foundations, the Proteus Fund and others wants to make sure it doesn’t. These death penalty opponents are playing a long game and some have been at it for years. Angry populist elections come and go, but progress against the death penalty has been ongoing. Death sentences handed out in the U.S. have dropped almost tenfold since 1996, and actual executions per year have declined by about 75 percent. A full 42 percent of the American public opposes the death penalty, a 44-year high.
While capital punishment enjoys its day in the sun (and in approving comments from President-elect Donald Trump), several big funders are working behind the scenes to chip away at the penalty’s long-standing popular support. One major player (if not the major player) is Atlantic Philanthropies, which recently granted $3.25 million to Cornell Law School to establish the Cornell Center on Death Penalty Worldwide.
The first center of its kind in the U.S., the Cornell Center will work on the policy, research and advocacy side to advance international human rights norms that favor abolition. Indeed, most executions occur in a small number of countries: the United States, and top human rights violators like China, Pakistan, Iran, and Saudi Arabia.
Those fighting the death penalty have three main strategic goals. The first involves changing public perception of executions from a necessary measure to a cruel and unusual punishment. Second, advocates focus on the states, supporting grassroots efforts to repeal. Finally, the end goal for many advocates is a nationwide ban handed down from the Supreme Court. Often, this work involves direct political appeals and lobbying, backed through 501(c)(4) organizations. While appeals to human rights are effective to a point, philanthropic efforts against the death penalty are also now quite focused on the practical problems of this punishment: why executions aren’t just wrong, but ineffective and costly to boot.
Leading the charge are groups like the National Coalition to Abolish the Death Penalty and Equal Justice USA, both recipients of large Atlantic grants in the years since 2006. While fighting the death penalty isn’t one of its major funding priorities, the Ford Foundation has also contributed at least $500,000 to the National Coalition.
All told, Atlantic Philanthropies has invested $60 million over the past decade to end the American death penalty. And although the foundation plans to discontinue its grantmaking this year (no doubt a worrisome fact for the abolition movement), it has already fertilized a whole bunch of anti-execution organizations that will continue raising funds. Among Atlantic’s biggest beneficiaries on this issue, besides the two mentioned above, are the Proteus Action League, the Advocacy Fund, Texas Defender Service, and the Southern Center for Human Rights.
In addition to its regular grantmaking, Atlantic Philanthropies backs direct lobbying, ballot initiatives and voter mobilization efforts against the penalty through its 501(c)(4), the Atlantic Advocacy Fund. But Atlantic’s greatest contribution to the fight (at least in terms of dollar support) has been its support for the Proteus Fund, via the 501(c)(4) Proteus Action League.
A longtime supporter of progressive policy efforts, the Proteus Fund channels money from donors to organizations where it can make the most impact. Proteus’s Themis Fund is dedicated solely to combating the death penalty. Aside from Atlantic Philanthropies, additional supporters include the Open Society Foundations, Tides Foundation, Butler Family Fund, Fund for Nonviolence, and the Wallace Global Fund....
The Proteus Fund isn’t the only funding intermediary taking on capital punishment. Through its Death Penalty Mobilization Fund, the Tides Foundation has awarded over $6 million in grants since 2000. Besides Atlantic Philanthropies, George Soros’s Open Society Foundations is another regular source of money for those fighting the penalty. Since the early 2000s, Open Society has granted regular sums ranging from five to six figures to prominent anti-penalty organizations. Those grantees include the National Coalition to Abolish the Death Penalty, the Tides Foundation, the Death Penalty Information Center, Death penalty Focus, and People of Faith Against the Death Penalty.
The Fund for Nonviolence, true to its name, is another anti-penalty stalwart. Through its Justice With Dignity grants program, it has disbursed modest but regular funding to many of the organizations we’ve already named. As elsewhere, many of this funder’s grants are region-specific, supporting local efforts to push back against the penalty. The Wallace Global Fund is another progressive funder with a hand in anti-death penalty work. Its funds several big-name advocacy organizations like the National Coalition, Themis at the Proteus Fund, and the Equal Justice Initiative. The numbers here are modest as well, in the high five figures. Rounding out our list, we have the Oak Foundation, whose contributions to the fight have been substantial. While Oak has offices in the U.S., it is an international funder and its death penalty work is also international, through a commonwealth nations initiative called the Death Penalty Project.
Tuesday, December 13, 2016
Federal District Judge says federal death penalty "operates in an arbitrary manner" but still rejects broadside constitutional challenge
United States District Judge Geoffrey Crawford issued a lengthy opinion today in the long-running federal capital case of US v. Fell, No. 5:01-cr-12-01 (D. Vt. Dec. 13, 2016). A helpful reader sent me the full 57-page opinion, which I have uploaded below and which gets started this way:
In 2015, the U.S. Supreme Court issued its decision in Glossip v. Gross, 135 S. Ct. 2726. The case concerned challenges under the Eighth Amendment to execution by lethal injection of four defendants sentenced to die by state courts in Oklahoma.
Justice Breyer, joined by Justice Ginsburg, issued a dissent calling "for full briefing on a more basic question: whether the death penalty violates the Constitution." Id. at 2755. The dissent identified a series of systemic shortcomings in the administration of the death penalty in the United States, especially as it is applied by the states. It divided these into four categories: "(1) serious unreliability, (2) arbitrariness in application, (3) unconscionably long delays that undermine the death penalty's penological purpose [and] (4) most places in the United States have abandoned its use." Id. at 2756.
In response, Justice Scalia and Justice Thomas wrote two strongly worded concurring opinions which defended the death penalty as the legitimate exercise of democratic authority. Both justices pointed to the shocking cruelty of the crimes which led to the death sentences in these and other death penalty cases. Both questioned the authority of the judiciary to interpose its own philosophical concerns about the death penalty. And both identified utilitarian purposes such as deterrence which may justify executions.
The dissent and concurring opinions in Glossip offer a particularly vivid account of the long-running dispute over the constitutionality of the death penalty within the Supreme Court. A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court. The current state of the law is that the death penalty is a constitutional punishment for murder committed by adults not disqualified for reasons of intellectual disability who have received a trial which meets the standards set by Gregg v. Georgia, 428 U.S. 153 (1976) and Ring v. Arizona, 536 U.S. 584 (2002). Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself.
But a trial court has its own contribution to make to the debate. The court can hold a hearing and permit witnesses to testify. In Glossip, Justice Breyer raised a series of questions about whether the death penalty is imposed fairly or in an incurably arbitrary manner. The questions he raised are troubling. They are essentially empirical. They require consideration of what has actually happened in the United States since the restoration of the death penalty following the Gregg decision.
Over the course of two weeks last summer this court sought to develop a factual record based on live testimony and supporting exhibits sufficient to answer the question of whether the constitutional requirements for a death penalty statute set out in Gregg have been met in practice. As the court's findings indicate, the Federal Death Penalty Act, 18 U.S.C. §§ 3591, et seq. ("FDPA"), falls short of the standard required in Furman v. Georgia, 408 U.S. 238 (1972), and in Gregg for identifying defendants who meet objective criteria for imposition of the death penalty. Like the state statutes enacted after Furman, the FDPA operates in an arbitrary manner in which chance and bias play leading roles.
The trial court's obligation does not end with a review of the facts. The court is required to address the legal issues raised by the parties. That resolution may be no more than an acknowledgment that the law has been settled on a particular question. Alternatively, the new factual record may require a fresh look at the manner in which existing principles are applied to a factual record which continues to develop. The court has sought to undertake this new look in a manner consistent with existing authority which comes principally from the Supreme Court.
To get right to the point, the court has sought to follow the method expressed in Atkins v. Virginia, 536 U.S. 304 (2002) in considering the proportionality of the death penalty. The court has also considered the separate argument that application of the death penalty has become arbitrary.
The disproportionality challenge falls short because of the absence of proof of a national consensus to abolish the death penalty. As the law stands now, proof of consensus is a prerequisite for finding the death penalty unconstitutional as applied to particular crimes or particular types of defendants. By assessing public opinion, especially as it is expressed through legislation in the states, the Supreme Court finds a basis for determining evolving standards of decency for the nation as a whole. If the requirement of consensus applies to the limited challenges brought in cases like Atkins, then it must also apply to the claim of disproportionality which the defense levels against the imposition of the death penalty in all cases.
The court has also considered the problem of arbitrary application of the death penalty to small numbers of defendants whose crimes are indistinguishable from the far greater number who receive life sentences. The court has followed existing law in declining to rule that "arbitrariness" is an independent constitutional violation.
Monday, December 12, 2016
With only two dissenters, SCOTUS refuses to hear Ohio death row defendant's arguments against a second execution attempt
I am somewhat surprised to see Rommell Broom's case, recently discussed here and here, on the cert denied list on this morning's Supreme Court order list. Interestingly, this denial of cert came with two dissenters: Justice Breyer and Justice Kagan. And Justice Breyer mentioned the Broom case and others is a broader three-page dissent from the denial of cert in another capital case at the end of the order list. Here are excerpts from that dissent:
Henry Sireci, the petitioner, was tried, convicted ofmurder, and first sentenced to death in 1976. He has lived in prison under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born....
Forty years is more time than an average person could expect to live his entire life when America constitutionally forbade the “inflict[ion]” of “cruel and unusual punishments.” Amdt. 8; see 5 Dictionary of American History 104 (S. Kutler ed., 3d ed. 2003). This Court, speaking of a period of four weeks, not 40 years, once said that a prisoner’s uncertainty before execution is “one of the most horrible feelings to which he can be subjected.” In re Medley, 134 U. S. 160, 172 (1890). I should hope that this kind of delay would arise only on the rarest of occasions. But in the ever diminishing universe of actual executions, I fear that delays of this kind have become more common....
<P> Nor is this case the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what I would consider especially cruel and unusual circumstances. On September 15, 2009, the State of Ohio attempted to execute Romell Broom by lethal injection. State v. Broom, 146 Ohio St. 3d 60, 61–62, 2016-Ohio-1028, 51 N. E. 3d 620, 623. Medical team members tried for over two hours to find a useable vein, repeatedly injecting him with needlesand striking bone in the process, all causing “a great deal of pain.” Id., at 62, 51 N. E. 2d, at 624. The State now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a “cruel and unusual” punishment? See In re Kemmler, 136 U. S. 436, 447 (1890) (“Punishments are cruel when they involve . . . a lingering death”). I would have heard Broom’s claim.
As I and other Justices have previously pointed out, individuals who are executed are not the “worst of the worst,” but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race. See Glossip v. Gross, 576 U. S., ___, ___–___ (2015) (BREYER, J., joined by GINSBURG, J., dissenting) (slip op., at 9–17)... Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016) (judge overrode jury’s recommendation of a life sentence) (this Court, by an equally divided vote, denied a stay of execution).
I have elsewhere described these matters at greater length, and I have explained why the time has come for this Court to reconsider the constitutionality of the death penalty. Glossip, supra, at ___ (dissenting opinion); see also Knight v. Florida, 528 U. S. 990, 993 (1999) (opiniondissenting from denial of certiorari); Valle v. Florida, 564 U. S. 1067 (2011) (opinion dissenting from denial of stay); Boyer v. Davis, 578 U. S. ___, ___ (2016) (opinion dissenting from denial of certiorari); Conner v. Sellers, 579 U. S. ___ (2016) (opinion dissenting from denial of certiorari and denial of stay). Cases such as the ones discussed here provide additional evidence that it is important for us to do so. See Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., memorandum respecting denial of certiorari). I would grant this petition for certiorari, as I would in Broom v. Ohio, No. 16–5580, and Smith, and include this question.
Friday, December 09, 2016
After split tied SCOTUS stay vote, Alabama completes last scheduled execution of 2016
As reported in this AP piece, the final scheduled execution in the United States in 2016 had a number of noteworthy events and elements for those who support and those who oppose capital punishment. The AP article is headlined "Alabama inmate coughs, heaves 13 minutes into execution," though I think the SCOTUS action that proceeded the actual execution should be of particular interest for law geeks. Here are some of the details:
A man who killed an Alabama convenience store clerk more than two decades ago was put to death Thursday night, an execution that required two consciousness tests as the inmate heaved and coughed 13 minutes into the lethal injection. Ronald Bert Smith Jr., 45, was pronounced dead at 11:05 p.m., about 30 minutes after the procedure began at the state prison in southwest Alabama. Smith was convicted of capital murder in the Nov. 8, 1994, fatal shooting of Huntsville store clerk Casey Wilson. A jury voted 7-5 to recommend a sentence of
life imprisonment, but a judge overrode that recommendation and sentenced Smith to death. Smith heaved and coughed repeatedly, clenching his fists and raising his head at the beginning of the execution. A prison guard performed two consciousness checks before the final two lethal drugs were administered.
In a consciousness test, a prison officer says the inmate's name, brushes his eyelashes and then pinches his left arm. During the first one, Smith moved his arm. He slightly raised his right arm again after the second consciousness test. The meaning of those movements will likely be debated. One of Smith's attorneys whispered to another attorney, "He's reacting," and pointed out the inmate's repeated movements. The state prison commissioner said he did not see any reaction to the consciousness tests....
Alabama uses the sedative midazolam as the first drug in a three-drug lethal injection combination. Smith and other inmates argued in a court case that the drug was an unreliable sedative and could cause them to feel pain, citing its use in problematic executions. The U.S. Supreme Court has upheld the use of the drug....
Wilson was pistol-whipped and then shot in the head during the robbery, court documents show. Surveillance video showed Smith entering the store and recovering spent shell casings from the bathroom where Wilson was shot, according to the record. In overriding the jury's recommendation at the 1995 trial, a judge likened the slaying to an execution, saying Wilson had already been pistol-whipped into submission and Smith ignored his pleas for mercy. Wilson had a newborn infant at the time of his death. "The trial court described Smith's acts as 'an execution style slaying.' Tonight, justice was finally served," Alabama Attorney General Luther Strange said in a statement after the execution.
U.S. Supreme Court justices twice paused the execution as Smith's attorneys argued for a delay, saying a judge shouldn't have been able to impose the death penalty when a jury recommended he receive life imprisonment. Four liberal justices said they would have halted the execution, but five were needed to do so.
Smith's attorneys had urged the nation's highest court to block the planned execution to review the judge's override. Smith's lawyers argued a January decision that struck down Florida's death penalty structure because it gave too much power to judges raises legal questions about Alabama's process. In Alabama, a jury can recommend a sentence of life without parole, but a judge can override that recommendation to impose a death sentence. Alabama is the only state that allows judicial override, they argued. "Alabama is alone among the states in allowing a judge to sentence someone to death based on judicial fact finding contrary to a jury's verdict," attorneys for Smith wrote Wednesday.
Lawyers for the state argued in a court filing Tuesday that the sentence was legally sound, and that it is appropriate for judges to make the sentencing decision....
Alabama has been attempting to resume executions after a lull caused by a shortage of execution drugs and litigation over the drugs used. The state executed Christopher Eugene Brooks in January for the 1993 rape and beating death of a woman. It was the state's first execution since 2013. Judges stayed two other executions that had been scheduled this year.
Wednesday, December 07, 2016
Georgia completes ninth and last execution of 2016
As reported here by BuzzFeed News, "William Sallie was executed Tuesday night in Georgia for the 1990 murder of his father-in-law, Jack Moore, after the US Supreme Court denied two requests to halt it." Here is more:
Sallie became the ninth person to be executed in Georgia this year, making it the state with the most executions so far in 2016. It was also the highest number of executions in the state since the death penalty was reinstated in 1976.
In March 1990, Sallie broke into the home of his in-laws, Jack and Linda Moore, where his ex-wife Robin and their two-year-old son, Ryan, were living after Sallie lost a bitter custody battle. Robin’s 17-year-old sister, April, and 9-year-old brother Justin also lived in the rural home in Bacon County, according to court documents. Sallie shot the Moores as they slept in their bed, killing Jack and wounding Linda. He then handcuffed Linda and Justin to the bed rail and abducted Robin and April to his mobile home where he raped them, according to evidence presented at the trial. He released them a day later and was arrested shortly after.
The Georgia Board of Pardons and Paroles denied clemency for Sallie on Monday. Sallie’s clemency petition and an appeal filed in the US Supreme Court argue that his execution will be unconstitutional as he has been denied federal court review of his claims of juror bias because of a procedural technicality. The US Supreme Court denied his request, with no noted dissents by any of the justices.
His lawyers argued that Sallie’s death sentence was imposed at the urging of a juror who was “patently biased” against him and was dishonest about her life experiences that would have affected her judgement during jury selection.
Tuesday, December 06, 2016
Intriguing discussion of how religion might have helped save the death penalty in Nebraska
This new local article, headlined "How religion impacted Nebraska’s death penalty vote," discusses the intersection of religious beliefs and support for capital punishment among Cornhuskers. Here are the details:
While the presidential election surprised most people, the results of one Nebraska vote shouldn’t have been a surprise. Nebraska voters resoundingly repealed a bill eliminating the state’s death penalty, with 61.2 percent voting to reinstate the punishment and 38.8 percent hoping to keep it off the books. As Nebraska is a solid Republican state, its death penalty vote matches national statistics. 72 percent of Republicans nationwide support the death penalty, according to a September Pew Research poll.
But for some Nebraskans, the death penalty vote wasn’t a political decision, but a decision based on religious beliefs. Christians are more likely to support capital punishment than other groups, according to the same Pew Research Poll. White evangelical Protestants are most in favor, with 69 percent supporting the death penalty, followed by white mainline Protestants at 60 percent. By a narrow margin, more Catholics oppose the death penalty than support it, at 46 percent to 43 percent.
But these views are contrary to official statements from some Christian leaders. Major religious groups, including the United States Conference of Catholic Bishops, the Evangelical Lutheran Church in America and the Episcopal Church, have published statements opposing the death penalty on religious grounds. This means people often disagree with their denomination’s official statements on the issue.
Allison Johnson, a minister at The Lutheran Center at the University of Nebraska-Lincoln, echoed the anti-death penalty sentiments of the ELCA church she serves on campus. If she’d been registered to vote in Nebraska instead of Wisconsin, Johnson would have voted to retain the bill, she said. “Jesus didn’t overcome systems of violence and injustice by more killing,” she said. “Jesus overcame them by absorbing them and dying himself.”
But the Rev. Jerry Thompson of St. Mark’s Episcopal Church at UNL said the issue is more complicated than that. Thompson has voiced opposition to the death penalty and voted to retain the bill. “I think of those passages where Jesus says, ‘Forgive your enemies, forgive those who have abused you, pray for them,’” Thompson said. “That doesn’t suggest to me putting them to death is part of the Christian way of life.”
But voting to reinstate capital punishment doesn’t make a Christian a hypocrite, he said. “You could hold religious beliefs and still vote in favor of keeping the death penalty,” Thompson said. “I don’t think that one thing necessarily leads to the other.” The complexity of the issue is one reason for the divide among Christians, Thompson said.
Plus, conversation about the death penalty doesn’t crop up much in day-to-day life, said the Rev. Steve Mills of St. Thomas Aquinas Catholic Church. While Mills is against capital punishment, it’s a low priority on his list of things to preach about, he said. “I know the church will speak about [the death penalty], but I don’t think the church has a huge push with it,” Mills said. “I think that’s kind of where it’s not clearly articulated frequently. It just comes up around election time.”
But not all pastors at UNL are against the death penalty on religious grounds. The Lutheran Church-Missouri Synod and the Southern Baptist Convention are two groups that favor it. Pastor Bill Steinbauer of the University Lutheran Chapel, a Missouri Synod church at UNL, said he rarely discussed capital punishment this fall, although politics was a hot topic. “I think when Christians tend to argue over things, this isn’t one of them,” Steinbauer said. “It’s one more of those things where we can agree to disagree. I don’t see that as being a big, divisive thing.”
He’s against the death penalty for reasons not found in the Bible. “I’m not morally against it; my reasons for being against it are more practical,” he said. “Based on the reading of Scripture, the Bible allows for the government to have capital punishment. But I would also say that it’s somewhat of a case-by-case thing too. If the government is undeniably corrupt and the government is enacting injustice upon people even through the use of the death penalty, no Lutheran pastor would stand up and say, ‘Hey, that’s perfectly OK.’”...
UNL student David Magnuson supports the government’s ability to pass punishment. “You know, it is wrong for someone to kill someone, even in retribution; that’s always wrong, but that doesn’t apply to governments,” Magnuson said. “The government is not a person; it is a higher entity, and its role is to be just through laws.” The senior criminal justice major is active both religiously and politically, serving in UNL’s Reformed University Fellowship youth group and interning for Nebraska Attorney General Doug Peterson....
Magnuson grew up in a non-denominational church in Texas, a state where he says “every Christian supports the death penalty.” “Here, it is different, and I’ve met people who don’t support it,” Magnuson said. “It’s a very complex issue, and it’s not a good topic. [But] I think the worst crime you can do is kill someone.” Magnuson said he rejects the argument that it’s cheaper to have a criminal spend life in prison. “Just paying for an inmate in prison is such a strain on society,” he said. “You’re paying to keep them alive. I think we should just kill them, and kill them fast. That’s what we do in Texas, and I think it’s great.”
The best argument he’s heard against the death penalty is that it gives inmates time to find God. But he said the death penalty can’t “stop God’s plan.” “It’s not the government’s role to play Jesus; It’s not,” Magnuson said. “That’s people’s role to play Jesus, and obviously, if we were in a perfect world, we wouldn’t deal with this problem.”
Monday, December 05, 2016
Is Georgia really "rushing" to execute a defendant convicted of murder in 1990?
The question in the title of this post is prompted by this new New York Times commentary authored by Norman Fletcher, who "served on the Supreme Court of Georgia for over 15 years and was its chief justice from 2001 to 2005." The NY Times gave this commentary the headline "Georgia’s Dangerous Rush to Execution," but the first sentence of the commentary states: "Tomorrow, the State of Georgia intends to execute William Sallie, who was convicted of killing a man in 1990." Though there could be many problems with Georgia's capital system, conducting an execution 26 years after a capital conviction does not seem to me like a "rush job." That lingo aside, here is what former Justice Fletcher goes on to explain in his commentary:
I served as a justice on the Supreme Court of Georgia for over 15 years. During that time I participated in dozens of death-penalty cases and affirmed many of them. That experience, though, exposed me to some of the significant flaws in the system — not just the injustice of the death penalty itself, but specific problems with the way capital cases are handled. Mr. Sallie’s case is a prime example.
Perhaps the biggest problem with Georgia’s system, and one of the reasons the state carries out so many executions, is that it often fails to provide people with lawyers. Mr. Sallie, for example, missed a filing deadline for a federal review of his case by eight days, in part because he didn’t have a lawyer at the time to help him. And this isn’t just a delay tactic; he has several strong claims about constitutional failings during his trial that, if proved, could require the reversal of his conviction. As things stand, he will be executed without review.
Fundamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier.
I saw this firsthand as the presiding justice on the State Supreme Court in 1999, in an appeal of a post-conviction hearing for a man named Exzavious Gibson, who was 17 at the time of his crime. It was a critical proceeding, where a lawyer should have raised important details about whether he received adequate representation during his trial — except that, ironically, no volunteer attorney was available. Mr. Gibson, who was poor and apparently, from the records, intellectually disabled and afflicted by acute mental health problems, was forced to represent himself.
That sham of a proceeding is one of the most deplorable vignettes in Georgia’s legal history. But a majority of my fellow justices were less moved, and the court decided, 4-3, that people with death-penalty convictions have no right to counsel at that critical post-conviction stage — a ruling still in force today.
As a result, a door that would have been open to Mr. Sallie in almost any other state was closed to him in Georgia. If it were open, he would be able to present the facts about his trial, which appear to show serious problems with juror bias.
Mr. Sallie’s lawyers amassed volumes of public records and witness statements showing that one of the jurors, despite having a known bias, apparently misled the trial judge and the parties in order to join the jury. (She omitted vital, likely disqualifying information, including striking similarities between her traumatic history of divorce and interstate child custody fights and the domestic strife at the center of Mr. Sallie’s case.) In 2012, after his conviction, she bragged to an investigator that she had persuaded the jury, which was evenly divided between life and death, to vote unanimously for death.
The problem is not just Georgia. The United States Supreme Court has not ruled that the Constitution guarantees a right to an attorney during the critical post-conviction review stage in state courts. Georgia continues to deny counsel — and denies a man like William Sallie the opportunity to defend his life.
Anyone interested in SCOTUS speculating after Ohio repeat execution case again left in limbo?
The question in the title of this post emerges from the latest SCOTUS order list here, which does not mention in any way Broom v. Ohio. This accounting of Broom from SCOTUSblog's most recent Relist Watch will remind readers why I am paying (too?) much attention to this case:
Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.
(relisted after the November 4, November 10 and November 22 conferences)
For the first few relists in early November, I was speculating that the Justices were waiting for one or more of them (e.g., Justices Breyer and Ginsberg and ____) to complete a dissent from the denial of certiorari. But now that this unique (and not-so-complicated) case has been in front of SCOTUS for well over a month, I am starting to think the Justices are inclined to hold on to this case until a replacement for Justice Scalia is named; once that new possible Justice is named, the current Justices can and will all have a better sense of whether and how the new Justice might break a possible 4-4 tie in this case.
Before urging readers to check out all the prior posts linked below (and others), I cannot help but flag a phrase in this post from Sept 2009 when Ohio first tried to move forward with a second execution attempt: "it is hard to predict if and when and how the US Supreme Court will be brought into this fray." It is perhaps worth recalling that this phrase was written when Justices Scalia, Souter and Stevens were all on SCOTUS. Now, a (lucky?) seven years later, we have Justices Kagan and Sotomayor and an open seat.
Related posts (most from 2009) on botched Broom execution attempt and its aftermath:
- Ohio struggling, legally and practically, with effort to execute offender
- Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
- Notable reactions in national and local papers in response to Ohio's "unexecuted"
- Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
- Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details)
- Specifics and predictions concerning stay of Ohio's effort to re-execute Broom
- "Does failed execution attempt mean Ohio prisoner can avoid death penalty?"
- Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt
Friday, December 02, 2016
Should I be more troubled by Dylann Storm Roof being allowed to defend himself at his federal capital trial?
The question in the title of this post is prompted by this intriguing commentary authored by Chandra Bozelko and headlined "Dylann Roof shouldn’t be allowed to act as his own lawyer." Here are excerpts:
Dylann Roof, the avowed white supremacist accused of killing nine black parishioners at a historic Charleston, South Carolina church last year, is a 22-year-old man with a presumed history of drug use. He did not graduate from high school. He could be sentenced to death if a jury finds him guilty. And yet he is acting as his own lawyer to defend himself against 33 federal charges of murder and hate crimes.
Roof is representing himself in court against the advice of the presiding judge, Richard Gergel. And by doing so, Roof will likely go the way of other self-represented defendants like Joan of Arc, Jesus, Socrates and Ted Bundy: he’s probably going to be convicted and killed.
But what many people don’t understand is that the judge had no choice but to let Roof represent himself. Since the Supreme Court decided Faretta v. California in 1975, the right to represent oneself is absolute regardless of intellect or educational attainment. Requests to relinquish counsel “…must be honored out of that respect for the individual which is the lifeblood of the law.”
Because it’s likely to be little more than a spectacular suicide, the Roof trial should get us to admit that the lifeblood of the law has clots in it. Unprepared defendants shouldn’t be allowed to represent themselves in capital trials; the Supreme Court precedent established in Faretta needs to be overturned or modified in a meaningful way.
I wasn’t as successful as Dylann Roof. In 2007, I tried to represent myself in a criminal trial but was denied, Princeton degree and two years of law school notwithstanding. The judge claimed that, because my request came after jury selection but before the start of the state’s evidence, it was a delay tactic and made my motion untimely. I hadn’t asked for a continuance and was prepared to start right away.
I had a lawyer forced upon me, one who admitted she hadn’t read the police reports and went on to advise the jury that there was no reasonable doubt about my guilt. I ended up being convicted of ten felonies and four misdemeanors and sentenced to five years in prison for identity theft-related crimes, but without a lawyer I might have been sentenced to the maximum on every charge consecutively, which was 185 years in jail. I wasn’t facing the death penalty and the judge assigned to my case still wouldn’t let me represent myself.
Scholars, judges and attorneys have long seen self-represented defendants as calves pulling their own leads to slaughter. Accordingly, they’ve chipped away at Faretta with decisions like the one in my case. Courts look for ways to deny requests for self-representation because they know the unfairness that can ensue. Federal circuit courts are actually split on what constitutes a valid self-representation request. The Supreme Court itself curbed the Faretta right in 2008 in Indiana v. Edwards when it held that defendants can be competent to stand trial yet not competent to represent themselves.
Whether self-representation would hurt every defendant who engaged in it is debatable. The limited evidence we have on the number of self-represented defendants who win is encouraging. But many of those successes come in cases where lethal injection isn’t a possible penalty. Every self-represented person in a capital case has lost.
And yet we still allow defendants like Dylann Roof to act as their own attorneys, despite their obvious inability to do so.... Saying that minimally educated or mentally ill criminal defendants who face lethal penalties must be free from government intrusion in the form of counsel is the same thing as saying suicide is part of individual liberty. While it may be true, it contradicts our country’s alleged respect for life. What is judicially permissible may not be moral....
Removing self-representation as a possibility in capital cases could and should be corrected for with some type of minimum standards for capital defenders.... This denigration of the right to effective assistance of counsel is what makes it easy to allow defendants like Dylann Roof to represent themselves. If appointed counsel won’t do much better, why not let people exercise their rights under Faretta and get themselves killed? Especially when the trial will add glorious sound bites and scenes of an allegedly racist killer getting to cross-examine his African-American victims.
In the name of individual liberties that we’ve already stopped protecting, we will watch Roof’s slow, elaborate, taxpayer-funded self-harm unfold. The trial of the Charleston church shooter places us at a crossroads of Constitution and conscience. If we overturn Faretta v. California and prevent defendants in capital cases from defending themselves while providing them with qualified and paid counsel, we won’t have to choose.
I am tempted to assail many contentions in this commentary, and yet I feel I must give it some respect because it was authored by someone who seemed to have been burned by his her own inability to serve as his her own attorney. I will just comment that I always look for principles of liberty and personal freedom to guide me when I think I might be "at a crossroads of Constitution and conscience." And principles of liberty and personal freedom lead me to the view that persons who are competent should generally be allowed to represent themselves when on trial for their lives or for any other interest.
A few of many prior related posts on prosecution of Dylann Storm Roof:
- 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
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
- Intriguing capital case tussle between South Carolina and feds in Dylann Roof prosecution
- Charleston mass murderer now making mass attack on constitutionality of federal death penalty
- Feds file motion seeking to limit how jury might consider mercy in capital trial of Charleston mass murderer Dylann Roof
Wednesday, November 30, 2016
"The Coming Federalism Battle in the War Over the Death Penalty"
The title of this post is the title of this notable new paper authored by Michael Mannheimer and now available via SSRN. Here is the abstract:
From the founding of the Republic until 2002, it appears that only a single person was ever sentenced to death by the federal government for criminal conduct occurring in a State that did not authorize the death penalty for the same conduct. However, since 2002, eleven people have been sentenced to death by the federal government for criminal conduct occurring in non-death penalty States. And in the last twenty-three years, the federal government has sought the death penalty dozens of times in non-death penalty States. Such cases virtually always involve offenses historically thought of as being best dealt with at the state level. While some federal capital defendants in non-death penalty States have raised constitutional objections in their cases based on federalism principles, these objections have uniformly been rejected at the district court level. However, no federal courts of appeals has yet addressed these objections.
Currently, thirty-one States authorize capital punishment while nineteen do not. The category of non-death penalty States includes some of the Nation’s most populous, such as New York, Illinois, and Michigan. In the coming decades, it is likely that other large States, such as California and Pennsylvania, and perhaps even Texas, will abandon the death penalty. It is also likely that capital punishment will be retained in many States, particularly in the South and West, and at the federal level. Given these premises, the use of the federal death penalty in non-death States, which is now mostly a side issue in the death penalty debate, may take on more prominence. As the demand for retribution against the very worst murderers in these States continues, future pro-death penalty Attorneys General will likely bring more of these cases in federal court. Moreover, Congress may continue to expand federal jurisdiction over murders that have tenuous connections to interstate commerce. In short, we may soon see a federalism battle in the war over the death penalty.
Tuesday, November 29, 2016
Will more than just a handful of condemned murderers be impacted by latest SCOTUS review of capital punishment disability limits?
The question in the title of this post is my indirect effort to get a quantitative notion of the import and impact of the Texas case, Moore v. Texas, being heard by the US Supreme Court this morning. The folks at SCOTUSblog have this helpful round-up of some recent previews and commentaries on this case:
Today, the court will hear oral argument in Moore v. Texas, which asks whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Amy Howe previewed the case for this blog. Another preview comes from Karen Ojeda and Nicholas Halliburton for Cornell University Law School’s Legal Information Institute.
Additional coverage of Moore comes from Nina Totenberg at NPR, who notes that “the state’s test is based on what the Texas Court of Criminal Appeals called ‘a consensus of Texas citizens,’ that not all those who meet the ‘social services definition’ of ‘retardation’ should be exempt from the death penalty,” and from Steven Mazie in The Economist. In an op-ed in The Washington Post, Carol and Jordan Steiker argue that rather than “relying on the same approach to intellectual disability that Texas uses in every other context (such as placement in special education or eligibility for disability benefits),” the state appeals “court sought to redefine the condition in the capital context so that only offenders who meet crude stereotypes about intellectual disability are shielded from execution.”
Efforts by Texas to execute intellectually disabled murderers strike very close to home for me because I was actively involved in representing and trying to prevent the execution of Terry Washington back in 1996-97 when there was not yet a constitutional restriction on application of the death penalty for those with certain intellectual disabilities. I got involved in the Washington case pro bono during my last few months as an associate at Paul, Weiss, Rifkind, Wharton & Garrison in NYC. I had the opportunity to help author a cert petition to SCOTUS and a clemency petition to then-Texas-Gov. George W. Bush in which we asserted on Terry's behalf that the ineffectiveness of trial counsel and his intellectually disabilities (which were then called mental retardation) justified sparing him from the ultimate punishment of death.
Terry Washington was sentenced to death for the stabbing murder of a co-worker at a restaurant in College Station, Texas. As the case was litigated through the federal habeas courts in Texas, there was no real dispute over Terry's mental disabilities because considerable evidence from his childhood indicated diminished mental capacities and in two IQ tests after his initial sentencing to death Terry scored 58 and 69. But Terry's case was tried in the 1980s when it was not considered ineffective for counsel to fail to investigate and present mitigating mental health and family background evidence. In the words of the Fifth Circuit rejecting a final habeas appeal in 1996, counsel made "a reasonable strategic decision not to investigate Washington's mental health by retaining a mental health expert or to present evidence of Washington's mental health and family background at the punishment stage of trial." Washington v. Johnson, 90 F.3d 945 (5th Cir. July 25, 1996) (available here).
I cannot help but think of Terry Washington today because I recall drafting sections of the cert petition and clemency petition making the case for a categorical ban on the execution of persons with (as called then) mental retardation. Unfortunately for Terry, the Supreme Court would not embrace the constitutional position we pushed on his behalf until 2002 when it ruled in Atkins v. Virginia that the Eighth Amendment's prohibition on cruel and unusual punishment bars the execution of individuals who are intellectually disabled. (According to this DPIC accounting, 44 persons with intellectual disabilities were executed between 1976 and the SCOTUS Atkins ruling in 2002.) Based on the medical records and supporting evidence, I now believe that Terry would have indisputably been shielded from execution by Atkins even though Texas has been trying its best since Atkins to limit the number of condemned murderers who get shielded from execution by its holding.
Returning to the Moore case now before SCOTUS (with the Terry Washington case still on my mind), I sincerely wonder how many persons on death row in Texas or in other states are currently in the doctrinal/proof gray area that the Moore case occupies. My sense is that most defendants with obvious disabilities have had their sentences reduced based on Atkins, and this DPIC accounting hints that maybe as many as 100 condemned murderers have gotten off of death rows in many states thanks to Atkins. But in Moore it seems like evidence of disability is sufficiently equivocal and the legal standards sufficiently opaque that SCOTUS has to clean up some post-Atkins doctrinal mess. For Bobby James Moore, this is obviously now a matter of life and death. But can we know how many other of the roughly 2500 persons now under serious sentences of death nationwide will be potentially impacted by the Moore decision?
Sunday, November 27, 2016
"Oregon Death Penalty: A Cost Analysis"
The title of this post is the title of this notable research report released earlier this month. This press release from Lewis & Clark Law School provides helpful background on the report and its findings. Here are excerpts:
A new report by Lewis & Clark Law School and Seattle University offers an unprecedented financial picture of the previously uncalculated cost of capital punishment in Oregon. “Oregon Death Penalty: A Cost Analysis” shows that the costs for aggravated murder cases that result in death sentences range, on average, 3.5 to 4 times more expensive per case when compared to similar non-death penalty cases.
Lewis & Clark Law Professor Aliza Kaplan spearheaded the research effort, fueled by the fact that there was no data to answer questions about the cost of capital punishment in Oregon. Kaplan approached co-author Peter A. Collins, PhD of Seattle University’s Criminal Justice Department, to complement her legal analysis with best-in-class quantitative analysis methods, following his similar 2015 report on death-penalty cost analysis for the state of Washington.
Looking at cost data from the Oregon Department of Corrections (DOC), the Oregon Department of Justice (DOJ), and the Oregon Office Public Defense Services (OPDS) among other sources, the report also examines the role that the lengthiness of death penalty cases plays in their total costs. These cases stretch on for decades due to the constitutional and statutory requirements of appeals and reconsiderations, which increases the net litigation costs for all parties.
The report, which took more than 18 months to compile, also looks at the use of the death penalty in Oregon, which voters did away with in 1964, but reinstated two decades later. Since 1984, 62 individuals have been convicted and sentenced to death. Of those 62, twenty-eight of them are no longer on death row. Just two of these cases have 1 resulted in death (both individuals dropped their appeals and “volunteered” to be executed), four people died of natural causes while in prison, and 22 people, or roughly 79%, have had their sentences reduced.
Offering common ground for policymakers and citizens of Oregon to examine capital punishment, the report is part of a growing trend to bring better data to the work of crafting more sound public policy. For Kaplan, the report is about increasing transparency through better data. “The decision makers, those involved in the criminal justice system, everyone, deserves to know how much we are currently spending on the death penalty, so that when stakeholders, citizens and policy-makers make these decisions, they have as much information as possible to decide what is best for Oregon,” said Kaplan.
According to Dr. Peter Collins, “There are several important takeaways from this research for Oregonians. First, the evidence clearly shows that aggravated murder cases that involve the death penalty are at least three-and-a-half to four-times more expensive than aggravated murder cases that do not involve the death penalty. Second, although the death penalty is not being pursued as frequently as in the past, the average costs when it is have markedly increased. Last, it is ultimately a futile endeavor, as the vast majority of death penalty sentences are decreased to life without parole in post conviction appeals.”
Six law students at Lewis & Clark provided key assistance in producing the report, conducting extensive legal research and field interviews with professionals throughout the criminal justice system. Third-year law student and co-author of the study, Venetia Mayhew, was involved in the project since its first day. “Professor Kaplan provided me with a remarkable opportunity to delve deep into Oregon’s death penalty system and to understand the laborious and costly nature of its processes. I was most struck by the human cost it imposes on all those who participate,” said Venetia Mayhew, JD ’17, who began her work on the analysis in her first year as a Lewis & Clark law student.
Friday, November 25, 2016
New talk in New Jersey of bringing back capital punishment a decade after state abolition
The stark pro-capital punishment election results in a number of states, especially in deep blue California, has been a chief reason I now believe that any reports on the death of the death penalty are obviously premature. Another sign of these capital punishment times comes from this new local article headlined "Two N.J. lawmakers call for return of the death penalty." Here are the highlights:
Two New Jersey senators want to bring back the death penalty for what they call the "most heinous acts of murder," including terrorism and attacks on police officers. "These are extreme circumstances that are involved," said Sen. Jeff Van Drew (D., Cape May), who, along with Sen. Steve Oroho (R., Sussex), introduced legislation Monday to revive the death penalty. "But I do believe it's an option that should be there, however seldom used."
The death penalty was abolished in New Jersey in 2007. A state study commission concluded then that it cost more to sentence someone to death than life without parole, that advances in DNA testing had raised doubt about some convictions, and that the death penalty rarely was used. The last execution in New Jersey happened in 1963.... Voters in California, Nebraska, and Oklahoma favored keeping the death penalty when it was put on the ballot this month.
In New Jersey, in addition to fatalities caused by terrorism and the targeting of police officers, Oroho and Van Drew want to make the death penalty an option when a child is killed during a sex crime, multiple people are slain, or an individual already has a previous conviction for murder.
Oroho said he believes the death penalty could dissuade people such as Ahmad Khan Rahami, who is accused of setting off bombs in September in New York City, injuring 29 people, and in Seaside Park, N.J., along the course of a 5K run benefiting injured Marines. A delay in the race start prevented injuries there. The death penalty could not apply the Rahami case because no one was killed, but Oroho said the attacks illustrated the need for capital punishment. "Many people could have lost their lives," he said.
Former Gov. Jon S. Corzine ended capital punishment in 2007 after the New Jersey Death Penalty Study Commission — composed of judges, prosecutors, and others whom the Legislature asked to study the issue — advocated a ban, citing factors such as high costs. Keeping an inmate in New Jersey State Prison's capital-sentence unit cost at least $72,000 per year — $32,000 more than keeping an inmate in the prison's general population, the commission said in its report. The state Office of the Public Defender also estimated in the report that eliminating the death penalty would save $1.4 million annually. The office based that figure on 19 death-penalty cases that existed in 2006, and the costs of pretrial preparation and jury selection.
Thomas F. Kelaher, who was part of the commission and Ocean County's prosecutor at the time, had his office try the death penalty on two Bronx men accused of tying up a mother and her adult son, slitting the mother's throat, and shooting both in the back of the head in a Barnegat home in 2000. Kelaher said more than 200 jurors were interviewed — mostly about whether they supported the death penalty — before 14 were selected. "It took us a long, long time to get to the conclusion of the case, and they never got the death penalty anyway," said Kelaher, who is now mayor of Toms River. Gregory "Shaft" Buttler and Dwayne Gillispie received life sentences instead.
Had they received the death penalty, Kelaher said, appeals likely would have followed and taken up more time and resources. Kelaher called the process "a waste of time." "It never ends," he said.
West Orange Police Chief James P. Abbott, who also was on the death-penalty commission, said that it could take years for someone to be executed, and that trials and appeals cause families to relive the pain of losing a loved one. "To me," Abbott said, the death penalty is "where it belongs — in our past." The justice system, he said, also is subject to human error, which can put the wrong people behind bars.
Van Drew said concrete evidence would be crucial if the death penalty were to return in New Jersey. "DNA proof would be absolutely necessary in some way," he said. "We have to be absolutely sure that this person is guilty."
Because New Jersey has not executed anyone in over 50 years, I do not think formally making the death penalty legal again in the Garden State would actually increase the chances of an execution by any tangible amount. But I do think, for reasons partially explained in this recent post about new non-capital sentencing reforms passed in California and Oklahoma, that sophisticated and shrewd New Jersey advocates for various criminal justice reforms might consider embracing this symbolic call to bring back the death penalty in order to have a strategic "pace car" for other needed New Jersey reforms. Specifically, as the article here suggests, the New Jersey lawmakers advocating bringing back the death penalty might be uniquely willing to have DNA access and/or protections against wrongful convictions included in any bill to bring back capital punishment. Relatedly, this FAQ page about New Jersey corrections suggests as many as 1000 folks are serving life with parole sentences in the state. Perhaps a death penalty bill that specifies the "worst of the worst" killers who will be subject to capital punishment could also include provisions to make the not-so-worst killers more likely to earn parole.
Tuesday, November 15, 2016
Some sentencing question after Georgia jury verdicts of guiltly on all counts of murder, child cruelty and sexting for Justin Ross Harris
A horribly awful (and high-profile and very interesting) state criminal case resulted yesterday in a jury verdict of guilt on all counts. This new CNN article, headlined ""Jury finds Justin Ross Harris guilty of murder in son's hot car death," provides some details about the case that has prompted some sentencing questions for me. Here are excerpts (with emphasis added on points that prompt follow-up sentencing questions):
A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.
In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls. "This is one of those occasions where actions speak louder than words," Cobb County Assistant District Attorney Chuck Boring said after the verdict. "He has malice in his heart, absolutely."
The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days. Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.
Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory.
It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work. Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.
The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car. Flat out." If Cooper was visible, Boring said, "the defendant is guilty of all counts." After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.
Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life." To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.
Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument. Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors. The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."
The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography. Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car. Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.
Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.
Especially for sentencing scholars and advocates like me who worry a lot about about white criminals being treated more leniently than similarly-situated or less culpable minority criminals, I have three follow-up sentencing questions based on this case and its forthcoming sentencing in a Georgia state court:
1. Should we be troubled that the local prosecutor in this case apparently exercised his discretion not to pursue capital punishment in a case in which the white defendant was apparently guilty of intentionally boiling his 22-month son to death?
2. Should we be troubled that Georgia sentencing provisions, if I am understanding the law properly based on this "'Truth in Sentencing' in Georgia" document, requires a mandatory LWOP for an adult offender who commits two armed robberies, but only requires a mandatory 25-life for intentionally boiling a toddler to death?
3. Should we be troubled that the local prosecutor in this case, who already strikes me as unduly lenient for not even pursuing a capital charge, is now apparently willing (after a jury conviction on all counts) to exercise his discretion to seek a more lenient sentence from the sentencing judge based on the sentencing desires of the (white) wife of the murderer?
November 15, 2016 in Celebrity sentencings, Death Penalty Reforms, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)
Monday, November 14, 2016
"A comeback for the death penalty?"
The question in the title of this post is the headline of this CNN commentary authored by Austin Sarat. Here are excerpts:
For supporters of capital punishment the most consequential development was the election of Donald Trump. Trump is such a vocal and enthusiastic supporter of capital punishment that, in December of 2015, he promised members of the New England Police Benevolent Association that he would issue an executive order as president containing the "strong, strong statement" that he wants the death penalty for those found guilty of killing a police officer. "Anybody," Trump said, "killing a policeman, a policewoman, a police officer, anybody killing a police officer: Death penalty is going to happen, okay?"
Trump's election is likely to put on hold any prospect that the Supreme Court will take up Justice Stephen Breyer's recent invitation to his fellow justices to reconsider the constitutionality of capital punishment.
The results of referendum questions on the ballot in California, Nebraska and Oklahoma also brought bad news for abolitionists. Voters in California delivered a double-barreled blow. They rejected Proposition 62, a measure which would have replaced capital punishment for murder with life in prison without parole. They also approved by a narrow margin a separate measure intended to speed up executions. That measure designates special courts to hear challenges to death penalty convictions, limits successive appeals and expands the pool of lawyers who could handle those appeals.
Nebraska voters, by a margin of 61% to 39%, approved reinstating that state's death penalty one year after state legislators voted to abolish it. In Oklahoma, 66% of voters supported State Question 776 declaring that the death penalty cannot be considered cruel and unusual under the state constitution. It added a provision that "any method of execution shall be allowed, unless prohibited by the United States Constitution."
Despite these electoral victories, the likelihood of a reversal of fortune for capital punishment is remote. The high costs of capital prosecutions, serious doubts about the reliability of capital convictions, concerns about arbitrariness in death sentencing, and the difficulty of finding reliable methods of execution remain. These issues have allowed death penalty opponents to build their case state by state, appealing to public officials and offering them a different way to frame opposition to capital punishment.
Over the last decade, that strategy has led to judicial or legislative abolition in New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland, Nebraska (a decision reversed by Tuesday's referendum) and Delaware. Its success can also be seen in the dramatic drop in the number of death sentences handed out across the United States. They have been cut from 315 in 1996 to 49 in 2015. The number of executions also has declined significantly, going from 98 in 1999 to 28 last year.
These changes have occurred because abolitionists have reframed the way many judges, legislatures, and governors think about capital punishment. The focus of political and legal debates has moved from moral and philosophical abstractions toward a careful consideration of the way the death penalty works in practice. Even after the recent election, public officials can continue to oppose the death penalty by questioning whether its day-to-day practices are compatible with central American values, like due process and equal treatment....
While they did not persuade the citizens of California, Nebraska or Oklahoma, opponents of the death penalty have made substantial progress with the American public. A 2015 national survey conducted by the Pew Research Center found that 71% of Americans believed that there is some risk that an innocent person will be put to death and only 26% thought that there are adequate safeguards in place to make sure that does not happen. That same survey found that 52% of respondents agreed that minorities are more likely than whites to be sentenced to death for similar crimes.
Because of these concerns about the risk of executing the innocent and about racial discrimination in capital sentencing, 42% of the public now opposes the death penalty, the highest such opposition has been since 1972. Last week's electoral results are a reminder that the death penalty continues to have powerful populist and symbolic appeal, but it does not foretell a comeback for capital punishment. Abolitionists will remain on the offensive, and America still seems to be on the road to abolition.
Friday, November 11, 2016
Early thoughts on a day to be full of thoughts about the future of the death penalty
As noted in this prior post, I am so very fortunate and pleased and excited that today I will have a chance to participate in this amazing symposium being put on by Northwestern Law's Journal of Criminal Law and Criminology. The title given to the event is "The Death Penalty's Numbered Days?", and this symposium page provides the schedule of panels and speakers.
Needless to say, all the election result earlier this week surely has impacted what a lot of folks plan to say at this event, and here are three notable new article highlights aspects of the new capital punishment world order:
From BuzzFeed News here, "How Donald Trump Could Revitalize The Death Penalty: Trump could have a serious impact on the death penalty if he wanted to. Here’s how."
From SFGate here, "Suit filed to block death-penalty measure Prop. 66"
From the AP here, "With Death Penalty Back, Nebraska Looks Ahead to Executions"
In a (too tiny) nutshell, I generally do not expect too much to change jurisprudentially or practically about the death penalty in the next few years unless and until (1) states can find a steady supply of lethal injection drugs (or devise effective alternative methods of execution), and/or (2) Prez-Elect Trump and his appointees start trying to make a potent case to all Americans that much greater use of the death penalty is an essential and important ways to legally respond to the uptick in murders nationwide in the last few years.
Thursday, November 10, 2016
Did death penalty initiatives make it easier for significant prison reforms to pass in California and Oklahoma?
The sets of death penalty initiatives on state ballots this year received lots of attention, and the pro-death-penalty side received lots of voter support in both "red states" like Nebraska and Oklahoma as well as in the in "blue state" of California. (And I am very excited, as previewed here, that tomorrow at Northwestern Law I be part of a symposium that will be seeking to sort out what this means for the future of the death penalty in the US.) But, as Randy Balko notes in this Washington Post piece headlined "Believe it or not, it was a pretty good night for criminal-justice reform," the death penalty outcomes should be looked at in the context of other criminal justice reform measure that also got significant support from voters in both red and blue states. Here are excerpts from his piece with one word highlighted by me for commentary to follow:
The death penalty was on the ballot in three states last night, by way of four separate initiatives. In all of them, the death penalty won.... But it wasn’t just in red states. California voters weighed in on two death penalty initiatives — one to repeal it, and one to speed it up. The former failed, the latter passed. This is a state that Hillary Clinton won by 28 points. Americans still revere the death penalty....
But there was also a lot of good news last night. Marijuana won in 8 of the 9 states in which it was on the ballot — including outright legalization in California, Massachusetts and Nevada. Those states all went blue in the presidential race, but red states Montana, Florida, Arkansas and North Dakota all legalized medicinal marijuana. The lesson here appears to be that pot has finally transcended the culture wars, but the death penalty hasn’t. [My other blog, Marijuana Law, Policy and Reform, is where I obsess on this reality.]
There are a couple of other important reform measures that passed. Ironically, both were in states that strengthened the death penalty. California voters approved Prop 57, which expands parole (as opposed to prison) and time off for good behavior for nonviolent offenses, and lets judges (instead of prosecutors) determine whether juveniles should be tried in adult courts. And in Oklahoma, voters approved of a measure to reclassify certain property and drug possession crimes from felonies to misdemeanors. They also approved a measure that would use the money saved from reclassifying such crimes to fund rehabilitation, mental health treatment and vocational training for inmates. New Mexico voters passed a bail reform measure that, while poorly drafted, at least indicates that there’s an appetite in the electorate for such reforms.
As the question in the title of this post is meant to suggest, I do not think it "ironic" that the very different states of California and Oklahoma with very different voters acted in the same way here. Indeed, I think it quite sensible for voters to be eager to, at the same time while voting, express support for tougher sentencing for the very worst criminals (terrible murderers) and for smarter sentencing for the lesser criminals (nonviolent and drug offenders). I make this point to stress not only that (1) these results make perfect sense to "average" voters at this moment in our national criminal justice discourse, but also that (2) it was practically shrewd for politicians in California and Oklahoma to put prison reforms in front of voters at the same time they were considering death penalty issues.
1. As a matter of political mood, I suspect the "average" voter now is not too troubled by historic problems with the administration of the death penalty, largely because some recent big capital cases involve mass murderer with no concerns about a possible wrongful conviction or terrible defense lawyering. High-profile capital cases like James Holmes (the Aurora movie theater mass murderer), Dzhokhar Tsarnaev (the Boston Marathon bomber) and Dylann Roof (the Charleston Church mass murderer) have all involved crimes in which guilt seems clear beyond any doubt and in which the defendants have had the benefit of spectacular defense lawyers.
At the same time, while the "average" voter is seemingly not keen on taking the death penalty completely off the table for mass murderers like Holmes, Tsarnaev and Roof, she seems to be growing much more keen on reducing reliance on incarceration for nonviolent and drug offenders. National discussions of the expense and inefficacy of the drug war and other concerns about modern mass incarceration has, it seems, made prison reform for certain lower-level offenders politically popular even in a red state like Oklahoma.
2. As a matter of practical realities, especially in a state like California in which "tough on crime" prison initiatives have historically garnered vocal support from law enforcement groups and prosecutors and prison unions, I suspect having a death penalty initiative for the "tough-and-tougher" crowd to focus on created a window of opportunity for supporters of prison reforms to dominate the messaging for voters on "lower salience" issues like expanding parole eligibility or reducing some crimes to misdemeanors. Though I was not in California or Oklahoma to experience their initiative campaigns directly, I know just from reading Crime & Consequences that Kent Schneidegger, a very effective tough-on-crime advocate, was much more focused on Prop 62 and 66 (the capital initiatives in California) than on Prop 57 (the parole initiative that he called "Gov. Brown's Jailbreak Initiative").
November 10, 2016 in Death Penalty Reforms, Marijuana Legalization in the States, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)
Wednesday, November 09, 2016
Effective Marshall Project takes on Election 2016 and criminal justice now and in the future ... UPDATE: and another set of views via Crime & Consequences
The folks at The Marshall Project have four new articles that review and assess what this Election cycle says and suggests about the state and fate of criminal justice issues throughout the United States. Here are links to these pieces:
- The States Where Voters Decided to Give Criminal Justice Reform a Try
UPDATE: For another informed and diverse perspective on criminal justice reform stories, I always check daily Crime & Consequences in addition to The Marshall Project. Here are some of the early Election 2016 reaction posts from various folks at C&C:
Sentencing reform's (uncertain?) future after huge election wins for Republicans, the death penalty, marijuana reform and state sentencing reforms
It is now official that Republican have retained control of both houses of Congress, and it seems now a near certainty that Donald Trump will soon officially be our nation's President Elect. What that might mean for the future of federal sentencing reform will be the subject of a lot of future posts. For now, I just want to wrap up the story of dynamic state ballot initiatives in the states by spotlighting that they showcase a pretty consistent national criminal justice reform message for all local, state and national officials.
1. The death penalty still has deep and broad support in traditionally conservative states like Nebraska and Oklahoma, and clearly still has majority support even in a deep blue state like California.
4. Recreational marijuana reform has seemingly significant support in blue states after winning this year in California and Massachusetts and Nevada and probably Maine, but in the red state in Arizona it could not garner a majority this year.
Nebraska voters resoundingly rejecting its legislature's abolition of state's death penalty
Though the votes are not all in, this official Nebraska election page has enough results and those results are lopsided enough that I feel comfortable concluding that Nebraskans have decided to preserve its death penalty. The votes now in show 60% of voters deciding to repeal the legislation that abolished the death penalty in the state. Together with the similarly strong pro-death penalty vote in Oklahoma, it is certainly clear that folks in the heartland are not eager to turn away from the ultimate punishment.
Tuesday, November 08, 2016
In Oklahoma, ballot initiative on death penalty wins big and sentencing reform initiatives also win
Though hard to figure out from just looking at this official Oklahoma election page, it appears that all the sentencing ballot issues being considered by voters passed:
State Question 776 has won 66.5% to 34.5%, thereby amending the Oklahoma Constitution to guarantee the state’s power to impose capital punishment and set methods of execution.
State Question 780 has won 58% to 42%, thereby reclassifying certain state property offenses and simple drug possession as misdemeanor crimes.
State Question 781 as won 56% to 44%, thereby taking the savings from reclassifying certain offenses to fund rehabilitative programs, including substance abuse and mental health treatment programs.
Should and will SCOTUS take up Rommell Broom's constitutional claim that Ohio cannot try again to execute him after botched first attempt?
SCOTUSblog recently posted here its list of "Petitions to Watch" from the Supreme Court's scheduled conference of November 10, 2016, and all five cases on the list involve criminal justice issues. But the last of the listed petitions concerns a remarkable Ohio capital case that has been previously discussed on this blog, and is described this way:
Broom v. Ohio, No. 16-5580
Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.
I could discuss at great length not only why this case is so jurisprudentially interesting, but also why either a grant or a denial of cert at this stage of the litigation could prove quite interesting and controversial. Rather than go off on such matters, however, I will be content for now to link to some of my prior posts on this this case:
- Ohio struggling, legally and practically, with effort to execute offender (Sept 2009)
- Details on the botched Ohio execution attempt, issue spotting, and seeking predictions (Sept 2009)
- Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again? (Sept 2009)
- Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details) (Sept 2009)
- Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months (Sept 2009)
- "Ohio GOP lawmakers: Execution process can be fixed" (Nov 2009)
- Ohio finally gets its execution protocol in order (and praised) (Nov 2012)
- "Does failed execution attempt mean Ohio prisoner can avoid death penalty?" (June 2015)
- Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt (March 2016)
- "How many times should a state be able to try to execute someone without running afoul of the Constitution?" (March 2016)