Sentencing Law and Policy

Execution chambers starting to heat up for the dog days of summer

The nation's execution chambers were pretty quiet through the month of June: after a single execution in Ohio and another in Texas at the very start of the month, there was only one more execution (in Alabama) before the calender turned to July.  This past Thursday, however, Oklahoma executed a double murderer (details here from the AP), and five more executions are on tap for the next two weeks (schedule here via DPIC).

If all five of the executions scheduled for the next two weeks take place, there will have already been more executions in 2009 than took place in all of 2008.  That notable fact is mostly the result of the Baze litigation, which blocked all executions through May of 2008.  Nevertheless, if the pace of roughly six executions per month continues through the end of 2009, it is possible that the first year of the Obama Administration could end up having more executions nationwide than did any single year during the two term served by President Bush.

Some related posts:

• What might 2009 have in store for . . . the death penalty in the US?
• Noting the quicker pace of executions in Texas 
• DPIC releases year-end report on state of death penalty in 2008
• Notable second-term Presidential execution realities

Will bad facts doom a double jeopardy claim brought to SCOTUS in capital case?

This new article in the Washington Post, headlined "Va. Inmate's Lawyers Argue Double Jeopardy," raises the age-old question of whether bad facts often make for bad law.  Here are the basic details (which read almost as if they created by a screen-writer in Hollywood):

Lawyers for a Virginia inmate scheduled to die next week for killing a 16-year-old -- then bragging about it to prosecutors when he thought he couldn't face the death penalty -- are asking the U.S. Supreme Court to stop the execution.

Paul Warner Powell's lawyers argue that he was unconstitutionally convicted twice for the 1999 murder and attempted rape of Stacie Reed.   Powell, 31, was convicted in 2000 of killing Reed and raping and trying to kill her 14-year-old relative. He was sentenced to die for Reed's murder.

The Virginia Supreme Court overturned Powell's capital conviction, saying that Prince William County prosecutors failed to prove Powell tried to rob or rape Reed. In order to face capital punishment, defendants must commit other crimes against the victim or meet other aggravating circumstances.

Thinking he could no longer face the death penalty, Powell wrote a profanity-laced, taunting letter to prosecutors offering graphic detail of how he tried to rape Reed before he stabbed her three times and stomped on her throat until she quit breathing. "Do you just hate yourself for being so stupid and for (messing) up and saving me?" he wrote to Commonwealth's Attorney Paul Ebert in 2001.

Ebert threw out Powell's earlier indictment and charged him with killing and attempting to rape Reed. Powell was convicted again in 2003 and given the death penalty.

Powell's lawyers asked the U.S. Supreme Court to block the execution until it can decide whether his second capital murder charge violated the Fifth Amendment's protection against being tried twice for the same offense.  They argue that convicting Powell the second time "sets a dangerous precedent in which prosecutors now may pursue multiple attempts to secure a sentence of death."

State and federal courts have repeatedly rejected Powell's double jeopardy argument, saying that the original charge was different because he was not accused of attempting to rape Reed.

A divided federal appeals court panel once again denied Powell's claim in April, with Justice Roger L. Gregory dissenting.  Gregory called Powell's crime "atrocious" but said his second conviction amounted to double jeopardy.

"Given the explicit details revealed by Powell in his letter to the Commonwealth's attorney, one understands the strong inclination to prosecute Powell for those heinous acts," he wrote. "Yet, it is in these very cases that we must be most vigilant in protecting our long-standing constitutional guarantees."

Ebert said he didn't think the court would stop the execution because Powell was tried for two separate crimes.  "The two things have entirely different elements, entirely different facts, entirely different victims," he said. "It's not double jeopardy."

The Fourth Circuit's split decision in Powell v. Kelly, No. 08-3 (4th Cir. April 15, 2009), can be accessed at this link.

"When Governments Kill: A conservative argues for abolishing the death penalty"

The title of this post is the heading for this notable commentary by renown conservative Richard Viguerie, which appears in the July 2009 issue of Sojourners Magazine.  Here are snippets (with emphasis in the original):

The fact is, I don’t understand why more conservatives don’t oppose the death penalty. It is, after all, a system set up under laws established by politicians (too many of whom lack principles); enforced by prosecutors (many of whom want to become politicians — perhaps a character flaw? — and who prefer wins over justice); and adjudicated by judges (too many of whom administer personal preference rather than the law).

Conservatives have every reason to believe the death penalty system is no different from any politicized, costly, inefficient, bureaucratic, government-run operation, which we conservatives know are rife with injustice.  But here the end result is the end of someone’s life.  In other words, it’s a government system that kills people.

Those of us who oppose abortion believe that it is perhaps the greatest immorality to take an innocent life.  While the death penalty is supposed to take the life of the guilty, we know that is not always the case.  It should have shocked the consciences of conservatives when various government prosecutors withheld exculpatory, or opposed allowing DNA-tested, evidence in death row cases.  To conservatives, that should be deemed as immoral as abortion.

The death penalty system is flawed and untrustworthy because human institutions always are. But even when guilt is certain, there are many downsides to the death penalty system.  I’ve heard enough about the pain and suffering of families of victims caused by the long, drawn-out, and even intrusive legal process.  Perhaps, then, it’s time for America to re-examine the death penalty system, whether it works, and whom it hurts.

Hat tip: DPIC.

Why should a serial killer be offered a deal to avoid any real punishment for multiple murders?

I find this local story from California, headlined "I-5 Strangler suspect Kibbe offered plea deal," quite troublesome:

A prosecutor said Thursday that he would allow Roger Kibbe, accused of being the so-called I-5 Strangler, to plead guilty to six murders and serve life in prison rather than face the death penalty at trial.  San Joaquin County Deputy District Attorney Kevin Mayo said in court that he is preparing a plea deal he will give to the judge and the defense for 70-year-old Kibbe by the next court hearing, set for Aug. 17. "If we can reach an agreement, we will likely resolve this before trial," Mayo said.

Kibbe stands accused in the rapes and murders of six women whose bodies were dumped along the Interstate 5 corridor between Sacramento and Modesto, including at least one in San Joaquin County. The crimes date back to 1977.

Before the new charges surfaced, Kibbe was serving a prison sentence of 25 years to life on a first-degree murder conviction for killing a 17-year-old runaway in 1987 whose body was found dumped in El Dorado County. He was pulled from state prison last year and charged with killing six others: Lou Ellen Burleigh, Lora Heedick, Barbara Ann Scott, Stephanie Brown, Charmaine Sabrah and Katherine Kelly Quinones.

San Joaquin County Superior Court Judge George Abdallah in earlier hearings has urged attorneys to settle the case rather than make the victims' relatives endure the death penalty process and long appeals. He welcomed Mayo's gesture to settle. "This case has been before the court for some time," he said. "It's rather old."

Because Kibbe is already serving a life term, this proposed plea deal functionally means that he will escape any real punishment for raping and murdering six women.  Especially since a mass murderer like Kibbe seems like the poster child for capital punishment, the willingness of the prosecutor (and the apparent eagerness of the judge) to resolve this case through a plea strikes me as very misguided.

If all of the relatives of all the women murdered by Kibbe are truly eager to have this case resolved via a plea, then perhaps the deal offered here would be more understandable (though I still do not think fully justified).  But, as presented in this press report, I am concerned that it is principally the local judge and prosecutor who do not want the bother of a capital trial, and they are willing and perhaps eager to nullify the decision of Californians to have the death penalty a part of the state's criminal justice system.

Lots of notable (and notably different) state death penalty headlines

There have been a number of interesting (and quite different) death penalty stories coming from the states this week.  Here are some of the highlights as provided by these headlines and links:

• From California, "Public hearing turns into passionate debate on death penalty"

• From Florida, "Fewer from Brevard on Death Row: Numerous appeals lessen killers' sentences"

• From Georgia, "Troy Davis benefits as court recesses"

• From Missouri, "Court appoints investigator in Clemons case"

• From Nebraska, "Inmate seeks execution for 1973 killing"

• From New Mexico, "New Mexico's Death Penalty Ban Goes Into Effect"

• From North Carolina, "House committee narrowly approves Racial Justice Act; cost estimates released"

• From Ohio, "Sentence of death affirmed by high court"

It was 37 years ago today, SCOTUS jurists decided to play...

and the Justices have been in the business of regulating state administration of capital punishment ever since its ruling June 29, 1972 ruling in Furman v. Georgia (opinions available here; basics here and here). This is how Ed Whelan describes the decision in his NRO Bench Memos post today in "This Day in Judicial Activism":

In Furman v. Georgia five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale.  Each of the five justices instead issues his own opinion.  Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation.  The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.

I suspect that more than a few readers might have a different take on Furman, and I welcome any and all thoughts and insights in the comments concerning this historic ruling as it approaches middle-age.

Counting some of the economic costs of the death penalty in North Carolina

Thanks to this entry at the Death Penalty Information Center, I saw this interesting report in the Independent Weekly, which is headlined "The high cost of the death penalty: Nickel-and-dimed to death." Here are snippets from the piece:

[C]ourt fees related to capital trials, those in which prosecutors seek the death penalty for murder, cost North Carolina millions of dollars.  The costs are incurred even if the charges are reduced or dismissed.  Given the state's budget crisis, which has forced lawmakers to cut funding for education, social services and children's health insurance, money spent on pursuing death penalty cases arguably could be better used.  Nationwide, several states, including Colorado and Kansas, are considering abolishing the death penalty to save money....

Between 2001 and 2008, N.C. Indigent Defense Services cost the state an additional $36 million when prosecutors sought the death penalty instead of life imprisonment for 733 people, according to the Indy's analysis of a 2008 IDS report.  IDS is a publicly funded agency that provides private attorneys for defendants charged with capital crimes, but cannot afford a lawyer.

Several factors contribute to higher costs for death penalty cases: The state requires that capital defendants have two attorneys; there may be a greater need for expert testimony and a there is a separate sentencing phase.  "The attorneys have to treat their cases as serious capital cases, unless they're told it's not," says Thomas Maher, executive director of N.C Indigent Defense Services.  "The result is, a significant amount of money is spent on capital cases, although at the end of the day, district attorneys as a group only find a dozen in a year they even think are worthy of putting in front of a jury — and of that group, the majority don't get death."

Of the 733 defendants IDS represented who faced the death penalty, less than 3 percent — 20 — received death sentences....  Part of the reason for the extra expense in capital cases is that attorney and expert-witness fees begin accruing immediately — even if the charges are eventually dropped or reduced or the cases don't go to trial....

Earlier this month, after lobbying against the Racial Justice Act (see "District attorneys differ on Racial Justice Act," June 10), Wake County District Attorney Colon Willoughby told the Indy that analyzing the potential savings from limiting capital punishment represents a "fallacious way to make an evaluation." 

"I don't think that we ought to be trying to evaluate someone's life in terms of dollars," he said. "What we ought to be concerned about is whether it's right and sound."

Some recent related posts:

• "Opponents Focus On Cost In Death Penalty Debate"
• Great new (though still dated) examination of the death penalty and plea bargaining
• CNN now talking about the costs of the death penalty and state reforms 
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Capital case cost concerns continue to inform reform debate
• Still more discussion of the costs of the death penalty
• What might 2009 have in store for . . . the death penalty in the US?

"A chaplain's take on capital punishment"

The title of this post is the headline of this new commentary appearing in the Austin American-Statesman.  Here are snippets:

The last time I checked, seven out of 10 Texans approved of the death penalty, and not surprisingly, Texas executes more people than any other state (and for that matter, most foreign countries).  Hence, it should surprise no one that our current governor has sat by while 200 fellow human beings have been executed over in Huntsville.  If he commuted death sentences, he'd never be re-elected.

But I wonder about those pro-death penalty Texans.  Don't they know that Jesus was a victim of the same state-sanctioned murder to which we've become so tragically inured here in the Lone Star State?  The Jewish Sanhedrin did not kill Jesus.  Rome did!  And from the very beginning of his brief three-year ministry, Jesus opposed any and all expressions of violence.

By far, the most authoritative book I've read on the subject of the death penalty was "Within These Walls: Memoirs of a Death House Chaplain," written by a fellow Presbyterian minister, Carroll Pickett.  The Rev. Pickett begrudgingly began assisting with executions back in the '70s when capital punishment was once more ruled legal.  Today Carroll Pickett travels coast to coast, advocating passionately and effectively against the death penalty, but more importantly he witnesses to the life and to the radical love of Jesus.

I think Pickett's book is a must-read for every human being who, like me, believes that all human life is sacred. Pickett has come to understand that Caesar's kind of justice all too often looks and smells a whole lot like vengeance, while for God justice is quite simply always the same thing — an incomprehensible love made public.

Some related posts on religion, politics and the death penalty:

• Reflecting on a legendary capital defendant (previewing "Jesus on Death Row")
• Candidates asked "what would Jesus do" about the death penalty
• Mitt Romney, a foolproof death penalty system, and tinkering with the machinery of death
• Fascinating NY Times piece on victims, religion and the death penalty
• Senator Brownback questions death penalty and culture of life
• Debating religion and the death penalty
• New DPIC page on religion and the death penalty
• New resource examining religion and the death penalty
• Remarkable circuit judge speech on capital punishment at mass
• Sister Prejean's powerful perspective

The still on-going struggle over lethal injection procedures in Missouri

Anyone who hoped or feared that the Supreme Court's ruling in Baze would help resolve lower court litigation over state lethal injection procedures should check out this new article from Missouri.  The piece is headlined "Mo. executions on hold because of federal review," and here are some of the particulars:

The state's incoming chief justice said Tuesday that it was unlikely any executions would be scheduled in Missouri while the courts assess an inmate's lawsuit challenging the state's lethal injection procedure.

Executions had been on hold in Missouri for four years until the state executed an inmate last month. Reginald Clemons' execution was the second scheduled in the state since the courts ruled that lethal injection in general, and the state's three-drug method in particular, was constitutional.

However, the 8th Circuit U.S. Court of Appeals put a hold on Clemons' June 17 execution after his attorneys challenged those lethal injection procedures. They are seeking further court proceedings to ensure Missouri is using competent personnel who will not cause inmates pain with insufficient amounts of anesthesia before lethal injections.

A federal decision in the Clemons case could apply to all Missouri inmates facing execution, incoming Chief Justice William Ray Price Jr. said, so it is unlikely any more would be scheduled. "We're back on hold," Price said in an interview with The Associated Press....

Of the 35 states that allow the death penalty, executions also are effectively on hold because of court cases or moratoriums in California, Delaware, Illinois, Maryland, Nevada and North Carolina, according to the Washington, D.C.-based Death Penalty Information Center. Missouri, once a leading death penalty state, had conducted no executions from October 2005 until this May.

Price said the Missouri Supreme Court has "tried to move as expeditiously as possible" in setting executions but has been slowed by the federal courts. "We can't help that," he added.

In 2006, a federal judge declared Missouri's lethal injection process unconstitutional after the surgeon who was overseeing executions testified he sometimes transposed numbers and operated without written procedures or supervision.

The Missouri Department of Corrections responded by adopting written procedures detailing the precise amounts and order of the chemicals to be injected. A federal judge upheld the protocol in 2008, and the state Supreme Court in February upheld the process by which Missouri adopted the execution procedures.

Clemons' attorneys argued before the 8th Circuit in February that the state has not shown that it can carry out the procedures correctly. The court, which has not yet ruled on the appeal, granted a stay on June 5 without giving a reason.

"Death penalty decisions loom for Barack Obama"

The title of this post is the headline from this new article at Politico.  Here are excerpts from the start of a lengthy and informative article by Josh Gerstein:

For the first time in his career, President Barack Obama may soon confront one of the most weighty and unsavory decisions that a chief executive must make, whether to put a murder convict to death.

The decision could land on Obama’s desk within a matter of months, due to cases winding their way through the federal courts.  And while Obama is on record supporting the death penalty for particularly heinous crimes, that’s a far cry from deciding whether a specific man’s life should be taken or spared.

“The death penalty in the abstract is one thing.  The reality of the death penalty and all of its nasty details is a very different thing,” said Dianne Rust-Tierney of the National Coalition Against the Death Penalty.  “This is something that this president is not the only one to face….  Having seen this thing in practice, you see it as a very different animal.”

Already, with little press attention or protest from the anti-death penalty camp, Attorney General Eric Holder has authorized federal prosecutors to seek the death penalty for at least four defendants since Obama took office.  In all, 55 men and two women are on federal death row, death-penalty opponents say.

But the timing of Obama’s first death-penalty decision is likely to be dictated by a case pending in Washington, involving six federal death-row inmates at most imminent risk of execution.  Their sentences were stayed by a federal judge, who is deciding whether to let their executions proceed, despite their challenge to federal execution protocols.

The cases involve three members of a Richmond, Va., gang sentenced to death in 1993 for drug-related murders; two men sentenced to death for abduction, sexual assault and murder of a 16-year-girl; and another man convicted of killing a prison guard.  All six defendants are black.

If the stay is lifted and execution dates are set, any of the men could ask the president to step in. And clearly, death-penalty opponents hope they have a sympathetic ear in Obama, despite his support for the limited use of executions.  They hope he will try to impose more safeguards in federal capital cases, and even spare some prisoners.  And they note that Holder once authored a ground-breaking federal study that found racial disparities in death penalty cases.

Lots of interesting discussion in Second Circuit's refusal to go en banc in federal capital case

The Second Circuit in a brief order today in US v. Fell, No. 06-2882 (2d Cir. June 17, 2009) (available here), denies en banc review of a federal death sentence.  That simple decision generates a 35-page concurrence from Judge Raggi and a 24-page dissent from Judge Calabresi (and two other small dissents). 

The work by Judges Raggi and Calabresi cover a wide array of important and interesting issues ranging from capital jury selection to prosecutorial discretion.  Because I am on the road, I do not have time to comment on their debate beyond calling it a must-read for all sentencing fans.  (Also, SCOTUS fans might also take note of the fact it appears that Judge Sotomayor opted not to join any of these opinions commenting on the denial of en banc review in Fell.)

"Majority of Leading Criminologists Find Death Penalty Does Not Deter Murder"

The title of this post is the heading to this new entry at the Death Penalty Information Center based on the publication of a new article now appearing in the Journal of Criminal Law and Criminology titled "Do Executions Lower Homicide Rates? The Views of Leading Criminologists."  Here is the DPIC entry with links to more details:

Eighty-eight percent of the country’s top criminologists do not believe the death penalty acts as a deterrent to homicide, according to a new study published June 16 in Northwestern University School of Law’s Journal of Criminal Law and Criminology authored by Professor Michael Radelet, Chair of the Department of Sociology at the University of Colorado-Boulder.  The study, “Do Executions Lower Homicide Rates? The Views of Leading Criminologists,” concludes: “Our survey indicates that the vast majority of the world’s top criminologists believe that the empirical research has revealed the deterrence hypothesis for a myth … [T]he consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.”

Read the study here and the press release from DPIC here. 

Lots of headlines about lots of death row delays

This morning brings a number of notable article discussing the long wait of death row for condemned defendants in various states:

• From the Chicago Tribune here, "Indiana executions at slowest pace in 15 years"

• From the Deseret News (Utah) here, "Lengthy death-row appeals targeted"

• From the San Francisco Chronicle here, "Legal stalling is packing Death Row"

Ohio — aka the Texas of the north — setting busy execution schedule

Though not historically a state with lots of executions, Ohio in recent years has been one of the most active death penalty states.  And, as detailed in local articles here and here, the "pace of executions in Ohio has become so brisk that the Ohio Supreme Court plans to slow it down a tad."  

As indicated in this order denying a stay for a defendant who is scheduled to be executed next month only a week after another scheduled execution, the Ohio Supreme Court indicated that "[i]n general, future execution dates will be scheduled in order that at least three weeks will lapse between scheduled executions."  And, as reporting in this AP feature, an additional four Ohio executions are also scheduled for later in 2009. 

If all seven executions go forward in Ohio, the state will have a (not-quite-)record-setting number of executions in a single year in a state not named Texas.  I also think the Ohio would be setting a record for the number of executions in a state with a Democratic governor.  In addition, if a few more states also keep their execution chambers busy, the first year of Obama's presidency might, remarkably, end up having more execution than any year in which George W. Bush was president.

UPDATE:  In the comments here, a few folks have rightly noted that  Missouri, Oklahoma and Virginia have all executed more than 7 defendants in a single calender year (though I am not sure if any of those states had Democratic governors in those years).

"California can't afford the death penalty"

The title of this post is the headline of this op-ed authored by a former California Attorney General and district attorney, John Van de Kamp.  Here is how the opinon piece starts:

There are many reasons why people object to the death penalty. Opponents point to the ever-present risk of wrongful conviction.  They note that there's bias against people of color and low-income defendants, as well as geographic disproportionality in its administration.  And there's the fact that most other civilized societies around the world have concluded that it should be abolished.

But these days, there's also a strong economic argument for doing away with capital punishment. With California facing its most severe fiscal crisis in recent memory -- with draconian cuts about to be imposed from Sacramento that will affect every resident of the state -- it would be crazy not to consider the fact that it will add as much as $1 billion over the next five years simply to keep the death penalty on the books.

Here's the math. Today, California has 678 offenders on death row, more than any other state. Yet, in the last 30 years, we've had only 13 executions.  With 20 more people sentenced to death each year -- and an average wait of 25 years from sentencing to execution -- the number of inmates on death row is continuing to climb.

Now consider what capital punishment costs.  According to the final report of the California Commission on the Fair Administration of Justice, which I chaired from 2006 to 2008, the cost of a murder trial goes up by about half a million dollars if prosecutors seek the death penalty. Confinement on death row (with all the attendant security requirements) adds $90,000 per inmate per year to the normal cost of incarceration. Appeals and habeas corpus proceedings add tens of thousands more.  In all, it costs $125 million a year more to prosecute and defend death penalty cases and to keep inmates on death row than it would simply to put all those people in prison for life without parole.

On top of that $125-million extra cost per year, California is also facing the need to build a new death house for death penalty inmates at an estimated cost of $400 million.

Some recent related posts on the costs of capital punsihment:

• Georgia struggles to pay for a costly capital system
• The challenging economics of death causing problems in Chicago
• Great new (though still dated) examination of the death penalty and plea bargaining
• CNN now talking about the costs of the death penalty and state reforms 
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Capital case cost concerns continue to inform reform debate
• Still more discussion of the costs of the death penalty
• "Opponents Focus On Cost In Death Penalty Debate"
• What might 2009 have in store for . . . the death penalty in the US?

Bill addressing capital racial injustice making progress in North Carolina

More than two decades ago in the famous McClesky case, the Supreme Court suggested it was less able than legislatures to address systemic racism in the application of the death penalty. As detailed in this local article, headlined "Committee OKs bill meant to help defendants challenge death penalty," it appears that North Carolina's legislature is now moving forward on this project:

A bill that would establish a new pro�cedure for defendants to challenge the use of the death penalty advanced yesterday in the General Assembly.

The bill, known as the "North Carolina Racial Justice Act," was approved 7-5 by a committee in the state House.  It now moves to a different committee before coming up for a vote in the full House.  The Senate passed a previous version of the bill last month.

Supporters of the bill say it would give defendants and death-row inmates clear legal channels through which they could argue that the application of capital punishment was racially motivated, either on the part of a prosecutor who sought the death penalty or on the part of a jury that imposed the death penalty.  "It takes steps toward eradicating the problem of racial bias in the capital-punishment process," said Jeremy Collins, the campaign coordinator of the N.C. Coalition for a Moratorium....

Opponents say that the bill, while well-intentioned, goes too far because it would allow defendants to use statistical evidence from previous cases to show racial bias.  For instance, if a black death-row inmate proved that, in his county, other black defendants were significantly more likely than white defendants to be sentenced to death, that would be enough for a judge to throw out the inmate's death sentence.  The sentence would be converted to life in prison without parole.

State Rep. Sarah Stevens, R-Surry, argued yesterday that statistics can be misleading.  Simply showing racial disparities in overall death sentences is not an accurate picture, she said. "Who's committed the crimes?" Stevens asked.  "How many of the white race have created this murder? How many of the black race have created this murder?"

I know that Kentucky has an interesting death penalty racial justice act on the books, though I am not aware of much (any?) capital litigation it has impacted.  Similarly, I am not aware of many (any?) other states that have been working legislatively on these issues despite McClesky's shout out to state legislatures.

Looking at a case in which SCOTUS will look at Alabama's death penalty

This week's installment of Adam Liptak's Sidebar column in the New York Times is headlined "Death Penalty Case Reveals Failings," and it examines a capital case from Alabama now before  the Supreme Court.  Here are excerpts:

Kenneth B. Trotter had been practicing law for less than a year when an Alabama judge appointed him to assist two more seasoned lawyers in defending a man facing the death penalty.  After the man, Holly Wood, was convicted in 1994 of murdering his former girlfriend, Mr. Trotter led the effort to persuade the jury to spare his life.  The young lawyer came up just short: the jury recommended death by a vote of 10-to-2, the minimum allowed under Alabama law.

Mr. Trotter failed to pursue or present evidence that his client was mentally retarded, though he had a competency report in hand that said as much.  In September, a divided three-judge panel of the federal appeals court in Atlanta ruled that he had made a strategic decision, not a grave error....

Last month, the United States Supreme Court agreed to hear Mr. Wood’s case.  It will give the court a glimpse of Alabama’s capital justice system, which is among the most troubled in the nation.  The state lacks a public defender’s office, elects judges for whom death sentences are a campaign promise, pays appointed lawyers a pittance and sometimes leaves death row inmates to navigate the intricacies of post-conviction challenges with no lawyers at all.

The root problem is money, said Bryan Stevenson, the executive director of the Equal Justice Initiative of Alabama, a nonprofit law firm that represents poor people and prisoners.  The lawyers appointed to represent Mr. Wood in 1994 were entitled to a maximum of $1,000 to prepare for the penalty phase of the trial. “It ought not be a shock to anyone that you get this kind of defense with that kind of funding,” Mr. Stevenson said. “The poor quality of indigent defense is still the ugliest scar on capital punishment in America.”

"U.S. May Permit 9/11 Guilty Pleas in Capital Cases"

The title of this post is the headline of this article in today's New York Times. Here are a few highlights from an article that highlights the fascinating interplay of capital punishment and plea practicies:

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques.  It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom.

The proposal, in a draft of legislation that would be submitted to Congress, has not been publicly disclosed. It was circulated to officials under restrictions requiring secrecy.  People who have read or been briefed on it said it had been presented to Defense Secretary Robert M. Gates by an administration task force on detention.

The proposal would ease what has come to be recognized as the government’s difficult task of prosecuting men who have confessed to terrorism but whose cases present challenges.  Much of the evidence against the men accused in the Sept. 11 case, as well as against other detainees, is believed to have come from confessions they gave during intense interrogations at secret C.I.A. prisons.  In any proceeding, the reliability of those statements would be challenged, making trials difficult and drawing new political pressure over detainee treatment.

Some experts on the commissions said such a proposal would raise new questions about the fairness of a system that has been criticized as permitting shortcuts to assure convictions.  David Glazier, an associate professor at Loyola Law School in Los Angeles who has written about the commission system, said: “This unfortunately strikes me as an effort to get rid of the problem in the easiest way possible, which is to have those people plead guilty and presumably be executed.  But I think it’s going to lack international credibility.”

The draft legislation includes other changes administration officials disclosed last month when President Obama said he would continue the controversial military commission system with changes that would increase detainees’ rights.  It is not known whether the White House has approved the proposed death penalty provision.  A White House spokesman declined to comment.

The provision would follow a recommendation of military prosecutors to clarify what they view as an oversight in the 2006 law that created the commissions.  The law did not make clear if guilty pleas would be permitted in capital cases.  Federal civilian courts and courts in most states with capital-punishment laws permit such pleas.

But American military justice law, which is the model for the military commission rules, bars members of the armed services who are facing capital charges from pleading guilty. Partly to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty.

The challenging economics of death causing problems in Chicago

This local public radio segment from Chicago, headlined "State's Attorney Will Continue Seeking Death Penalty," provides a windy city perspective of the challenges of death penalty administration during tight economic times. Here is the lead in to the segment:

Prosecutors in Cook County say they will continue seeking the death penalty. That's in response to a request from the public defender's office to take the option of capital punishment off the table. The public defender says his office has run out of money used specifically to defend clients facing the death penalty. Sally Daly is with the state's attorney's office. She says a lack of money is no reason to change the judicial process.

Some recent related posts on the costs of capital punsihment:

• Georgia struggles to pay for a costly capital system
• Great new (though still dated) examination of the death penalty and plea bargaining
• CNN now talking about the costs of the death penalty and state reforms 
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Capital case cost concerns continue to inform reform debate
• Still more discussion of the costs of the death penalty
• "Opponents Focus On Cost In Death Penalty Debate"
• What might 2009 have in store for . . . the death penalty in the US?

Two notable new death penalty papers

These two new papers from SSRN concerning the death penalty look worthy of some attention:

Science and the Death Penalty: DNA, Innocence, and the Debate over Capital Punishment in the United States by Jay Aronson & Simon A. Cole

Abstract: The death penalty debate in the United States has recently undergone a fundamental shift. The possibility of executing the innocent has emerged as some abolitionists’ most salient argument, displacing debates over such issues as fairness, deterrence, and cost. Innocence has managed to move to the fore of the debate in part because of the epistemological certainty attached to one particular kind of postconviction exoneration, one vouched for by the authority of DNA evidence.  We suggest that such rhetorical moves draw upon the epistemic authority of science as lever with which to challenge law’s claims to truth-making authority.  A few abolitionists and other scholars have expressed misgivings about the abolitionist embrace of the innocence argument. We push this concern further, suggesting that both abolitionists and death penalty reformers, who seek to promote a “scientific” death penalty centered on DNA evidence, draw upon a mythologized notion of “science” as a producer of epistemic certainty. Paradoxically, this association of science with certainty is inconsistent with contemporary notions of science as characterized by efforts to measure, manage, but always acknowledge, uncertainty.

The Deterrent Effect of Expansions in Death Penalty Eligibility Criteria by Michael Frakes & Matthew Harding

Abstract: Homicides must possess certain characteristics before they become eligible for capital punishment. Over the last several decades, virtually every state has added to its list of possible eligibility criteria. We draw on this rich set of eligibility-law variation to identify the deterrent effects ensuing from expansions in the reach of capital punishment.  Eligibility expansions may deter future homicides through two channels: (1) by paving the way for more death sentences and executions and (2) by providing prosecutors with greater leverage to secure enhanced sentences (capital or non-capital). The former channel is only rarely implicated, confounding the ability to identify deterrent forces.  The latter channel, on the other hand, is likely to be triggered on a fairly common basis.  We focus on the provision most responsible for the within-state variation in eligibility laws and estimate that the adoption of a law making child murders specifically eligible for capital punishment is associated with an approximately 19% reduction in the rate of homicides of youth victims.  In two key falsification exercises, we find no evidence to suggest that this estimate is reflective of a differential trend between treatment and control states that originated in the period prior to the eligibility expansions and we estimate no corresponding association between child-murder eligibility laws and adult homicide rates.  We estimate deterrence findings of similar magnitude when we turn to the estimation of an empirical specification that draws on variations in the full set of eligibility criteria and that parameterizes general eligibility statutes using a simulated measure of the propensity of each state to extend capital eligibility to a given murder. However, the findings of this general deterrence investigation are relatively noisy and are not robust to the exclusion of the child-murder factor from the simulation analysis.