Sentencing Law and Policy

How many have sought off death row using Atkins?

Thanks to How Appealing I saw this intriguing article in the Cleveland Plain Dealer headlined, "Six felons ruled retarded are spared execution."  Here are snippets:

Six men are likely to die in prison, but not at the hands of an executioner.  They were removed from Ohio's death row because they are mentally retarded and judges ruled they qualified under a 2002 U.S. Supreme Court ruling that it is cruel and unusual punishment to execute retarded inmates....

Five other men on death row say they are mentally retarded, including James Were, 51, who was sentenced to death for killing guard Robert Vallandingham in the 1993 Lucasville prison riot.  The Ohio Supreme Court heard Were's arguments in February....

It is not known how many death row inmates nationwide have filed claims....

The DPIC's page on mental retardation does not have any statistics concerning the number of inmate bringing or succeeding with Atkins claims.  I would guess that hundreds of defendants have brought claims based on Atkins, but I would also guess that only some of those claimants have made it off the row.  I wonder if anyone is trying to track these matters: it would make a very interesting case-study in the practical implementation of a notable constitutional holding concerning the administration of capital punishment.

Bronx cheer for return of executions

As noted here, last night the state of Georgia brought the death penalty back to life in the US by carrying out the first post-Baze execution.  The New York Times celebrated the news with this article, tellingly headlined "As Executions Resume, So Do Questions of Fairness," and this editorial entitled "The Death Penalty Returns."  Here are snippets from the editorial:

Roughly 15 death row prisoners are scheduled to be put to death between now and October, according to the Death Penalty Information Center.  This flood of executions is the result of the Supreme Court’s ruling that upheld the constitutionality of a troubling form of lethal injection.  The next few months, as states put their machinery of death into overdrive, are an ideal time for the nation to rethink its commitment to capital punishment....

These scheduled executions come at a time when many Americans are, rightly, turning away from capital punishment.  We believe that the taking of a life by the state is in all cases wrong, but it is particularly so with the deeply flawed system that exists today.  Many defendants lack adequate legal representation at their trials, race distorts who is sentenced to death for what crimes and juries are “death qualified” — jurors with moral objections to the death penalty are removed. As the recent rash of DNA exonerations has shown, judges and juries too often sentence innocent people to death.

Georgia poised to have first post-Baze lethal injection execution

In some future macabre capital punishment version of Trivial Pursuit, the question will surely be asked what state had the first execution after the Supreme Court's lethal injection decision in Baze.   Though Texas might make for the best guess to most of the state questions in the capital punishment version of Trivial Pursuit, this AP story highlights that Georgia may be first out of the box (or should I say the first to put someone in a box) after Baze.

Of course, capital punishment trivia fans know that Utah was the first state to go forward with an execution after the last major SCOTUS-created moratorium in the 1970s.  But can anyone name (without looking this up at DPIC) the four other states that had executions before Texas in the late 1970s and early 1980s?  (Interestingly, Texas was the first state to conduct a lethal injection execution, but three electrocutions and a gassing took place after Utah used a firing squad to execute Gary Gilmore in January 1977 and before Texas executed Charlie Brooks through lethal injection in December 1982.)

UPDATE:  As detailed in this Washington Post story, the US is back in the execution business with Georgia's execution of William Earl Lynd's execution at 7:51 pm.

A day to focus on an execution and politics

While most of the media and political world will be focused on voting in Indiana and North Carolina, this new AP article spotlights that death penalty observers will be focused on another state:

Georgia moved forward with preparations to execute a man convicted of killing his girlfriend, who on Tuesday night could become the first inmate put to death since the U.S. Supreme Court upheld the constitutionality of lethal injection.  Barring a last-minute reprieve from the courts, William Earl Lynd will be put to death at 7 pm, making him the first prisoner executed since September, when the high court took up a challenge to lethal injection and effectively halted all executions nationwide for seven months.

For anyone who might be eager to combine their interests in politics and the death penalty, I noticed this new article in the April 2008 Virginia Law Review titled "The Supreme Court and the Politics of Death."  Here is the abstract:

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians — legislators, prosecutors, and governors — have strong institutional incentives to make death sentences easier to achieve and carry out.  The result of this vicious cycle is not only more executions, but less reliable determinations of who truly deserves the ultimate sanction.

The Supreme Court has recently begun to chart a different — and more promising — approach to death penalty reform.  In two key areas, the Court has recently reinterpreted prior constitutional doctrines in ways that seem designed to counteract death's politics.  These rules determine the type of offenses for which death is a "cruel and unusual" sanction (the Eighth Amendment's capital proportionality standard) and the quality of representation defendants must receive in capital cases (the Sixth Amendment's guarantee of effective assistance of counsel).  Each of these rules has been transformed from doctrines that had little effect on the administration of the death penalty into potent weapons for counteracting the politics of death and promoting the fairness and rationality of the capital sentencing process.

Some execution news and notes

Two notable death penalty stories have developed this afternoon:

1.  As this AP article details, a "Georgia board has denied condemned killer William Earl Lynd's clemency bid, paving the way for him to likely become the nation's first inmate put to death since the U.S. Supreme Court held that lethal injection is constitutional."  The article notes that legal appeals are still in the works, so it is still possible a stay will come along before the planned lethal injection execution scheduled for Tuesday at 7 pm.

2. As this AP story details, a "Mexican-born Texas prisoner whose death sentence set off an international dispute and a U.S. Supreme Court rebuke of the White House received an execution date Monday."  The article spotlights some of the legal issues that surely will be subject to further debate before Jose Medellin heads toward his now-scheduled the August 5 execution date.

The haze and litigation maze after Baze

The first few weeks after the US Supreme Court upheld the constitutionality of Kentucky's lethal injection protocol have been relatively calm.  But, as documented by lots of new media stories, the post-Baze legal haze and litigation maze is about to kick into high gear.

First, as detailed in this long New York Times article, "[l]ess than three weeks after a United States Supreme Court ruling ended a seven-month moratorium on lethal injections, at least 14 execution dates have been set in six states between May 6 and October."  This article provides the list of scheduled executions posted above, and it also details that "Texas leads the list with five people now set to die here in the Walls Unit, the state's death house, between June 3 and Aug. 20.  Virginia is next with four.  Louisiana, Oklahoma and South Dakota have also set execution dates."

But, as detailed in this new CNN.com story, the venerable NY Times apparently missed some of the lethal injection news that is fit to print.  According to CNN, Mississippi is trying to be the first state to conduct a post-Baze execution: "state officials [are] pushing for an execution Monday" of Earl Wesley Berry, who "came within 21 minutes of dying at the hands of the state of Mississippi in October, before the Supreme Court issued a last-minute stay."

Meanwhile, Lyle Denniston has this report at SCOTUSblog about efforts to press a new type of lethal injection argument in the Fourth Circuit: "lawyers for a Virginia inmate on Friday asked a federal appeals court to allow review of a possible one-drug approach in place of the three drugs commonly used now."  Lyle's report indicates that the Fourth Circuit "has scheduled a hearing for Wednesday, May 14."

Not to be overlooked, StandDown Texas has this effective round-up of lethal injection media stories from Virginia, Mississippi, and Arkansas. One of the Arkansas stories indicates that the state "Attorney General says he plans to send death warrants to the Governor within the next thirty days."

Though there are lots of fascinating aspects to all this news, I found especially telling and questionable these comments in the NY Times article from two well-known experts on the death penalty:

Experts say the resumption of executions is likely to throw a strong new spotlight on the divisive national — and international — issue of capital punishment.  "When people confront a new wave of executions, they'll be questioning not only how people are executed but whether people should be executed," said James R. Acker, a historian of the death penalty and a criminal justice professor at the State University at Albany....

"There will be more executions than people have the stomach for, at least in many parts of the country," said Stephen B. Bright, president of the Southern Center for Human Rights in Atlanta, a leading anti-death-penalty litigation clinic.

Call me either a realist or a cynic, but I think Acker and Bright are wrong.  Most of the executions will take place in states with a long-standing affinity for the death penalty, and thus I would be surprised if a "new wave of executions" changes dramatically any of the debates and perspectives folks have concerning the death penalty.  Given that most national politicians have been actively avoiding serious discussion of the death penalty (both before and after Baze), I do not expect a serious change in capital conversations even if we end up see a few executions every week for the rest of 2008.

• The state-specific realities of post-Baze execution timelines
• Looking at post-Baze realities in Florida
• The post-Baze uncertainty and litigation begins
• Now that Baze is out, when and where will there be the first "new" execution?
• Media round-up in wake of Baze
• Lots of praise for Baze and for capital punishment federalism

More evidence that race infects the death penalty

The New York Times has this new piece from Adam Liptak titled "New Look at Race When Death Is Sought." Here is how it starts:

About 1,100 people have been executed in the United States in the last three decades. Harris County, Tex., which includes Houston, accounts for more than 100 of those executions.  Indeed, Harris County has sent more people to the death chamber than any state but Texas itself.

Yet Harris County’s capital justice system has not been the subject of intensive research — until now.  A new study to be published in the Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.

The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.

But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.... [T]he author of the new study, Scott Phillips, a professor of sociology and criminology at the University of Denver, found a robust relationship between race and the likelihood of being sentenced to death even after the race of the victim and other factors were held constant.

His statistics have profound implications.  For every 100 black defendants and 100 white defendants indicted for capital murder in Harris County, Professor Phillips found that an average of 12 white defendants and 17 black ones would be sent to death row.  In other words, Professor Phillips wrote, "five black defendants would be sentenced to the ultimate sanction because of race."

Wouldn't it be refreshing if the MSM and others would vigorously ask the presidential candidates what they think of this new study rather than what they think of whatever comes out of the mouth of Reverend Jeremiah Wright?

Assessing the constitutional war over the death penalty

Edward Lazarus has this new piece at FindLaw, titled "Five Decades of Fighting Over the Constitutionality of the Death Penalty: What Can We Learn from This Lengthy War?". Here is how it starts:

These days, when one speaks of a "war without end," the reference is usually to Iraq.  But in the legal world, the phrase also provides an apt description of the five-decade-long fight over the constitutionality of the death penalty.

Last week's decision in Baze v. Rees, in which the Court rejected a challenge to Kentucky's three-drug protocol for carrying out lethal injections, is just the latest painful yet inconclusive battle.  Like the Court's many dozens of death penalty decisions, issued over the last 45 years, the decision in Baze ensures only that the larger war will continue and that the Court's own internal culture will continue to be one of its casualties.

Still more perspectives on the death penalty

These two items noted at How Appealing this morning provide perspective on how many different perspectives there can be on the American death penalty:

• "Cruel and Unusual History: The Supreme Court has repeatedly ignored the barbaric history of the death penalty." Gilbert King has this op-ed today in The New York Times.

• "Serial killer Daniel Siebert dies of pancreatic cancer on Alabama's Death Row; Daughter of New Jersey victim says justice not served": This article appears today in The Birmingham News.

Comment away on whose perspective seems more compelling.

What do folks think about Justice Stevens' new view on the death penalty?

Though I am still working my way through all the opinions in the the nearly 100-page Baze lethal injection ruling from SCOTUS, I am not surprised to see that Justice Stevens' concurrence is garnering special attention.  For example, Linda Greenhouse has this new piece headlined "Justice Stevens Renounces Capital Punishment."  Here are excerpts:

When Justice John Paul Stevens intervened in a Supreme Court argument on Wednesday to score a few points off the lawyer who was defending the death penalty for the rape of a child, the courtroom audience saw a master strategist at work, fully in command of the flow of the argument and the smallest details of the case.  For those accustomed to watching Justice Stevens, it was a familiar sight.

But there was something different that no one in the room knew except the eight other justices. In the decision issued 30 minutes earlier in which the court found Kentucky’s method of execution by lethal injection constitutional, John Paul Stevens, in the 33rd year of his Supreme Court tenure and four days shy of his 88th birthday, had just renounced the death penalty....

His renunciation of capital punishment in the lethal injection case, Baze v. Rees, was likewise low key and undramatic.  While reminiscent of Justice Harry A. Blackmun’s similar step, shortly before his retirement in 1994, Justice Stevens’s opinion lacked the ringing declaration of Justice Blackmun’s “From this day forward, I no longer shall tinker with the machinery of death.”  Justice Stevens’s strongest statements were not in his own voice, but in quotations from a former colleague, Justice Byron R. White, an early death penalty opponent.

When I have a bit more time to reflect on Justice Stevens' opinion in Baze, I hope to do a post putting his new views in some historical and political perspective.  For now, however, I invite readers to comment on Justice Stevens' comments.

UPDATE: It dawns on me that I ought to quote the most telling sentence in Justice Stevens' opinion in Baze, one that could (and should?) launch a thousand law review articles:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

Tracking executions worldwide

This new AP article reports on the latest execution data from Amnesty International.  Here are the details:

China reduced the number of executions it carried out last year but still executed more people than any other country in the world, Amnesty International said Tuesday in its annual report on the death penalty worldwide.

Iran remains the country with the second-highest number of executions, with 377 killings that included a man stoned for adultery, the human rights group said.  The number of American executions fell to its lowest level in about 15 years, putting it fifth in the world with 42, Amnesty officials said.

Amnesty analysts said that early in 2007 China reformed the way capital cases are handled, leading to a substantial reduction in executions. They said at least 470 people were put to death, from 1010 in 2006. But they cautioned that the actual number is undoubtedly higher, and warned that any drop may be temporary....  Amnesty reported that three countries -- Iran, Yemen, and Saudi Arabia -- put people under the age of 18 to death, the youngest a 13-year-old executed in Iran in April.

Why is the Senate wasting time with a capital counsel hearing?

As detailed here, a Senate Judiciary Subcommittee held a hearing earlier this week on "The Adequacy of Representation in Capital Cases." Senator Russ Feingold (D-WI) presided over the hearing, and here is the start of his statement at the start of the hearing:

As a result of the litigation before the Supreme Court challenging the constitutionality of lethal injection as a method of execution, there is currently a de facto moratorium on executions in this country. This presents us with an opportunity while executions are paused to take stock of one of the most serious problems still facing many state capital punishment systems: the quality of representation for capital defendants. That is the purpose of this hearing.

No disrespect meant, but why is the Senate wasting time, money and energy "taking stock" on the quality of representation for capital defendants?  Anyone and everyone who honestly assesses the operation of state capital punishment systems should acknowledge that (1) in some states, far too little time, money and energy is spent on the initial representation of defendants charged with murder, and (2) in most cases, far too much time, money and energy is spent on the appellate representation of defendants sentenced to death for the worst murders.  Rather than bothering to "take stock" of this reality, Congress should make a more serious effort to get some of the excessive resources spent seeking to impede the executions of convicted murderers redirected toward providing more defendants charged with murder better initial representation.

I am frustrated by this hearing in part because there are so many other capital issues of which the Senate should be "taking stock" during the current national execution moratorium.  The Senate could and should be using this time to seriously explore (1) humane execution methods and/or (2) whether murder rates have risen or fallen during the moratoirum period, and/or (3) the true economic costs of capital appeals in federal courts, and/or (4) whether greater use of the federal death penalty in recent years has improved capital justice throughout the nation, and/or (5) what's taking the Supreme Court so long to decide Baze.  These are all truly unclear issues that could really benefit from serious congressional attention.

Costs grind New Mexico's capital punishment system to a halt

A helpful reader pointed me to this intriguing news from the Death Penalty Information Center's website:

In a potentially far reaching ruling, a trial judge in New Mexico has barred the state from seeking the death penalty because the legislature has failed to provide adequate funding for defense representation. The state's Attorney General, Gary King, agreed that the capital prosecution cannot go forward. After finding that funding for the defense was insufficient and raised constitutional problems, King wrote, "The state now confesses the motion to dismiss filed herein and cannot in good faith under these circumstances oppose the dismissal of the death penalty in these cases." State District Judge Neil Candelaria took the death penalty off the table for Reis Lopez and Robert Young, two inmates accused of killing a prison guard, because no money was appropriated for death penalty indigent defense during New Mexico’s 2008 Legislative Session, despite a unanimous warning from the state Supreme Court. The legislative session ended in February....

The court's ruling and the agreement by the Attorney General may mean that no further death penalty prosecutions can proceed in New Mexico without legislative action.

Detailed examination of administering the death penalty in California

This article from the San Jose Mercury News details the latest doings in the on-going examination of death penalty realities in California.  Here are excerpts:

A key state justice commission Friday completed its investigation into California's death penalty, as it heads toward a mid-summer report that is expected to recommend reforms to the country's most prolific capital punishment system.  In the third and final hearing on the death penalty, the California Commission on the Fair Administration of Justice considered testimony at Santa Clara University from a range of witnesses who raised concerns about arbitrariness and the high cost of imposing death sentences, as well as the reluctance of governors to consider clemency for death row inmates.

The American Civil Liberties Union presented two thick studies to the commission, one examining geographical disparities in death sentences in California and the second the exorbitant cost of capital trials.  Nearly $11 million, the second study said, was spent on the Scott Petersen trial.

But one leading death penalty supporter cautioned the commission against eroding the death penalty laws, observing that the 20-year delays in death row appeals already have paralyzed capital punishment in California. "More likely than not, the failure to enforce California's death penalty has already killed thousands of people," said Kent Scheidegger, legal director for the conservative Criminal Justice Legal Foundation.

The "two thick studies" presented by the ACLU of Northern California can be accessed at this link.  The one focused on geographic disparities, titled "Death by Geography" (available here), asserts that "while the vast majority of California counties have largely abandoned execution in favor of simply sentencing people to die in prison, a small number of counties continue to send a large number of people to death row."  The one focused on costs, titled "The Hidden Death Tax" (available here), asserts that "California tax payers spend well over $100 million every year on the death penalty."

Effective reflections on Baze and Kennedy

Though the Supreme Court has a relatively light death penalty docket this term (which I consider a cause for celebration), the two big cases are doozies.  The Baze lethal injection case and the Kennedy child rape case could both produce very important rulings, and this new piece from The Weekly Standard highlights their import.  Here are excerpts:

This Supreme Court term marks a crossroads for death penalty jurisprudence.  For the first time since 1890, the Court is considering the constitutionality of a particular means of execution — the lethal injection cocktail currently used by most states. And it is expected to rule, in a second case, on the constitutionality of capital punishment for a crime other than murder — the rape of a child....

[T]his term's death penalty cases — Baze v. Rees, argued in January, and Kennedy v. Louisiana, due to be heard in April — could yield a deeper entrenchment of foreign mores as constitutional arbiters of punishment under our laws.  Either way, the Court could dramatically redefine the Eighth Amendment limitations on both the scope and nature of the death penalty.

Third Circuit reverses high-profile death sentence

As detailed in this AP article, a "federal appeals court on Thursday said former Black Panther Mumia Abu-Jamal cannot be executed for murdering a Philadelphia police officer without a new penalty hearing."  Here are more details from the start of the AP piece:

The 3rd U.S. Circuit Court of Appeals said Abu-Jamal's conviction should stand, but that he should get a new sentencing hearing because of flawed jury instructions. If prosecutors don't want to give him a new death penalty hearing, Abu-Jamal would be sentenced automatically to life in prison.

Abu-Jamal, 53, once a radio reporter, has attracted a legion of artists and activists to his cause in a quarter-century on death row. A Philadelphia jury convicted him in 1982 of killing Officer Daniel Faulkner, 25, after the patrolman pulled over Abu-Jamal's brother in an overnight traffic stop.

He had appealed, arguing that racism by the judge and prosecutors corrupted his conviction at the hands of a mostly white jury. Prosecutors, meanwhile, had appealed a federal judge's 2001 decision to grant Abu-Jamal a new sentencing hearing because of the jury instructions.

UPDATE: How Appealing provides some additional media links here.

The Third Circuit's habeas ruling in Abu-Jamal v. Horn is a total of 118 pages and is available at this link.  I predict that both sides seek en banc review and perhaps even Supreme Court review, so this story is not likely to end anytime soon.  And I suspect Capital Defense Weekly and Crime and Consequences in the meantime will have a lot to say about the Third Circuit panel's work here.

Great new paper on prosecutorial choices in Mizzou

This new paper from SSRN provides fitting companion reading to today's Supreme Court work in Snyder (basics here).  The piece is entitled "Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri," and here is the abstract:

This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis.  We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser crimes; and defendants are sentenced to death, not lesser punishments.

The Missouri statute gives prosecutors very broad discretion.  We estimate that at least 76 percent of the cases in the database are death-eligible under the statute.  However, prosecutors pursued capital trials in only about five percent of the cases.  Thus, death-eligible cases in which prosecutors chose not to pursue capital trials comprise at least 71 percent of the cases in the database.  Prosecutors in different counties exercise their discretion differently, leading to substantial variation in charging and sentencing practices in different counties across the state. The analysis of cases by race of victim and race of defendant shows that there are racial disparities in charging and sentencing decisions, but the racial disparities are not as significant as the geographic disparities.  The article presents measures of racial and geographic disparities without controlling for individual culpability; a follow-on study will introduce culpability measures as control variables.

SCOTUS overturns "OJ death sentence" in Snyder

As detailed here at SCOTUSblog, "Supreme Court ruled 7-2 on Wednesday that the trial judge in a Louisiana murder case — one that involved a prosecutor’s use of the O.J. Simpson case to try to help win a death sentence against a black man — was wrong in rejecting a challenge to the denial of a seat to one black juror."   Thanks to SCOTUSblog, the decision in Snyder v. Louisiana can be downloaded here.

The voting pattern may be the most interesting aspect of this ruling: "ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined."

Especially at a time when we are having a national political dialogue about race, I will have a lot of reflections on this case (and on the complexion of the Supreme Court Justices) in future posts.  For now let me make one notable observation: Senator Obama's speech yesterday mentioned O.J. (with a reference to the "OJ trial"), but did not mention Associate Justice Clarence Thomas.  I wonder how that made both Justice Thomas and O.J. Simpson feel.

Is the editorial board of the Denver Post omniscient or just obtuse?

Commenting on a Colorado bill that proposes making a second offense of child rape a capital offense, this Denver Post editorial boldly asserts in its headline that "Death penalty for rape doesn't protect children."  Tellingly, the text of the editorial is a little more nuanced on whether a capital child rape law could protect kids, and it also shows how opposition to the death penalty is a contributing factor to mass incarceration and extremely long prison sentences:

A bill pending in the Colorado Senate that would authorize a death sentence on a second conviction of raping a child could backfire by giving some of society's most vicious criminals a perverse incentive to kill their victims.

Senate Bill 195 by Sen. Steve Ward, R-Littleton, would authorize the death penalty for people who sexually assault a child 12 years or younger if DNA evidence links them to the crime.  Ward's bill also could discourage victims from reporting abuse by relatives, fearing they'd get the death penalty. The Senate Judiciary Committee amended the bill to allow the death penalty only for rapists previously convicted of a similar attack on a child. It then sent the bill to the Appropriations Committee, where it should receive a quiet burial.

The Post has historically opposed the death penalty. But even supporters of capital punishment have strong reasons to oppose this bill.  First, it endangers the very children it is designed to protect. If the penalty for rape alone is death, then a criminal vicious enough to make such a heinous attack in the first place may reason that he faces no further penalty for killing the victim. Granted, most rapists would not even think that far down the road, but why provide the incentive for those who might?

Whether or not the death penalty deters crime at all is a subject of endless debate.  But what influence the law does have should always be aimed at shielding victims from even worse harm. Colorado law already allows a death penalty for a rapist who kills his victim. By executing for rape alone, Ward's bill strips victims of whatever protection they now receive under that law.

We share Ward's outrage at the kind of sick people who would rape children — but why wait for a second such heinous offense to crack down on these criminals? Current law allows sentencing child rapists to 20 or 30 years, depending on the circumstances of the crime. If the legislature wants to get tough, why not allow a life sentence on the first offense in the worst cases and thus preclude the possibility of a second offense?  That's the best way to protect children.

This editorial, in my view, highlights everything wrong with modern death penalty abolitionist arguments:

• First, despite the usual denials by abolitionists that the death penalty could be an effective deterrent, the editorial uses a fuzzy and highly-suspect reverse-deterrence argument to contend that a capital child rape law could would hurt children. 
• Then, in an effort to save repeat child rapists from even the possibility of capital punishment, the editorial argues that other offenders (first offenders) should be subject to longer terms of imprisonment. 
• Throughout we get no real evidence or data, just false assertions and excessive confidence that life sentences (but not the possibility of death penalty) provide "the best way to protect children."

This stuff drives me crazy and, as I have tried to explain in some prior posts, may promote the worst of all possible criminal justice worlds for children and everyone else:

• Could there be symbolic and practical value in making repeat child rape a capital offense?
• Debating the policy arguments around capital child rape
• Resource page on Kennedy and the opaqueness of child rape statistics

Some new poll numbers on the death penalty

This press release reports on some new national poll numbers concerning American attitudes concerning the death penalty.  Here are some of the interesting highlights:

Over the past few years there have been many high profile cases where those on death row have been found to be innocent and some states have halted executions.  In the minds of Americans, this may have had an impact as the number of those who believe in the death penalty has declined since 2003. Currently, 63 percent of Americans believe in the death penalty while three in ten (30%) are opposed to it.  Five years ago, almost seven in ten (69%) believed in it while 22 percent were opposed to it. In 1965, when The Harris Poll first started asking this question, just under half of Americans (47%) were opposed to the death penalty while 38 percent believed in it.

These are some of the results of a Harris Poll of 1,010 adults surveyed by telephone between February 5 and 11, 2008 by Harris Interactive....

One question with regard to the death penalty is whether or not it serves as a deterrent to others. Just over half (52%) of Americans believe that executing people who commit murder does not have much effect on deterring others from committing murder. Two in five (42%) say that executing people does deter others from committing murder....

When it comes to whether people would like to see an increase or decrease in the number of convicted criminals who are executed, there is a bit of a divide among Americans. Just over one-third (36%) believe there should be an increase while one-quarter (26%) say there should be a decrease and three in ten (31%) believe there should be no change....

There is one issue almost all Americans agree on — 95 percent of U.S. adults say that sometimes innocent people are convicted of murder while only 5 percent believe that this never occurs.  This is a number that has held steady since 1999.  Among those who believe innocent people are sometimes convicted of murder, when asked how many they believe are innocent, the average is 12 out of 100 or 12 percent.  In looking at this by race and ethnicity, African Americans believe more innocent people are convicted than both Whites and Hispanics (25% versus 9% and 12% respectively).  Democrats also believe more innocent people are convicted than Republicans (15% versus 6%).

Why the #$@! is AG Mukasey speaking out against execution for 9/11 plotters and suggesting US justice is sadist?

I have never quite figured out what's going on with the Justice Department under the leadership of AG Michael Mukasey, but this new piece from ABCNews has me really scratching my head.  As reported in the piece, Mukasey is speaking out against the death penalty for terrorists accused of 9/11 involvement, even though DOJ is helping with the capital prosecution of these terrorists.  Here are excerpts from this peculiar and very troubling story:

Attorney General Michael Mukasey suggested Friday that he believes the alleged 9/11 plotters held at Guantanamo Bay should not be executed if convicted.  "I kind of hope they don't get it," Mukasey said after a speech at the London School of Economics.  "Because many of them want to be martyrs, and it's kind of like the conversation ... between the sadist and the masochist." "The masochist says hit me and the sadist says no, so I am kind of hoping they don't get it," he said.

In February, the Pentagon charged six of the 9/11 conspirators, including the alleged mastermind Khalid Sheik Mohammed. The others: Walid Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa al Hawsawi -- who the government claims is a key financier for the attacks -- and Mohammed al Kahtani, who is alleged to have been the 20th hijacker on United flight 93 but was denied entry into the United States at the Orlando International Airport....

Of those charged in connection with the Sept. 11 attacks, "one of them at least is proud enough of it to have written to his wife that he thinks he is innocent because it was only 3,000," Mukasey said. "If those are not poster children for the death penalty, I don't know who is."

Mukasey made clear the statements are his personal opinion, and heavily qualified them. "In a way, I kind of hope, from a personal standpoint, and I can say this because the military commissions will be run by the Department of Defense not by the Justice Department -- although we are participating with them, and helping them in the prosecution, but it will be run by the Department of Defense," he said.

Still, the statement seems at odds with Bush administration policy that broadly supports the death penalty.  The record suggests the administration believes capital punishment is the most appropriate penalty for terrorists convicted of killing Americans.  The administration spent years on a failed attempt to put low-level al Qaeda operative Zacarias Moussaoui to death for what critics call his murky, overstated role in the 9/11 conspiracy.

The decision on whether to pursue the death penalty against the Guantanamo Bay prisoners will ultimately be the military's, so Mukasey's comments will likely have little practical impact.  Susan J. Crawford, a Military Appeals Court judge, is the convening authority for military commissions and will decide whether alleged terrorists should face a capital case and be eligible for the death penalty.  But given that the White House likes to speak with one voice, the low-key Mukasey might prefer that his comments not draw much attention.

Correct me if I am wrong, but it seems, from this media report, that the Attorney General of the United States has suggested to a European audience that islamofacist terrorists involved in the 9/11 attacks are "masochists" and also suggested those involved in the American system trying to bring these terrorists to justice are "sadists."

For a number of reasons, I am deeply, deeply troubled that the current US attorney general would make these kind of statements to an international audience. I am sincerely hoping that this media report on the AG's comments are inaccurate, because if they are accurate I think the comments are truly scandalous and seriously risk undermining the US position in the war on terror.  His comments cannot help me wonder whether AG Mukasey was secretly glad that his Justice Department failed to get the death penalty for Zacarias Moussaoui, and whether AG Mukasey is troubled that the Iraqi justice system executed Saddam Hussein and others who committed horrendous war crimes.

Perhaps as troubling as these comments is the lack of media attention they have drawn to date.  On every channel, I see pundits complaining about provocative comments made by a man of the cloth, Reverend Jeremiah Wright.  But the significance and potential impact of one preacher's comments to his own congregation seems to be minuscule compared to the significance and potential impact of America's top law enforcement agent suggesting to an international audience that vile islamofacist terrorists who helped kill thousands of Americans are "masochists" and that those involved in the American system trying to bring these terrorists to justice are "sadists."

Perhaps I am wrong to be so taken aback by AG Mukasey's comments.  But, especially during a weekend in which so much venom is being directed toward a preacher, I cannot help but wonder why the AG's troublesome comments are not generating A LOT more attention and criticism.

UPDATE:  Over at TalkLeft, Jeralyn has this long and effective post defending AG Mukasey's comments.  Here is part of that post:

If you are a proponent of the death penalty, you'll read Mukasey's comments one way. If you oppose it, you'll be glad we have an Attorney General who at least has occasional qualms about the death penalty and isn't afraid to express them. I'm in the latter group.  I also appreciate that Mukasey is concerned about our image in the world and how others see us.

I suppose I am pleased to that Jeralyn of TalkLeft and readers of Instapundit (via these comments) seem to agree that islamofacist terrorists who helped kill thousands of Americans should not get the death penalty.  On this front, I am proud to disagree.

ANOTHER UPDATE:  Steven Banbridge provides, on Palm Sunday no less, a distinctly Catholic response here.  And I now see from this new news report that an attorney defending the suspected terrorists is not pleased that AG Mukasey is speaking out of turn:

US Attorney General Michael Mukasey said late on Friday he hoped Guantanamo prisoners charged in the Sept 11 attacks would not receive the death penalty, even though capital punishment would be fitting. His comments were swiftly denounced by a defence attorney for one of the accused and by Amnesty International, who said they could prejudice the case....

Army Lt Col Bryan Broyles, a military lawyer assigned to defend Mohammed al-Qahtani, one of the six current death penalty cases at Guantanamo, said the case was already tainted by suspected US abuse of Qahtani.  He added that it was improper for Mukasey to comment.   “I appreciate him being on my side on the death penalty thing, but I don’t need his help,” Broyles said. The Pentagon declined to comment.

Looking at the real stories of the death penalty in NYC

This morning's New York Times has this fascinating piece, headlined "Aversion to Death Penalty, but No Lack of Cases," exploring capital prosecutions in New York by federal authorities. Here are excerpts:

In the 20 years since the federal death penalty statute was revived, no federal juries have been more reluctant to sentence federal defendants to death than those in New York. According to records compiled by the Federal Death Penalty Resource Counsel Project, which coordinates the defense of capital punishment cases, federal prosecutors in New York State have asked juries to impose death sentences 19 times since 1988. In only one case did a jury rule for execution. Nationwide, federal prosecutors win death penalties about one-third of the time, according to the group’s statistics.

But despite this track record, the cases have not stopped coming: In Brooklyn alone, there are six more capital cases on the docket this year, including those of a reputed Mafioso and of two men charged with killing Guyanese immigrants to collect their life insurance policies. The first of these trials — of Gilberto Caraballo, a Brooklyn drug dealer convicted last month of murdering two rivals — will enter its so-called penalty phase on Monday.

Federal judges in New York have gone so far as to call some death penalty cases a waste of time and money. Last week, Judge Jack B. Weinstein of Federal District Court in Brooklyn told prosecutors that their chances of obtaining a death sentence against a drug dealer charged with dismembering two rivals were “virtually nil” and issued an order in which he said he was waiting for the Justice Department to reconsider whether to pursue an execution.

Officials in the federal prosecutors’ offices in Brooklyn and Manhattan, as well as the Department of Justice in Washington, declined to comment on their record in death penalty cases.

Lawyers and other experts in the field say that a variety of reasons underpin New York’s status as a tough sell in death penalty cases. They say that there is a fundamental liberal slant to juries in the state, and that New York has some of the best death penalty defense lawyers in the country. They also say many victims in New York capital cases are unsavory characters: drug dealers, mobsters or members of street gangs — not the sort of people whose killers are likely to be punished with death.

“New York has the worst batting average in the country,” said Kevin McNally, a defense lawyer in Kentucky and the director of the Federal Death Penalty Resource Counsel Project. Federal juries in Connecticut and New Jersey have never ruled for death since 1988, but only three cases have gone before juries in those two states.

A killer conference at Fordham

Staring this morning is this conference in New York on lethal injection sponsored by the Fordham Urban Law Journal.  I have the honor to be monitoring a panel on saturday morning, and here is a preview of topics to be covered:

The symposium will address a broad range of issues concerning lethal injection. Some of these issues include: The purpose of punishment and whether lethal injection adequately serves that purpose; the role of doctors in executions; the relationship between state laws governing the euthanasia of animals and the current lethal injection protocols in those states; the role of the Eighth Amendment in addressing these issues; the impact of the recent lethal injection litigation on lawyers, judges, media and the public, and the impact of the litigation on the death penalty debate as a whole.

One of the conference participants is Ty Alper, who has this effective new piece in the Harvard Law and Policy Review titled "What Do Lawyers Know About Lethal Injection?".  It concludes this way:

Putting the state’s litigators in charge of a process to address the constitutional infirmities of that state’s lethal injection procedures is not a recipe for good public policy. Nor does it allow for an appropriate level of public scrutiny of what should be a fully transparent process.

The costs of the death penalty in Maryland

Thanks to this post at How Appealing, I see that the Baltimore Sun has this notable article headlined "Death penalty costs Md. more than life term."  Here are excerpts:

The death penalty has cost Maryland taxpayers at least $186 million more in prosecuting and defending capital murder cases over two decades than would have been spent without the threat of execution, according to a study to be released today. In addition, because most death sentences in Maryland are overturned and eventually reduced to life without parole, state residents are often saddled with the high cost of a capital case and the bill for housing a convicted killer for life, the study found.

Paid for by the Baltimore-based Abell Foundation and prepared by the Urban Institute, a national, nonpartisan research organization in Washington, the study estimates that the cost of reaching a single death sentence costs the state an average of $3 million, which is $1.9 million more than a non-death penalty case costs, even after factoring in the long-term costs of incarcerating convicted killers not sentenced to death.

The report - the first to analyze the cost of capital punishment in Maryland - arrives as state lawmakers prepare to again debate repealing the death penalty. A hearing is scheduled for today in Annapolis on a Senate bill that would eliminate capital punishment as a sentencing option. A similar House bill is scheduled to be heard next week. "This is a compelling argument against the death penalty - the enormous costs to the state's taxpayers," said Rick Abbruzzese, a spokesman for Gov. Martin O'Malley, a death penalty opponent who focused on the financial costs of capital punishment when he testified last year in support of repeal. The bill was defeated by one vote in a Senate committee last year.

The top prosecutor in Baltimore County - which accounts for more capital cases than any other jurisdiction in the state - assailed the study's conclusions and its use of attorneys' salaries to calculate the cost of the death penalty in Maryland. "That is a completely worthless number, because we don't go out and hire new lawyers to try these cases," Baltimore County State's Attorney Scott D. Shellenberger said. "They get assigned to my most experienced lawyers, who will work as many hours as it takes to put the case on, and don't get any more money."

Some related posts:

• Wondering about death and dollars in Ohio and Texas
• Capital craziness and costs in Arizona
• Bills coming due for Arizona's capital craze
• The costly realities of the death penalty
• High costs of the death penalty
• New report on the costs of capital punishment
• The economic costs of capital punishment
• Confronting the costs of capital punishment

Research on capital punishment's impact on plea deals

Though the article itself is not available for free, this new posting on SSRN spotlights an issue that I have long thought critical to really understanding the death penalty's true impact on modern criminal justice systems.  The article by Ilyana Kuziemko, which comes from a recent issue of the American Law and Economics Review, is titled "Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York's 1995 Reinstatement of Capital Punishment."  Here is the abstract:

This article investigates whether the death penalty encourages defendants charged with potentially capital crimes to plead guilty in exchange for lesser sentences.  I exploit a natural experiment in New York State: the 1995 reinstatement of capital punishment, coupled with the public refusal of some prosecutors to pursue death sentences (N.Y. Penal Law § 125.25 [McKinney 1975]).  Using individual-level data on all felony arrests in the state between 1985 and 1998, I find the death penalty leads defendants to accept plea bargains with harsher terms, but does not increase defendants' overall propensity to plead guilty. A differences-in-differences analysis of a national cross-section of homicide defendants confirms these results.

Some related posts:

• Debating the death penalty as bargaining chip
• Another example of the death penalty as an effective plea bargaining tool
• First-cut reactions to the NJ report on the death penalty
• Another challenge to prosecutors' capital discretion

Is AG Mukasey going soft on the federal death penalty?

Thanks to this post at TalkLeft, I saw this local article reporting that new Attorney General Michael Mukasey is unwilling to support the toughest federal charges against a murderous drug kingpin.  Here are the basics:

Federal prosecutors say they will not seek the death penalty against Martin Carrillo, a former fugitive charged in a major drug conspiracy and killing.  The decision was announced Friday by U.S. Attorney Drew Wrigley, after he received a letter from U.S. Attorney General Michael Mukasey. Wrigley said it was a short statement by Mukasey....

Carrillo is charged with four felony counts, including death caused by use of a firearm during a crime of violence. He's one of five men accused in the death of Lee Avila of East Grand Forks, Minn.... Carrillo, who turned 21 last week, was arrested in Washington state in October, after evading authorities for about 11 months. He is one of more than 60 people charged in the case known as Operation Speed Racer....

Nine people have been considered for capital punishment in Wrigley's tenure as U.S. attorney for North Dakota.  The state's first federal death penalty verdict was handed down in 2006 to Alfonso Rodriguez Jr., convicted in the kidnapping and death of University of North Dakota student Dru Sjodin.  Rodriguez sits on death row at a federal prison in Indiana.

Authorities say Carrillo, Arandas, Martinez, Wessels and Michael Petzold were involved in the death of Avila, 28, after a dispute over the size of a shipment of methamphetamine.  Petzold pleaded guilty before prosecutors made a decision on capital punishment, and was sentenced to 30 years in prison.

Jeralyn at TalkLeft, who I think is categorically against the death penalty, seems pleased about this development:  "Could we finally be done with the Ashcroft-Gonzales era of seeking the death penalty even in the face of opposition from federal prosecutors?  We might actually be doing better than that."

I am much more troubled by this decision.  I think it sends the symbolic message that, if you kill a young white woman in North Dakota, federal authorities will seek to vindicate your death through the toughest possible federal criminal punishment, but if you kill a young Latino man in North Dakota, federal authorities will not be too concerned about vidicating your death through the toughest possible criminal punishment.  Sorry, gents, but apparently your lives are less important to the federal criminal justice system.

Playing with the economics of the death penalty

A helpful reader forwarded to me this fascinating local story headlined, "Arapahoe County DA Charges Death-Penalty Fees to the State: How does DA Carol Chambers beat the high cost of a death-penalty prosecution? By billing the prison system."  Here is how it start:

The State of Colorado has managed to execute one murderer in the past forty years.  Its death row, current population one, is among the smallest in the country.  For four years after a 2002 U.S. Supreme Court decision threw out the state's system of having three judges decide whether an inmate should be executed, not a single new capital case was filed.

Some prosecutors regard the pursuit of the death penalty in the Centennial State as an exercise in futility. Even for the most heinous crimes, they say, it's difficult to get juries to impose the ultimate sentence — and then the appeals process can drag on for a decade or more, with taxpayers shelling out millions to fund both sides of the court battle. A recent memo to Governor Bill Ritter from the Colorado Attorney General's Office says it's not unusual for the defense in a death-penalty case to file between 300 and 400 motions, all of which must be answered by the prosecution.  There are district attorneys who would rather undergo a colonoscopy with a garden hose than face such a gauntlet of budget-busting paperwork and frustration.

Then there's Carol Chambers, the maverick district attorney of the 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties.  Her office is pursuing six of the seven capital murder cases now under way in Colorado.  The crusade has drawn heat from death-penalty opponents, but it's also attracting scrutiny from the state legislature.

Using a 130-year-old statute that requires the Colorado Department of Corrections to reimburse counties for prosecuting crimes committed inside state prisons, Chambers has found an unusual way to pay for half of her death-penalty cases.  She's billed the DOC hundreds of thousands of dollars in recent months, effectively shifting the cost of trying to execute three inmates from her county-funded budget to Colorado coffers. The tactic has forced prison officials to go to state lawmakers, seeking a special fund for "payments to district attorneys," and raised questions about whether Chambers can bill the state for the entire salaries of employees in her office, including a chief deputy making $131,000 a year.

"Carol Chambers has turned her death machine into a cash cow," says attorney David Lane, an inveterate death-penalty opponent who is representing one of the prisoners facing possible execution. "I've never seen a capital case go this way. The only explanation I can see is that it's a big moneymaker for her office. Killing people is big business for them."

Chambers denies that there's any profit motive involved in her office's reinvigorated pursuit of the death penalty. "There is nothing inflated or improper about our bill to the Department of Corrections," she insists. "There is no financial incentive in the litigation."

UPDATE:  A kind reader sent me