Sunday, December 01, 2013
"Death penalty for Boston bomber a complicated question"
The title of this post is the headline of this new piece from USA Today. Here are excerpts:
The high-security wing at the U.S. Penitentiary in Terre Haute, Ind., now represents an increasingly complicated backdrop for a decision Attorney General Eric Holder is set to make in the next several weeks on whether to pursue the death penalty in the federal government's prosecution of Boston Marathon bombing suspect Dzhokhar Tsarnaev.
There is little argument about the strength of the case against Tsarnaev, charged with 30 criminal counts in connection with the blasts that killed three and wounded more than 260 others. There are photographs of Tsarnaev allegedly planting explosives at the site of one of the bombings.
Yet the government's record in carrying out the death penalty is mixed at best, and there are conflicting views about whether the often-delayed penalty is an appropriate punishment if the 20-year-old defendant is convicted in the bombing case. Since the federal death penalty was reinstated in 1988, only three offenders have been executed and none in the past 10 years....
In the case of Tsarnaev, there are other potentially complicating factors at play for the federal government in Massachusetts, a state long opposed to the death penalty. In September, less than six months after the attack, a poll commissioned by The Boston Globe found that 57% of Boston residents favored Tsarnaev's facing life in prison without parole, while only 33% supported death. The opposition, in the city deeply scarred by the bombing, crossed political lines with Democrats overwhelmingly favoring life in prison at 61%-28% and Republicans more narrowly supporting prison over death at 49%-46%.
"It's one thing for the government to be willing to impose the death penalty; it will be a lot harder to find people in Massachusetts to serve on a jury who would vote for the death penalty," said Andrew Smith, director of the University of New Hampshire Survey Center, which conducted the poll. "It's not terribly surprising given that it is Massachusetts."
Aitan Goelman, a former federal prosecutor who assisted in the Oklahoma City prosecutions, said the federal government's rarely used execution chamber reflects a system "slanted against" execution. From the mandatory pre-prosecution review to determine whether to pursue the maximum punishment to the actual prosecution, Goelman said, there are required thresholds in the federal system that don't exist in most states....
"The system seems to bend over backwards not to have executions,'' said Goelman, though he said he believes that "at the end of the day," Holder will likely certify the Tsarnaev prosecution as a death penalty case. "If you put a bomb down in a crowd, it becomes one of those cases where you say, 'If not now, when do you ever certify a case as a death penalty case?'" Goelman said.
Richard Dieter, executive director of the Death Penalty Information Center, which advocates against the death penalty, said possible considerations that could work in Tsarnaev's favor are his relative youth and whether Tsarnaev's older brother, Tamerlan Tsarnaev, may have pushed him to take part in bombings.... "Justice might approve seeking the death penalty just to keep their options open," Dieter said, referring to a possible strategy to exact a guilty plea from the defendant.
Among those who have little doubt that death should be pursued against Tsarnaev is a former top Boston police official who worked closely on the investigation. "I don't believe in the death penalty in most cases," former Boston Police commissioner Ed Davis said. "I believe it is appropriate in this case. I would caution everyone to wait until all of the evidence comes out. … There is no explanation for what happened here."
I would be very surprised if AG Holder does not approve seeking the death penalty in this case, and I will be similarly surprised if the case is not ultimately resolved through a plea deal providing for an LWOP sentence.
Some prior related posts:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- Intriguing sparring over federal capital recommendation procedure in Boston bombing case
Friday, November 22, 2013
"High Court May Clarify Rule on Impairment and Death Penalty"
The title of this post is the headline of this notable new New York Times piece which astutely recognizes that the Supreme Court may (or may not) clear up the application of its landmark 2002 Atkins Eighth Amendment ruling in a (long-overdue) follow-up Hall case being heard this Term. Here are excerpts from the piece:
The United States Supreme Court’s ruling in a Florida death penalty case, in which an inmate argued that his intellectual disability made him exempt from execution, could help answer a decade-old question in Texas and other states about how to establish whether an inmate is too severely impaired to be subject to the death penalty. “This is the courts trying to play catch-up with where the mental health community is going,” said Shannon Edmonds, director of governmental affairs at the Texas District and County Attorneys Association.
The Supreme Court last month agreed to hear the case of Freddie L. Hall, who was sentenced to death for the 1978 rape and murder of a pregnant woman and the fatal shooting of a police officer. Oral arguments are expected in the spring.
Mr. Hall’s lawyers assert that his low I.Q., his deficits in adaptive behavior and a history of a lack of intellectual abilityrender him ineligible for execution. The high court is expected to decide whether Florida’s criteria for evaluating intellectual disability in death penalty cases — similar to those Texas uses — are adequate.
In Atkins v. Virginia (2002), the Supreme Court ruled that states could not execute the intellectually disabled. The court found that a lack of brain functioning made them less culpable and more susceptible to flaws in the justice system that could lead to wrongful convictions. But it was left up to states to determine how intellectual disability would be assessed. Both Texas and Florida rely on a three-pronged evaluation that requires the defendant to have a low I.Q. and reduced adaptive function and to have exhibited both before the age of 18....
Both prosecutors and defense lawyers in Texas are looking to the high court for clarity when it comes to evaluating intellectual disability. Texas lawmakers have been unable to pass a law creating a standard, so the existing criteria come from a 2004 decision from the state’s Court of Criminal Appeals in the case of Jose Garcia Briseño. The appeals court invoked, in part, an evaluation of Lennie from John Steinbeck’s 1937 novel “Of Mice and Men,” writing that "most Texas citizens would agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution. But does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"
Defense lawyers have called the standards unscientific, and they drew national attention ahead of the 2012 execution of Marvin Wilson, whose lawyers argued that he was intellectually disabled. Steinbeck’s son Thomas described the court’s reliance on the fictional character as “insulting, outrageous, ridiculous and profoundly tragic.”
Maurie Levin, a lawyer who represents several Texas death row inmates, said the Supreme Court’s decision could result in a more scientifically sound set of standards. “The acknowledgment or possibility that they will articulate a need for a respect for scientific principles has the potential for bringing states like Texas back in line,” Ms. Levin said.
For prosecutors, Mr. Edmonds said, guidance from the high court would help them confront cases involving mental health in which the science used to assess conditions is constantly changing. “It’s like trying to nail Jell-O to the wall,” Mr. Edmonds said. “You can never get a handle on it.”
Thursday, November 21, 2013
Split Texas appeals court refuses to allow additional habeas action for death row defendant complaining about racialized testimony
As reported in this local article from Texas, that "state’s highest criminal court Wednesday dismissed an appeal by death row inmate Duane Buck, who claims his sentence is improper because it was based, in part, on a psychologist’s finding that he presents a greater danger to society because he is black." Here is more about the ruling and its context:
In a 6-3 ruling, the Court of Criminal Appeals said that Buck had already filed his one guaranteed appeal, known as a petition for writ of habeas corpus, in 1999 and wasn’t legally entitled to another.
But the court’s newest member, Judge Elsa Alcala, submitted a blistering dissent that said Buck had been ill-served by previous lawyers and the court system. “The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness,” Alcala wrote in a dissenting statement joined by Judges Tom Price and Cheryl Johnson.
The upshot, Alcala said, is that no state or federal court has examined, let alone ruled on, Buck’s claim that his constitutional rights had been violated by the inclusion of inappropriate racial testimony and by the incompetence of previous lawyers. “This cannot be what the Legislature intended when it (voted in 1995 to provide) capital habeas litigants ‘one full and fair opportunity to present all claims in a single, comprehensive post-conviction writ of habeas corpus,’” Alcala wrote.
Though there is no question about Buck’s guilt — he gunned down a former girlfriend and her male friend, shot his stepsister and targeted a fourth adult in Houston — his case has become a rallying point for judicial reformers and civil rights advocates, largely because of its racial overtones at trial.
The controversy centers on punishment-phase testimony by psychologist Walter Quijano, a defense expert who told jurors that Buck was less likely to pose a future danger — and therefore not eligible for the death penalty — because the crime wasn’t a random act of violence. But Quijano also testified, unprompted, that “Hispanics and black people are overrepresented in the criminal justice system.” On cross-examination, a prosecutor followed up by asking Quijano if race, particularly being black, increases a defendant’s future dangerousness “for various complicated reasons.” Quijano replied, “Yes.”
Buck was sentenced to death in 1997. Three years later, however, then-state Attorney General John Cornyn, now a U.S. senator, acknowledged that seven death penalty convictions — including Buck’s — had been improperly influenced by Quijano’s testimony linking race to dangerousness. The attorney general’s office did not oppose new punishment trials for the other six inmates to cure the constitutional defect.
State lawyers later decided, however, to oppose a new trial for Buck, arguing that his case was “strikingly different” because Quijano was a defense expert whose questionable testimony was elicited by a defense lawyer. Instead, lawyers for Texas argued that Buck should have objected to the racial testimony in his 1999 habeas petition. Because he didn’t, Buck lost his chance to appeal the matter, they argued.
On Wednesday, the Court of Criminal Appeals agreed, dismissing Buck’s latest habeas petition as improper. In her dissent, Alcala said she would have accepted the new petition because Buck’s 1999 appeal was so poorly done that it amounted to no defense at all, depriving a death row inmate of a full review of constitutional claims before his execution.
Wednesday, November 20, 2013
Missouri mass murderer gets two last-minute execution stays from two federal judges... UPDATE: stays reversed, execution completed
As reported in this new Reuters article, "[t]wo federal judges granted a serial killer stays of execution on Tuesday hours before he was to be put to death, allowing him to challenge Missouri's new lethal drug protocol and his mental competence, and the state immediately appealed the rulings." Here is more:
Joseph Paul Franklin, an avowed white supremacist, was convicted and sentenced to death for killing one man and wounding two outside a St. Louis-area synagogue in 1977. He was scheduled to be executed early on Wednesday at a Missouri prison.
Franklin, 63, has been linked to the deaths of at least 18 other people. He was convicted of killing eight in the late 1970s and 1980s in racially motivated attacks around the country. The victims included two African-American men in Utah, two African-American teenagers in Ohio and an interracial couple in Wisconsin.
Franklin also has admitted to shooting Hustler magazine publisher Larry Flynt in 1978, paralyzing him. Flynt has argued that Franklin should serve life in prison and not be executed.
In October, Missouri changed its official protocols to allow for a compounded pentobarbital, a short-acting barbiturate, to be used in a lethal dose. The state also said it would make the compounding pharmacy mixing the drug a member of its official "execution team," which could allow the pharmacy's identity to be kept secret.
In granting the stay, U.S. District Judge Nanette Laughrey noted that Missouri had issued three different protocols in the three months preceding Franklin's execution date and as recently as five days before. "Franklin has been afforded no time to research the risk of pain associated with the department's new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital," Laughrey wrote in the stay order entered in federal court in Jefferson City, Missouri....
In the second case, U.S. District Judge Carol Jackson in St. Louis ordered Franklin's execution stayed, concluding that a delay was required to permit a meaningful review of his claim that he is mentally incompetent and cannot be executed.
The Missouri Attorney General's office asked the U.S. Court of Appeals for the Eighth Circuit to lift the stays.
Missouri Governor Jay Nixon denied Franklin clemency on Monday. Franklin is one of 21 plaintiffs challenging the constitutionality of the execution protocol issued by the Missouri Department of Corrections.
UPDATE: As the commentors to this post noted before I got back on-line, Franklin was executed by Missouri after the Eighth Circuit reversed both the stays he received. Here is an AP report on the execution:
Joseph Paul Franklin, a white supremacist who targeted blacks and Jews in a cross-country killing spree from 1977 to 1980, was put to death Wednesday in Missouri, the state's first execution in nearly three years.
Franklin, 63, was executed at the state prison in Bonne Terre for killing Gerald Gordon in a sniper shooting at a suburban St. Louis synagogue in 1977. Franklin was convicted of seven other murders and claimed responsibility for up to 20, but the Missouri case was the only one that brought a death sentence.
Mike O'Connell, a spokesman for the Missouri Department of Corrections, said Franklin was pronounced dead at 6:17 a.m. The execution began more than six hours later than intended, and it took just 10 minutes....
Franklin's lawyer had launched three separate appeals: One claiming his life should be spared because he was mentally ill; one claiming faulty jury instruction when he was given the death penalty; and one raising concerns about Missouri's first-ever use of the single drug pentobarbital for the execution.
But his fate was sealed early Wednesday when the U.S. Supreme Court upheld a federal appeals court ruling that overturned two stays granted Tuesday evening by district court judges in Missouri. The rulings lifting the stay were issued without comment.
"Death Meted Out by Politicians in Robes"
The title of this post is the headline of this New York Times editorial, which riffs off of Justice Sotomayor's dissent from the denial of cert concerning Alabama’s death sentencing scheme (discussed here). Here are excerpts:
In nearly all of the 32 states that permit capital punishment, a jury makes the final decision on whether a defendant will live or die. Not so in Alabama, where elected judges may override a jury verdict of life in prison and unilaterally impose a death sentence....
On Monday, the Supreme Court declined to hear a challenge to this law, which appears to violate a 2002 ruling that capital defendants “are entitled to a jury determination of any fact” necessary to sentence them to death.
Justice Sonia Sotomayor wrote a 12-page opinion, joined partly by Justice Stephen Breyer, dissenting from the court’s decision not to hear the current case, Woodward v. Alabama. While the court previously upheld the Alabama law in 1995, she noted, the state is now alone in overriding jury verdicts of life. Because it undermines “the sanctity of the jury’s role in our system of criminal justice,” Justice Sotomayor wrote, the Alabama law is “constitutionally suspect.”
Justice Sotomayor rightly identified the reason Alabama’s judges impose more death sentences per capita than any other state. The judges, she wrote, “who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”...
In his dissent from the 1995 ruling upholding the Alabama law, former Justice John Paul Stevens wrote that allowing a judge to override a jury verdict in this way severs “the death penalty from its only legitimate mooring.”
The death penalty should have no legitimate mooring at all in modern American society, and it certainly should not be imposed by a judge who is worried about keeping his job.
Monday, November 18, 2013
Florida Supreme Court delays execution to hear about new drug used in injection protocol
Concerns about new lethal injection drugs has bought at least a few more weeks of life for a Florida death row defendant. This Miami Herald update, headlined "Miami killer's execution delayed amid questions about new drug," explains:
In a 5-2 decision, the Florida Supreme Court on Monday ordered that Thomas Knight's scheduled execution be delayed so he can argue that a new drug used to anesthetize a prisoner at the start of a lethal injection could subject him to "serious harm." Knight, also known as Askari Abdullah Muhammad, had been scheduled to die at Florida State Prison on Dec. 3.
Florida is the only state in the U.S. that uses midazolam hydrochloride as an anesthetic in the first stage of a three-drug lethal injection mixture. The new drug replaced pentobarbital after the state Department of Corrections exhausted its supply.
The state's high court stayed Knight's execution until at least Dec. 27 and sent his case back the state's Eighth Judicial Circuit, which includes Bradford County, where he is imprisoned. A circuit court judge must hold a hearing on the inmate's claims and issue a ruling no later than 2 p.m. Nov. 26, two days before Thanksgiving, after which time both sides can file additional arguments.
Knight has been on Death Row since 1975 for the murders of a Miami couple. While in prison he stabbed a correctional officer, Richard Burke, to death. It is that killing for which he is condemned to die.
In its order, the court said: "The Court has determined that Muhammad’s claim as to the use of midazolam hydrochloride as an anesthetic in the amount prescribed by Florida’s protocol warrants an evidentiary hearing. We conclude based on the allegations in Muhammad’s 3.851 motion that he has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam hydrochloride in Florida’s lethal injection protocol will subject him to a 'substantial risk of serious harm.'
"We further direct the DOC (Department of Corrections) to produce correspondence and documents it has received from the manufacturer of midazolam hydrochloride concerning the drug’s use in executions or otherwise, including those addressing any safety and efficacy issues," the court ordered.
Justice Sotomayor calls for Alabama's capital sentencing system to get a "fresh look"
SCOTUS wrapped up its formal November activities with an order list this morning that included two dissents from denials of cert in state criminal cases. SCOTUSblog here reports on these basics:
Among cases the Court declined to hear was a challenge to Alabama’s death sentencing scheme, filed by an inmate who was given such a sentence by the judge even though the jury had voted eight to four against that punishment. Justice Sonia Sotomayor, in a twelve-page dissent most of which was joined by Justice Stephen G. Breyer, said that the Court should take a new look at Alabama’s capital punishment approach. It is now the only state where judges have imposed death sentences contrary to advisory verdicts recommended by juries. In a part of the opinion that Justice Breyer did not join, Justice Sotomayor argued that the Alabama approach may violate a string of modern Court rulings enhancing the role of juries in the sentencing process. She wrote as the Court denied review in Woodward v. Alabama (13-5380).The Court’s denial of review in two other cases drew dissenting opinions or separate statements by Justice Samuel A. Alito, Jr. One was Rapelje v. McClellan (12-1480), a test of federal courts’ power in habeas cases to defer to summary rulings by state courts in criminal cases. Justice Antonin Scalia joined the Alito dissent in that case.
The case concerning Justice Alito has more to do with habeas review than sentencing issues, but the case concerning Justice Sotomayor has to be right in the wheel-house of sentencing fans. Here is how Justice Sotomayor's dissenting opinion (which has a graph in the middle) gets started and concludes:
The jury that convicted Mario Dion Woodward of capital murder voted 8 to 4 against imposing the death penalty. But the trial judge overrode the jury’s decision and sentenced Woodward to death after hearing new evidence and finding, contrary to the jury’s prior determination of the same question, that the aggravating circumstances outweighed the mitigating circumstances. The judge was statutorily entitled to do this under Alabama law, which provides that a jury’s decision as to whether a defendant should be executed is merely an “advisory verdict” that the trial judge may override if she disagrees with the jury’s conclusion. In the last decade, Alabama has been the only State in which judges have imposed the death penalty in the face of contrary jury verdicts. Since Alabama adopted its current statute, its judges have imposed death sentences on 95 defendants contrary to a jury’s verdict. [FN1] Forty-three of these defendants remain on death row today. Because I harbor deep concerns about whether this practice offends the Sixth and Eighth Amendments, I would grant Woodward’s petition for certiorari so that the Court could give this issue the close attention that it deserves....[FN1] A list of these 95 defendants sentenced to death after a jury verdict of life imprisonment is produced in an appendix to this opinion. By contrast, where juries have voted to impose the death penalty, Alabama judges have overridden that verdict in favor of a life sentence only nine times.
Eighteen years have passed since we last considered Alabama’s capital sentencing scheme, and much has changed since then. Today, Alabama stands alone: No other State condemns prisoners to death despite the considered judgment rendered by a cross-section of its citizens that the defendant ought to live. And Apprendi and its progeny have made clear the sanctity of the jury’s role in our system of criminal justice. Given these developments, we owe the validity of Alabama’s system a fresh look. I therefore respectfully dissent from the denial of certiorari.
"The Jurisprudence of Death and Youth: Now the Twain Should Meet"
The title of this post is the title of this notable new article by Janet Hoeffel now available on SSRN. Here is the abstract:
The Supreme Court recently married its "death is different" death penalty jurisprudence and its burgeoning "children are different too" jurisprudence to apply Eighth Amendment death penalty jurisprudence to juvenile non-death sentences in Graham v. Florida and Miller v. Alabama. This Article argues that the (practically non-existent) jurisprudence of juvenile transfer should travel further down this comparative road paved by the Court and insist that juvenile transfer proceedings be subject to the same scrutiny exercised over capital punishment proceedings. While Eighth Amendment process need not be literally incorporated into juvenile transfer proceedings, it should be adopted through the Due Process Clause.
The parallels between the death penalty and juvenile transfer are striking. Both involve a decision to expose a person to the most severe set of penalties available to the relevant justice system: a death sentence for adults in adult court; a transfer to adult court for youth in juvenile court. The decision to send an adult to his death is a decision to end his life; the decision to send a juvenile to adult court is a decision to end his childhood. Both decisions signify a life not worth saving, and therefore, both decisions are to apply to the "worst of the worst." As a result of the finality and seriousness of their consequences, both processes should require the strictest of procedures for reliable imposition of those consequences.
While the Court’s jurisprudence on procedures for imposing death is not a model, the Court has, at least, worked both to narrow who is subject to the death penalty and to reduce the potential for arbitrary and capricious imposition of death through procedures for guided discretion. The lessons learned in that context can be applied to improve juvenile transfer procedures that allow transfer of a child to adult court based on the unfettered and arbitrary discretion of a judge or, worse, a prosecutor. Furthermore, death penalty jurisprudence applied in capital cases, and as applied in Graham and Miller, leads to the conclusion that juvenile transfer laws allowing automatic transfer of a child to adult court, without an individualized consideration, violates due process.
Sunday, November 17, 2013
"Correcting a Fatal Lottery: a Proposal to Apply the Civil Discrimination Standards to the Death Penalty"
The title of this post is the title of this notable student note by Joseph Thomas now available for download via SSRN. Here is the abstract:
Claims of discrimination in death penalty proceeding receive disparate treatment compared to virtually every other type of discrimination: employment, housing, jury venire, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, qualified immunity by a state prison guard, qualified immunity by city officials and police, felon disenfranchisement laws. They each use the same process when there is no direct evidence of discrimination -- a burden shifting framework to help present the evidence in an organized manner with a standard of the preponderance of the evidence that must be demonstrated to prove discrimination took place. Dissimilarly, death penalty proceedings are the exception to the rule -- all of the evidence is presented in one stage, without any organization, and the heightened standard of exceptionally clear proof must be demonstrated to prove discrimination took place.
With the use of disparate standards to adjudicate the exact same thing -- claims of discrimination without direct evidence -- makes the process used in the death penalty unconstitutional because with life and liberty at stake, defendants in the death penalty should be afforded more protections, not less. Alternatively, I propose my own standard for handling discrimination cases in the death penalty, based off of the civil standards.
Friday, November 15, 2013
"One death row inmate supporting another in organ-donation fight"
The title of this post is the headline of this notable NBC News report in the wake of Ohio Gov. John Kasich's surprising decision to postpone the execution of child-killer Ronald Phillips to explore if he can donate his organs prior to (or during?) his execution (as first reported here). Here are the details:
An Ohio convict's quest to donate his organs when he's executed is getting support from an Oregon death row prisoner who made a similar bid two years ago. Christian Longo, who was sentenced to die for murdering his wife and three small kids in 2001, told NBC News in an email that he reached out to Ronald Phillips, whose execution was just postponed so his organ-donation offer can be studied.
The "contact was rejected," Longo said. But he's still lobbying for Phillips to be given the chance to give away his organs at death — a proposal that experts say is an ethical and logistical minefield. “With a little bit of careful planning and coordination, lives can be saved from someone who has to die – up to eight lives with organs, and the enhancement of dozens more lives with tissues and tendons,” Longo wrote.
“There is no need to be in a rush to execute Mr. Phillips, who will die regardless. Not when there are so many innocently waiting on transplant lists for healthy donors who may die otherwise. To deny this is a perpetuated tragedy,” Longo said.
Longo's donation offer has been repeatedly turned down by Oregon authorities, and all executions are on hold anyway after Gov. John Kitzhaber declared a moratorium last year....
Medical ethicists say allowing such donations could give juries and judges an incentive to impose the death penalty and that prisoners could be coerced into giving away their organs. Organs are usually removed from people who are brain dead but whose bodies are otherwise functioning, and some experts say it would be impossible to replicate that scenario during an execution.
"The only options for executing someone to obtain vital organs is to either shoot them in the head or chop their head off and have a team of doctors ready to step in immediately," said Arthur Caplan, a professor of medical ethics at NYU Langone Medical Center. Theoretically, he said, the method of execution could be the removal of the organs under anesthesia. "The problem is no doctor is going to do it," he said. "It violates all medical ethics and now you're making the doctor the executioner."
Longo — who has a website and a Facebook page for his campaign, Gifts of Anatomical Value from Everyone — is also pushing states to allow prisoners who are not condemned to donate non-vital organs, like a single kidney. He helped Utah inmates push for a new Utah law, passed in April, that allows them to register as organ donors.
Recent related posts:
- "Kasich postpones execution of inmate who wants to donate organs"
- Some early reactions to Gov. Kasich's surprise decision delay execution to explore organ donation
Thursday, November 14, 2013
Some early reactions to Gov. Kasich's surprise decision delay execution to explore organ donation
Ohio Gov. John Kasich's decision to postponed today's scheduled execution of child-killer Ronald Phillips in order to determine if he can donate his organs prior to (or during?) his execution (reported here), has already, not surprisingly, generated considerable attention and has prompted a number of follow-up questions. Here is some of the early buzzing and queries drawn from today's media headlines:
From the AP here, "Ohio Child Killer's Organ Donation Wish Perplexes"
From NBC News here, "Death-row organ donations pose practical, ethical hurdles"
From Medical Daily here, "Ohio Execution Stayed Over Organ Donation: Is Ronald Philips Dodging Execution Or Seeking A Last Good Deed?"
From the Columbus Dispatch here, "Who'd pay to transplant organs from condemned killer?"
My own questions include whether (or really when) all the other condemned persons on on Ohio's death row will also offer to donate their organs if (and perhaps only when) their other legal appeal fail and they are only days from a scheduled execution.
Recent related post:
Wednesday, November 13, 2013
"Kasich postpones execution of inmate who wants to donate organs"
The title of this post is the headline of this breaking news story reporting some surprising news coming from Ohio this afternoon. Here are details:
Wowsa. I have to catch my breath and think about this a lot before I am sure how to react. While I do so, I look forward to hearing reactions from both the pro and anti death penalty crowd in the comments.
In an unprecedented move, Gov. John Kasich has postponed the execution of Akron child-killer Ronald Phillips scheduled for Thursday to determine if his organs can be harvested. It has been rescheduled for July 2, 2014.
In a statement released this afternoon, Kasich halted Phillips’ execution “so that medical experts can assess whether or not Phillips’ non-vital organs or tissues can be donated to his mother or possibly others.”
“Ronald Phillips committed a heinous crime for which he will face the death penalty. I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen,” Kasich said.
Phillips, 40, was sentenced to die for the 1993 beating, rape and murder of three-year-old Sheila Marie Evans, the daughter of his girlfriend at the time. The governor said if Phillips “is found to be a viable donor to his mother or possibly others awaiting transplants of non-vital organs, such as kidneys, the procedures would be performed and then he would be returned to Death Row to await his new execution date.”
Phillips asked earlier this week if he could donate his organs to his mother or others, but the Ohio Department of Rehabilitation and Correction rejected his request.
Sunday, November 10, 2013
Reviewing the continuing challenges for states seeking to continue with lethal injectionThis New York Times piece, headlined "Executions Stall as States Seek Different Drugs," reports on the latest mechanical challenges for those states seeking to keep their machineries of death running despite new difficulties and old litigation surrounding lethal injection drugs and protocols. Here are excerpts:
Florida ran out of its primary lethal-injection drug last month and relied on a new drug that no state had ever used for an execution. At Ohio’s next scheduled execution, the state is planning to use a two-drug combination for the first time. Last month in Texas, Michael Yowell became that state’s first inmate executed using a drug made by a lightly regulated pharmacy that usually produces customized medications for individual patients.
The decision by manufacturers to cut off supplies of drugs, some of which had been widely used in executions for decades, has left many of the nation’s 32 death penalty states scrambling to come up with new drugs and protocols. Some states have already changed their laws to keep the names of lethal-drug suppliers private as a way to encourage them to provide drugs.
The uncertainty is leading to delays in executions because of legal challenges, raising concerns that condemned inmates are being inadequately anesthetized before being executed and leading the often-macabre process of state-sanctioned executions into a continually shifting legal, bureaucratic and procedural terrain....
“We have seen more changes in lethal injection protocols in the last five years than we have seen in the last three decades,” said Deborah W. Denno, a professor at Fordham Law School and a death penalty expert. “These states are just scrambling for drugs, and they’re changing their protocols rapidly and carelessly.”
All 32 states with legalized executions use lethal injection as their primary option for executions. Of the more than 250 executions since 2008, all but five were done with lethal injections.
Facing increasing pressure and scrutiny from death penalty opponents, manufacturers of several drugs used in lethal injections — including sodium thiopental and pentobarbital — over the past few years have ceased production of the drugs or required that they not be used in executions. Looking for alternatives, state prison systems have been more eager to try new drugs, buy drugs from new sources, keep the identities of their drug suppliers secret and even swap drugs among states.
A week before the execution of a convicted murderer, Arturo Diaz, in September, Texas prison officials received two packages of pentobarbital from the Virginia Department of Corrections, at no charge; the state with the country’s second-busiest death chamber acting as ad-hoc pharmacy to the state with the busiest.
Several states have turned to compounding pharmacies, which are largely unregulated by the Food and Drug Administration and overseen primarily by the states. They have traditionally made specialized drugs, for instance, turning a medication into a cream or gel if a patient has trouble swallowing pills.
In Missouri, the availability of drugs and litigation have slowed the pace of executions. There have been two since 2009. “We are going to continue to be affected by these pharmaceutical company decisions time and again, unless the death penalty states can find a pharmaceutical product that has some supply stability around it,” said Chris Koster, the attorney general in Missouri, which dropped plans to use the anesthetic propofol after the European Union threatened to limit exports of the drug if it was used in an execution.
The drug shortages and legal wrangling have led some officials to discuss older methods of execution. In July, Mr. Koster suggested that the state might want to bring back the gas chamber. Dustin McDaniel, the attorney general in Arkansas, which has struggled with its lethal-injection protocol, told lawmakers the state’s fallback method of execution was the electric chair. Mr. Koster and Mr. McDaniel said they were not advocating the use of the gas chamber or the electric chair, but were talking about the possible legal alternatives to an increasingly problematic method for states.
“No state has had any success with getting their hands on the cocktail that has heretofore been relied upon,” Mr. McDaniel said. He said that lawyers for the state are trying to navigate the appeals process in death penalty cases while knowing that “if the legal hurdles were magically to go away, we are in no position to carry out an execution in this state.”
Wednesday, November 06, 2013
Unanimous Supreme Court of New Hampshire upholds state's first modern capital conviction (with proportionality review to follow)As reported in this AP piece, "New Hampshire's top court upheld the sentence of the state's only death row inmate, clearing the way for a convicted cop killer to become the first person executed in New Hampshire since 1939." Here are more of the basics:
Michael Addison, 33, was convicted of gunning down Michael Briggs in 2006 as the 35-year-old Manchester police officer was attempting to arrest him on a string of armed robbery charges. The high court's unanimous ruling came nearly a year after it heard unprecedented daylong arguments in the first death penalty appeal to come before it in 50 years....
Of all 22 issues raised by Addison's lawyers on appeal, the justices concluded, "We find no reversible error."
The Supreme Court will next schedule arguments on its fairness review — weighing Addison's sentence against those meted out in 49 cases around the country between 2000 and 2009 in which a police officer was shot in the line of duty.
Addison's lawyers objected to the scope of the comparison, saying it ignores the only other New Hampshire capital case in recent history. That case involved a wealthy white man — John Brooks — who plotted and paid for the killing of a handyman he thought had stolen from him. Brooks was spared a death sentence in 2008 — the same year Addison was sentenced to die....
Attorney General Joseph Foster said the magnitude of the court's 243-page ruling is appropriate given the magnitude of the loss suffered by the Briggs' family. He did not comment on the ruling itself, noting that aspects of the case remain pending.
Briggs was 15 minutes from the end of his shift on Oct. 16, 2006, when he and his partner — both on bicycle patrol — confronted Addison in a dark alley. Jurors found that Addison shot Briggs in the head at close range to avoid arrest. Addison was later convicted of going on a violent rampage in the days before Briggs' death, including two armed robberies and a drive-by shooting....
The last person executed in New Hampshire was Howard Long, an Alton shopkeeper who molested and beat a 10-year-old boy to death. He was hanged — still a viable form of execution in New Hampshire if lethal injection is not possible.
As the AP piece revelas, the massive ruling in NH v. Addison (available here) does not conclusively affirm the defendant's death sentence. Here is why, as the NH Supreme Court explains in the introduction to its lengthy opinion:
With respect to the issues raised by the defendant on appeal, we find no reversible error. Accordingly, we affirm the defendant’s conviction for capital murder. Furthermore, we conclude that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor, and that the evidence was sufficient to support the jury’s findings of aggravating circumstances. We note that our review of the defendant’s sentence is not yet complete. Only after additional briefing and oral argument on comparative proportionality under RSA 630:5, XI(c) will we conclude our review of the defendant’s sentence of death, at which time we will issue a further opinion.
Saturday, November 02, 2013
"Bring Back the Guillotine"The title of this post is the headline of this new Slate commentary by John Kruzel. Here are excerpts:
A nationwide shortage of a key ingredient used in lethal injections has led some states to experiment with new, untested drug cocktails for executing death row inmates. The practice has raised moral and constitutional questions, and unleashed a wave of litigation. At this point, as a society, we should be asking whether we can stand by and watch as this barbaric practice continues. Are these iffy drug combinations really any better than the guillotine?
Bringing back the guillotine may sound crazy, but it’s certainly better than the current alternative. It’s better for prisoners because quickly severing the head is believed to be one of the quickest, least painful ways to die. And it’s better for organ recipients because the bodies of guillotined prisoners could be more quickly harvested for viable parts, unlike organs that may become unusable after lethal injection due to hypoxemia.
To be clear, I find capital punishment abhorrent in theory and practice. Even if you believe the death penalty is morally acceptable, evidence of wrongful executions and the large number of inmates having been condemned to death before being exonerated shows its undeniable failings. But until the Supreme Court overturns precedents saying that state-sanctioned executions are not cruel and unusual punishment, shouldn’t we strive to make executions the most humane that they can possibly be? Lethal injection — the current method of execution of the federal government and the 32 states with the death penalty — and the guillotine are both evils, but the guillotine is the lesser evil of the two....
One familiar position put forth by advocates of lethal injection is that the three-drug cocktail is far less offensive than the guillotine — to witnesses. Some state laws grant victims’ families the right to view executions. Would bringing back the guillotine fail to consider the feelings of those who would have to watch someone get his head severed?
In short, no. As Michael Lawrence Goodwin argues, there are two main reasons why victims’ families watch executions: out of a desire to represent a murdered family member at what they consider the ultimate stage of criminal justice, and because of a need for closure. A guillotine execution would not devalue someone’s symbolic presence, and it may actually better facilitate closure for certain witnesses....
Those who would be up for watching a state-sanctioned beheading should heed the warning of Albert Camus. The author and philosopher once told a biographer the story of his father’s experience witnessing the guillotine in action: “He got up in the dark to go to the place of execution at the other end of town amid a great crowd of people. What he saw that morning he never told anyone. My mother relates merely that he came rushing home, his face distorted, refused to talk, lay down for a moment on the bed, and suddenly began to vomit.”
As Camus made clear, capital punishment is always a barbaric practice. If we’re going to continue to allow it in the United States, maybe it makes sense to be confronted by how gruesome it really is.
Tuesday, October 29, 2013
Latest Gallup poll indicated slight decrease in (still strong) support for death penaltyAs reported in this new Gallup page, which is headlined "U.S. Death Penalty Support Lowest in More Than 40 Years: Sixty percent of Americans favor death penalty for convicted murderers," new polling data provides an array of mixed messages concerning public opinion regarding the death penalty. Here are the basic details of the latest polling data:
Sixty percent of Americans say they favor the death penalty for convicted murderers, the lowest level of support Gallup has measured since November 1972, when 57% were in favor. Death penalty support peaked at 80% in 1994, but it has gradually declined since then.
Gallup first asked Americans their views on the death penalty using this question in 1936, and has updated it periodically since then, including annual updates since 1999.
Americans have typically favored the death penalty; in fact, support has exceeded opposition in all but one survey, conducted in May 1966, during an era marked by philosophical and legal challenges to the death penalty from the mid-1950s through the early 1970s. Americans' support for the death penalty waned during that time. The culmination of that era was the Supreme Court's 1972 Furman v. Georgia decision, which invalidated all state death penalty statutes on technical grounds but stopped short of declaring the practice itself unconstitutional. Four years later, the court ruled that several newly written death penalty laws were constitutional, and executions resumed in the U.S. shortly thereafter.
From then until the mid-'90s, death penalty support climbed, reaching 80% in 1994, a year in which Americans consistently named crime as the most important problem facing the United States.
The current era of lower support may be tied to death penalty moratoriums in several states beginning around 2000 after several death-row inmates were later proven innocent of the crimes of which they were convicted. More recently, since 2006, six states have repealed death penalty laws outright, including Maryland this year.
Politics is a major dividing line in Americans' death penalty views -- 81% of Republicans currently favor it, compared with 47% of Democrats. Independents' 60% support matches the national average.
Support among all three party groups has declined in the last 25 years, with the largest drop among Democrats. Democrats' level of support is currently down 28 percentage points from its 1994 peak and has fluctuated around the 50% mark for the last several years. Independents' support has generally been in the 60% range since 2000, but was consistently above 70% from the late 1980s through 1999. Republicans' support has averaged 80% since 2000, but averaged a higher 85% from 1988-1999....
A separate question asking about the frequency of use of the death penalty finds 44% of Americans saying the death penalty in the U.S. is not imposed often enough -- rather than too often or the right amount of time. Americans have always been most likely to say the death penalty is not imposed often enough, consistent with their generally favoring the death penalty. However, the current percentage holding that view is among the lowest Gallup has measured. Exactly half as many, 22%, believe the death penalty is imposed too often....
Gallup's nearly 80-year history of measuring death penalty attitudes shows that Americans generally favor the practice, but there have been distinct eras of higher or lower support. And state and federal laws, as well as legal rulings, have tended to move in concert with public opinion. Support is now the lowest in four decades, and a growing number of states have taken action to abolish the death penalty.
Monday, October 28, 2013
"No Drugs, No Executions: The End of the Death Penalty"The title of this post is the headline of this lengthy new article in The National Journal. The piece, which carries the sub-heading "As states scramble to find new cocktails of death, could a lack of options spell the end of capital punishment?," merits a full read. Here are a few excerpts:
On Oct. 15, Florida executed William Happ, a man who most agreed deserved little sympathy. Happ kidnapped 21-year-old Angela Crowley in 1986 from outside a convenience store in Crystal River and raped and strangled her before dumping her tormented body into the Cross Florida Barge Canal....
Happ died for his crimes committed 27 years ago. Like hundreds before him, Happ's death was administered through an intravenous injection of a lethal drug cocktail. Like no one before him, Happ was injected with midazolam hydrochloride, a sedative that had never before been used for an execution in the United States.
Happ's execution reflects an American death-penalty system in crisis: States are running out of the drugs they rely on to carry out death sentences as alternatives for how to secure them quickly diminish. And no one wants to innovate in the execution industry. As the medical community works to distance itself from the science of killing people, states are attempting to forge a difficult road ahead, one fraught with litigation, international tension, and uncertainty....
Florida is just one of several states scrambling to update or refine its capital-punishment protocol amid a sudden shortfall of its lethal injection drugs, resulting in an unprecedented inconsistency in the way inmates are executed in the United States. Even as a steady majority continues supporting the death penalty, the difficulty in obtaining new lethal drugs, associated legal hurdles, and a gaping void of better execution alternatives has left capital punishment in America with an uncertain future....
Eight days after Florida executed Happ, Missouri planned to put Allen Nicklasson to death with propofol. The anesthetic, which contributed to Michael Jackson's death by overdose in 2009, had also never been used before for a human execution. But buckling from pressure from the medical community, which argued propofol could inflict inhumane levels of pain, Gov. Jay Nixon halted Nicklasson's execution to ensure "justice is served and public health is protected." But a more practical matter was likely weighing on Nixon's mind: German manufacturer Fresenius Kabi had threatened to stop shipping propofol to the U.S. if the drug was allowed to be used for executions....
Doctors and researchers aren't exactly clamoring to develop new methods of killing people, and no one is advocating a regression to older forms of execution, like the electric chair or gas chamber. But even if a new, cutting-edge technique was developed somewhere, that too would almost certainly provoke a torrent of litigation.
UPDATE: Just this afternoon, I saw this local story from my own Columbus Dispatch reporting that a "shortage of pentobarbital will force Ohio prisons officials to rely on two drugs they have never used before for the scheduled Nov. 14 execution of Ronald Phillips of Summit County."
Given Ohio's history with lethal injection litigation, I would expect there to be some court action concerning this development in the next few weeks. Whether that court action is likely to delay any scheduled executions is hard for me to predict.
Tuesday, October 22, 2013
Mizzou revamps its lethal injection protocol and drug source for next executionAs reported in this new Reuters article, Missouri just announced new execution procedures to deal with lethal drug acquisition problems. Here are the basics and some national context:
The New Republic has published a somewhat related article here under the headline "Big Pharma May Help End the Death Penalty: Boycotts don't work against Texas executioners. But they could hurt pharmaceutical firms that make execution drugs."
A "compounding pharmacy" will supply lethal injection drugs for future executions in Missouri, the latest U.S. state to turn to the lightly regulated sector after major pharmaceutical companies refused to sell drugs for executions, the state said on Tuesday.
The Missouri Department of Corrections said in a brief statement that it would switch to using a single drug for executions, pentobarbital. Missouri had used a three drug protocol until recently. "The department also announced that it has added a compounding pharmacy to its execution team," the statement said. Asked the name of the pharmacy, department spokesman David Owen said that information could not be disclosed.
Missouri is the latest of a half dozen U.S. states turning for lethal injection drugs to compounding pharmacies - which typically mix drugs for individual prescriptions and are subject to light federal government regulation. The practice has drawn protests from opponents of the death penalty and advocates for death row inmates, who say the lack of regulation risks a botched execution.... Compounding pharmacies must register with state authorities but their products are not regulated by the Food and Drug Administration.
Texas this month executed its first prisoner using a drug from a compounding pharmacy. Other states which have turned to such suppliers or have said they may do so soon include Georgia, South Dakota, Colorado and Ohio. A judge in Georgia this year granted a temporary stay of execution for a prisoner in part because of concerns about the quality of the compounded drug.
Missouri announced earlier this month that it would search for a new drug for executions after it came under pressure from drug makers, especially in Europe, not to use the drug propofol in executions.
Can a state continue with execution plans for murderers still on death row after repeal of capital punishment?
The question in the title of this post is being considered today by the Connecticut Supreme Court, as explained in this AP article:
The Connecticut Supreme Court [today] plans to take up the appeal of Daniel Webb, who is currently awaiting execution for the 1989 kidnapping and murder of Diane Gellenbeck, a Connecticut bank executive. Webb wants his death sentence overturned based on the 2012 law that abolished the death penalty in Connecticut, except for those who had already been sentenced to die.
His lawyers argue that the law violates Webb's constitutional rights to equal protection by treating him differently than others charged with similar crimes. They say it also shows the death penalty is inconsistent with current standards of decency in Connecticut and no longer serves any valid purpose.
Given that many folks (including plenty of liberal-leaning ones) seem to believe that it is not constitutionally problematic to have federal crack defendants still subject to excessively long mandatory minimum prison sentences even after Congress reduced these sentences, I assume that most folks also likely believe that it is not constitutionally problematic to have Connecticut's murder defendants still subject to execution even after the state legislature repealed the death penalty. It will be interesting to see if a majority of the Connecticut Supreme Court shares such a perspective (and whether, if it does, federal courts will also reach the same conclusion during inevitable additional appeals).
Monday, October 21, 2013
SCOTUS grants cert on federal restitution and state Atkins application casesI was actually starting to get a bit sad and worried that the US Supreme Court, after a few consecutive years of taking up a host of interesting and important sentencing issues, had decided this term to give little or no attention to the kinds of issues that serve as an obsession for me and this blog. But, thanks to two cert grants this morning, my belief that the Justices love the sentencing issues I love (or at least my faith that these issues are often too important for SCOTUS to ignore) has been restored. Here is the early report on these latest grants via SCOTUSblog:
The Supreme Court moved on Monday to settle a long-lingering issue: the legal standard for judging whether a person is too retarded mentally to be executed for a murder. That is the issue in Hall v. Florida (docket 12-10882). The Court also agreed to hear a second case, on the scope of restitution as a penalty for bank loan fraud. That is the issue in Robers v. U.S. (12-9012).....
The new death penalty case from Florida raised this issue: “Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.” In that 2002 decision, the Supreme Court had ruled that it is unconstitutional under the Eighth Amendment to execute individuals who are found to be mentally retarded. The Court, however, left it to the states to decide who is mentally retarded and thus cannot be given the death penalty.
In the new case, attorneys for Freddie Lee Hall contended that Florida courts have adopted a “bright line” rule that a person is not mentally retarded unless their IQ falls below 70. The state Supreme Court found that Hall had an IQ of 71. In an earlier stage of Hall’s case, before the Supreme Court had decided the Atkins case, he had been found to be mentally retarded, the petition said.
The Hall case is certain to get lots of attention, and perhaps justifiably so. That case is, arguably, the first "major" capital criminal procedure case to be taken up by the Supreme Court in a number of years (and certainly the biggest one I can think of since Justices Kagan and Sotomayor joined the Court). And a ruling in Hall will necessarily have a some impact on all post-Atkins litigation in all death-penalty states.
Robers, in contrast, will likely get very little attention because the case appears only focus on a relative narrow and technical issue as to the application of a federal restitution statute. Nevertheless, even if the briefing in Robers ends up focused only on narrow and technical issues, I suspect the white-collar bar (as well as corporate counsel in various industries) will want to keep an eye on this case because its resolution could impact an array of corporate crime and punishment issues.
As I will surely cover in future posts as these cases get briefed and argued in early 2014, Hall and Robers both could become "super sleepers" of the current SCOTUS Term because both cases have lurking Fifth and Sixth Amendment issues that could (but likely will not) grab some Justices' attention. In both cases, critical facts that impact a defendant's sentence exposure are to be assessed and resolved by judges. Though I do not believe Apprendi-type Fifth and Sixth Amendment claims are being pressed by the defendants in these cases, it is certainly possible that some amici and some Justices will contend that Fifth and Sixth Amendment jurisprudence ought to impact how the issues in Hall and Robers get resolved.