Wednesday, April 26, 2017
Sixth Circuit to review en banc Ohio's execution protocol ... on a pace likely to preclude executions for at least a few more months
As indicated in this short order, yesterday the Sixth Circuit announced that it would be rehearing en banc the State of Ohio's appeal of the lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers. A few weeks ago, a divided three-judge panel upheld the trial court's stay, but now the full Sixth Circuit (apparently absent one recused judge) will hear oral argument on these matters on June 14.
One key issue in the Ohio lethal injection litigation concerns that state's plan to use midazolam as the first drug in the execution process. The apparent recent success that Arkansas has had with a similar protocol using midazolam now seems likely to be part of the discussion and debate before the full Sixth Circuit.
Because the lower court stay remains in place as the full Sixth Circuit take up this issue, Ohio's Gov Kasich is certainly going to have to reschedule at least two slated executions. As detailed on this Execution Schedule page from the Ohio Department of Rehabilitation & Correction, Ronald Phillips is currently scheduled for execution on May 10, and another inmate has a June 13 execution date. Though it seems likely the en banc Sixth Circuit will seek to rule not long after it hears oral argument (and it usually makes sense to assume that a vote for en banc review will lead to a different outcome than the prior panel decision), I am not sure it would be wise for Ohio to assume it will have an execution green light by its July 26 execution date.
As the Ohio DRC execution page details, Ohio has already scheduled executions for 33 Ohio inmates(!) running all the way through 2021(!). So if the Sixth Circuit (and ultimately the Supreme Court) eventually upholds the state's latest execution protocol, Ohio could be on a path to having more executions in the next few years than perhaps any and every other state in the nation.
Prior recent related posts:
- Ohio planning to use new three-drug execution protocol to get its machinery of death operative in January 2017
- Defense attorneys assert Ohio's new execution protocol is akin to "burning at the stake"
- Federal magistrate judge rules Ohio's new 3-drug lethal injection protocol is unconstitutional and blocks coming scheduled executions
- Split Sixth Circuit panel upholds injunction blocking Ohio lethal injection protocol
Tuesday, April 25, 2017
Oklahoma commission recommends continued moratorium on executions due to "volume and seriousness of the flaws" in state's capital punishment system
As reported in this local article, "two years after the state of Oklahoma last carried out an execution, a commission spearheaded by former Gov. Brad Henry has recommended extending a current moratorium on the death penalty in Oklahoma." Here is more:
"Due to the volume and seriousness of the flaws in Oklahoma's capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished," Henry said in a news release.
Executions in Oklahoma have been on hold since Oct. 1, 2015, the day after Richard Glossip received his third stay of execution because the Oklahoma Department of Corrections did not have the right drugs as specified in the DOC’s lethal injection protocol. A multicounty grand jury issued a highly critical report nearly a year ago related to multiple agencies’ handling of Glossip’s case and the January 2015 execution of Charles Warner, and it doesn’t appear as though anyone involved is any closer to being able to resume the use of capital punishment.
The Oklahoma Death Penalty Review Commission had 10 full-day meetings, held numerous conference calls, commissioned independent studies and conducted interviews with people from all sides of the issue, including with family members of people who were wrongfully convicted. "Many of the findings of the Commission's investigation were disturbing and led members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death," Henry said in the release.
The commission is making 40 recommendations to address systemic problems in forensics, innocence protection, the execution process, and the roles of the prosecution, defense, jury and judiciary, according to the news release.
The full report from the Oklahoma Death Penalty Review Commission runs nearly 300 pages and is available at this link. Here is a passages from the report's executive summary:
In light of the extensive information gathered from this year-long, in-depth study, the Commission members unanimously recommend that the current moratorium on the death penalty be extended.
The Commission did not come to this decision lightly. While some Commission members had disagreements with some of the recommendations contained in this report, there was consensus on each of the recommendations. Due to the volume and seriousness of the flaws in Oklahoma’s capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished.
Many of the findings of the Commission’s year-long investigation were disturbing and led Commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death. Commission members agreed that, at a minimum, those who are sentenced to death should receive this sentence only after a fair and impartial process that ensures they deserve the ultimate penalty of death. To be sure, the United States Supreme Court has emphasized that the death penalty should be applied only to “the worst of the worst.” Unfortunately, a review of the evidence demonstrates that the death penalty, even in Oklahoma, has not always been imposed and carried out fairly, consistently, and humanely, as required by the federal and state constitutions. These shortcomings have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma.
"Designed to Break You: Human Rights Violations on Texas' Death Rows"
The title of this post is the title of this new report released yesterday by the Human Rights Clinic of the University of Texas School of Law. Here is part of its executive summary:
This report demonstrates that the mandatory conditions implemented for death row inmates by the Texas Department of Criminal Justice (TDCJ) are harsh and inhumane. Particular conditions of relevance include mandatory solitary confinement, a total ban on contact visits with both attorneys and friends and family, substandard physical and psychological health care, and a lack of access to sufficient religious services. Investigation into these conditions reveals that current TDCJ policy violates international human rights norms and standards for confinement. Conditions on death row at TDCJ’s Polunsky Unit must be remedied posthaste.
In 1999, Texas reintroduced the practice of mandatory solitary confinement for every individual convicted of capital murder. Solitary confinement involves total segregation of individuals who are confined to their cells for twenty-two to twenty-four hours per day, with a complete prohibition on recreating or eating with other inmates. An average cell is no bigger than 8 feet by 12 feet, and contains only a sink, a toilet, and a thirty-inch-wide steel bunk with a thin plastic mattress. Inmates are rarely provided with adequate blankets and often suffer from ongoing physical pain due to the mattress provided. The majority of cells include a small window, but inmates are only able to see out by rolling up their mattress and standing on it. This fact paired with the lack of adequate outdoor recreation time means that daily exposure to natural light is rare. Every individual on Texas’ death row thus spends approximately 23 hours a day in complete isolation for the entire duration of their sentence, which, on average, lasts more than a decade. This prolonged solitary confinement has overwhelmingly negative effects on inmates’ mental health, exacerbating existing mental health conditions and causing many prisoners to develop mental illness for the first time. In addition to the detrimental effects of isolation, the practice of setting multiple execution dates means that many prisoners are subjected to the psychological stress of preparing to die several times during their sentence.
Inmates on death row experience severe barriers to accessing medical care, in part due to being housed in solitary confinement and being less able to effectively self-advocate. Inmates are not offered regular physical or psychological check-ups, and must rely on the guards to communicate and facilitate any healthcare appointments. Such requests for care are, at best, responded to within a few days, but can go several weeks without a response and are often ignored or forgotten about. In terms of psychological healthcare -- an issue of great importance given that a large majority of inmates on death row suffer from some form of psychological illness -- only inmates who were already taking psychiatric medication are able to meet regularly with psychiatrists. Of those inmates who are eventually given access to psychological care, they are generally only prescribed some form of psychiatric medication, thus exacerbating the unmet need for some form of counseling or non-pharmaceutical therapy. Inmates with mental illness who do not necessarily want or need prescription drugs are essentially provided with only two options: take unwanted medication, or forgo psychological healthcare entirely.
Another major issue of concern is the lack of access to religious services on death row. The extent to which inmates are able to access religious text is limited, as Christian bibles are the only material available from the prison chaplain. Although Christian inmates can request such materials, they are rarely given access to ministers until the holiday season. For inmates of different faiths, such as Islam or Judaism, the situation is more difficult as they must solely rely on outside sources for their religious materials. They are provided with no access to practice their chosen faith, and are often met with contempt when seeking such access. This has created a harsh environment for inmates who do not adhere to Christianity, and has enabled a discriminatory system on the basis of religion on Texas’ death row.
This report, prepared by the Human Rights Clinic at the University of Texas School of Law, concludes that current conditions in TDCJ facilities constitute a violation of Texas’s duty to guarantee the rights to health, life, physical integrity, and dignity of detainees, as well as its duty to prevent cruel, inhuman or degrading treatment of its inmates. These duties are recognized by human rights instruments such as the Universal Declaration of Human Rights, and the American Declaration on the Rights and Duties of Man. The Inter-American Commission on Human Rights and other human rights bodies have repeatedly issued opinions decrying the inhumane conditions present at the Polunsky Unit. Particularly, international human rights bodies had considered that the prolonged and mandatory use of solitary confinement is “disproportionate, illegitimate, and unnecessary”.
"An Indigent Criminal Defendant is Entitled to 'An Expert of His Own'"
The title of this post is the title of this short and timely new piece authored by Fredrick Vars now available via SSRN. Here is the abstract:
The Supreme Court yesterday (April 24, 2017) heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.
For more on the issue presented and SCOTUS oral argument in McWilliams v. Dunn, folks can check out this recent SCOTUSblog posting by Amy Howe titled "Argument analysis: Nine justices, with five votes for death row inmate?" and/or this new Slate commentary by Dahlia Lithwick titled "Back at the Supreme Court, After Garland: It’s strange being back in this place, and stranger still to hear them debate lunacy."
Monday, April 24, 2017
Arkansas successfully completes two execution in one night
As reported in this AP article, Arkansas has completed the nation's first double execution in nearly two decades. Here are the basic details:
Arkansas has put to death inmate Marcel Williams, marking the first double execution in the United States since 2000.
Williams was pronounced dead at 10:33 p.m. Monday, 17 minutes after the procedure began at the Cummins Unit in southeast Arkansas. Inmate Jack Jones was executed earlier in the evening.
Williams was sent to death row for the 1994 rape and killing of 22-year-old Stacy Errickson, whom he'd kidnapped from a gas station in central Arkansas....
Attorneys for Marcel Williams had questioned whether the night's first execution of Jack Jones went properly. U.S. District Judge Kristine Baker issued the stay for Williams, then, lifted it about an hour later — at 9:22 p.m....
Jones was pronounced dead at 7:20 p.m. Monday at the state's Cummins Unit in southeast Arkansas.... Jones was sent to death row for the 1995 rape and killing of Mary Phillips. He was also convicted of attempting to kill Phillips' 11-year-old daughter and was convicted in another rape and killing in Florida.
UPDATE: Bill Otis over at Crime & Consequences has this extended new post contending that the double execution in Arkansas "may be remembered as the moment the movement to abolish the death penalty started back downhill after many years of gaining ground."
Capital procedure day at SCOTUS .... perhaps from early morning until late at night thanks to Arkansas
The Supreme Court this morning is hearing oral argument in two capital cases. Here are the basics and previews via SCOTUSblog:
Issue: Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.
Issue: Issue: Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.
Meanwhile, as detailed in this AP report, two condemned inmates scheduled to be executed tonight in Arkansas have been pressing unsuccessfully a variety of claims in an effort to halt their executions. Here are the basics on two cases now all but certain to be before the Justices of the Supreme Court in some posture before the night is over:
Two Arkansas inmates scheduled to be put to death Monday in what could be the nation's first double execution in more than 16 years asked an appeals court on Sunday to halt their lethal injections because of poor health that could cause complications. Lawyers for Jack Jones and Marcel Williams asked the 8th Circuit Court of Appeals on Sunday to grant them stays of execution.
Jones' lawyers say he suffers from diabetes and is on insulin, has high blood pressure, neuropathy and had one leg amputated below the knee. He is on heavy doses of methadone and gabapentin. They say he may be resistant to the lethal injection drug midazolam because of the drugs he is taking for his maladies and could suffer a "tortuous death." Lawyers for Williams say he weighs 400 pounds and it will be difficult to find a vein for lethal injunction, so the drugs are unlikely to work as intended.
The state said the appeals are just delaying tactics and should be denied. It was not clear when the appeals court will rule....
Also on Sunday, two lower court federal judges ruled against inmates in separate cases. Judge Kristine Baker denied a request from several inmates, including Jones and Williams, that the rules for witnesses to view the executions be changed. Judge J. Leon Holmes denied a stay of execution for Williams saying that the matter should be dealt with by the 8th Circuit Court of Appeals, because the inmate had already been appealed to the higher court.
Jones and Marcel Williams are scheduled to die on Monday and another inmate, Kenneth Williams, is set for execution Thursday. Both Jones and Williams have admitted they are guilty. Williams was sent to death row in 1994 for the rape and murder of Stacy Errickson. Jones was given the death penalty for the 1995 rape and murder of Mary Phillips.
Interesting final phrase in Justice Breyer's latest pitch for SCOTUS to consider whether whether capital punishment is now unconstitutional
Via a dissent in Glossip v. Gross back in 2015, Justice Breyer explained at great length why he thought "it is now time to reopen the question" of "whether the death penalty violates the Constitution." Since that time, Justice Breyer has made a fairly regular habit of dissenting or commenting on the denial of certiorari in capital cases with administrative problems along the lines he stressed in his Glossip dissent. Today's SCOTUS order list includes another such statement by Justice Breyer in Smith v. Ryan, a case that involves a prisoner who has been on death row in Arizona for more than 40 years. Here is a paragraph from the heart of Justice Breyer's statement that captures the essence of many of his capital statements since Glossip:
What legitimate purpose does it serve to hold any human being in solitary confinement for 40 years awaiting execution? What does this case tell us about a capital punishment system that, in my view, works in random, virtually arbitrary ways? I have previously explored these matters more systematically, coming to the conclusion that this Court should hear argument as to whether capital punishment as currently practiced is consistent with the Constitution’s prohibition of “cruel and unusual punishment.” Amdt. 8. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting). The facts and circumstances of Smith’s case reinforce that conclusion.
Because statements by Justice Breyer like this one have become fairly common, I would not have blogged about this latest effort save for one little phrase in Justice Breyer's final sentence that struck me as new and unusual. Here is the final sentence with my emphasis added on the phrase that caught my attention:
Smith’s confinement reinforces the need for this Court, or other courts, to consider in an appropriate case the underlying constitutional question.
I took a quick look at some other capital case statements from this Term by Justice Breyer and did not see this "other courts" phrase anywhere in his prior calls for the Supreme Court to take up the constitutionality of capital punishment. I suspect that Justice Breyer has now come fully to realize, perhaps due in part to the new addition of Justice Gorsuch, that he is not going to be able to cajole his colleagues into taking up the constitutionality of capital punishment on their own and now the issue will likely get before SCOTUS only if a lower court takes up the issue in a bold, high-profile way.
I suspect I am reading way too much into three words in a little single Justice statement concerning the denial of cert. Still, especially with talk of a new SCOTUS vacancy this summer, I do not think I am wrong to view the next few months and years as a potential turning point in the history of capital punishment in the US. Justice Breyer has demonstrated his interest in playing a central role in defining the future of the death penalty, and this latest little statement perhaps reflects a realization that his window of opportunity to do so may be closing.
Sunday, April 23, 2017
Six months after voting to speed executions, is California really getting any closer to carrying out death sentences?
The question in the title of this post is prompted by this new AP article headlined "California moves — slowly — toward resuming executions." Here are excerpts:
California has long been what one expert calls a “symbolic death penalty state,” one of 12 that has capital punishment on the books but has not executed anyone in more than a decade.
Prodded by voters and lawsuits, the nation’s most populous state may now be easing back toward allowing executions, though observers are split on how quickly they will resume, if at all.
Corrections officials expect to meet a Wednesday deadline to submit revised lethal injection rules to state regulators, trying again with technical changes after the first attempt was rejected in December.
The California Supreme Court, meanwhile, is expected to rule by August on challenges to a ballot initiative narrowly approved by voters in November that would speed up executions by reducing the time allowed for appeals....
California could come close to resuming executions in the next year, said law professor Robert Weisberg, co-director of the Stanford Criminal Justice Center, though others say too many variables and challenges remain to make a prediction.... The state’s proposed lethal injection regulations are patterned after a single-drug process that already passed muster with the U.S. Supreme Court, Weisberg said.
Corrections officials submitted the regulations only after they were forced to act by a judge’s ruling on behalf of crime victims angered at the state’s three-year delay. But the regulations replacing California’s old three-drug method are likely to be approved at some point, Weisberg said.
Deborah Denno, a professor at Fordham University School of Law and an expert on lethal injections, was among those who said recent revisions to the state’s proposed regulations still don’t cure underlying problems that can lead to botched executions....
California voters have eased penalties for many crimes in recent years but have repeatedly rejected efforts to end the death penalty. They did so again in November, when 51 percent approved Proposition 66, designed to speed up death penalty cases. Fifty-three percent of voters defeated a competing measure that would have abolished the death penalty. The state Supreme Court quickly blocked Proposition 66 while it considers challenges.
Appellate lawyer Kirk Jenkins, who studies the court, expects the justices will reject the proposition’s five-year deadline for deciding death row appeals because it violates the separation of powers. Death penalty appeals average at least a decade from the time a condemned inmate is assigned a post-trial lawyer to a final decision by the state’s high court, he said, and the justices already have a backlog of about 300 capital cases. “There is no possible way that the court could meet the deadlines in Prop. 66” without putting aside virtually all other decisions, Jenkins said.
The initiative also makes it easier for corrections officials to adopt new lethal injection procedures. But even a complete rejection of Proposition 66 would not derail the executions of inmates whose appeals are exhausted, Weisberg said. Those executions could proceed once the state has an approved lethal injection process.
Experts said the delays may give opponents time to mount another campaign next year asking voters again if they want to abolish the death penalty. “In California, it’s become a symbolic death penalty state,” Denno said. “Whether that is going to change or not is unpredictable.”
Friday, April 21, 2017
Arkansas finally navigates litigation to complete one execution
As reported in this new Washington Post piece, "Arkansas late Thursday night carried out the state’s first execution in more than a decade after the U.S. Supreme Court, in a last-minute series of orders, rejected requests by a death-row inmate to stay his lethal injection." Here is more:
The execution followed a wave of criticism and tumult in Arkansas, which had set an unprecedented scheduled of executions, plans that were imperiled by a series of court orders halting at least some of the eight lethal injections originally set for April.
As part of its aggressive scheduling, which the state attributed to expiring lethal-injection drugs, Arkansas had planned to carry out back-to-back executions on Thursday night at a state prison southeast of Little Rock. But that was abandoned when a state court blocked one of those lethal injections, and officials instead focused solely on plans to execute Ledell Lee, 51, by lethal injection.
Lee was sentenced to death in 1995 for the killing of Debra Reese, who was beaten to death in her home two years earlier. According to court petitions and his attorneys, Lee has long denied involvement in Reese’s death, and he was seeking DNA testing to try and prove his innocence.
Lee’s execution was confirmed by state officials. His time of death was 11:56 p.m. local time, according to the Associated Press, which had a reporter serve as a media witness. He is the seventh person executed in the United States so far this year....
Appeals filed ... for Lee hoping to delay his execution were rejected by the U.S. Court of Appeals for the 8th Circuit after that court briefly stayed the lethal injection. Lee’s attorneys also petitioned the U.S. Supreme Court, not long after justices on Thursday night denied other stay requests filed by several Arkansas death-row inmates. The attorneys filed a volley of appeals at the high court seeking a stay of execution, saying that technology exists now that could verify his innocence and arguing that he has an intellectual disability that should prevent his execution.
The Supreme Court ultimately denied his stay requests in orders released by the court just before 11:30 p.m. at the Arkansas prison, following an hours-long delay imposed by Justice Samuel A. Alito Jr. so the high court could review the inmate’s appeals. Alito, who is assigned cases from the federal circuit covering Arkansas, then issued an order delaying Lee’s lethal injection “pending further order of the undersigned or of the Court.” He vacated his order after the justices declined all of the requests.
According to the orders, Alito referred the stay requests to the court, which denied them all without explanation. No justices logged dissents, though some had earlier Thursday said they would have granted stay requests from Lee and other inmates. Lee was pronounced dead about 30 minutes later....
Several death-row inmates in Arkansas, including Lee, appealed to the U.S. Supreme Court to stay the executions, but the justices earlier Thursday night released orders denying these requests. This marked the first time Justice Neil M. Gorsuch, who joined the court earlier this month, voted to create a conservative majority. In one of the orders, the court was split 5-4, with Gorsuch joining the majority in denying the stay and the court’s four liberal members saying they would have granted it.
Justice Stephen G. Breyer, who has previously questioned the “arbitrary” nature of the death penalty’s implementation, authored a critical dissent of Arkansas’ stated desire to carry out executions before its drugs expire. “I have previously noted the arbitrariness with which executions are carried out in this country,” he wrote. “And I have pointed out how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a ‘rule of law.’ The cases now before us reinforce that point.”
Thursday, April 20, 2017
Virginia Gov commutes death sentence of defendant who has claimed innocence in murder-for-hire crime
As reported in this new Washington Post piece, "Virginia Gov. Terry McAuliffe (D) has commuted the death sentence of Ivan Teleguz, a 38-year-old man who was set to be executed Tuesday in the murder-for-hire of his former girlfriend." Here is more:
Teleguz has maintained his innocence in the 2001 slaying of 20-year-old Stephanie Yvonne Sipe in Harrisonburg. His lawyers have argued that two key witnesses have recanted their testimony, calling his guilt into question. Multiple courts have deemed those recantations unreliable, and the man who killed Sipe has never wavered in saying that Teleguz paid him to commit the murder.
McAuliffe said Thursday that while he believes Teleguz is guilty, the sentencing phase of his trial was “terribly flawed and unfair.” Teleguz will now serve life in prison without a chance of parole.
In their clemency petition, attorneys for Teleguz stressed that jurors were falsely told that Teleguz also was involved in a Pennsylvania murder — but that purported killing never occurred. Prosecutors pointed to testimony of that supposed crime as evidence that Teleguz “solves problems” with murder. “The jury acted on false information,” McAuliffe said.
In making his decision, McAuliffe said he reviewed over 6,000 pages of documents, including letters from Sipe’s family. He called her relatives before his news conference Thursday afternoon. “My heart aches for the family of Stephanie Sipe,” he said, “but the Virginia Constitution and our sacred values of due process under law require me to act.”
McAuliffe personally opposes the death penalty, citing his Catholic faith. But this marks the first time he has commuted a death sentence. As governor, he has presided over three executions, and at the behest of correctional officials he has pushed for more secrecy in the lethal injection process....
Teleguz’s plea for a commutation attracted high-profile support, including from billionaire Richard Branson and former Maryland governor Robert L. Ehrlich, Jr.
Investigators and Sipe’s family, however, are confident of Teleguz’s guilt. “There's no doubt in my mind that he hired these people to kill my sister,” Sipe's sister, Jennifer Tilley, told the Harrisonburg television station WHSV last week. “And it blows my mind, it really does, that he is still trying to fight and plead for his life.”...
The last time a Virginia governor commuted a death sentence was in 2008, when then-Gov. Timothy M. Kaine (D) stopped the execution of triple murderer Percy L. Walton. Kaine commuted Walton’s sentence to life in prison without parole, saying that Walton was mentally incompetent and that putting him to death would be unconstitutional.
Prior related post:
Wednesday, April 19, 2017
After Monday stays, Arkansas officials seemingly on path to complete next pair of scheduled executions... OR NOT, as updated below....
As reported in this new AP piece, "two Arkansas inmates set to die this week in a double execution filed more legal challenges Wednesday, but so far the pair is hitting roadblocks as a judge weighs a new attempt to prevent the state from using one of its lethal injection drugs in what would be the state's first executions in nearly a dozen years." Here is more about the continuing litigation as the next set of execution dates approach:
Unless a court steps in, Ledell Lee and Stacey Johnson are set for execution Thursday night, and state prison officials have already moved them from death row to the nearby prison that houses the death chamber. It's the second time this week that Arkansas has moved forward with what originally had been a plan to execute eight men before April 30, when its supply of the drug midazolam expires.
On Monday, the Arkansas Supreme Court blocked the executions of two men set to die that night. A third man has received a stay from a federal judge over issues with his clemency schedule. Five inmates still face execution over the next two weeks, and they've filed a series of court challenges in hopes of stopping that.
The latest request, filed Wednesday, asks the U.S. Supreme Court to take the inmates' case that challenges the use of midazolam, a sedative used in flawed executions in other states. It's one of three drugs Arkansas plans to use in its executions. In 2015, justices upheld Oklahoma's execution protocol that used the same drug. "As pharmaceutical companies become increasingly resistant to allowing their products to be used in executions, states are likely to continue experimenting with new drugs and drug combinations, and death-row prisoners may challenge these new protocols as violating their constitutional rights," the filing before the U.S. Supreme Court said.
The Arkansas attorney general's office countered in a court filing Wednesday that the inmates' request was a last-minute effort to "manipulate the judicial process."...
Another case that could trip up Arkansas' plan was filed Tuesday by the medical supplier McKesson Corp., which says it sold the drug vecuronium bromide to the Arkansas Department of Correction for inmate medical care, not executions. The company sued to stop Arkansas from using the drug in the planned lethal injections, and a hearing over that issue was underway in Little Rock on Wednesday afternoon.
A state prison official testified that he deliberately ordered the drug last year in a way that there wouldn't be a paper trail, relying on phone calls and text messages. Arkansas Department of Correction Deputy Director Rory Griffin said he didn't keep records of the texts, but McKesson salesman Tim Jenkins did. In text messages from Jenkins' phone, which came up at Wednesday's court hearing, there is no mention that the drug would be used in executions.
Lee and Johnson both faced setbacks Tuesday in their quest to get more DNA tests on evidence in hopes of proving their innocence. Lee claims tests of blood and hair evidence that could prove he didn't beat 26-year-old Debra Reese to death during a 1993 robbery in Jacksonville. Johnson claims that advanced DNA techniques could show that he didn't kill Carol Heath, a 25-year-old mother of two, in 1993 at her southwest Arkansas apartment....
"It is understandable that the inmates are taking every step possible to avoid the sentence of the jury; however, it is the court's responsibility to administer justice and bring conclusion to litigation," Gov. Asa Hutchinson said Tuesday in an emailed statement. "It is that process that we are seeing played out day by day, and we expect it to continue."
UPDATE: This new Washington Post article, headlined "Arkansas courts stay execution, block state from using lethal injection drug," reports on why I reported too soon on the latest execution plans in Arkansas. Here are the latest details:
Arkansas courts on Wednesday dealt another pair of blows to the state’s plans to resume executions Thursday night, the latest in a series of legal rulings imperiling the scheduled flurry of lethal injections.
In one case, a state court halted an execution scheduled for Thursday night, while a state judge separately barred the use of a lethal injection drug, potentially blocking all of the planned executions.
The rulings come as Arkansas, seeking to carry out its first executions since 2005, has become the epicenter of capital punishment in the United States because of its frantic schedule. Gov. Asa Hutchinson (R) originally scheduled eight executions in 11 days, an unprecedented pace, which drew national scrutiny and criticism....
After the first planned executions were halted, Arkansas officials pointed to legal victories they won the same day and vowed to press on with them, beginning with two scheduled for Thursday night. “There are five scheduled executions remaining with nothing preventing them from occurring, but I will continue to respond to any and all legal challenges brought by the prisoners,” Arkansas Attorney General Leslie Rutledge (R) said in a statement after the U.S. Supreme Court denied her request to allow one execution to proceed Monday. “The families have waited far too long to see justice, and I will continue to make that a priority.”
Challenges to the executions are not only being brought by the inmates. McKesson, the country’s largest drug distributor, said a court on Wednesday granted its request for a temporary restraining order keeping Arkansas from using a drug the company says was obtained under false pretenses. The judge issued a verbal order from the bench, according to the Arkansas Democrat-Gazette; no injunction was filed in court records by early Wednesday night. A spokesman for Rutledge did not immediately have a comment on this order, but it is expected that she would appeal to the state Supreme Court....
The Arkansas Supreme Court also stopped one specific execution set for Thursday, saying just over 24 hours before it was scheduled to occur that it was staying it without explanation. In its order, the state Supreme Court narrowly blocked the execution of Stacey E. Johnson, 47, who has been on death row since 1994. The court said Johnson should be allowed to press on with his motion for post-conviction DNA testing. Johnson was sentenced to death for the murder of Carol Jean Heath, a woman brutally killed in her home.
Three justices dissented from the decision, with all three joining in a dissent saying the stay in this case “gives uncertainty to any case ever truly being final in the Arkansas Supreme Court.”...
Johnson is one of two inmates facing execution Thursday night. The other, Ledell Lee, has appealed his execution, arguing that he has an intellectual disability and seeking to prove his innocence. Both men are also among a group of death-row inmates who have petitioned the U.S. Supreme Court to stay the executions, one of several legal battles being waged between the state and the inmates.
Monday, April 17, 2017
Lots of litigation leading to lots of uncertainty as Arkansas execution dates arrive
This CNN article, headlined "Arkansas inmate has last meal as courts decide fate," reports on some of the still-in-development litigation in the Natural State as it tries to get its machinery of death operational. Here are the highlights:
After the Arkansas Supreme Court stayed the execution of two inmates, the state's attorney general asked the US Supreme Court to overturn the ruling so the execution of one could proceed.
While Bruce Ward has one other stay in place, Don Davis -- who had his last meal -- could be the first executed over the next 10 days if Attorney General Leslie Rutledge prevails with the U.S. Supreme Court.
Amid the flurry, the 8th U.S. Circuit Court of Appeals overturned a Saturday ruling by a federal judge that temporarily halted all eight executions.
That U.S. District Court judge had ruled that the prisoners will likely succeed in demonstrating the state's proposed method of lethal injection is unconstitutional. But the appeals court said the use of the method of execution, which includes the drug, midazolam, did not create undue severe pain.
The executions were set for this month because Arkansas' supply of midazolam expires on May 1.
Gov. Asa Hutchinson issued a statement Monday evening that said, in part, "We have asked the US Supreme Court and hope to get a decision later tonight."
The attorney for Davis and Ward requested stays of execution until the US Supreme Court rules on an upcoming case concerning inmate access to independent mental health experts. The justices are set to hold oral arguments on April 24....
Late Monday, the Arkansas Supreme Court also overturned a temporary restraining order, issued by a state judge, that prevented Arkansas from using vecuronium bromide it had purchased from McKesson Medical-Surgical in executions. The company had argued the medication was not meant to be used in capital punishment.
The Arkansas Supreme Court had already blocked Ward's execution due to questions about his mental competency. As of Monday evening, that stay remained.
As officials awaited further court action, Davis had his "last meal" at the Cummins Unit, where the execution chamber is located. According to the Arkansas Department of Correction, Davis chose fried chicken, rolls, great northern beans, mashed potatoes and strawberry cake.
Davis' current execution warrant expires at 1 a.m. ET (midnight CT).
UPDATE: This New York Times article provides a more fulsome accounting of all of Monday's litigation that ended up with two scheduled executions being stay. And the lengthy article ends with a preview of what the rest of this week holds:
A spokesman for the state prison system, Solomon Graves, said the Arkansas authorities would be prepared to carry out the other executions that Mr. Hutchinson set.
“The Department of Correction’s attention now shifts to the executions that are scheduled for Thursday,” Mr. Graves said. “We are under the impression, and under the assumption, that those executions will be carried out as scheduled.”
They are scheduled for 7 p.m. on Thursday.
Friday, April 14, 2017
Is Arkansas really going to carry out seven (uneventful?) executions over the next two weeks?
The question in the title of this post is a slight variation on a question a student posed to me yesterday, and I really did not have a confident prediction. But these two new pieces discussing Arkansas's plans highlight that others are feeling somewhat more confident about what lies ahead in the Natural State:
From the Arkansas News, "Arkansas governor confident executions will go smoothly"
Gov. Asa Hutchinson on Thursday said he is confident the state Department of Correction can successfully carry out seven executions over an 11-day span starting Monday and defended his decision to set the unprecedented schedule.
In a news conference at the Governor’s Mansion, Hutchinson also expressed confidence in the ability of the sedative midazolam to render the inmates unconscious and said he retains the option to halt any of the executions but does not expect to do so.
The governor told reporters he paid a visit Wednesday to the Department of Correction’s execution chamber in Lincoln County and was satisfied the staff can carry out the plan successfully. Arkansas last executed an inmate in 2005. “I’m not going to go into which staff is doing what at the Department of Correction, but as I was there yesterday, they are experienced, they work on it, they practice it, they don’t take it lightly,” he said. “They know what they’re doing.”
The plan has drawn international attention and has been criticized by groups and individuals who have called it an “assembly line” and a “train wreck.”
From the Washington Post, "Arkansas plans to execute 7 men in 11 days. They’re likely to botch one."
On April 17, Arkansas is scheduled to execute seven men over a period of 11 days. If carried out, that will be the most executions performed in such a short time since the modern death-penalty era began in 1976.
The reason: Arkansas’ supply of the controversial drug it is using for executions, midazolam, is set to expire April 30. Midazolam is medically used as an anti-anxiety sedative, not an anesthetic. Experts have concerns about the drug’s ability to render a person fully unconscious, heightening the risk of an unconstitutionally cruel punishment. The lawyers defending the men scheduled for death are arguing that the short time will limit their ability to provide effective counsel and that the execution team will be so stressed that they will probably make mistakes.
UPDATE: There have been consequential legal developments in Arkansas since I authored this post roughly 24 hours ago. This local article provides the highlights in its opening paragraphs:
A federal judge issued an injunction early Saturday to halt the executions of several condemned Arkansas inmates, creating another barrier to the state's plan to put them to death over an 11-day period starting Monday.
The Arkansas Attorney General's office called the decision "unfortunate" and filed a notice of appeal with the 8th U.S. Circuit Court of Appeals.
The ruling came a day after the Arkansas Supreme Court first issued an emergency stay blocking Bruce Ward's execution. That order didn't affect the other 6 condemned men, but Pulaski County Circuit Judge Wendell Griffen ruled a short time later that a separate complaint filed by a medical supplier was cause to issue a temporary restraining order blocking all the executions. The state Attorney General, though, on Saturday asked the state Supreme Court to reverse Griffen and to remove him from the case.
U.S. District Judge Kristine Baker's ruling, issued shortly after 6 a.m., applies to all of the scheduled executions. Click here to read the full order 📄.
Baker wrote that "there is a significant possibility that plaintiffs will succeed on the merits of their Eighth Amendment challenge to Arkansas’s lethal injection protocol."
Thursday, April 13, 2017
"Three Reasons Why Virginia May Execute an Innocent Man"
The title of this post is the headline of this notable new commentary authored by LawProf Cara Drinan. Here are excerpts:
In 2006, a jury convicted Ivan Teleguz of hiring someone to kill Stephanie Sipe, his ex-girlfriend and the mother of his child. Now, more than a decade later, Virginia is scheduled to execute Teleguz on April 25, 2017, and there is substantial evidence suggesting that Teleguz is innocent.
How is that possible in the United States – the land of the free, where a poor person is entitled to legal counsel and a criminal defendant has numerous chances to be heard in court? Actually, it happens with some ease, and in part, it happens because of conscious choices we have made about our legal system. There are at least three reasons for this counter-intuitive reality.
1. Prosecutors, Not Judges or Juries, Resolve Most Criminal Cases in America ...
Teleguz’s case demonstrates this phenomenon well. There was no physical evidence connecting him to the murder of Ms. Sipe; the prosecution’s case was based on the testimony of three witnesses. Since his trial, two of those witnesses have recanted their testimony and have admitted that they lied when they implicated Teleguz in exchange for favorable treatment from the government. The Commonwealth repeatedly told the third witness, Ms. Sipe’s actual killer, that he would face the death penalty unless he “cooperated” with them by agreeing to testify against Teleguz in Ms. Sipe’s murder and sticking to that story. Not surprisingly, he did just that and he is serving out a life sentence while Teleguz faces imminent death.
2. The Myth of the Right to Counsel ...
Teleguz suffered at the hands of a broken system. Counsel in death penalty cases are held to a heightened standard of performance, and as part of that standard, they are expected to conduct extensive, careful investigation to prepare for the sentencing phase of the trial. Teleguz’s trial counsel was far from diligent, and as a result, the jury heard evidence that Teleguz was involved in another arranged murder. This evidence persuaded the jury to vote for the death penalty. Here’s the wrinkle: not only was Teleguz not involved in such a crime, the crime never happened. Years after his trial, that fact came to light, and the government has now acknowledged that the alleged prior murder did not happen. But the jury verdict stands.
3. Not So Appealing Appeals Process ...
Surely, the multi-layered appellate process would ferret out an error of this magnitude and provide a remedy? Not necessarily. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and in the process “gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned.” Today, the American appellate process is an intricate web of procedural rules, and, in fact, "we have purposefully designed our system of appellate review to examine almost everything but factual guilt or innocence."
That might be defensible if we could be confident in the accuracy of our criminal justice system, but we can’t be. Since 1989, there have been more than 2,000 exonerations in the United States. In 2015 alone, 58 people were exonerated of homicide convictions. Like many of those individuals, Teleguz has consistently maintained his innocence. Today there is new evidence to support that claim that no court has fully examined.
In the next few days, Governor Terry McAuliffe can’t do much about prosecutorial overreach, problems with indigent defense, and the complex appellate process. But he can recognize that, because of these systemic failures, there is substantial doubt about Teleguz’s guilt. Governor McAuliffe should grant clemency and stop Teleguz’s execution.
This recent AP article, headlined "Conservatives urge Virginia governor to spare inmate's life," highlights that it is not only a law professor urging Gov McAuliffe to act in this capital case.
UPDATE: A commentor has usefully noted that the Fourth Circuit opinion in this case, which is available here, provides a different perspective on this case and Teleguz's claims of innocence.
Wednesday, April 12, 2017
Might Dylann Roof have claimed ineffective assistance of counsel if he didn't get sentenced to death?
Most murderers who get sentenced to death at some point claim their lawyers were constitutionally ineffective. But this new local article, headlined "Dylann Roof calls his lawyers 'sneakiest people I ever met,' says mental health defense was 'a lie'," suggests one high-profile condemned mass murderer might have claimed his lawyer was ineffective if he wasn't sentenced to death. The full article is fascinating, and here is how it gets started:
Calling his attorneys "the sneakiest group of people I have ever met,” Dylann Roof reached out to federal prosecutors on the eve of his hate crimes trial in an effort to scuttle a planned mental health defense aimed at sparing him the death penalty.
Roof blistered his legal team in a three-page jailhouse letter, accusing them of tricking him into undergoing tests to challenge his competency to stand trial for killing nine black worshippers at Charleston's Emanuel AME Church in June 2015. Roof told prosecutors he wanted no part of this strategy, which he labeled "a lie."
"Because I have no real defense, my lawyers have been forced to grasp at straws and present a pathetic, fraudulent excuse for a defense in my name," he wrote in early November. "They have regularly told me in an aggressive manner that I have no say in my own defense, that my input doesn't matter, and that there is nothing I can do about it."
Roof's letter was among more than 70 filings that U.S. District Court Judge Richard Gergel unsealed Tuesday – one day after the 23-year-old white supremacist pleaded guilty to nine counts of murder in state court. Though Roof’s federal trial ended in January with a death sentence, Gergel had been reluctant to release records about his mental status while the state case was pending.
The newly unsealed documents show procedural disagreements over how Roof’s mental health would be evaluated and growing discord between the killer and his top-flight legal team of capital defense specialists. Roof railed at their “slick” tactics, and they in turn expressed frustration with a “delusional” client who seemed preoccupied with fantasies that white supremacists would break him out of prison and make him governor of South Carolina, the documents show.
In the handwritten November letter to “Prosecution,” Roof alleged that his legal team had told him he was being tested to determine if a thyroid condition had affected his brain when they were really compiling evidence to challenge his competency. He said he wanted the people trying to convict him to know that “what my lawyers plan to say in my defense is a lie and will be said without my consent or permission.”
“My lawyers have purposely kept me in the dark about my defense until the last minute in order to prevent me from being able to do anything about it, which is why I have been forced to write to you,” he stated. “Throughout my case they have used scare tactics, threats, manipulation, and outright lies to further their own, not my, agenda.” He warned prosecutors not to let his legal team “fool you or the court like they’ve fooled me.”
Prosecutors notified Roof's lawyers after receiving the letter, and lead defense attorney David Bruck agreed that Gergel, the trial judge, needed to see the missive, according to a chain of emails. After a closed-door meeting on Nov. 7, Roof's lawyers pleaded with the judge to delay planned jury selection in the case so Roof could undergo an extensive mental competency review. They repeatedly described Roof as delusional, and noted his "depression, extreme anxiety and autism spectrum disorder."
They stated that their tenuous working relationship with him had suffered "a severe rupture" when he "openly attempted to sabotage his own case" by reaching out to prosecutors. "(W)e are now faced with a client who would rather die than be labeled mentally ill or neuro-developmentally impaired, and who would rather communicate and ally himself with those who propose to execute him than us," his attorneys wrote.
The attorneys stated that Roof believed "the very white nationalists whom he considers his allies" would turn on him and persecute him for his "perceived infirmities" if he were to be labeled incompetent. They stated that Roof had "an irrational belief that being labeled mentally impaired will affect the defendant's standing with some hypothetical white nationalists whom the defendant has never met or communicated with — and cannot even name — but whom he believes may appoint him to a high government position some day."
They attached notes indicating that Roof had been so distracted by his delusional ideas that he was unable to respond to the basic needs of his defense. Among his odd notions was a fantasy that white supremacists would stage a prison break to rescue him from captivity, they said. "His single-minded focus on being rescued and made governor of South Carolina makes salient to him things that are irrational and he cannot rationally assist counsel as a result," they stated.
Monday, April 10, 2017
Amnesty International releases report on global death sentences and executions in 2016
Amnesty International has released this new report on the worldwide use of the death penalty in 2016. This AI webpage provides a kind of summary of some of the full report's most salient facts and figures. Here are some of those numbers:
At least 1,032 people were executed in 23 countries in 2016. In 2015 Amnesty International recorded 1,634 executions in 25 countries worldwide — a historical spike unmatched since 1989. Most executions took place in China, Iran, Saudi Arabia, Iraq and Pakistan — in that order.
China remained the world’s top executioner — but the true extent of the use of the death penalty in China is unknown as this data is considered a state secret; the global figure of at least 1,032 excludes the thousands of executions believed to have been carried out in China. Excluding China, 87% of all executions took place in just four countries — Iran, Saudi Arabia, Iraq and Pakistan.
For the first time since 2006, the USA was not one of the five biggest executioners, falling to seventh behind Egypt. The 20 executions in the USA was the lowest in the country since 1991.
During 2016, 23 countries, about one in eight of all countries worldwide, are known to have carried out executions. This number has decreased significantly from twenty years ago (40 countries carried out executions in 1997). Belarus, Botswana, Nigeria and authorities within the State of Palestine resumed executions in 2016; Chad, India, Jordan, Oman and United Arab Emirates — all countries that executed people in 2015 — did not report any executions last year.
141 countries worldwide, more than two-thirds, are abolitionist in law or practice.
In 2016, two countries — Benin and Nauru — abolished the death penalty in law for all crimes. In total, 104 countries have done so — a majority of the world’s states. Only 64 countries were fully abolitionist in 1997.
Commutations or pardons of death sentences were recorded in 28 countries in 2016. At least 60 people who had been sentenced to death were exonerated in 9 countries in 2016: Bangladesh (4), China (5), Ghana (1), Kuwait (5), Mauritania (1), Nigeria (32), Sudan (9), Taiwan (1) and Viet Nam (2).
Amnesty International recorded 3,117 death sentences in 55 countries in 2016, a significant increase on the total for 2015 (1,998 sentences in 61 countries). Significant increases were recorded in 12 countries, but for some, such as Thailand, the increase is due to the fact that the authorities provided Amnesty International with detailed information.
At least 18,848 people were on death row at the end of 2016. The following methods of execution were used across the world: beheading, hanging, lethal injection and shooting. Public executions were carried out in Iran (at least 33) and North Korea.
Sunday, April 09, 2017
Poll suggests Arkansans generally support state plans for multiple executions in coming weeks
This new local article, headlined "Poll: Arkansans’ support for death penalty unfazed by upcoming execution schedule," reports on a new local poll showing support for the notable execution plans in the works in the Natural State. Here are excerpts from part of the poll and some analysis provided in the article:
Arkansas voters remain firmly committed to the death penalty despite an upcoming quick execution schedule, advances made in DNA testing, and a national trend towards ending the practice. A new Talk Business & Politics-Hendrix College survey suggests more than 2-to-1 support for the death penalty versus life without parole....
Arkansans are also unfazed by the upcoming rapid execution schedule which involves seven executions over an 11-day period. At the time the poll was conducted, eight inmates were scheduled for execution in the 11-day time span....
As Arkansas’s move to carry out eight (and, following a federal court ruling in recent days, seven) executions via lethal injection moves toward reality at the end of the month, Arkansas is gaining increasing national and international attention as state officials race to beat the expiration deadline for a drug used in the state’s lethal injection formula.
We asked a series of questions about Arkansans’ opinions regarding the death penalty, generally, and this historic number of executions in particular. Arkansans’ unshakeable commitment to the death penalty is shown by the survey results. Most generally, Arkansans solidly support the application of the death penalty with over six in ten respondents favoring the death penalty while fewer than three in ten support life without parole for those convicted of capital offenses....
Finally, we focused on the extraordinary number of executions planned by the state of Arkansas at the end of the April. At the time of our survey, eight executions were planned. At the time of this writing, seven of those executions remain on track (the eighth has been delayed by federal District Judge Price Marshall because of a favorable clemency recommendation by the State Parole Board).
Just at one in four Arkansans are troubled by this aggressive stance while a strong majority of Arkansans either favor this move by the state to ensure the executions are carried out before the drug expiration (51%) or say it makes no difference (17%). While slight majorities of African-Americans and Democrats oppose the mass executions, the most noticeable variance across social groups is shown between men and women. A nearly 20 point gender gap (61% for men versus 42% for women) is shown on support for the late-April series of executions.
All told, this pattern of survey responses on the death penalty shows the breadth and depth of Arkansans support for death as an appropriate punishment in capital cases. While national survey research shows some erosion of support for the death penalty, all signs are that the death penalty will remain in favor in Arkansas for the foreseeable future.
Some prior related posts:
- Arkansas Gov signs proclamations that could lead to eight executions in less than two weeks in next month
- Arkansas trial judge finds it "more than shameful" that state Supreme Court ruling required dismissal of condemned inmates suit over lethal injection
- New report spotlights concerns with disabilities and bad lawyering for eight Arkansas condemned scheduled for execution next month
- Arkansas Parole Board recommends clemency for one of eight condemned scheduled for execution later this month
Saturday, April 08, 2017
"Cruel Techniques, Unusual Secrets"
The title of this post is the title of this new paper authored by William Berry and Meghan Ryan now available via SSRN. Here is the abstract:
In the recent case of Glossip v. Gross, the Supreme Court denied a death row petitioner’s challenge to Oklahoma’s lethal injection protocol. An important part of Justice Alito’s majority opinion highlighted the existence of a relationship between the constitutionality of a punishment and the requirement of a constitutional technique available to administer the punishment.
Far from foreclosing future challenges, this principle ironically highlights the failure of the Court to describe the relationship under the Eighth Amendment between three distinct categories of punishment: (1) the type of punishment imposed by the court — i.e., death penalty, life without parole, life with parole, (2) the method of punishment — the tool by which the state administers the punishment, and (3) the technique of punishment — the manner in which the state administers the punishment. Because, as Justice Alito insists, a constitutional method and technique must exist for a constitutionally approved punishment, there is a constitutional relationship between these categories.
As such, this Article articulates a holistic model for applying the Eighth Amendment on three levels — the punishment type, method, and technique. This Article develops this taxonomy, making explicit the concepts implicit in a number of Eighth Amendment cases. To be sure, the Court has assessed types of punishments, punishment methods, and punishment techniques individually, but it has never offered a holistic framework by which to understand these related constitutional inquiries. This Article develops such an approach.
In light of the applicable framework, the Article then explores the Court’s application of the Eighth Amendment with respect to the three categories, demonstrating how the Court deviates from its doctrine when considering punishment techniques. It next describes use of secrecy in the context of lethal injection, uncovering the manner in which this secrecy frustrates the application of the Eighth Amendment framework. Further, the Article argues that the state-instigated secrecy does more than create a doctrinal smokescreen — it raises serious constitutional and legitimacy questions concerning lethal injection protocols. Finally, the Article concludes by exploring what transparency in execution methods might mean both in terms of restoring dignity to death row prisoners and for the future of capital punishment in America.
Thursday, April 06, 2017
Split Sixth Circuit panel uphold injunction blocking Ohio lethal injection protocol
A split Sixth Circuit panel today In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. April 6, 2017) (available here), upheld a preliminary injunction blocking Ohio from moving forward with a number of scheduled executions. Here is how the majority opinion authored by Judge Moore gets started:
Ohio’s current execution protocol allows for execution by lethal injection using a three-drug combination of (1) midazolam; (2) either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and (3) potassium chloride, which stops the heart. R. 667-1 (Ohio DRC Execution Protocol, 01- COM-11 at 2) (Page ID #19813). The purpose of the first drug is to ensure that the person being executed is insensate to the pain that the second two drugs cause. It is undisputed that if the first drug does not “render the prisoner unconscious,” then “there is a substantial, constitutionally unacceptable risk of suffocation . . . and pain” from the second two drugs. Baze v. Rees, 553 U.S. 35, 53 (2008) (plurality op.). The ultimate question in this case is whether use of midazolam as the first drug in this three-drug protocol “entails a substantial risk of severe pain” as compared to “a known and available alternative.” Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). The question before us at this preliminary stage, however, is much narrower. We ask only whether the district court abused its discretion by granting a preliminary injunction to allow for further litigation regarding midazolam’s efficacy before Ohio executes Ronald Phillips, Raymond Tibbetts, and Gary Otte. For the reasons discussed below, we AFFIRM the judgment of the district court granting the preliminary injunction.
Here is how the dissenting opinion by Judge Kethledge gets started:
Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed. See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995). Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head. Two nights later, Otte pushed his way into a woman’s home and did the same things to her. After each murder Otte went out partying. See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996). Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back. His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts, 749 N.E.2d 226, 237–39 (Ohio 2001).
Phillips, Tibbetts, and Otte now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment. In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted). The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court refused to invalidate in Glossip. Yet the district court thought we should likely invalidate that procedure, and today the majority agrees. I respectfully disagree and would reverse the district court’s grant of a preliminary injunction.
A lengthy faculty meeting and a coming class mean I will not have a chance to read this extended opinion until late tonight, but I can already confidently predict that the State of Ohio will seek en banc review of this ruling and perhaps even Supreme Court review, if necessary.
Arkansas Parole Board recommends clemency for one of eight condemned scheduled for execution later this month
As reported in this AP piece, the "Arkansas Parole Board on Wednesday recommended that Gov. Asa Hutchinson alter the state's unprecedented execution schedule and grant mercy to a death row inmate who directed the torture and murder of a teenager more than two decades ago." Here is more:
Jason McGehee, 40, is one of eight inmates scheduled to die in four double executions this month. Hutchinson, who is not bound by the board's finding that McGehee should have his sentence cut to life without parole, can intervene at any time before the execution begins on April 27. The Republican governor not said when he will make a decision.
Until Wednesday, the state Parole Board had rejected every death row clemency request presented to it since 1990.
With a key lethal injection drug expiring at the end of the month, the Arkansas Department of Correction hopes to execute eight men in a 10-day period beginning April 17. Only Texas has executed that many inmates in a month, doing it twice in 1997. Seven executions in a month would still be a record for Arkansas.
Prosecutors say McGehee, who had just turned 20, directed the fatal assault of Johnny Melbourne Jr., a 15-year-old who had told police about a northern Arkansas theft ring. In voting 6-1 in favor of McGehee's clemency request, the Parole Board considered letters and testimony from the judge from McGehee's trial, a former Correction Department chief, members of McGehee's family and the victim's father.
"The death of John Melbourne, Jr. was the tragic result of a group-dynamic gone wrong," retired Circuit Judge Robert McCorkindale wrote, according to documents released by the state Parole Board. McGehee was one of several people who participated in the attack, but was the only defendant sentenced to death, and the retired judge called it "an excessive punishment."
Former Department of Correction Director Ray Hobbs told the panel at a 40-minute hearing Friday that McGehee had become a model prisoner. "He still has value that can be given to others if his life is spared," Hobbs said.
Linda Christensen, the inmate's aunt, said in an affidavit filed with the board that McGehee suffered psychological abuse as a teenager, such as when his stepfather killed the boy's dog after the dog fought with another dog for food. The stepfather "got up and kicked Dusty in the side with his cowboy boots as hard as he could," Christensen wrote. "He lay and suffered and the kids had to watch him die slowly. ... Jason was never the same after that."
Melbourne's father had asked the board to reject McGehee's clemency request. "John didn't have this. Even though he was begging for his life and was hurting. He didn't have this and he begged for his life too. He didn't have y'all," the elder Melbourne said.
Board Chairman John Felts voted against clemency. He said McGehee's death sentence wasn't excessive considering the inmate had orchestrated the Aug. 19, 1996, attack. The boy was beaten and tortured at a house in Harrison, then bound and driven to an abandoned farmhouse outside Omaha, a town in northern Arkansas. He was later strangled while his hands were tied with an electrical cord.
Wednesday, April 05, 2017
Alabama poised to ban judicial override of jury life recommendations in capital cases
As reported in this local article, the "law in Alabama is about to change so that juries will have the final say on whether to impose the death penalty or life in prison in capital murder cases." Here is more on this notable capital development:
The House of Representatives this afternoon passed a bill that would end the authority of judges to override jury recommendations in capital cases. Alabama is the only state that allows a judge to override a jury's recommendation when sentencing capital murder cases.
The bill, by Sen. Dick Brewbaker, R-Montgomery, passed the House on a vote of 78-19 and is now headed to Gov. Robert Bentley, who said he plans to sign it into law after it undergoes a standard legal review.
Rep. Chris England, who had a similar bill in the House, substituted Brewbaker's bill for his on the House floor today, allowing it to get final passage....
According to the Equal Justice Initiative. Alabama judges have overridden jury recommendations 112 times. In 101 of those cases, the judges gave a death sentence. "Having judicial override almost undermines the constitutional right to trial by a jury of your peers," England said.
England's bill, as introduced, would also have required the consent of all 12 jurors to give a death sentence. Current law requires at least 10 jurors. Brewbaker's bill leaves the threshold to impose the death penalty at 10 jurors.
England said there was not enough support to pass the bill with the requirement for a unanimous jury to impose the death penalty. He said ending judicial override was the main objective this year but he might propose the unanimous jury requirement again in the future. He said he still thinks the change is needed. "Why would it take a unanimous jury to convict but less than a unanimous jury to send someone to death?" England said....
England said the fact that Alabama had become the last state to allow judicial override helped build support for the bill this year. England also said there was some question about whether Alabama's death penalty law could be found unconstitutional in the future.
Ebony Howard, associate legal director for the Southern Poverty Law Center, issued a statement applauding the bill's passage. "Alabama should do everything it can to ensure that an innocent person is never executed," Howard said. "The bipartisan effort to pass a bill that would keep a judge from overriding a jury's vote in capital cases is a step in the right direction. As of today, Alabama is one step closer to joining every other state in our nation in prohibiting judicial override in the sentencing phase of death penalty cases."
The Supreme Court's decision in Hurst last year striking down, as violative of the Sixth Amendment, Florida's quirky approach to jury involvement in death sentencing surely paved the way for this notable change in Alabama procedure. Notably, in Florida, Hurst was ultimately interpreted to also preclude death sentencing based on only a 10-juror recommendation. Apparently legislators in Alabama feel more confident that capital cases can roll that way in the Yellowhammer State.
Tuesday, April 04, 2017
Could Proposition 66 turn the California Supreme Court into a specialty death penalty appeals court?
The question in the title of this post is prompted by this recent lengthy Los Angeles Times article headlined "Trying to speed up executions could deal 'mortal blow' to California Supreme Court." Here are excerpts:
If a November ballot measure to speed up executions goes into effect, the California Supreme Court will have to decide hundreds of death penalty appeals in rapid succession. That mandate would turn the state’s highest court into what analysts say would be “a death penalty court,” forced for years to devote about 90% of its time to capital appeals.
Proposition 66, sponsored by prosecutors and passed by 51% of voters, gave judicial leaders 1½ years to make new legal rules and then five years to decide a crushing backlog of appeals. “Prop. 66 would require the California Supreme Court to decide virtually nothing but death penalty appeals for at least the next five years — almost no civil cases at all and no criminal cases other than capital murder,” said Jon Eisenberg, president of the California Academy of Appellate Lawyers.
Legal analysts and four bar associations say the measure would inundate all the courts with extra work but hit the top court’s seven justices hardest. In a friend-of-the-court brief, 11 law professors and a nonprofit legal center contended Proposition 66 would “grind the wheels of justice to a halt” in California.
Death penalty advocates acknowledge the measure would mean extra work for the courts, but say that it is necessary to fix a system that has produced the largest death row in the country and no executions in more than a decade. They contend the workload will be tolerable, and that the courts will have some flexibility in meeting the deadlines.
The California Supreme Court is considering whether the measure can go into effect. Two opponents of the measure sued in November, contending it illegally usurped the powers of the judicial branch and violated a constitutional rule that says ballot measures must deal with one subject only. The California Supreme Court put the measure on hold until the justices resolve the case, probably within the next few months.
The appellate lawyers’ academy takes no position on the death penalty but opposed the initiative on the grounds that it would disrupt the courts and prevent litigants in civil matters from having their cases decided in a timely manner. It joined the bar associations of Los Angeles, Beverly Hills and San Francisco in a January letter written to the state Supreme Court saying that Proposition 66 “threatens to deal a mortal blow” to California’s courts....
Given a backlog of more than 300 death penalty appeals already at the court, the justices would have to decide at least 66 of them each year for the next several years just to catch up, Eisenberg said. Calculations based on the court’s typical annual production indicate the justices would be spending 90% of their time on capital cases, Eisenberg said. Civil case rulings would decline from about 50 a year to just a handful, he said. “That leaves virtually no time for anything other than death penalty cases,” Eisenberg said....
UC Berkeley's David A. Carrillo, director of a center that studies the California Constitution, described the initiative as a new unfunded mandate. "There is no way the courts can get through the existing backlog in five years with their current resources," Carrillo said.
Law enforcement groups have filed several friend-of-the-court briefs in favor of the initiative, arguing that voters have made their will clear. “California voters have elected to retain the death penalty every time the issue has been placed before them,” the leaders of several county prosecutor groups reminded the court in one brief.... “Despite the abiding and long-standing will of the voters, death penalty opponents have used the legal process as a mechanism to frustrate imposition of the death penalty,” the prosecutors argued in their brief.
Kent Scheidegger, who helped write Proposition 66, said the portrait of court chaos predicted by the bar associations and some analysts was overblown. Although the measure would require the California Supreme Court to move quickly to dispatch the backlog of capital appeals, the initiative would also shift initial responsibility for habeas challenges from the high court to trial judges, he noted. That provision, Scheidegger argued, would save the court time.
Rulings by Superior Court judges on those cases would likely be appealed to intermediate appellate courts and up to the state Supreme Court, but Scheidegger said the trial judges would do the heavy lifting. “I know that all judges hate time limits, but I do think that moving the habeas cases is a reform that most of the justices probably would agree with,” said Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates for the death penalty.
Even if the Supreme Court were to strike down the measure’s deadlines, other requirements of the initiative would still speed up executions, he said. He cited a provision that would limit public review of the state’s lethal injection method. Legal challenges involving the method have kept the execution chamber empty since 2006. Eighteen inmates who have exhausted their appeals could be executed immediately once that part of the initiative took effect, he said.
Former El Dorado County Supervisor Ron Briggs and the late former Atty. Gen. John Van de Kamp, who filed the lawsuit, argued that the entire measure should be tossed because it violated the rule limiting initiatives to a single subject. In addition to setting new deadlines and easing approval of an execution protocol, Proposition 66 would require death-row inmates to work to pay compensation to victims’ families and bar medical associations from disciplining doctors who participate in executions. It also would place a state agency assigned to represent death row inmates under California Supreme Court control and permit the corrections department to distribute condemned inmates among the general prison population.
I find so many interesting elements to this story, ranging from the telling reality that it has already taken five months to move along litigation about the status of an initiative designed to move along litigation to the interesting conflict created by state Supreme Court judges having to decide a case that will determine whether and how they have to decide a lot more cases a lot more quickly. In the end, though, this story confirms my long-standing belief that unless and until a lot of elected officials in California start having a very strong interest in moving forward with a large number of executions, the death penalty will exist in the state more as a sentence on paper than as a sentence that actually gets carried out for any significant number of condemned murderers.
Monday, April 03, 2017
Latest SCOTUS order list includes one complicated capital case grant
The Supreme Court via this order list granted cert in two cases, including a capital case out of Texas, Ayestas v. Davis. SCOTUSblog has this case page for Ayestas, where one can find this cert petition, where one can find the complicated question on which cert was granted:
2. Whether the Fifth Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an IAC claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made.
Charleston Church shooter Dylann Roof slated to plead guilty to state charges to avoid second capital trial
As reported in this local article, "mass killer Dylann Roof will plead guilty to state murder charges on April 10, sparing his nine victims' loved ones a second grueling death penalty trial and ensuring he spends the rest of his life in prison." Here is more:
Roof, 22, was convicted in January of 33 federal charges, including hate crimes, and sentenced to death for killing nine black worshippers at Emanuel AME Church. However, 9th Circuit Solicitor Scarlett Wilson also was pursuing the death penalty for nine state murder charges, proceedings that had been on hold since the end of Roof's federal trial.
She let families of Roof's victims know early Friday she is accepting a guilty plea instead. "I write with great news that the state’s case is ready to wrap up. As I told you towards the end of trial and in other updates, at this point our goal is to provide an insurance policy to the federal conviction and sentence. The most effective way to do that is to secure a guilty plea for a life sentence and get the defendant into federal custody," Wilson wrote in a letter obtained by The Post and Courier.
Reached Friday, Wilson said the move will take the death penalty off the table in the state case and assist with moving the white supremacist along to federal prison. "The goal is to get him into federal custody so their sentence can be imposed," she said. She had no further comment on the decision, saying her letter speaks for itself.
After his April 10 plea, Roof likely will be moved from the Charleston County detention center to a federal Bureau of Prisons facility. Male prisoners sentenced to death usually are housed at a prison in Terre Haute, Ind., site of the federal execution chamber.
Loved ones of those killed have waited since the gut-wrenching federal trial's close to find out Wilson's plans. Many don't support the death penalty on religious grounds and several said they didn't want to go through a second trial.
The Rev. Sharon Risher, whose mother died in the shooting, was among them. Wilson called to tell her the news. "I totally appreciated that," Risher said. "I'm feeling glad we don't have to endure another trial. I believe in my heart that this is the right thing to do. He won't ever be able to step outside again. He won't ever feel the sun on his skin again."
Friday, March 31, 2017
New report spotlights concerns with disabilities and bad lawyering for eight Arkansas condemned scheduled for execution next month
In this post last year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation. The latest timely report from FPP is titled "Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering," and here is how it gets started:
Since the Supreme Court reinstituted the death penalty in 1976, Arkansas has executed just 27 people. It has not sent an inmate to the death chamber since 2005. But beginning on April 17, Arkansas intends to execute an unprecedented eight men in just ten days.
This report examines the cases of those condemned men, and what we found is devastating. At least five of the eight cases involve a person who appears to suffer from a serious mental illness or intellectual impairment. One of these men was twenty at the time of the crime, suffered a serious head injury, and has a 70 IQ score. Another man suffers from paranoid schizophrenia and believes that he is on a mission from God. He sees both his deceased father and reincarnated dogs around the prison. A sixth condemned inmate endured shocking sexual and physical abuse–he was burned, beaten, stabbed, and raped, and his mother pimped him out to various adults throughout his preteen and teen years. In the two remaining cases, there is no evidence to suggest that the attorneys ever conducted even a minimally adequate mitigation investigation to determine if their clients had any illnesses or disabilities.
Across the eight cases, the quality of lawyering that we detected falls short of any reasonable standard of effectiveness–one lawyer was drunk in court, while another struggled with mental illness. Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest. Taken together, these cases present a foundational challenge to the legitimacy and integrity of the death penalty in Arkansas. The Governor should declare a moratorium on executions so these legal deficiencies can be given a closer look, or else the Courts must intervene to stop these executions in order to preserve public confidence in the rule of law.
Perspectives on some changing prosecutorial perspectives
This New York Times article, headlined "Lock ’Em Up? Prosecutors Who Say ‘Not So Fast’ Face a Backlash," discusses the debate over a new local Florida prosecutor's announcement that she will not pursue capital cases together with the broader dynamic that more local prosecutors are running and winning on a criminal justice reform platform. (The companion piece briefly profiles "5 Prosecutors With a Fresh Approach.") Here are excerpts:
In Tampa, the top prosecutor says too many children are charged as adults. In Houston, the district attorney will no longer press charges in low-level marijuana cases. And in Chicago, prosecutors will no longer oppose the release of many nonviolent offenders who cannot afford to post bond. Two more newly elected prosecutors, in Denver and Orlando, have vowed not to seek the death penalty, even for the most egregious killers.
They are part of a new vanguard that has jettisoned the traditional lock-’em-up approach, instead winning over voters by embracing alternatives to harsh punishment. But in their eagerness to enact changes, some are facing a backlash from law enforcement groups and more conservative politicians.
In Texas, Lt. Gov. Dan Patrick, a Republican, warned that failing to punish drug crimes would make Houston akin to a “sanctuary city” for illegal enterprise. In Chicago, a suburban police chief warned that a move to classify more shoplifting cases as misdemeanors was “a slippery slope.”
But nowhere has there been more vitriol than in Florida, where a battle over the death penalty shows just how volatile an issue capital punishment remains, especially when the death of a police officer is involved....
The new breed of prosecutors was helped into office by voters skeptical of wrongful convictions, mass incarceration and evidence of racial bias in law enforcement. As candidates, many received help from the liberal billionaire George Soros, who spent millions on campaigns in states including Arizona, Mississippi and Missouri. Of the 15 candidates supported by his political action committees (including one for sheriff), 12 were victors.
But some change-minded prosecutors won without Soros money, showing that attitudes across the country are changing regardless of outsize political contributions, said David A. Sklansky, a professor at Stanford Law School who closely follows the issue. “It’s now possible in at least some places for district attorneys to campaign successfully and win office on a platform that’s not just harsher, harsher, more, more punishment,” he said. “That was unheard-of 10 years ago.”
Bob Ferguson, the attorney general of Washington State, said, “I think our public’s view of our criminal justice system has evolved.” Speaking out against the death penalty, he added, “is not the third rail people think it is.”
Thursday, March 30, 2017
Arkansas trial judge finds it "more than shameful" that state Supreme Court ruling required dismissal of condemned inmates suit over lethal injection
As reported in this local article, headlined "Suit over Arkansas execution drug gets dismissal; Griffen: Justices stole men’s rights," a trial judge in Arkansas is none-too-pleased he felt compelled to dismiss a challenge to lethal injection brought by state prisoners in the wake of a state Supreme Court ruling on the matter. Here are the basics of a notable ruling in a state seemingly poised now to conduct eight executions in the coming weeks:
The Arkansas Supreme Court's decision to lift a ban on the death penalty stole the rights of the nine convicted killers who filed suit to challenge the state's execution procedures, and it forces all state courts to continue that theft, Pulaski County Circuit Judge Wendell Griffen said in a ruling Tuesday.
"It amounts to theft of the rights guaranteed by the Constitution of this state and the Constitution of the United States to a trial," the judge wrote.
The ruling issued Tuesday by Griffen, a former Court of Appeals judge known for his outspokenness, formally ends 21 months of state-court litigation over the legality of the state's execution protocols. Griffen's dismissal of the inmates' Circuit Court lawsuit comes as eight of those inmates face lethal injection next month in four two-per-day execution sessions.
The prisoners have filed two federal lawsuits this week attempting to halt the process. On Tuesday, they sued to stop the ongoing clemency hearings, arguing that the state is moving forward with their executions so quickly that their clemency petitions are not getting the consideration required by law. A federal lawsuit that they filed Monday disputes that the anesthetic midazolam will give them the painless death they are entitled to under constitutional protections that bar the infliction of cruel and unusual punishment.
The inmates had disputed the effectiveness of midazolam at preventing suffering as part of their 2015 state-court lawsuit before Griffen. But they were not allowed to present their evidence in court because the Supreme Court ignored "decades" of case law to dismiss their entire lawsuit even before all of the issues the inmates had raised had been decided, Griffen wrote in Tuesday's order and memorandum.
"To think that the highest court in Arkansas would compel every other court in Arkansas to steal the last right condemned persons have to challenge the constitutionality of their execution illustrates the travesty of justice, and the damnable unfairness, this court is powerless to prevent," Griffen wrote.
State lawyers asked Griffen on March 16 to dismiss the killers' lawsuit based on the Supreme Court's June 2016 findings, a 4-3 decision written by Justice Courtney Goodson that reinstated the death penalty after a 10-year hiatus. Arkansas has not carried out an execution since 2005 because of litigation by inmates who have disputed the legality of changes the Legislature has made to the state's execution procedures over the past several years.
On March 17, the inmates' attorneys asked Griffen to rule in their favor on issues in the lawsuit that they stated the Supreme Court holding did not address. But the judge wrote that the Supreme Court decision required him to dismiss the lawsuit.
His 10-page ruling also states that the high court ignored decades of case law to deliberately deny the inmates their rights, and it suggests that the justices violated the oath all attorneys take to uphold the law to reach their conclusions. "It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state. As such, it is more than troubling and more than shameful," Griffen wrote.
Tuesday, March 28, 2017
Ruling 5-3, SCOTUS rejects Texas effort to limit definition of intellectual disability for death penalty application
The Supreme Court this morning handed down an opinion in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), in favor of a capital defendant. Because I am on the road, I will not be able to provide context for this ruling until later today. Short story seems to be that the more liberal Justices were not impressed by the more conservative standard Texas courts have used to apply the Atkins and Hall precedents concerning Eighth Amendment limits on executing the intellectually disabled.
UPDATE: Now with a few minutes at a desktop, I can quote Justice Ginsburg's opinion for the Court:
Bobby James Moore fatally shot a store clerk during a botched robbery. He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution. A state habeas court made detailed factfindings and determined that, under this Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.” The habeas court therefore recommended that Moore be granted relief.
The Texas Court of Criminal Appeals (CCA) declined to adopt the judgment recommended by the state habeas court. In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno, 135 S.W.3d 1 (2004). See Ex parte Moore, 470 S.W.3d 481, 486–487 (2015). The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. 470 S.W.3d at 526.
We vacate the CCA’s judgment. As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” 572 U.S., at ___ (slip op., at 19); see id., at ___ (slip op., at 7). That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus. Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source. Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual disability will be executed,” 572 U.S., at ___ (slip op., at 1). Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.
After Hurst brought down Delaware death penalty, state legislators seek to bring it back
As reported in this lengthy local article, "legislators from both parties say they will try to re-institute the death penalty in Delaware this year with a measure expected to be introduced next week." Here is more:
“Delaware has a long history of applying capital punishment cautiously, judiciously, and infrequently,” said State Sen. Dave Lawson. “These proposed changes would raise the imposition of such a sentence to a new level, removing what the court found objectionable and strengthening protections afforded defendants.”
The state Supreme Court last year ruled the capital punishment law unconstitutional because it allowed a judge, not a jury, to determine that "aggravating circumstances" made a crime heinous enough to deserve a death sentence. There are 22 of those aggravating factors, such as crime committed against a police officer, crimes in which hostages are taken or if the crimes that are "outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind." The Court's 4-1 decision also faulted the law for allowing juries to find those aggravating circumstances without a unanimous vote, using a standard of proof that was too low.
On Monday, a bipartisan group of legislators unveiled the "Extreme Crimes Prevention Act," which would change the law to address those concerns, effectively reinstating the punishment. It would require that juries unanimously decide that the aggravating circumstances merited a death sentence, and requires proof of those circumstances "beyond a reasonable doubt." It also would require the judge and jury to weigh "mitigating factors," which would suggest the death penalty was unjust, against the "aggravating factors."...
In a news release, six legislators said they would co-sponsor the bill, including three Democrats and three Republicans. The release says the bill will be introduced in the House of Representatives next week. “It is impossible to quantify a crime not committed, but I believe the threat of capital punishment has altered criminal behavior and saved lives,” said State Rep. Steve Smyk, R-Milton, also a former police officer. “The reforms our bill will apply will restore an aspect of the Delaware Code that I believe deters crimes and protects the public.”
Brendan O'Neill, Delaware's chief public defender, immediately criticized the proposal. “History has proven us wrong every time we have passed a law authorizing state-sponsored execution of Delawareans," O'Neill said. "The current nationwide trend in criminal justice is to move away from the death penalty. Delaware should not once again put itself on the wrong side of history." O'Neill argued capital punishment is not proven to be a deterrent, has a history of racial disparities and has proven expensive to prosecute and defend....
Rep. Sean Lynn, D-Dover and one of the death penalty's most vocal opponents, said he thinks the bill could make headway, but hopes it will be defeated. "I think it passes the House based solely upon the vote count from the repeal effort last year," Lynn said. "The mystery is, the question is, what happens in the Senate."
Saturday, March 25, 2017
"End the death penalty for mentally ill criminals"
The title of this post is the title of this new Washington Post commentary that strikes me as notable because it is penned by two former midwestern governors, Bob Taft (who was governor of Ohio from 1999 to 2007) and Joseph Kernan (who was governor of Indiana from 2003 to 2005). Here are excerpts:
Legislators in six states — Indiana, Ohio, South Dakota, Tennessee, Texas and Virginia — have proposed legislation to prohibit the death penalty for individuals with severe mental illness. As former governors of states that are grappling with this issue, we strongly support this effort to end an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts.
The overwhelming majority of people with severe mental illness are not violent; in fact, they are more likely to be victims than perpetrators of violent crime. For the very small number who do commit a capital crime while suffering from a severe mental disorder, current death-penalty law does not adequately take the effects of their illness into account.
As a result, defendants with severe mental illness — such as schizophrenia, bipolar disorder, post-traumatic stress disorder and traumatic brain injury — continue to be sentenced to death and executed. Last March, Texas executed Adam Ward, a man recognized as “diagnosed with bipolar disorder and placed on lithium as early as age four,” according to appellate court documents. And in 2015, Georgia executed Andrew Brannan, a decorated Vietnam War veteran who also had a pronounced mental illness. He qualified for 100 percent disability from the Department of Veterans Affairs because of his PTSD and bipolar disorder.
Although their grave illnesses do not excuse these defendants’ crimes, we believe that life imprisonment without the possibility of parole would have been a more appropriate punishment. Illnesses such as schizophrenia and bipolar disorder are characterized by impairments that — when untreated — significantly affect one’s ability to distinguish fact from reality, to make rational decisions or to react appropriately to events and other people. Under these conditions, the degree of culpability may not rise to the level of cold, unimpaired calculus that justifies the ultimate penalty....
Studies have also shown that death- penalty jurors often misunderstand mental illness, which is often viewed as an aggravating factor — that is, a reason to sentence someone to death — rather than as a mitigating factor, which is what it should be. The troubling consequence is that some defendants may end up on death row because of their mental illness.
The fact that the death penalty applies to those with mental illness also means that veterans with demonstrated PTSD may be executed. Even though most of the thousands of veterans struggling with PTSD do not commit the serious crimes that may be eligible for the death penalty, an estimated 10 percent of the United States’ death-row inmates are veterans — some of whom suffered from active and severe symptoms of PTSD at the time of their crime. These veterans have experienced trauma that few others have faced and have made a vital contribution to the safety of our country that deserves our recognition....
The death penalty was not intended for people in the throes of severe delusions, living with schizophrenia or suffering from combat-related PTSD. These are not the blameworthy individuals whose executions can be justified. We come from different political parties, but we join the majority of Americans — supporters and opponents of the death penalty alike — who believe it should not be imposed on defendants with such serious impairments. This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency.
Monday, March 20, 2017
Continued consternation concerning capital charging decision in central Florida
I noted here on Friday the capital kerfuffle that has emerged in central Florida after newly-elected State Attorney Aramis Ayala announced that she would not pursue the death penalty for a cop killer or any other case during. As previously reported, Florida Governor Rick Scott reassigned the cop killer's case to another State Attorney. But now, as this local article reports, today Ayala indicated she might try to contest having the case reassigned:
Orange-Osceola State Attorney Aramis Ayala on Monday said she is not willing to surrender the case of accused cop killer Markeith Loyd. Gov. Rick Scott removed her from the case Thursday, outraged when she said she would not seek the death penalty. He appointed a special prosecutor, Brad King.
At a court hearing in Orlando on Monday, Ayala sat one seat away from King, the state attorney for Florida’s Fifth Judicial Circuit. What the governor did was unprecedented, she told Orange-Osceola Chief Circuit Judge Frederick Lauten, and “overstepped his bounds.” She said she may file a legal challenge and asked the judge temporarily to halt the two murder cases involving Loyd while she figures out what to do.
Loyd is charged with killing Orlando police Lt. Debra Clayton on Jan. 9 and, several weeks earlier, his pregnant ex-girlfriend, Sade Dixon. Ayala said she at least wants to be part of Loyd’s prosecution.
More than 100 lawyers, including two former Florida Supreme Court justices and Gil Garcetti, who prosecuted celebrity O.J. Simpson during his 1995 murder trial, are backing Ayala. They have signed a letter asking Scott to give the case back to her. She is an independently elected official, and Scott is guilty of overreach, they say.
In Tallahassee, Scott defended his decision. When asked whether he would consider removing Ayala from office, he said, “We’ll continue to look at our options. Right now I’m focused on Markeith Loyd.” Asked if he would get involved in other potential death-penalty cases in Orange and Osceola counties, he said, “I’ll deal with that at the time.”
On Monday, the assistant finance director at the Seminole County Clerk of Court Office was placed on paid administrative leave after posting Facebook comments saying Ayala “should be tarred and feathered if not hung from a tree” because she refuses to seek the death penalty. Stan McCullars, author of the post, later deleted it. He could not be reached for comment. His boss, Grant Maloy, said those comments “don’t reflect my beliefs.”
Ayala is the first African-American state attorney in Florida and took office Jan. 3, serving Orange and Osceola counties. During her five-month election campaign, she did not state her position on the death penalty.
There are many interesting elements of this battle over prosecutorial discretion, and the intersection of race and gender and southern politics just adds layers to the story. And speaking of race, former prosecutor Chuck Hobbs has this interesting new Hill commentary on these matters which includes these interesting closing observations:
The irony in this is that the Black Lives Matter movement began in earnest after George Zimmerman was acquitted of murdering Trayvon Martin by a Sanford, Florida jury in 2013. A year before his acquittal, Gov. Scott replaced then Sanford State Attorney Norm Wolfinger with Jacksonville State Attorney Angela Corey after Wolfinger dragged his feet for almost 50 days before finally recusing himself. Scott's move back then was applauded by many black lawyers, civil rights activists and concerned citizens who wanted to ensure that the highest charges and attendant punishments would be sought against Zimmerman.
Today, Scott is being blasted by some lawyers and activists for meddling in Ayala's use of discretion not to seek the death penalty. Now the key distinction is that Wolfinger recused himself while Ayala did not, one that could lead to a fascinating legal battle where the courts may have to determine whether Scott illegally overreached by replacing Ayala, or whether her refusal to follow his dictates allowed him leave to replace her.
"Capital Jurors in an Era of Death Penalty Decline"
The title of this post is the title of this notable paper authored by Brandon Garrett, Daniel Krauss and Nicholas Scurich. Here is the abstract:
The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty.
We conducted surveys of persons reporting for jury duty at the Superior Court of Orange County, California. What we found was surprising. Surveys of jurors in decades past suggested ten to twenty percent of jury-eligible individuals would be excludable due to their substantial doubts about the death penalty. Despite Orange County’s status as a redoubt of death sentencing, we find that 35% or more of jurors reporting for jury service were excludable as having such substantial doubts about the death penalty that it would “substantially impair” their ability to perform their role as jurors. Indeed, large numbers went further: roughly a quarter said they would be reluctant to find a person guilty of capital murder knowing the death penalty was a possibility.
A final question asked whether the fact that executions have not been conducted in California for a decade impacts whether jurors would be favorable towards the death penalty. We found that, across all types of attitudes towards the death penalty, that fact made jurors less inclined to sentence a person to death. Rare punishments may seem more arbitrary, even to those who find them morally acceptable. We conclude by describing how this research can be useful for scholars, litigators, and judges concerned with selection of jurors in death penalty cases, and we discuss why, as social and legal practices change, more study of public attitudes towards punishment is needed.
Sunday, March 19, 2017
"Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution"
The title of this post is the title of this notable new paper authored by Charlie Eastaugh and available via SSRN. Here is the abstract:
In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication. Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards — decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.
Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions — still visible across the nation — that intelligence is as straightforward as numerical fact. It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.
In Moore v. Texas — for which an eight-Justice Court heard oral argument in November 2016 — SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution. This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse — one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution. Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long — often decade-long — stays on death row, invariably in extreme solitary confinement.
Friday, March 17, 2017
Capital debates in central Florida after new prosecutor says she will no longer bring capital charges
This lengthy local article, headlined "Gov. Scott appoints special prosecutor after Ayala says she won't pursue death penalty," reports on a set of interesting developments in the heart of Florida concerning the heart of prosecutorial discretion and application of the death penalty. Here are the details:
Gov. Rick Scott on Thursday removed Orange-Osceola State Attorney Aramis Ayala from the case of accused cop killer Markeith Loyd after she announced that she would not pursue the death penalty in his or any other case during her tenure.
In an executive order, Scott gave the case to Lake County State Attorney Brad King. “Earlier today, I called on State Attorney Ayala to immediately recuse herself from this case,” Scott said in a statement. “She informed me this afternoon that she refuses to do that. She has made it clear that she will not fight for justice, and that is why I am using my executive authority to immediately reassign the case.” Scott cited a state law allowing Florida’s governor to appoint a different prosecutor if he finds a “good and sufficient reason” to take it away from the original prosecutor.
Ayala issued a statement late Thursday, implying that her office would abide by Scott’s order. “Upon receipt of any lawful order, my office will follow that order and fully cooperate to ensure the successful prosecution of Markeith Loyd,” she said.
Ayala created a firestorm of criticism Thursday morning when she announced she would not seek the death penalty against Loyd or anyone else. “I have determined that doing so is not in the best interest of the community or the best interest of justice,” she said.
During a Thursday afternoon press conference, law enforcement leaders and families of victims expressed disappointment in Ayala’s intentions. Orlando Deputy Police Chief Robert Anzueto stood in front of Clayton’s widower, Seth Clayton, and spoke on his behalf. “My closure will be when Markeith Loyd is six-feet under,” Clayton told Anzueto....
Ayala’s announcement was a surprise and a position she had not made public before, despite a five-month campaign for public office, during which she was repeatedly asked about her stance. It also ran counter to information her employees had provided the Orlando Sentinel as recently as Tuesday.
Reaction came swiftly from state and local law enforcement officials, who were sharply critical. Attorney General Pam Bondi called the announcement “dangerous” and “a neglect of duty.”
But Ayala’s decision was heralded by death penalty opponents. “Ending use of the death penalty in Orange County is a step toward restoring a measure of trust and integrity in our criminal justice system,” said Adora Obi Nweze, president Florida State Conference NAACP. Orlando pastor Gabriel Salguero said, “By naming a broken program, Ms. Ayala creates hope in the community for working together to find better alternatives." Salguero leads the Calvario City Church and is president of the National Latino Evangelical Coalition....
Law enforcement officials, meanwhile, expressed their anger with the decision. Demings said he supported Scott’s decision to take the case away from Ayala. “To put it bluntly, the law enforcement officers of Central Florida are outraged,” Demings said....
State attorneys have wide discretion in who to charge with a crime, what charge to file and what penalty to seek. State law does not require them to seek the death penalty. Ayala, 42, has been state attorney for Orange and Osceola counties since Jan. 3. She upset incumbent Jeff Ashton in a primary election in August with the help of $1.4 million in donations from a political action committee with ties to billionaire George Soros, a liberal activist.
Ashton said Thursday that when Ayala worked for him, she did not oppose the death penalty. He called her newly-declared position “ridiculous.”... When he was her boss, she was assigned the capital murder case of David Lewis Payne, who’s accused of abducting his ex-girlfriend, putting her in the trunk of her car then killing her in 2015. “She came to me. She was really excited because she got her first death penalty case,” he said of Ayala.
During her news conference, Ayala cited several reasons she will not pursue the death penalty. Studies have shown, she said, that it provides no public safety benefits, that it is not a deterrent and that it winds up costing the state more than cases in which a defendant is sentenced to life in prison. It also gives victims’ families false hope, she said.
“Some victims will support and some will surely oppose my decision, but I have learned that death penalty traps many victims’ families in decades long cycle of uncertainty,” she said. “ … I cannot in good faith look a victim’s family in the face and promise that a death sentence handed down in our courts will ever result in execution.”...
Former State Attorney Lawson Lamar, who served six terms prior to Ashton, and before that was Orange County Sheriff, had this reaction to Ayala’s announcement: “I, frankly, was flabbergasted. … When you don’t have a death penalty, bad things happen.” He predicted it would mean more homicides in Orange and Osceola counties. Murders, rapists and criminals whose crimes carry a life sentence now have an incentive to kill witnesses, knowing that they face no greater penalty, he said.
“I’ve been telling people, ‘Give Aramis a chance. … She’s smart. She’s well spoken.’ I think this is a big mistake. I hope the backlash from it causes her to reconsider, because in life, as an elected official, you’re supposed to protect, defend and represent the people.”
Eleventh Circuit panel declares Alabama murderer incompetent to be executed
A panel of the Eleventh Circuit on Wednesday reached the rare conclusion that an Alabama death row prisoner was not competent to be executed. The majority opinion authored by Judge Martin in Madison v. Commissioner, No. 16-12279 (11th Cir. March 15, 2017) (available here), gets started this way:
Thirty years ago, the Supreme Court held that the Eighth Amendment prohibits the execution of a person who is incompetent. Ford v. Wainwright, 477 U.S. 399, 409–10, 106 S. Ct. 2595, 2602 (1986). The Court has since clarified that a person cannot be executed if he lacks a “rational understanding” of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60, 127 S. Ct. 2842, 2859–62 (2007). This standard requires the prisoner to be able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir. 2013). The Supreme Court told us that if the prisoner does not understand this connection, “the punishment can serve no proper purpose” and cannot be carried out. Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.
This habeas petitioner, Vernon Madison, is a 66-year-old man on death row for the murder of a police officer over three decades ago. In recent years, Mr. Madison has suffered strokes resulting in significant cognitive and physical decline. His lawyers argue here that he is mentally incompetent to be executed under Ford and Panetti. Finding that Mr. Madison had made a substantial threshold showing of incompetency, an Alabama trial court held a competency hearing. At the hearing, Mr. Madison presented unrebutted testimony from Dr. John Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder — the very act that is the reason for his execution. To the contrary, Mr. Madison does not believe he ever killed anyone. Dr. Goff testified that due to his memory impairments, Mr. Madison does not have a rational understanding of why the state is seeking to execute him. The State presented expert testimony from Dr. Karl Kirkland. Dr. Kirkland testified that Mr. Madison was able to accurately discuss his legal appeals and legal theories with his attorneys and — on pretty much this basis alone — concluded that Mr. Madison has “a rational understanding of [his] sentence.” Accepting the testimony of Dr. Kirkland, the Alabama trial court decided that Mr. Madison is competent to be executed. Mr. Madison argues that the trial court’s decision relied on an unreasonable determination of the facts and involved an unreasonable application of the law. We agree.
In so holding, we are mindful of the great deference due to state court decisions on federal habeas review, particularly when the state court is applying a general standard like the one in Panetti. See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” (quotation omitted)). But “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Panetti may set out a general standard for competency, but the focus of the inquiry is clear. Panetti doesn’t ask whether the prisoner can talk about the history of his case or legal theories with his attorneys. Instead, Panetti requires courts to look at whether the prisoner is able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Panetti, 551 U.S. at 960, 127 S. Ct. at 2862. One of the experts testified that due to a mental disorder, Mr. Madison was not able to make this connection. The other expert never addressed this question at all. This record is therefore wholly insufficient to support the trial court’s decision. We conclude that the state court’s decision that Mr. Madison is competent to be executed rested on an unreasonable determination of the facts and involved an unreasonable application of Panetti. We therefore reverse the District Court’s denial of habeas relief.
A dissent authored by Judge Jordan gets started this way:
After reviewing the record, I believe that Vernon Madison is currently incompetent. I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.
Thursday, March 16, 2017
Focused look at midazolam as the latest (but not greatest) execution protocol drug
Earlier this week, the New York Times had this extended article about a recent development in modern execution protocols. The piece is headline "When a Common Sedative Becomes an Execution Drug," and here are excerpts:
[D]ecades after the drug, known as midazolam, entered the market, a product more often used during colonoscopies and cardiac catheterizations has become central to executions around the country and the debate that surrounds capital punishment in the United States....
The most recent controversy is the extraordinary plan in Arkansas to execute eight inmates in 10 days next month. The state is racing the calendar: Its midazolam supply will expire at the end of April, and given the resistance of manufacturers to having the drug used in executions, Arkansas would most likely face major hurdles if it tried to restock.
In Arkansas, where no prisoner has been put to death since November 2005, midazolam is planned as the first of three drugs in the state’s lethal injections. The drug is intended to render a prisoner unconscious and keep him from experiencing pain later in the execution, when other drugs are administered to stop the breathing and heart.
Supporters of midazolam’s use, which the United States Supreme Court upheld in a case from Oklahoma less than two years ago, say it is a safe and effective substitute for execution drugs that have become difficult to purchase. Death penalty critics, citing executions that they say were botched, argue that midazolam puts prisoners at risk of an unconstitutionally painful punishment because the condemned may be insufficiently numbed to the agony caused by the execution drugs.
A major legal test is in Ohio, where a federal appeals court heard arguments last week about the drug’s future there. “The states will be watching the legal proceedings out of Ohio, but also the on-the-ground experiences out of Arkansas, Virginia and elsewhere,” said Megan McCracken, who specializes in lethal injection litigation at the law school of the University of California, Berkeley. “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.”
States have resisted such critiques, and during arguments last week before a federal appeals court in Cincinnati, Eric Murphy, the Ohio state solicitor, said midazolam’s use in a three-drug protocol “does not create a substantial risk of pain that is sure or very likely to occur.”...
[T]he drug’s critics have found limited solace in the courts, including the Supreme Court, which last month declined to hear cases from Alabama and Arkansas, both of which include midazolam in their lethal injection protocols. Those moves amounted to reinforcement of a ruling in 2015, when Justice Samuel A. Alito Jr., writing for a divided court, noted that the court had found “that the Constitution does not require the avoidance of all risk of pain.” He continued: “After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”
Indeed, some supporters of the death penalty, including people who have witnessed executions that included midazolam, have defended lethal injections and any pain they might cause violent offenders. Proponents also acknowledge that midazolam is far from a drug of choice for executions, but they blame abolitionists for effectively leaving states with limited choices. “No state would use it if they could get the barbiturates,” said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation. “The opponents have created the situation where states are forced to use a drug that is not the optimum.”
Tuesday, March 14, 2017
Florida law now officially requires jury unanimity for death verdicts
Roughly fourteen months after the Supreme Court in Hurst found constitutional problems with the way Florida operationalized juries in its capital punishment scheme, and after some legislative and litigation fits and starts, the state's lawmakers have now reformed its system to require jury unanimity at sentencing. This local article, headlined "Gov. Rick Scott signs new unanimous jury standard for death penalty into law," reports on the basics:
It now takes a unanimous jury to sentence someone to death in the state of Florida. Gov. Rick Scott on Monday night signed into law a new requirement that raises the jury standard for death penalty cases from 10-2. The legal change was made necessary by a Florida Supreme Court ruling in October that found the state's sentencing laws unconstitutional.
The Legislature passed the new rules (SB 280) overwhelmingly last week. The death penalty fix is the first major law passed and signed in the 2017 session. Florida joins most other states in requiring unanimous juries.... "Our goal was that the death penalty cases proceed in an orderly manner under a law that was constitutional," Senate President Joe Negron, R-Stuart, said last week.
Scott's signature also allows prosecutors to move forward with cases in which they plan to seek the death penalty. Uncertainty around the court's order in Hurst vs. Florida put a pause on new death sentences.
In passing the death penalty fix, the Legislature opted not to address the hundreds of existing death row inmates whose cases were decided under sentencing laws thrown out by the courts. Rep. Chris Sprowls, R-Palm Harbor, a former prosecutor and the House Judiciary chairman, said he wanted to deal with this issue and left it up to the courts to handle existing death cases decided by a nonunanimous jury. Some of those inmates have already been granted a new sentencing hearing.
Just three lawmakers voted against the death penalty fix: Two House Democrats, Joseph Geller of Aventura and Robert Asencio of Miami, who oppose the death penalty on moral grounds; and Republican Rep. Blaise Ingoglia of Spring Hill. His was a protest vote, Ingoglia said. "With a unanimous jury, you need all 12," he said Friday. "You can have one activist and one vote and prevent the death penalty from kicking in."
Wednesday, March 08, 2017
Texas executes paid hit-man ... after Justice Breyer dissents from SCOTUS refusing to consider extended solitary death row stay
As this AP article reports, a "paid hit man was executed Tuesday night in Texas for gunning down a San Antonio woman in a life insurance scheme nearly a quarter-century ago." Here are a few more details about this latest execution:
Rolando Ruiz was given a lethal injection for fatally shooting Theresa Rodriguez, 29, outside her home in 1992 as she was getting out of a car with her husband and brother-in-law, who both orchestrated her murder. Ruiz was paid $2,000 to carry out the killing. Ruiz, strapped to the Texas death chamber gurney, looked directly at two sisters of his victim and their husbands and apologized profusely....
As the lethal dose of pentobarbital was administered, he took several deep breaths, then began snoring quietly. All movement stopped within about 30 seconds. Ruiz, 44, was pronounced dead 29 minutes later at 11:06 p.m. His execution was the third this year in Texas and the fifth nationally.
“It’s not going to bring her back, so it really doesn’t mean very much,” Susie Sanchez, whose daughter was killed in the contract murder, said Monday. Her daughters, who were among the witnesses Tuesday night, declined to comment afterward.
The execution was delayed for nearly five hours until the U.S. Supreme Court rejected three appeals attorneys had filed for Ruiz to try to stop the punishment. His lawyers argued to the high court that lower courts improperly rejected an earlier appeal that focused on whether Ruiz earlier had deficient legal help. They also contended Ruiz’s execution would be unconstitutionally cruel because he’s been on death row since 1995, had multiple execution dates and two reprieves. Attorney Lee Kovarsky blamed the long time between a San Antonio jury’s verdict and the punishment on the state’s failure to provide Ruiz with competent lawyers earlier in his appeals.
Justice Stephen Breyer said he would have stopped the execution to further examine the question of prolonged death row confinement.
Notably, as revealed here, Justice Breyer's solo dissent from the denial of a stay by SCOTUS was fairly substantive. Here is how it starts and ends:
Petitioner Rolando Ruiz has been on death row for 22 years, most of which he has spent in permanent solitary confinement. Mr. Ruiz argues that his execution “violates the Eighth Amendment” because it “follow[s] lengthy [death row] incarceration in traumatic conditions,” principally his “permanent solitary confinement.” Petition 25. I believe his claim is a strong one, and we should consider it....
Here the “human toll" that accompanies extended solitary confinement is exacerbated by the fact that execution is in the offing. Moreover, Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty. Further, the lower courts have recognized that Mr. Ruiz has been diligent in pursuing his claims, finding the 22-year delay attributable to the State or the lower courts. Ruiz v. Quarterman, 504 F. 3d 523, 530 (CA5 2007) (quoting Ruiz v. Dretke, 2005 WL 2620193, *2 (WD Tex., Oct. 13, 2005)). Nor are Mr. Ruiz’s 20 years of solitary confinement attributable to any special penological problem or need. They arise simply from the fact that he is a prisoner awaiting execution. App. E to Petition 16.
If extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity. That is why I would grant a stay of execution, allowing the Court to examine the record more fully.
Tuesday, March 07, 2017
Detailing how common a very long wait on death row has become
Slate has this notable short piece on the long wait many condemned have before execution. The piece is headlined "40 Years Awaiting Execution: For many death row inmates, the long process leading to capital punishment is itself cruel — but not unusual." Here are excerpts:
In 1979, Arthur Lee Giles, then 19 years old, was sentenced to death in Blount County, Alabama. Nearly 40 years later, he is still waiting to be executed. His glacial march to execution exposes a conundrum at the heart of America’s death penalty. Condemned prisoners often spend decades on death row before being executed — if the execution ever happens at all — a fact that undermines any retributive value capital punishment might provide.
Approximately 40 percent of the 2,739 people currently on death row have spent at least 20 years awaiting execution, and 1 in 3 of these prisoners are older than 50. (This is according to data collected by the Fair Punishment Project and sourced from the NAACP’s Legal Defense Fund, the Federal Bureau of Prisons, and state corrections departments.)
According to a Los Angeles Times investigation, roughly two dozen men on California’s death row require walkers and wheelchairs, and one is living out his days in bed wearing diapers. In North Carolina, nine death row prisoners have died of natural causes since 2006 — the same year the state last executed someone. These delays suggest that executions must be sped up significantly....
With public support for executions at historic lows, death row delays seem likely to increase. Just 20 of the nearly 3,000 prisoners on death row nationwide were executed last year.
California is a prime example. In 2014, a federal judge wrote that the state’s capital punishment system is actually a sentence of “life without parole with the remote possibility of death.” The judge calculated that “just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years.” That’s an unfathomable outcome in any state, much less in one that has not performed a single execution in more than a decade....
In an effort to combat these delays, California voters narrowly passed Proposition 66 in 2016, which promised to speed up executions by imposing more severe limitations on the death penalty appeals process. Yet Prop 66 has already faced significant constitutional challenges, and the California Supreme Court has stayed the initiative pending the outcome of a case filed by former state Attorney General John Van de Kamp and Ron Briggs, the two men who wrote the successful statewide proposition reinstating the death penalty in California 40 years ago.
Monday, March 06, 2017
Could and will SCOTUS Pena-Rodriguez decision create new ways attack death sentences (and even other jury sentencing outcomes)?
The question in the title of this post was the first idea that jumped into my sentencing-addled mind as I was (too) quickly reviewing the Supreme Court's Sixth Amendment work today in Pena-Rodriguez v. Colorado (basics here, full opinion here). Critically, the Pena-Rodriguez decision concerns a jury's deliberation about guily, and the opinion keeps referencing a juror's "vote to convict." But, in some cases in some states, jurors also have a role in sentencing, and this is most common and most consequential in the context of capital cases. And there is lots of dicta in Pena-Rodriguez that surely could, and I would guess often will, be stressed by capital defendants trying to throw shade on a jury's capital sentencing decision-making. Consider, as just one example, these passages:
[R]acial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy....
A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.
As those who follow debates over the death penalty know well, many who advocate abolition often assert that capital punishment's administration through often seemingly disparate jury verdicts reveals a certain kind of "racial bias [as] a familiar and recurring evil" that contributes to "a systemic loss of confidence in jury verdicts." (Consider, for example, this page at the Death Penalty Information Center spotlighting racial patterns in death penalty administration.) In light of those views, as well as the obligation and zeal of defense attorneys to raise every non-frivolous argument to contest a death sentence, I have reason to think the capital defense bar could, should and will be making much of today's SCOTUS work in Pena-Rodriguez.
Friday, March 03, 2017
"The Return of the Firing Squad"
The title of this post is the headline of this lengthy new US News & World Report article, which carries this subheadline: "The execution method is making a comeback — but some argue that means the end of capital punishment is near." Here are excerpts:
An ongoing shortage of lethal injection drugs — coupled with the grisly spectacle of botched executions and a number of legal challenges to the use of less-effective substitute drugs — has several states, and at least one inmate, calling for the return of the firing squad.
In 2015, Utah Gov. Gary Herbert, a Republican, signed a bill that established firing squads as an execution option, reversing an 11-year ban.... In Mississippi, a bill authorizing firing squads cleared the state House in early February before the state Senate shot it down. Firing squads are on the books in Oklahoma, and lawmakers in other Southern states are said to be considering similar legislation.
Meanwhile, in late February, the U.S. Supreme Court denied the request by Thomas Arthur, an Alabama death-row prisoner who wanted the state to fatally shoot him rather than subject him to the likelihood of a painful death from secret, experimental lethal-injection drugs.
But Supreme Court Justice Sonia Sotomayor excoriated her colleagues for tacitly endorsing execution methods that could reasonably be considered as cruel or inhumane — and she pointed to firing squads as the way to go. "Some might find this choice regressive, but the available evidence suggests that a competently performed shooting may cause nearly instant death," Sotomayor wrote in a blistering dissent. "In addition to being near instant, death by shooting may also be comparatively painless. And historically, the firing squad has yielded significantly fewer botched executions."
Death penalty opponents, however, say firing squads aren't fail-safe, the condemned don't always die immediately and the procedure smacks of tin-horn dictatorships, undermining America's global standing as a champion of human rights. That states are looking to salvage the practice, they say, is yet another sign that capital punishment is on its way out.
"I think that the death penalty is in big trouble in the United States," says Austin Sarat, an associate dean and law and political science professor at Amherst College. "The legitimacy of capital punishment has been sustained in part by the belief that we could find a way of execution that would be safe, reliable and sane," says Sarat, the author of "Gruesome Spectacles: Botched Executions and America's Death Penalty." He notes the same arguments officials are making for the firing squad — it's quick, it's humane, it's reliable — were the same ones proponents used for lethal injections as its more clinical, civilized replacement. "It's a back-to-the-future [method] that was replaced for a reason," Sarat says....
"The elusive search in the modern era for humane methods of execution was a reaction to the perceived barbarity of death by methods like the firing squad," Phyllis Goldfarb, a George Washington University law professor, writes in an email. "Death by firing squad is not pain- and botch-free," Goldfarb writes, noting some marksmen have missed the heart target and hit other parts of the body, while others have fired prematurely. "The condemned dies from blood loss and loses consciousness when blood supplied to the brain drops precipitously. Even when the people in the firing squad hit their target as intended, it may take at least a couple of minutes for the condemned to die and sometimes much longer."
To that point, firing-squad proponents have a quick retort: So what? "How could a civilized society place a man before a firing squad, [opponents] ask," writes Joseph R. Murray II, a guest columnist for the Jackson, Miss., Clarion Ledger, commenting on the debate over the state's proposal to have inmates die by the bullet.
"To these folks, that's third-world justice. But isn't a firing squad the most humane way to execute a criminal? Isn't death instantaneous?" Murray asks. "Where lethal injection could go awry, causing prolonged pain, and electrocution could not work effectively, there is no doubt multiple bullets do the job quickly and safely."
Goldfarb says if authorities want to be absolutely certain that an inmate dies instantly without pain or suffering, they can choose another target on the body. "Firing a gun at point blank range into the head" is 100 percent effective, and "would cause a near-instantaneous death. But it would be exceedingly violent and destructive," Goldfarb writes. "But could we ask someone to inflict that kind of violence on another as part of their job as a state employee? If the state were to authorize such a gruesome spectacle in the name of law, how could we maintain our standing in the world as a protector of human rights?"
Still, she predicts the firing squad debate could go far in the current law-and-order climate ushered in with President Donald Trump's inauguration. "I see the present moment as one in which fair debate based on factual evidence is being threatened and 'fear of the other' who would use violence to harm 'us' is being fanned for political gain," she writes. "These are the emotional conditions that have allowed the death penalty to persist in America — providing a simple answer to a complex problem."
Still, "there may be pockets of renewed death penalty support, using whatever methods are permitted," writes Goldfarb. "But I don't think that approach will become widespread again, as it degrades us as a society and depends on rhetoric that is divisive, cynical, extremely racialized, and ultimately corrosive to America."
Wednesday, March 01, 2017
Arkansas Gov signs proclamations that could lead to eight executions in less than two weeks in next month
There has so far been only four executions nationwide in 2017. The just concluded month of February had no executions, and this Death Penalty Information Center list of upcoming executions suggests that there are only two serious execution dates (both in Texas) for March. But this local article from Arkansas, headlined "Arkansas Governor schedules execution dates for 8 inmates," the Natural State could be poised for a record-setting April. Here are the details:
Arkansas’ governor on Monday set execution dates over a 10-day period in an attempt to resume the death penalty after a nearly 12-year hiatus, even though the state lacks one of three drugs needed to put the men to death. Gov. Asa Hutchinson signed proclamations scheduling double-executions on four days in April for the eight inmates. The quick schedule appears aimed at putting the inmates to death before another one of the state’s lethal injection drugs expire, and if carried out would mark the first time in nearly two decades a state has executed that many inmates in a month.
The move comes just days after the state’s attorney general told the governor the inmates had exhausted their appeals and there were no more legal obstacles to their executions. “This action is necessary to fulfill the requirement of the law, but it is also important to bring closure to the victims’ families who have lived with the court appeals and uncertainty for a very long time,” Hutchinson said in a statement.
The U.S. Supreme Court last week rejected the inmates’ request to review a state court ruling that upheld Arkansas’ lethal injection law. The state Supreme Court on Friday lifted the stay on its ruling, clearing the way for Arkansas Attorney General Leslie Rutledge to request the dates be set. Arkansas hasn’t executed an inmate since 2005 due to legal challenges and difficulties obtaining execution drugs.
The state’s supply of potassium chloride — one of three drugs used in lethal injections — expired in January. A prison system spokesman said Monday that the drug hasn’t been replaced, but Hutchinson’s office said officials were confident they could obtain more. And the state’s supply of midazolam lists an April 2017 expiration date, which pharmacy experts say is commonly accepted to mean the end of the month. The state’s supply of vecuronium bromide expires on March 1, 2018.
The inmates late Friday filed an amended complaint in state court aimed at blocking the executions, again arguing the lethal injection law and the three-drug protocol are unconstitutional. Attorneys for the inmates argued Monday in a letter to Hutchinson that the state Supreme Court’s stay is in place until that complaint is resolved. They said the current protocol “is almost certain to cause the prisoners excruciating suffering.”...
Since the U.S. Supreme Court reinstated the death penalty in 1976, only Texas has put eight people to death in a month — doing it twice in 1997. Arkansas has had multiple executions in the past, including triple executions in 1994 and 1997. At the time, the state Correction Department said multiple executions reduced stress on prison staff.
For a host of reasons, I will be surprised if Arkansas is able to move forward with eight executions over the last two weeks of April. But these developments certainly signal that the state is serious about getting its machinery of death up and running again ASAP.
Wednesday, February 22, 2017
Supreme Court, voting 6-2, reverses Texas death sentence reached after defense attorney introduced expert who linked race and violence
The Supreme Court handed down three opinion this morning, and the big one for sentencing fans is the capital case from Texas, Buck v. Davis, No. 15-8049 (Feb. 22, 2017) (available here). The Chief Justice wrote the opinion for the Court, and here is that opinion's opening and some of its substantive analysis on the case's highest-profile issue:
A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.
Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it....
Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U. S. 862, 885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client....
Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race....
[W]e cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” 2014 WL 11310152, at *5. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. Ibid. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.
Justice Thomas authored a dissent in Buck, joined by Justice Alito, which gets started this way:
Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it. But the majority’s focus on providing relief to petitioner in this particular case has at least one upside: Today’s decision has few ramifications, if any, beyond the highly unusual facts presented here. The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.
Tuesday, February 21, 2017
Reversing course, Florida Supreme Court allows capital prosecutions to proceed while state legislature still working through Hurst fix
As explained in this local article, on Monday the Florida Supreme Court issued a new ruling about the administration of the death penalty, and issue which has been a big mess for the state since the Supreme Court's Hurst ruling last year. Here are the basics:
In what was described as an “about-face” after a previous ruling, the Florida Supreme Court on Monday ordered that death penalty cases can proceed, even with an unconstitutional law still on the books. The order came as the Legislature prepares to address a pair of Florida high court rulings last fall that struck down the state’s most recent death-penalty sentencing scheme as unconstitutional and effectively halted capital cases.
In a pair of October opinions, the state court ruled that a new law — passed in response to a U.S. Supreme Court decision in a case known as Hurst v. Florida — was unconstitutional because it required only 10 jurors to recommend death “as opposed to the constitutionally required unanimous, 12-member jury.” The October majority opinion in the case of Larry Darnell Perry also found that the new law “cannot be applied to pending prosecutions.”
But in a reversal of that decision Monday, the majority ruled that capital cases can move forward, even before lawmakers fix the statute. Attorney General Pam Bondi hailed the ruling, saying in a statement it “provides our courts with the clarification needed to proceed with murder cases in which the death penalty is sought.”...
The majority on Monday decided that the new law can be applied to pending prosecutions — and is constitutional — “if 12 jurors unanimously determine that a defendant should be sentenced to death.”
But in her dissent, Justice Barbara Pariente argued that what could be a “temporary” fix, until lawmakers address the issue, could lead to more litigation. “Such concerns are precisely why it is for the Legislature, not this (Supreme) Court, to enact legislation curing the act’s fatal 10-2 provisions, assuming the Legislature intends for the death penalty to continue to be imposed in Florida,” Pariente wrote in a dissent joined by Justice Peggy Quince.
But [House Judiciary Chairman Chris] Sprowls, R-Palm Harbor, said the decision “finally” tells lower courts they can proceed with capital cases. “That is what I think people within the criminal justice system would expect. What they did not expect is to have a paralysis created and that’s what the court had done. Today they have alleviated that paralysis by at least allowing cases to proceed,” he said.
Defense lawyers, however, took a harsher view. “As a society, we rely upon court precedent to determine how to interpret and apply the laws. The (Supreme) Court’s about-face within these opinions is confounding. They also seem incongruent with the court’s unanimous plea, in (a case known as) Steele, to the Legislature to fix what the court said it couldn’t,” 10th Judicial Circuit Assistant Public Defender Pete Mills, who also serves as chairman of the Florida Public Defenders Association Death Penalty Steering Committee, told The News Service. Mills was referring to a 2005 opinion in State vs. Steele in which the court urged the Legislature to require a unanimous jury vote, rather than the previous simple majority vote, in capital-case proceedings.
While Monday’s opinion may have resolved questions about how the courts can proceed, for now, it likely won’t slow down the Legislature’s rush to address the issue early in the session that begins March 7. “We still want to move it rapidly, get it up and out to make sure there’s no question that this is what the statute says and that we have a working death penalty scheme in the state of Florida,” Sprowls said.
Sprowls’ committee is slated to consider a measure (HB 527) Tuesday that would do away with the 10-2 jury recommendations and instead require unanimity for death sentences to be imposed. A Senate panel will give a final vetting to a similar proposal the following day. The issue deals only with the sentencing phase of death-penalty cases, after jurors unanimously find defendants guilty of crimes. House Speaker Richard Corcoran, R-Land O’ Lakes, and Senate President Joe Negron, R-Stuart, told The News Service — before the court’s decision Monday — they wanted to send a death penalty measure requiring unanimous jury recommendations to Gov. Rick Scott by the end of the session’s first week.
“My position on it is that you have about 200 death penalty cases that are in abeyance right now, because of the Supreme Court’s ruling, and I can’t think of anything more important to the family of victims and also to a person charged with a capital felony that their cases proceed justly and with due process through the criminal justice system,” Negron said Wednesday. “To me, it’s our responsibility as legislators to make sure that the law is appropriately enforced. That would be a top priority.” The cases “in abeyance” referred to more than half of Florida’s Death Row inmates who are eligible for new sentencing hearings under a separate state court ruling addressing retroactivity of the Hurst decision, which was predicated on a 2002 U.S. Supreme Court ruling in a case known as Ring v. Arizona.
The full Florida Supreme Court ruling discussed here is available at this link.
Justice Sotomayor (joined by Justice Breyer) authors lengthy dissent to denial of cert in Alabama lethal injection protocol challenge
This morning, the US Supreme Court got back to work through the issuance of this lengthy order list. The one cert grant was involves a federal criminal case, Class v. US, concerning whether a defendant who pleads guilty can still challenge the constitutionality his statute of conviction (SCOTUSblog case page here). But the part of the order list likely to get the most attention is this lengthy dissent from the denial of certiorari authored by Justice Sotomayor in a Alabama capital case concern lethal injection protocols. Here is the start, heart and end of the extended opinion (which Justice Breyer joined in full):
Nearly two years ago in Glossip v. Gross, 576 U. S. ___ (2015), the Court issued a macabre challenge. In order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Id., at ___, ___ (slip op., at 13, 15).
Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative — death by firing squad. The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip. Because this decision permits States to immunize their methods of execution — no matter how cruel or how unusual — from judicial review and thus permits state law to subvert the Federal Constitution, I would grant certiorari and reverse. I dissent from my colleagues’ decision not to do so....
The decision below permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment. Under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method. This cannot be right....
The decision below is all the more troubling because it would put an end to an ongoing national conversation — between the legislatures and the courts — around the methods of execution the Constitution tolerates. The meaning of the Eighth Amendment’s prohibition on cruel and unusual punishments “is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a maturing society.’” Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). Evolving standards have yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time. Science then reveals that — unknown to the previous generation — the States’ chosen method of execution causes unconstitutional levels of suffering. A new method of execution is devised, and the dialogue continues. The Eighth Amendment requires this conversation. States should not be permitted to silence it by statute....
Twice in recent years, this Court has observed that it “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 553 U. S., at 48 (plurality opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same). In Glossip, the majority opinion remarked that the Court “did not retreat” from this nonintervention strategy even after Louisiana strapped a 17-year-old boy to its electric chair and, having failed to kill him the first time, argued for a second try — which this Court permitted. Id., at ___– ___ (slip op., at 3–4). We should not be proud of this history. Nor should we rely on it to excuse our current inaction.
Saturday, February 18, 2017
BYOD in Az: spotlighting Arizona's (cheeky?) drug acquisition provision in its latest execution protocol
This AP article reports on a notable an unusual provision in Arizona's new execution protocol. The article is headlined "Arizona to death-row inmates: Bring your own execution drugs," and here are details:
The recent revelation that condemned prisoners in Arizona can now provide the lethal drugs to be used in their executions has received attention around the world and raised questions about the state's rules for the death penalty.
The novel policy has drawn sneers from defense attorneys who were puzzled as to why the state would think that they would assist in killing their clients. It has inspired wisecracks about Arizona's penchant for taking on envelope-pushing criminal justice policies and left some readers on social media asking whether the bring-your-own-drugs policy was actually the product of a news parody website.
Criminal defense lawyers and death penalty experts say they have never heard of a state suggesting that condemned inmates can line up drugs to be used in their executions. However unlikely it is that any of Arizona's 119 death-row inmates will take up the offer, the change is a reflection of the difficulties that Arizona, like other states, faces in finding execution drugs now that European pharmaceutical companies have blocked the use of their products for lethal injections.
Executions in Arizona have been on hold since the 2014 death of convicted killer Joseph Rudolph Wood, who was given 15 doses of the sedative midazolam and a painkiller and who took nearly two hours to die. The state will not be able to carry out executions until the resolution of a lawsuit that alleges Arizona has abused its discretion in the methods and amounts of drugs used in past executions.
The state hasn't publicly explained its aim in taking on the new policy, which surfaced last month in the lawsuit. The Arizona Department of Corrections, which carries out executions, didn't respond to requests for comment. The Arizona Attorney General's Office, which is defending the state in the lawsuit, declined to comment.
Under the policy, the state's top prison official would be required, in one execution drug protocol, to use the barbiturate pentobarbital that's obtained by lawyers for inmates or someone acting on their behalf. The corrections director also would have the choice of picking one of two drug protocols involving the sodium pentothal if the barbiturate is obtained on behalf of a prisoner....
Dale Baich, an assistant federal public defender who represents the inmates in the lawsuit,... explained that the policy is unfeasible because the Controlled Substances Act prohibits attorneys and inmates from getting the drugs. "As a lawyer, I just can't go to local Walgreens and pick up a couple of vials of pentobarbital," Baich said.
It's the responsibility of the state, not condemned prisoners, to carry out executions, Baich added. The policy would seem to appeal to inmates who have abandoned their appeals and want to speed up their executions. But Baich said the Controlled Substances Act would still prevent those prisoners from getting lethal-injection drugs.
Robert Dunham, executive director of the Death Penalty Information Center, which has been critical of the way executions are carried out in the United States, said the policy also raises ethical concerns. Death-penalty lawyers are supposed to zealously represent their clients and have a duty not to take actions that harm them, Dunham said. "No one has done it before, and the fact that it is impossible, impractical, illegal and unethical may have something to do with that," he said.
Timothy Agan, a longtime criminal defense lawyer in Phoenix who has handled several death penalty cases, said he can't imagine condemned prisoners lining up to seek their own execution drugs and couldn't foresee a situation in which the policy would be used.
Arizona's revised executions protocol is available at this link, and on page 28 one finds this language (with my emphasis added):
The Director shall have the sole discretion as to which drug protocol will be used for the scheduled execution. This decision will be provided to the inmate and their counsel of record in writing at the time the state files a request for Warrant of Execution in the Arizona Supreme Court. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are unable to obtain such pentobarbital, but are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical sodium pentothal in sufficient quantity and quality to successfully implement the one-drug protocol with sodium pentothal set forth in Chart B or the three-drug protocol with sodium pentothal set forth in Chart C, then the Director shall have the sole discretion as to which drug protocol (Chart B or Chart C) will be used for the scheduled execution.
Tuesday, February 14, 2017
"The American Death Penalty Decline"
The title of this post is the title of this new paper recently posted to SSRN and authored by Brandon Garrett, Alexander Jakubow and Ankur Desai. Here is the abstract:
American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer argued today’s death penalty is unconstitutional, noting that from 2004 to 2006, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” That decline has become more dramatic. Just fifty-one defendants were sentenced to death in 2015 in thirty-eight counties. In 2016, just thirty defendants were sentenced to death in twenty-seven counties. In the mid-1990s, by way of contrast, over three hundred people were sentenced to death in as many as two hundred counties per year.
While scholars and journalists have increasingly commented on this decline and speculated as to what might be causing it, empirical research has not examined it. This Article reports the results of statistical analysis of data hand-collected on all death sentencing, by county, for the entire modern era of capital punishment, from 1990 to 2016. This analysis of death sentencing data from 1990 to 2016, seeks to answer the question why a few counties, but not the vast bulk of the others, still impose death sentences. We examine state and county-level changes in murder rates, population, victim race, demography, and other characteristics that might explain shifting death sentencing patterns.
We find that death sentences are strongly associated with urban, densely populous counties. Second, we find that death sentences are strongly associated with counties that have large black populations. Third, we find homicide rates are related to death sentencing in three ways: contemporaneously within and between death sentencing counties, lagged within and between death sentencing counties. and that counties with more white victims of homicide have more death sentencing. Fourth, we find that death sentencing is associated with inertia or the number of prior death sentences within a county. These results suggest what remains of the American death penalty is quite fragile and reflects a legacy of racial bias and idiosyncratic local preferences. We conclude by discussing the practical and legal implications of these trends for the much-diminished death penalty and for criminal justice more broadly.
Saturday, February 11, 2017
Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation
As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:
The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.
The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.
"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."
Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.
Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.
The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.
Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.
Friday, February 10, 2017
Mississippi taking steps to have firing squad, electric chair and gas chamber as execution methods again
As reported in this new Fox News piece, "Mississippi lawmakers want to bring back the firing squad, electric chair and gas chamber as execution methods, a step three other states have taken recently, but for a different reason." Here is more:
Oklahoma reintroduced the gas chamber, Utah the firing squad and Tennessee the electric chair in response to a nationwide scarcity of lethal injection drugs for death row inmates.
Mississippi legislator Andy Gipson said he introduced House Bill 638 in response to lawsuits filed by “liberal, left-wing radicals” challenging the use of lethal injection drugs as cruel and unusual punishment. "I have a constituent whose daughter was raped and killed by a serial killer over 25 years ago, and that person's still waiting for the death penalty. The family is still waiting for justice," Gipson told the Associated Press.
Gipson’s bill passed the House Wednesday, 74-43, and moves to the Senate for more debate.
Mississippi hasn't been able to acquire the execution drugs it once used, and it last carried out an execution in 2012. The state has 47 people on death row, and some have been there for decades.
The 33 states with the death penalty all have lethal injection as the primary method of execution, according to the Death Penalty Information Center and its executive director, Robert Dunham. The center says only Oklahoma and Utah have firing squads as an option; eight states have electrocution, five have the gas chamber, and three have hanging.
The firing squad became an option in Utah in 2015. That same year, Oklahoma Gov. Mary Fallin signed legislation to use nitrogen gas as an option. Tennessee enacted a law bringing back the electric chair in 2014.
“It’s interesting that what we anticipated would happen is happening,” Dunham told FoxNews.com Friday. “As states are having difficulty obtaining drugs for lethal injections, they’re looking at different options.” He expects legal challenges in states that reintroduce old execution methods. “What you will see is when states change their method of execution, there are invariably legal challenges that arise,” Dunham said.
Jim Craig, an attorney who is suing Mississippi over lethal injection drugs, told The Associated Press on Wednesday that each of the proposed new methods of executions would be challenged in court. "Every single one, in essence, just injects a whole new series of issues in the existing case," said Craig, who is with the New Orleans-based Roderick & Solange MacArthur Justice Center. He said with the firing squad, for example, the state would have to set protocols and procedures to reduce the risk of torture, and he doubts the Department of Corrections has prepared to do that....
Oklahoma officials told Fox 25 in November they haven’t established protocols to use nitrogen gas as a backup execution method but have heard from a company offering pain-free and mistake-free gas chamber executions. The company sent a letter to Oklahoma Department of Corrections guaranteeing the “demise of any mammalian life within four minutes,” according to the station.
Third Circuit finds death row inmates granted resentencing stuck in solitary confinement have protected liberty interests
A unanimous panel ruling by the Third Circuit yesterday in Williams v. Secretary of PA Dep't of Corrections, No. 14-1469 (3d Cir. Feb. 9, 2017) (available here) spotlights an interesting connection between death row and solitary confinement. Here is the start of the opinion and a key paragraph from its heart:
We are asked to decide whether there is a constitutionally protected liberty interest that prohibits the State from continuing to house inmates in solitary confinement on death row after they have been granted resentencing hearings, without meaningful review of the continuing placement. For the reasons set forth below, we conclude that there is and that the Due Process Clause of the Fourteenth Amendment therefore limits the State’s ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative. However, we also hold that, because this principle was not clearly established before today, the prison officials (“Defendants”) in this consolidated appeal are entitled to qualified immunity.
Accordingly, we will affirm the district courts’ grants of summary judgment in favor of Defendants based on qualified immunity. In reaching this conclusion, we stress that this liberty interest, as explained more fully below, is now clearly established....
In our ruling today, we now explicitly add our jurisprudential voice to this growing chorus [of concerns about the use of solitary confinement]. In doing so, we rely, in part, upon the scientific consensus and the recent precedent involving non-death row solitary confinement. Those decisions advance our inquiry into the unique, yet analogous, scenario presented here. Inmates in solitary confinement on death row without active death sentences face the perils of extreme isolation and are at risk of erroneous deprivation of their liberty. Accordingly, they have a clearly established due process right under the Fourteenth Amendment to avoid unnecessary and unexamined solitary confinement on death row. The State must therefore afford these inmates procedural protections that ensure that continuing this level of deprivation is required for penological purposes, and is not reflexively imposed without individualized justification.