Sunday, March 09, 2014
LDF releases latest, greatest accounting of death row populations
As reported here by the Death Penalty Information Center, the NAACP Legal Defense Fund has just released its latest version of its periodic accounting of capital punishment developments in the United States. This document, available here, is titled simply "Death Row, USA," and reports on data though July 1, 2013. Here is how DPIC summarizes some of its key findings:
The latest edition of the NAACP Legal Defense Fund's Death Row, USA shows the total death row population continuing to decline in size. The U.S. death-row population decreased from 3,108 on April 1, 2013, to 3,095 on July 1, 2013. The new total represented a 12% decrease from 10 years earlier, when the death row population was 3,517. The states with the largest death rows were California (733), Florida (412), Texas (292), Pennsylvania (197), and Alabama (197). In the past 10 years, the size of Texas's death row has shrunk 36%; Pennsylvania's death row has declined 18%; on the other hand, California's death row has increased 17% in that time.
The report also contains racial breakdowns on death row. The states with the highest percentage of minorities on death row were Delaware (78%) and Texas (71%), among those states with at least 10 inmates. The total death row population was 43% white, 42% black, 13% Latino, and 2% other races.
Saturday, March 08, 2014
Notable federal capital case about to begin in the Aloha State
As reported in this AP article, a "Honolulu courtroom is set to become the scene of a death penalty trial even though Hawaii abolished capital punishment in 1957." Here is more about how and why:
Opening statements are scheduled for Tuesday in the trial of a former Hawaii-based Army soldier accused of beating his 5-year-old daughter to death in 2005. But because the crime allegedly took place on military property, Naeem Williams is being tried in federal court — a system that does have the death penalty.
It's rare for the government to seek the death penalty in a state that doesn't allow it. Only seven of 59 inmates currently on federal death row are from states that didn't have the death penalty at the time the sentence was imposed, according to the Death Penalty Information Center in Washington, D.C.
While the Williams case hasn't received much publicity, the death penalty circumstance gives it something in common with a more high profile case for federal prosecutors: the Boston Marathon bombing. "You have a population in Massachusetts and in the city where they're not used to having the death penalty," said Richard Dieter, the Death Penalty Information Center's executive director. "It just makes it a little harder to get these kinds of death sentences."...
Talia Emoni Williams died in July 2005 after she was brought to a hospital unresponsive, vomiting and covered in bruises. A criminal complaint by federal investigators accuses her then-25-year-old father of beating the child to discipline her for urinating on herself. Federal investigators wrote that military law enforcement agents found blood splatters in the walls of the family's home at Wheeler Army Airfield from Talia being whipped with Williams' belt.
Delilah Williams, Talia's stepmother, was also charged with murder but pleaded guilty in a deal with prosecutors. She's expected to be sentenced to 20 years in prison after she testifies against Williams at his trial, said her federal public defender, Alexander Silvert. The Army agreed the case should be prosecuted in the civilian justice system so that the father and stepmother could appear in the same court....
Talia's biological mother, Tarshia Williams, is expected to testify for the prosecution, her attorneys said. She filed a civil lawsuit against the government over Talia's death. It has been put on hold until after the criminal trial. The mother's lawsuit claims the military didn't report to the proper authorities that Talia's father and stepmother "abused and tortured" her throughout the seven months she lived in Hawaii before she died.
Alberto Gonzales, the U.S. attorney general during President George W. Bush's administration, made the decision to seek the death penalty against Naeem Williams. "Under Bush's administration, the philosophy was the federal death penalty should be spread out among all the states," Dieter said....
The last time the federal death penalty was approved for a Hawaii case was against Richard "China" Chong. But before he went to trial in 2000, he agreed to plead guilty to a 1997 drug-related murder and was sentenced to life in prison without the possibility of parole. He died of an apparent suicide about three months later.
Hawaii's history with capital punishment goes back long before statehood. There were 49 executions dating in Hawaii dating to 1856, with the last one recorded in 1944, according to the Death Penalty Information Center. The final execution of Ardiano Domingo — a Filipino who was hanged for killing a woman with scissors in a Kauai pineapple field — helped prompt Hawaii's territorial lawmakers to abolish the death penalty in the state, said Williamson Chang, a University of Hawaii law school professor who teaches a course on the history of law in Hawaii.
Chang said before the law changed, Hawaii disproportionally executed people of color, mostly Filipinos, Japanese and Native Hawaiians. Because of that history, Chang said he believes Hawaii jurors will struggle with the Williams case. "We're used to a society which does not put people to death," he said. "It's a slap in the face to the values of Hawaii."
Wednesday, March 05, 2014
Kentucky GOP representative sets out "conservative arguments in favor of repeal" of the death penalty
I just cam across this recent op-ed by David Floyd, a Republican member of Kentucky's General Assembly, explaining why he has introduced a bill to repeal his state's death penalty. Here are some excerpts from the op-ed:
My initial opposition formed through a spiritual lens, so in 2007 I joined others in cosponsoring legislation to repeal the death penalty. But I was the only conservative legislator in a group of liberals. Over these last few years, “liberal” and spiritual arguments have failed to persuade other legislators to take up these bills.
How, then, might we bring other conservatives with us, and at last vote to abolish our death penalty? This can be done by exploring together conservative arguments in favor of repeal.
• Conservatives value innocent life and should not support a state government program that can kill innocent people....
• Conservatives are mindful of the potential to abuse power that has been granted by the people, and should not trust the government with the power to execute a person who is safely behind bars....
• Conservatives are the first to call out government programs that fail to meet intended goals and cost exorbitant amounts of money....
• Conservatives want a government that will balance budgets, cut waste and eliminate programs that do not make fiscal sense.
Kentucky’s death penalty is a program that costs a lot while accomplishing little. We’ve spent well more than $100 million on the death penalty since 1976 — and executed three people. Having a death penalty is clearly wasting taxpayer dollars, while a penalty of life without the possibility of parole makes much better economic sense....
Capital punishment in Kentucky is a broken government program that risks killing the wrongly convicted, risks abuse of power, wastes resources, is arbitrary and unjust. We’ve tried to make the death penalty work, but we have been unable to fix its many problems and reconcile it with our conservative principles. We should repeal the death penalty and replace it with life without parole. It’s the only way to ensure that no innocent people are killed by the Commonwealth of Kentucky, and that those impacted by the process get finality much sooner.
Tuesday, March 04, 2014
Why the #@$%! are IQ tests, but not burdens of proof, the key issue in Hall?
The question in the title of this post is my basic reaction to what struck me as a very annoying SCOTUS oral argument yesterday in Hall v. Florida concerning how states must deal with the Atkins categroical Eighth Amendment constitutional bar on executing defendants who are mentlly retarded. The transcript of the argument is available at this link, and Lyle Denniston has this SCOTUSblog summary of what transpired. Here is the start of Lyle's recap:
If a state, trying to make it simple to decide who can be given a death sentence, opts for a choice that looks arbitrary, it is likely to have a difficult time in a Supreme Court that worries about the chances of error. That was demonstrated anew on Monday, when Florida found itself in deep Eighth Amendment trouble with a rule that anyone with an IQ above 70 can be executed if convicted of murder.
A quite definite majority of the Justices — perhaps, notably, including Justice Anthony M. Kennedy — left little doubt that Florida and six other states will not be allowed to maintain an automatic test-score-based cutoff for those who could qualify as mentally retarded and thus can escape the death penalty.
Kennedy’s role is central because he has most often led the Court in narrowing the category of those eligible to be executed, to take account of reduced capacity to be held responsible for their criminal behavior. He was among the most active in questioning Florida’s approach to mental retardation among those on death row. And, on Monday, he added in some strongly implied criticism of a system that allows some inmates to remain on death row for decades — an issue that is not directly involved in the new case of Hall v. Florida.
Justice Antonin Scalia expended considerable effort to buttress Florida’s basic argument that the scientific community cannot be trusted to make the rules for eligibility for capital punishment, but except for some supportive hints from Justice Samuel A. Alito, Jr., this seemed to be a largely forlorn endeavor.
Most of the other Justices joined in the pursuit of an Eighth Amendment rule that would assure that the mental retardation inquiry was sophisticated and nuanced, so that the risk of error was taken fully into account. While such a rule might not definitely hand over the details to the judgment of scientists and doctors, it apparently would not tolerate an approach designed simply to assure that fewer death-row inmates get off with a claim of mental disability. That appeared to be Florida’s main objective.
This account of the tenor of the Hall oral argument seems right, and yesterday's SCOTUS discussion reinforces the all-too-usual modern death penalty dynamic of Justice Kennedy seemingly being the swing vote so that whatever he may think about hard capital issues becomes Eighth Amendment jurisprudence. But beyond my standard annoyance with modern constitutional death penalty law now being all about what Justice Kennedy thinks, the Hall oral argument has me extra annoyed because the Court seems intent on focusing application of Atkins on the narrow medical issue of how exactly IQ tests can be used when assessing mental disability rather than on the critical legal/constitutional issue of how burdens of proof can be allocated when deciding who is exempt from the death penalty.
I suppose I should not be too surprised, based both on the cert grant and the approach taken by the advocates in Hall, that Florida's IQ line-drawing approach to Atkins took center stage during yesterday's SCOTUS argument. But as Kent highlights in this effective post at Crime & Consequences, the discussion of statistics and IQ measurement error among the Justices was garbled at best, and really more an example of junk science on display rather than a serious exploration of whether and when an inexact measurement device (an IQ test) can itself establish at the margins placement of a defendant in an inexact medical category (mentally retarded/disabled) which SCOTUS has given legal significance via its Eighth Amendment jurisprudence.
That IQ is, at best, an inexact measurement device is amply proved by the Brief of petitioner Freddie Lee Hall: that brief indicates that IQ measurements for Hall have ranged from 60 to 80 and that various doctors at various times have scored his IQ at 71, 72, 73, 74, 76, and 79. This reality suggests that IQ tests can only provide a general fuzzy picture of a person's mental abilities and that it would be foolish and misguided for anyone to use IQ scores alone as dispostive "scientific" or "objective" evidence of whether a murderer is or is not mentally retarded/disabled. In this sense, I suppose, Florida does look bad having a bright-line IQ line for administering Atkins. But given that IQ tests will always scatter in these kinds of cases, I think the legal issue of who bears the burden of proof and at what level as to Atkins claims is what ultimately determines the reach of Atkins in any state.
If SCOTUS strikes down the current Florida approach to Atkins without speaking to burdens of proof, Florida could then just employ Gerogia's approach to "assure that fewer death-row inmates get off with a claim of mental disability" by requiring defendants to prove they have MR beyond a reasonable doubt (or perhaps even say beyond all doubt). Already, Florida requires a defendant to prove his disability by clear and convincing evidence, and that standard (with or without an IQ requirement) necessarily entails that Florida will be able to execute murderers whom judges reasonably think, but are not clearly convinced, are mentally retarded/disabled. The experience in since Atkins makes clear that states eager to limit who gets off death row can do so using legal standards like proof burdens rather than relying just on IQ numbers. Thus if (and when?) SCOTUS only addresses how IQ tests are used in Hall and dodges any discussion of burdens of proof, Atkins application issues (and interstate Atkins disparity) will persist.
I suppose I am frustrated here in large part because SCOTUS has long been eager to avoid, in all sorts of settings, establishing any clear and predicatble constitutional rules for burdens of proof concerning facts or factors that impact only sentencing determinations and not guilt. These burden-of-proof issues, which may be viewed as a Fifth Amendment due process concern and/or an Eighth Amendment concern depending on the setting, can be found lurking in the Apprendi-Blakely Sixth Amendment line of cases, but they have never gotten the independent treatment that I think they merit and needs I have long been hoping Hall might finally lead to some useful burden-of-proof constitutional jurisprudence, but after the oral argument I am no longer hopeful on this front.
Monday, March 03, 2014
SCOTUS finally to grapple with how states are applying Atkins
I helped represent a Texas death-row defendant with a very low IQ in habeas appeals years before the 2002 SCOTUS ruling in Atkins v. Virginia decided the Eighth Amendment precludes execution of murderers who are mental retarded. As a result of that work two decades ago, I have long been interested in the question the Supreme Court will this morning finally confront at oral argument in Hall v. Florida: how can (or must) states define and apply mental retardation for purposes of determining who is excluded from execution due to Atkins.
For a variety of reasons, Hall could end up being a huge case about constitutionally required sentencing procedures that could impact lots of cases outside the context of the death penalty. I suspect, however, that some Justices will be eager to ensure the Court's work in Hall ends up modest and limited. For this reason, I think today's oral argument may provide an interesting window into how certain Justices are approaching Hall and this broader issues of procedure and federalism that it raises.
I expect to post on the substance of the Hall oral argument later this week. But for more pre-game analysis, here are a few media reports and commentaries on Hall:
From the ABA Journal here, "Chemerinsky: Who is mentally disabled when it comes to the death penalty?"
From NPR here, "With Death Penalty, How Should States Define Mental Disability?"
- From SCOTUSblog here, "Argument preview: Measuring mental handicap"
Saturday, March 01, 2014
"Death Penalty Jurisprudence by Tallying State Legislative Enactments: Harmonizing the Eighth and Tenth Amendments"
The title of this post is the title of this notable new paper by Charles MacLean and Akram Faizer now available via SSRN. Both the title and the contents struck me as especially timely with the Supreme Court finally set to hear arguments on Monday about how states can (and cannot) implement its 2002 Eighth Amendment ruling in Atkins. Here is the abstract:
Whenever most legislatures in death penalty states have rejected a particular application of capital punishment, the Supreme Court has held that no state may retain that application, reasoning that any death penalty approach rejected by the majority of states is, perforce, unconstitutionally “cruel and unusual” under the Eighth Amendment. Although some laud these decisions, they ignore the States’ Tenth Amendment rights to govern themselves within broad constitutional parameters. Rather than defer to opinion polls or tallying state legislative enactments, the Court should engage in true constitutional analysis, forbidding cruel and unusual punishments, but simultaneously honoring states’ rights to govern themselves.
Thursday, February 27, 2014
Victims' families laments Gov's execution moratorium in Washington
As reported in this local article, headlined "Families urge Inslee to reconsider death penalty moratorium," not everyone is content with Washington Gov. Jay Inslee's decision earlier this month to impose a moratorium on executions while he is governor (basics here):
Families of murder victims are urging Governor Inslee to reconsider his moratorium on the death penalty. They traveled to Olympia Wednesday to ask why the governor never consulted with them before making his decision. State lawmakers are considering a bill to make sure the families' voices are heard.
"I am here Governor Inslee and I've got to say I'm very surprised that you're not here looking at all these victims," said Sherry Shaver, whose daughter Talisha was killed by Dewayne Woods in 1996. "We're here to speak about this. Where are you Gov. Inslee?" Woods was sentenced to death. But that sentence is on hold with the governor's stunning statement that he would not sign a death warrant as long as he's in office.
"I never talked to the governor about this," said Jessie Ripley. Her mother Jane Hungerford-Trapp was killed in Tacoma by Cecil Davis. "The governor needs to look at each and every situation as if it was his family. As if he was a victim himself."...
[A] bill (SB 6566) by State Sen. Steve O'Ban ... would enforce the idea that families of the victims need to be heard before any decision is made on whether to go ahead with an execution. He said, "There can be no justice if the voices of the victims are not heard."
Lewis County prosecutor Jonathan Meyers said," (Inslee) disrespected the victims. They deserve closure. They deserve their voice to be heard and the decision he leveled silenced all of them."
The bill got its first public hearing Wednesday. Even if it were to pass, the sponsor admits it wouldn't negate the governor's decision. However, it would be a mandate for future governor's to listen to families first and then make a decision.
Related prior post:
Wednesday, February 26, 2014
Mizzou completes fourth execution in last four months
While multiple states continue to have multiple problems securing the drugs needed for execution or deflecting litigation over execution protocols, Missouri has now succeeded in completing four executions in as many months. Here are the details of the latest one, via this AP story headlined "Missouri Executions Man in '89 Rape, Killing of Teen":
A Missouri inmate was executed early Wednesday for abducting, raping and killing a Kansas City teenager as she waited for her school bus in 1989, marking the state's fourth lethal injection in as many months.
Michael Taylor, 47, was pronounced dead at 12:10 a.m. at the state prison in Bonne Terre. Federal courts and the governor had refused last-minute appeals from his attorneys, who argued that the execution drug purchased from a compounding pharmacy could have caused Taylor inhuman pain and suffering.
Taylor offered no final statement, although he mouthed silent words to his parents, clergymen and other relatives who witnessed his death. As the process began, he took two deep breaths before closing his eyes for the last time. There were no obvious signs of distress.
His victim, 15-year-old Ann Harrison, was in her driveway, carrying her school books, flute and purse, when Taylor and Roderick Nunley abducted her. The men pulled her into their stolen car and drove her to a home, where they raped and fatally stabbed her as she pleaded for her life. Nunley was also sentenced to death. Ann's father and two of her uncles witnessed Taylor's execution. They declined to make a public statement.
In their appeals, Taylor's attorneys questioned Missouri's use of an unnamed compounding pharmacy to provide the execution drug, pentobarbital. They also cited concerns about the state executing inmates before appeals were complete and argued that Taylor's original trial attorney was so overworked that she encouraged him to plead guilty.
After using a three-drug execution method for years, Missouri switched late last year to pentobarbital. The same drug had been used in three earlier Missouri executions, and state officials said none of those inmates showed outward signs of distress. Still, attorneys for Taylor said using a drug from a compounding pharmacy, which unlike large pharmaceutical companies are not regulated by the U.S. Food and Drug Administration, runs the risk of causing pain and suffering during the execution.
The Oklahoma-based compounding pharmacy Apothecary Shoppe agreed last week that it wouldn't supply the pentobarbital for Taylor's execution, forcing Missouri to find a new supplier. Attorney General Chris Koster's office said a new provider had been found, but Koster refused to name the pharmacy, citing the state's execution protocol that allows the manufacturer anonymity. Taylor's attorneys said use of the drug without naming the compounding pharmacy could cause the inmate pain and suffering because no one could check if the operation was legitimate and had not been accused of any violations.
Pete Edlund doesn't want to hear it. The retired Kansas City police detective led the investigation into the teenager's death. "Cruel and unusual punishment would be if we killed them the same way they killed Annie Harrison," Edlund said. "Get a damn rope, string them up, put them in the gas chamber. Whatever it takes."
Tuesday, February 25, 2014
"Compound Sentence: States keep mum on where lethal injection drugs are made"
The title of this post is the headline of this article in the March 2014 issue of the ABA Journal. Here are excerpts:
Tony Rothert, legal director of the ACLU-Missouri ... says the group is troubled by the secrecy surrounding compounded drugs [to be used in executions]. “Our concern here is about transparency and the government not hiding what it’s doing, especially when it comes to compounded drugs,” he says. “There are serious questions about whether using compounded drugs is going to be cruel and unusual punishment.”
Hours before [convicted serial killer Joseph Paul] Franklin’s Nov. 21 execution, U.S. District Judge Nanette Laughrey in Jefferson City ordered a stay, ruling that the state’s protocol “presents a substantial risk of inflicting unnecessary pain.” The 8th U.S. Circuit Court of Appeals at St. Louis vacated that order, and the Supreme Court refused to reinstate it. Other prisoners in Missouri, meanwhile, are continuing to challenge the state’s lethal injection methods.
The same issues are playing out throughout the country. Six states — Georgia, Missouri, Ohio, Pennsylvania, South Dakota and Texas — have either used pentobarbital from a compounding pharmacy or announced plans to do so, according to the Washington, D.C.-based Death Penalty Information Center. Of those, Missouri and South Dakota have carried out executions with compounded drugs. Colorado also made inquiries about compounded drugs, but executions in that state are on hold as long as the current governor remains in office.
Other states have revised their protocols and are no longer using pentobarbital. Florida incorporated the drug midazolam into its lethal injection cocktail in an execution carried out in October, and Ohio has said it plans to do the same.
At the same time, state officials often refuse to provide information about lethal injections. In Georgia, where 95 prisoners sit on death row, lawmakers recently passed the Lethal Injection Secrecy Act, which makes the identities of compounding pharmacies a state secret. Arkansas, South Dakota and Tennessee also recently passed bills aimed at prohibiting disclosure of execution procedures and the identity of people as well as companies involved in executions.
Those changes to the lethal injection protocols, combined with new confidentiality laws, have spurred a wave of litigation, with defendants and their lawyers arguing that the new methods of execution could result in a painful death. “Any death penalty lawyer worth their salt would be challenging the method of execution in their particular state,” says Fordham University law professor Deborah Denno, who studies capital punishment.
But groups that support the death penalty say many of these challenges are meritless. “If you have pentobarbital, and if the supply you have has been tested and found to be in the right concentration, the challenges being raised should be dismissed,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, based in Sacramento, Calif. “There isn’t a good argument that the use of that method is in any way cruel.”
Scheidegger adds that state officials have good reason to keep the names of compounding centers a secret. “It is regrettably necessary to provide confidentiality for the sources, because of a conspiracy to try to choke off the supply by putting pressure on the suppliers,” he says. “Whatever it takes to defeat that conspiracy needs to be done.”
"The Banality of Wrongful Executions"
The title of this post is the title of this new piece authored by Brandon Garrett reviewing a number of recent new criminal justice books. Available via SSRN, here is the abstract:
What is so haunting about the known wrongful convictions is that they are the tip of the iceberg. Untold numbers of mundane errors may escape notice while sending the innocent to prison and even to the death chamber. That is why I recommended to readers a trilogy of fascinating new books that look into the larger but murkier problem of error. In this article for Michigan Law Review's annual book issue, I review three books: Los Tocayos Carlos, by James Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky; Anatomy of Injustice: A Murder Case Gone Wrong, by Raymond Bonner; and In Doubt: The Psychology of the Criminal Justice Process, by Dan Simon. Each of these books brings important new perspective and understanding to the reasons why our criminal justice system can make terrible mistakes.
Monday, February 24, 2014
Via summary reversal, SCOTUS decides Alabama courts wrongfully rejected Sixth Amendment claim of death row defendant
Though not yet garnering much attention, I think SCOTUS-watchers and especially capital punishment followers should take not of a summary reversal by the Supreme Court this morning in Hinton v. Alabama, No. 13-644 (S. Ct. Feb 24, 2014) (available here). Here is how the opinion starts and a key section from the meat of the ruling:
In Strickland v. Washington, 466 U. S. 668 (1984), we held that a criminal defendant’s Sixth Amendment right to counsel is violated if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission. Id., at 687–688, 694. Anthony Ray Hinton, an inmate on Alabama’s death row, asks us to decide whether the Alabama courts correctly applied Strickland to his case. We conclude that they did not and hold that Hinton’s trial attorney rendered constitutionally deficient performance. We vacate the lower court’s judgment and remand the case for reconsideration of whether the attorney’s deficient performance was prejudicial....
“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, supra, at 688. Under that standard, it was unreasonable for Hinton’s lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000....
The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance..... Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.” An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland....
We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland, 466 U. S., at 690. We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law — the unreasonable failure to understand the resources that state law made available to him — that caused counsel to employ an expert that he himself deemed inadequate.
Though I am disinclined to make too big a deal out of this (little?) summary reversal, I am quite intrigued by the Court's ready conclusion (without any dissent) that inadequate research into what state law provided as available defense resources in this case made out deficient performance here. And though the Court says it does not want to now see "federal courts [launching] into examination of the relative qualifications of experts hired and experts that might have been hired," I suspect every capital habeas attorney worth his salt will be now eager to stress Hinton v. Alabama while encouraging just such an examination as part of any Sixth Amendment ineffective assistance claim.
Saturday, February 22, 2014
"The State’s Victim: Should the State Grant Rights and Privileges to the Families of Death Row Defendants?"
The title of this post is the title of this notable student note by Michelle Tomes now available via SSRN. Here is the abstract:
This Article argues that the friends and family of the person condemned to death are victims of the state, which chooses to charge the defendant with a capital crime. Due to the trauma, stress, and the need of support services, the state should define the families of the defendants as victims. Additionally, Part I of this article outlines the victim’s rights movement and the problems that come from society not considering the families of defendants as victims. Part II of this article defines why the state should consider the family of the defendants as victims.
Part III of this Article will argue that the state should allow contact visits with the inmate as a recognized right to the defendant and the defendant’s family. Additionally, Part III will argue that the new category of victims deserve equal access to support as the victims of crime, and will supply evidence that supports the introduction of execution impact evidence on behalf of the defendant.
Friday, February 21, 2014
Is an executed murderer now haunting Missouri's efforts to carry out death sentences?
The somewhat tongue-in-cheek question in the title of this post is prompted by this notable new commentary by Andrew Cohen at The Atlantic. Here is the headline and subheadline of the article: "The Ghost of Herbert Smulls Haunts Missouri's Death Penalty Plans; It's been just three weeks since Missouri executed Herbert Smulls before his appeals were exhausted. And virtually nothing has gone right for the state in its efforts to implement the death penalty since." And here is how the lengthy piece gets started:
It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for stay. And it is fair to say that the past three weeks in the state's history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls' death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.
Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.
Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.
Thursday, February 20, 2014
"Institutionalizing Bias: The Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment
The title of this post is the title of this notable new paper by Mona Lynch now available via SSRN. Here is the abstract:
The empirical study of capital punishment in the “modern” era has been largely decoupled from scholarship addressing the corollary late-20th century noncapital punitive developments, such as the rise of mass incarceration. Consequently, research that has examined the problem of racial disparities in the administration of the death penalty and research on the proportional growth of minorities in American correctional populations have advanced on parallel tracks, rarely intersecting.
In light of this symposium’s effort to strengthen the linkages between the death penalty and mass incarceration, this article examines two seemingly distinct cases of racially disparate criminal justice practices — the trial courts’ processing of contemporary capital cases and federal drug trafficking cases — to illustrate the institutionalized mechanisms that produce racial inequalities in both mass incarceration and capital punishment. I advance a meso-level, social-psychological theory on the production of institutional racism that also aims to integrate contested lines of thought about the mechanisms of bias and discrimination.
To accomplish these ends, I specifically focus on three problem areas in the structure and operation of contemporary American criminal justice: 1) the codification of inequality in how crimes and criminal culpability are defined and how sentencing rules are structured; 2) the distribution, by both stage and actor, of discretionary decision-making power; and 3) the mechanisms for relief from the harshest potential punishments.
Tuesday, February 18, 2014
Execution news in many states thanks to drug shortages and lethal injection litigation
I have gotten more than a little fatigued trying to keep track of all the legal and political developments in states trying to get access to the drugs they need to carry out planned executions. Nevertheless, a new round of headlines about this topic filled up my news feeds this morning, so I could not resist reporting some of the news through a these stories and links:
Friday, February 14, 2014
"The Marriage of State Law and Individual Rights and a New Limit on the Federal Death Penalty"
The title of this post is the title of this notable new article by Jonathan Ross now available on SSRN. This piece seems especially timely not only in light of lower federal courts extending recent SCOTUS marriage precedents, but also with the Boston Bomber federal capital case taking place in a state without the death penalty. Here is the abstract:
Since the 1990s, federal prosecutors have, with increasing frequency, sought the death penalty for federal offenses committed in and also punishable under the laws of non-death penalty states. This phenomenon has troubled federalism proponents, who have pointed out that federal prosecutors can use the federal death penalty to circumvent a state's decision to abolish capital punishment. Drawing on these scholars' works, defendants have argued that state law shields them from federal punishment. Courts have almost unanimously rejected such arguments, holding that state law cannot preclude the administration of federal punishment for federal offenses.
This article proposes a novel basis for a challenge to the federal death penalty's use in a non-death penalty state - the Supreme Court's reasoning in United States v. Windsor. In Windsor, the Court held that federal interference with a state law right arising in an area traditionally regulated by states is subject to heightened scrutiny under the Due Process Clause. This article argues that, in some instances, Windsor precludes federal capital prosecutions.
This article considers a Windsor-based motion to dismiss a notice of intent to seek the federal death penalty. The federal capital prosecution in a non-death penalty state interferes with a state law right to not be executed. As states have traditionally prosecuted violent murders, this right arises in an area traditionally regulated by states. Applying due process scrutiny, a court should ask whether a prosecutor's animus towards the state's lack of capital punishment motivated the prosecution in the first place, or whether there is an independent federal interest. If animus alone motivated the prosecution, then Windsor demands that the court reject the attempt to seek capital punishment.
Thursday, February 13, 2014
Trio of former governors to get behind initiative to reform California's dysfunctional death penalty
As reported in this Los Angeles Times article, "three former California governors are set to announce their endorsement Thursday of a proposed initiative sponsors say would end lengthy death penalty appeals and speed up executions." Here is more:
Former governors George Deukmejian, Pete Wilson and Gray Davis will announce at a news conference the launch of an initiative drive for signatures to qualify the proposed constitutional amendment for the November ballot.
The measure, if qualified, would ignite the second statewide debate on the death penalty in two years. A ballot proposal that would have ended capital punishment in California narrowly lost in 2012, with 48% of voters in favor and 52% against.
The new proposal would establish five-year court deadlines for deciding death row appeals, transfer most death penalty cases from the California Supreme Court to lower courts, and allow capital inmates to be spread among the general prison population. It also would require the condemned to work in prison, remove any threat of state sanctions from doctors who advise the state on lethal injection procedures, and exempt the execution protocols from a state administrative law that requires extensive public review.
California now has more than 700 people on death row, and the last inmate was executed in 2006. The state currently has no court-approved method of lethally injecting the condemned, and drugs to do so have been difficult to obtain. The state also has had trouble recruiting lawyers willing to handle capital appeals, which can take decades to be resolved in state and federal courts.
I am hoping this capital reform initiative makes the California ballot given that a majority of Californians have voted to retain the death penalty in the state. I have to believe that California voters do not want to preserve the distinctly dysfunction death penalty system it now has, and this initiative would appear to be the most efficient and effective means to make the state's system more functional.
If this capital reform initiative makes the California ballot, it will also be interesting to see how California's current governor and attorney general will chime in on the issue. My sense is that Gov Brown and AG Harris are generally opposed to an active capital punishment system, and thus they may be disinclined to support the initiative. But it should be hard for them to explain to voters why the support a dysfunction capital punishment system over a functional one.
Tuesday, February 11, 2014
Washington Gov declares moratorium on executions during his term
As reported in this new Seattle Times article, headlined "Inslee halts executions in state while he is governor," in the Evergreen State the Governor has decided to use his clemency power to create a (temporary?) moratorium on executions. Here are the basics:
Gov. Jay Inslee is calling a moratorium on executions while he is governor. “Equal justice under the law is the state’s primary responsibility,” Inslee said during a news conference Tuesday morning. “And in death penalty cases, I’m not convinced equal justice is being served.”
Inslee said there was “too much at stake” in death penalty cases in what he termed an “imperfect system.” Inslee cited the high cost of trials and appeals, the apparent randomness in which death penalties are pursued and concerns that executions do not deter crime as reasons for his decision. Inslee said he is not asking the state Legislature to abolish the death penalty.
“As governor, it is on my shoulders to come up with a decision for our whole state,” Inslee said. “I have made a decision. It is not an easy one.”
There are currently nine men on Washington’s death row. He said that if a death penalty case crosses his desk for action, he will issue a reprieve, which will potentially only be in effect while Inslee is governor. He said he does not intend to commute any death sentences. “The citizens of the state of Washington can be assured the men of death row will be in prison for as long as they live,” he said.
When questioned, Inslee acknowledged the moratorium may not necessarily save money, particularly since appeals will still likely be filed. However, the move could prompt county prosecutors to not seek the death penalty in some cases, thus realizing some savings....
“Washington’s Constitution and state statutes grant the governor significant powers over the fate of individuals sentenced to death,” Attorney General Bob Ferguson said in a statement Tuesday morning. “Consequently, the governor has the authority to hit the ’pause’ button for executions in Washington.”
However, Ferguson said his office will continue to represent the state when death-row inmates file challenges to their convictions or sentences with the federal courts. Currently, there are four such cases before the federal courts, he said....
King County Prosecutor Dan Satterberg, in a written statement, said the legal ramifications of Inslee’s “reprieve policy” appear limited and that state law remained unchanged. However, he said in the short term it is likely to cause more delays, expense and uncertainty. “A moratorium alone will not resolve the issues raised by the Governor,” Satterberg said. “Let’s have an informed public debate and let the citizens of Washington decide if we should keep capital punishment in our state.”
The death penalty has come under fire in Washington state for a variety of reasons, including what some have termed inconsistencies in when it is sought. For example, in the case of Green River Killer Gary L. Ridgway, King County prosecutors gave up on capital punishment in exchange for his cooperation in providing detectives details that helped solve dozens of open murder cases. Ridgway pleaded guilty to 48 counts of aggravated first-degree murder in 2003 and was sentenced to life in prison.
State Rep. Reuven Carlyle, D-Seattle, has repeatedly introduced legislation to ban the death penalty Of the governor’s moratorium, Carlye said, “It’s a profound shift. He has opened a legitimate conversation. … It sets in motion a legitimate and genuine public conversation.”
But he said the moratorium would not likely spur legislative action this year, noting that last Friday was the cutoff for non-budget-related bills to make it out of committee. “In 2015, we will ask the public to join us in this conversation,” said Carlyle, who will push for a bill then.
Sen. Mike Padden, R-Spokane Valley, chairman of the Senate Law and Justice Committee, disagreed with Inslee’s decision, calling it “shortsighted.”
“I think that is going off on his own and is certainly nothing the Legislature has authorized,” Padden said, noting that Inslee had not consulted him. “I question it, I really do,” Padden said of the moratorium. “To victims it’s the wrong message. The relatives who have suffered the deaths. They have gone through 10 years or more of waiting. ... For the governor to unilaterally take that away I think is wrong.”
Cal Coburn Brown, the last person executed in the state, died by lethal injection in September 2010 for the 1991 murder of Holly Washa in SeaTac. Jonathan Lee Gentry, sentenced for the 1988 murder of 12-year-old Cassie Holden in Kitsap County, is expected to be the next inmate in line to be executed.. Last month, the state Supreme Court rejected a petition for release filed by Gentry’s defense team. Gentry just filed another appeal, based on DNA testing.
Cassie Holden’s father, Frank Holden, said Tuesday he was angry at Inslee and devastated by his decision. He said he spoke with the governor for the first time Monday night when Inslee called to tell him about the moratorium. “There wasn’t much of a discussion. There wasn’t much of a chance for input. He had this thing all planned out,” Holden said, adding that the only thing he was able to tell Inslee was that he was disappointed in his decision.”
“I’ve waited 26 years for justice to happen and now it’s not going to happen because of him. It went through every court system possible,” Holden said, speaking from his business in Pocatello, Idaho. Holden said he thinks about his daughter every day; she would now be 37. “After he told me what he was doing it was nothing compared to the death of my daughter, but it was up there,” Holden said.
Kitsap County Prosecutor Russ Hauge said Tuesday morning he is disappointed by Inslee’s announcement and its potential impact on Gentry’s case. Hauge said he could “see an end in sight” for the Gentry case, because after more than 20 years the man had exhausted most of his appeals. “If ever there was a case that warranted the death penalty, it’s the case of Jonathan Gentry. This is exactly this is what the statute was meant to address,” Hauge said.
Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said Inslee is not be the first governor in the nation to oppose the death penalty. Last year, Colorado Gov. John Hickenlooper granted a reprieve to an inmate who killed four people at a Chuck E. Cheese’s restaurant in 1993 after finding the state’s death penalty system to be “imperfect and inherently inequitable,” according to The Denver Post. Dieter said the move means that the inmate won’t be executed while Hickenlooper is governor.
The full text of Governor Inslee’s remarks announcing his execution moratorium can be accessed at this link.
"The Illusory Eighth Amendment"
The title of this post is the title of this notable new article by John Stinneford now available via SSRN. Here is the abstract:
Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.
This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation. A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation. Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.
This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation. When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning. Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules. The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.
February 11, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, February 10, 2014
"'Furiosus Solo Furore Punitur': Should Mentally Ill Capital Offenders Be Categorically Exempt from the Death Penalty?"
The title of this post is the title of this new Note by Emily Randolph now available via SSRN. Here is the abstract:
Rather than continuing to use mental illness as a mitigating factor in determining sentencing of the capital offender, this paper argues that the Eighth Amendment’s protection from cruel and unusual punishments should be extended to cover capital offenders who suffer from debilitating mental illness. More specifically, if a convicted offender has a medically diagnosed mental disorder as outlined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition or other similar standard for psychological evaluation, he or she should be exempt from the possibility of the imposition of death as a punishment. This paper discusses the Supreme Court cases of Atkins v. Virginia, 536 U.S. 304 (2004), Ford v. Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman, 551 U.S. 930 (2007) and Roper v. Simmons, 543 U.S. 551 (2005), and how to extend the Court's reasoning in those cases to cover mentally ill capital offenders.