Sentencing Law and Policy

China creates international row by executing Brit for drug offense

As detailed in this Wall Street Journal article, which is headlined "China Ignores Appeals, Executes Briton," the death penalty is making some interesting international news these days.  Here are the details:

China executed a British national for drug smuggling, sparking outrage from British leaders, who had appealed for clemency on mental-health grounds, and threatening to strain relations between the countries.

Akmal Shaikh, convicted of carrying more than four kilograms of heroin two years ago at Urumqi Diwopu International Airport in northwestern Xinjiang province, was executed by lethal injection on Tuesday after China's Supreme People's Court upheld his death sentence, China's state-run Xinhua News Agency reported....

British Prime Minister Gordon Brown condemned the execution, saying in a statement that he is "appalled and disappointed that our persistent requests for clemency have not been granted." He expressed his "sincere condolences" to Mr. Shaikh's family and friends. "I am particularly concerned that no mental-health assessment was undertaken," he added.

Chinese Foreign Ministry spokeswoman Jiang Yu dismissed the British complaints. At a regular news briefing she said the Chinese government is "strongly dissatisfied and is absolutely opposed to the unjustifiable condemnations" from the U.K. "We urge the British side to show respect to China's judicial supremacy and redress the mistake immediately to avoid damaging bilateral relations," Ms. Jiang said....

Xinhua quoted a statement issued by the Supreme People's Court as saying that that there was insufficient proof that Mr. Shaikh had any mental-health issues and that the evidence against him was "certain and the facts were clear." Mr. Shaikh's rights were fully granted, the court said, adding that drug crimes are serious criminal offenses with "severe negative social impact," according to the Xinhua report.

According to Chinese criminal law, people trafficking more than 50 grams of heroin can be punished by death. Reprieve, a London-based prisoner-advocacy group that lobbied for Mr. Shaikh, said he is the first European to be executed in China in 58 years.

New Duke study claims $11 million in yearly savings if NC eliminated death penalty

This effective local article, which is headlined "Study: End death cases, save money," reports on a new study coming out of Duke University claiming that North Carolina could save millions by eliminating the death penalty. Here are some of the details:

If the state stopped trying to execute killers, it would free up $11 million a year, according to a study by a Duke University economist published this month.

There is little return on the dollars spent on seeking the death penalty, says Philip Cook, an economist at Duke's Sanford School of Public Policy. Of the 1,034 people charged with murder in North Carolina in 2005 and 2006, prosecutors initially sought the death penalty against about a quarter of them. Only 11, though, were sentenced to death for their crimes. "The idea that the state could spend so much money on someone they think is completely undeserving is very interesting," Cook said. "I have to believe that there are some people that would find this cost issue irritating."

Cook's study was published this month in American Law and Economics Review. Cook's last study on the cost of the death penalty in North Carolina was published in 1993. In that study, he estimated an annual savings of $4 million if the death penalty were not an option.

Cook's findings will be presented to lawmakers, and opponents of the death penalty will likely use them to argue that it isn't cost-effective.... Cook argues that the rarity of death sentences undermines the deterrent factor. By his math, the odds of a killer getting the death penalty are less than 1 percent.

Rep. Paul Stam, a Wake County Republican, said criminals don't calculate odds and aren't swayed by them. "Criminals pay more attention to TV and newspaper headlines than to statistics," said Stam, a proponent of the death penalty. "Maybe that is why many of them get caught."

Here and across the country, the death penalty is on the decline. No one has been lethally injected in North Carolina since August 2006, and the 163 inmates now on death row face an uncertain end.

Cook's $11 million figure is a net savings. He assumed everyone currently on death row would be imprisoned for all of their living days, and also factored the estimated costs of appealing convictions of life in prison. Cook did not, however, include savings by prosecutors being spared additional preparation and court time of a capital trial.

It's unclear what bearing, if any, a cost analysis of the punishment will have on its future. "Whenever it comes to reducing or changing punishments, there's a lot of politics and public opinion involved," said Rep. Deborah Ross, a Wake County Democrat. "It's never, ever a dollar-and-cents issue."

At least two states, New Jersey and New Mexico, have abolished the death penalty in recent years, citing cost as a primary reason. Maryland, too, has considered eliminating the death penalty; officials there have significantly limited the number of murders that can be prosecuted capitally in hopes of reducing costs.

Capital trials cost five times more than first-degree murder trials in which the death penalty is not pursued. A trial averages $116,400 in costs for the defendant, Cook found, compared with $18,600 for a non-capital murder trial. Trials also hijack a prosecutor's office for weeks, a cost that's hard to estimate because it involves salaries for people who handle other matters besides capital murder trials. The average capital trial lasts nearly three weeks, compared to a week for murder trials without the death penalty....

Prosecutors often argue that the option of pursuing the death penalty is a bargaining chip that allows them to secure a plea to the lesser punishment of life in prison without setting foot in a courtroom. Cook found, however, that it was cheaper to try a case in which prosecutors never sought the death penalty than to negotiate a capital case and avoid going to trial. That is due in part to a North Carolina law requiring defendants facing the death penalty to have at least two attorneys.

Some recent related posts on the costs of capital punsihment:

• "Budget kills Hinds capital cases: DA says Hinds can't afford death-penalty prosecutions"
• New DPIC report assails costs (and opportunity costs) of death penalty administration
• NY Times editorial assails "High Cost of Death Row"
• Georgia struggles to pay for a costly capital system
• The challenging economics of death causing problems in Chicago
• Great new (though still dated) examination of the death penalty and plea bargaining
• CNN now talking about the costs of the death penalty and state reforms 
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Capital case cost concerns continue to inform reform debate
• Still more discussion of the costs of the death penalty
• "Opponents Focus On Cost In Death Penalty Debate"
• What might 2009 have in store for . . . the death penalty in the US?

"Family Reluctantly Accepts Plea Bargain That Spares A Killer's Life"

The title of this post is the headline of this interesting local story that tells the tale of what sometimes happens after a state death sentence is reversed by a federal habeas court.  Here are some of the details:

He committed one of Cleveland's most notorious murders, but Monday, a condemned killer escaped the death penalty.  The saga began in March 1985, when 12-year-old Mario Trevino was found beaten to death on Cleveland's near west side.

Police arrested 22-year-old Alfred Morales and he confessed to the crime. Morales, who called himself the demon of darkness, told investigators he killed young Mario as revenge against the boy's family because his sister had refused to date Morales, and his brother refused to give Morales an alibi for an unrelated crime he was accused of.

Aldred Morales was sentenced to death, and his crime would continue to haunt those who loved Mario Trevino....

Fast forward 24 years, Alfred Morales and his appellate attorney convince a federal court that he received inadequate counsel during his trial.   The appeals court threw out the death sentence, and ordered a new penalty phase of Morales' trial, ruling that among other things his original lawyer did not tell the jury about his alcohol abuse or the difficulties he suffered as a Native American child. 

But Monday, Cuyahoga County prosecutors struck a deal with Alfred Morales, agreeing to drop the possibility of the death penalty. In exchange, Morales must serve at least 30 more years in prison and agrees to give up his right to further appeals.  The victim's sister, Elsa Trevino, tells Fox 8 "it's absolutely not what the family wanted, but looking at the way the judicial system works, the liberals out there, I think we took the route we had to take."

His life spared, Morales addressed the Trevino family 24 years after killing Mario. He told them "I think at this point, there's nothing i can say that will ease the pain and suffering that I caused this family, the only thing that I can say is that I hope they find it in their heart to forgive me for what I did."

The Trevino family says justice for Mario will ultimately come from a higher court. Jesse Trevino told us "I believe in the hereafter, you know and it's in God's hands and he will have to face him and then I believe he will burn in hell."

"Why is use of the death penalty going down?"

The title of this post is the headline of this piece from The Christian Science Monitor.  Here is how it begins:

Fewer people received a death sentence over the past 12 months than in any year since 1976 — the year that capital punishment was reinstated in the US.

That finding was released Thursday by the Death Penalty Information Center (DPIC).  But it doesn’t mean that capital punishment is headed for immediate extinction: The death penalty is included in the laws of 35 states — and in some states, such as California, the number of death sentences has actually risen.  Also, surveys show that the capital punishment has the support of most Americans.

But if use of the death penalty is declining overall, why is that?

One reason: Some state prosecutors are growing more hesitant to seek a death sentence in cases that might later be upended because of DNA evidence.  Since DNA entered the courtroom in 1989, 248 criminal convictions have been overturned, 17 of which involved inmates on death row, according to the Innocence Project of Florida.

I am not sure that innocence issues are the key or even the main reason for declining use of the death penalty, but I do think it is an important factor in a very dynamic story.

DPIC releases year-end report on the death penalty in 2009

As detailed in this press release, the Death Penalty Information Center has just released its latest end-of-year report on death penalty developments. Here is how the press release describes the highlights of this new report, which is titled “The Death Penalty in 2009: Year End Report” and is available at this link:

The country is expected to finish 2009 with the fewest death sentences since the U.S. Supreme Court reinstated the death penalty in 1976, according to a report released today by the Death Penalty Information Center.  Eleven states considered abolishing the death penalty this year, a significant increase in legislative activity from previous years, as the high costs and lack of measurable benefits associated with this punishment troubled lawmakers.

Major papers reporting on this report include:

• From the New York Times here, "Death Sentences Dropped, but Executions Rose in ’09"
• From the Washington Post here, "Number of death sentences falls to a historic low"

Georgia Supreme Court halts final scheduled execution for 2009

This new piece from the Atlanta Journal-Constitution, which is headlined "Georgia Supreme Court halts Carlton Gary's execution," reports that the last execution scheduled for 2009 was put on hold this afternoon:

The Georgia Supreme Court on Wednesday halted the execution of the so-called Columbus stocking strangler, ordering a judge to consider Carlton Gary's request for DNA testing.  The 5-2 ruling came four hours before Gary was to be executed by lethal injection....

Prosecutors said Gary sexually assaulted and attacked four other women during an eight-month period in 1977 and 1978.  The attacks terrified residents of the Wynnton neighborhood of Columbus. Fingerprint evidence placed Gary at the homes of three of the victims.  Gary did not deny being at the scenes, but said an accomplice sexually assaulted and attacked the women.  At the time of Gary's trial, DNA testing was unavailable....

On Wednesday, the Georgia Supreme Court found that the motion complied with the requirements of a 2003 state law that allows requests for DNA testing had DNA tests been unavailable at the time of trial.  The court ordered Johnston to hold a hearing to consider the request.  Chief Justice Carol Hunstein and Justice George Carley dissented.

As a result of this development, it appears that the final body count for executions in 2009 throughout the United States will be 52.  As detailed in this DPIC chart, the 52 executions in 2009 marks a significant increase in the total number of executions from 2007 (42 executions) and 2008 (37 executions), but it still well below the average of roughly 70 executions per year for the decade from 1995 to 2005. 

As detailed in this DPIC chart, Texas (with 24), Alabama (with 6) and Ohio (with 5) were the top three states in total executions in 2009.  (I have to think it is just a coincidence that the college football teams for the state universities in Texas, Alabama and Ohio all won their respective conference championships.  But maybe some enterprising number cruncher can see if there is a modern correlation between execution rates and college football success.)

Will (and should) Ohio's one-drug success impact Delaware lethal injection litigation?

The question in the title of this post is prompted by this local news story out of Delaware, which is headlined "Appeals Court to hear suit on execution procedures."  Here is how it gets started:

The class-action lawsuit that has been holding up executions in Delaware for more than three years will be headed to the U.S. 3rd Circuit Court of Appeals today. If the court upholds the April ruling by Delaware District Judge Sue L. Robinson and there is no appeal to the U.S. Supreme Court, executions could soon resume in the state.

However, attorneys from the Federal Community Defender's office in Philadelphia who are representing Delaware's 20 death row inmates and legal observers believe recent developments in Ohio could prompt the court to send the matter back to district court, keeping Delaware's death penalty in limbo.

At issue in the appeal are Delaware's method of execution — a three-drug mix that has been associated with problems in the past — the state's history of mistakes in past executions and a lack of a back-up plan if executioners can't find a vein in the condemned to deliver the lethal drugs.

Because Ohio this month successfully executed an inmate using a one-drug method, courts may decide this presents a "feasible and workable" alternative, said Richard Dieter, executive director of the Death Penalty Information Center.

But, he said, just because there is an alternative which supporters claim is more humane and causes fewer problems, does not mean the appeals court will order it to be used. There also has to be evidence that the existing execution system in Delaware has significant flaws. "Given the precedent of the district court, it is going to be an uphill battle [for the plaintiffs]," Dieter said.

This story reinforces my instinct that Ohio's early success with a one-drug lethal injection protocol likely could be a critical turning point in all the debate over lethal injection.  It makes lots of sense that death-row defendants litigating in jurisdictions using the old three-drug protocol will want to spotlight (and even praise) Ohio's new one-drug method.  And yet, as I have noted in some recent posts, any and everyone seriously opposed to all forms of capital punishment are put in a difficult position whenever any death row defendants and their attorneys laud Ohio's new execution protocol.

Some recent related posts about Ohio's new execution method:

• Ohio adopting a new one-drug lethal injection protocol
• "Ohio inmate to get 1-drug, slower, execution"
• Reports on Ohio's success with one-drug lethal injection protocol
• A few early questions following Ohio's successful one-drug lethal injection execution
• New York Times (irresponsibly?) contends "There Is No ‘Humane’ Execution"

"Purple Hearts On Death Row: War Damaged Vets Should Not Be Executed By the State"

Thanks to a reference from Death Penalty Information Center, I just came across this commentaryby By Karl Keys and Bill Pelke which has the title that appears in the heading of this post.  Here are excerpts:

Mental exhaustion. Battle fatigue. PTSD. Whatever it's called, many of our soldiers who served in wars over the years came home with combat-related mental illness, traumatized by the carnage and destruction they saw and experienced.

Unfortunately, too many veterans' mental conditions have fueled criminal behavior resulting in their imprisonment.  Dating back to the Civil War, veteran incarceration rates increased after each conflict.

This is not a small, marginal problem. Government statistics for the 1980s show that 21 percent of state prison inmates then were Vietnam veterans.  The U.S. Department of Defense and the Veterans Administration estimate that two of every five of the 800,000 new Iraq and Afghanistan war veterans exhibit post-traumatic stress disorder (PTSD) symptoms....

As veterans ourselves, we believe that people who commit crimes as a result of severe mental impairments should not be executed. In 2006, the American Bar Association's House of Delegates adopted that recommendation, which was officially endorsed by the American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness.

The piece discusses the cases of two Vietnam veterans — James Floyd Davis and Manny Babbitt — who were sentenced to death for murders after their return from war.  (Davis is still on death row and Babbitt was executed a decade ago.)  Unfortunately, the piece does not discuss or try to document how many of the 3200+ persons now on death row are veterans with (or without) direct experiences in a theater of war.

Of course, some of the most notorious modern American murderers have military service on their resume — including Tim McVeigh and the Fort Hood shooter, Nidal Hasan — so I doubt many will soon be calling for an Atkins-like categorical rule that past military service should make one ineligible for the death penalty.

Some recent related posts:

• "Judge suggests more sentencing options for war veterans"
• Can downloading of child porn be blamed on post-traumatic stress disorder?
• Prior military service as a sentencing mitigator gets a big boost from SCOTUS
• Should prior military service reduce a sentence?

New York Times (irresponsibly?) contends "There Is No ‘Humane’ Execution"

"There Is No ‘Humane’ Execution" is the headline of this new New York Times editorial, which highlights yet again that those inclined to complain most loudly about various methods of execution are really fundamentally troubled by the entire business of capital punishment.  Here are snippets from what strikes me as a somewhat irresponsible editorial:

This is what passes for progress in the application of the death penalty: Kenneth Biros, a convicted murderer, was put to death in Ohio last week with one drug, instead of the more common three-drug cocktail....

Ohio adopted the single-drug formula after the botched execution.  It may well be an improvement over the three-drug cocktail, or may not.  (Death penalty advocates who hailed it as less painful have no way, obviously, of knowing that.)  But the execution only reinforced that any form of capital punishment is legally suspect and morally wrong.

Justice Ruth Bader Ginsburg noted, in a dissenting opinion in a death penalty case last year, that critics have charged that the three-drug cocktail poses a serious risk that the inmate will suffer severely.  The one-drug method was not used before last week on human beings, and Ohio should not have used it without a more public airing of its strengths and weaknesses, with input from medical and legal authorities.

The larger problem, however, is that changing a lethal-injection method is simply an attempt, as Justice Harry Blackmun put it, to “tinker with the machinery of death.”  No matter how it is done, for the state to put someone to death is inherently barbaric.

It has also become clear — particularly since DNA evidence has become more common — how unreliable the system is. Since 1973, 139 people have been released from death row because of evidence that they were innocent, according to the Death Penalty Information Center. 

An untold number of innocent people have also, quite likely, been put to death.  Earlier this year, a fire expert hired by the state of Texas issued a report that cast tremendous doubt on whether a fatal fire — for which Cameron Todd Willingham was executed in 2004 — was arson at all.  Until his execution, Mr. Willingham protested his innocence.

Most states still have capital punishment, and the Obama administration has so far shown a troubling commitment to it, pursuing federal capital cases even in states that do not themselves have the death penalty.

Earlier this year, New Mexico repealed its death penalty, joining 14 other states — and the District of Columbia — that do not allow it.  That is the way to eliminate the inevitable problems with executions.

I describe this editorial as "somewhat irresponsible" principally because of the phrases I have emphasized above.  The piece suggests only "death penalty advocates" hailed Ohio's new one-drug protocol as a less painful alternative without mentioning that defense-attorney critics of the three-drug approach often urged a one-drug approach.  Similarly, the piece suggests Ohio should have had a "a more public airing of its strengths and weaknesses, with input from medical and legal authorities" without mentioning that Ohio did reach out to numerous medical and legal authorities when developing its new protocol.  Finally, as serious students of the death penalty know, the Willingham case is the closest we've gotten to a clear showing an innocent person may have been executed; to suggest that a large number of innocent people have quite likely been put to death is especially misguided.

I understand and have great respect for anyone and everyone eager to make the categorical moral assertion that "for the state to put someone to death is inherently barbaric."  But it is especially important for those making such a claim to avoid seeking to bolster their arguments with specious facts and suspect suggestions.  This editorial has certainly lowered my opinion of the Old Gray Lady a bit.

Some recent related posts about Ohio's new execution method:

• Ohio adopting a new one-drug lethal injection protocol
• "Ohio inmate to get 1-drug, slower, execution"
• Reports on Ohio's success with one-drug lethal injection protocol
• A few early questions following Ohio's successful one-drug lethal injection execution

Crime and punishment debated in race for Illinois governor

This local article, which is headlined "IL governor hopefuls weigh in on crime, punishment," details that usual debates and common divides concerning crime and punishment  are in play in Illinois as candidates jockey to take over the state's top spot.  Here are excerpts from the article:

When it comes to punishing people for their crimes, there's little agreement among the candidates for Illinois governor. Some want to resume executions, while others support the state's decade-old moratorium on the death penalty.  Some think it's smart to save money by releasing nonviolent inmates from the state's overcrowded prisons; others see that as a threat to public safety.

The two major Democrats, Gov. Pat Quinn and Comptroller Dan Hynes say they support the death penalty but would maintain the moratorium that Republican Gov. George Ryan began in 2000 over concerns about innocent people being put to death, according to their answers on an Associated Press candidate questionnaire.  "It is not conscionable that an innocent person could be put to death in Illinois," Quinn said.  Neither offered details about what additional safeguards are needed.

Most of the seven Republican candidates favor lifting the moratorium, though some would want more safeguards in place first.  One wants the death penalty abolished....

Candidates for governor also differ on letting nonviolent offenders out of prison early to ease the state's growing budget problems.

Quinn defended his administration's plan to release about 1,000 inmates up to a year early to save about $5 million, saying they would be electronically monitored and weren't in prison for crimes against people.  Whitney backs Quinn's plan and said legalizing marijuana and decriminalizing possession of some other narcotics could help reduce jail overcrowding.

But nearly all the Republicans assailed early release, as did the Democratic Hynes, who called it "another example of a piecemeal budgeting" that doesn't consider the "safety and best interests of Illinois communities."

Brady said it's too risky, Ryan called it "inappropriate," and McKenna doesn't like it either. "I am especially troubled that this decision is driven by budget concerns, not public safety priorities," McKenna said....  "Public safety is one of the top priorities of government and not the place to cut spending," Schillerstrom said.

But Proft said he is open to early release programs as long as there are support services available for those the former inmates.  He also said the state needs to look at ways to deal with nonviolent drug offenders.  Walls said the state should reassign 15,000 nonviolent inmates to community-based programs where they can get counseling and skills training.

Death penalty debate taking center stage in (in)famous Casey Anthony case

This new CNN story, which is headlined "Casey Anthony's lawyer argues against death penalty for client," reports on the notable sentencing issue taking center stage in a high-profile Florida murder case.  Here are excerpts:

A year after the remains of a Florida toddler were discovered, a lawyer for the slain child's mother asked a judge Friday to stop prosecutors from seeking the death penalty against her.

Lawyer Andrea Lyon told Orange County Circuit Court Judge Stan Strickland that the "real reason" prosecutors are seeking the death penalty against Casey Anthony is because they want to "get as biased a jury as they possibly can." Lyon said a jury that is qualified to serve in a death penalty case is more likely to convict defendants.

But prosecutor Jeff Ashton told the court that the state is not seeking the death penalty; rather, the jury and judge will decide whether it is appropriate. Anthony has pleaded not guilty to murder in the death of her 2-year-old daughter, Caylee....

Ashton said the death penalty question is not for the prosecution to answer. "Everyone who is indicted by a grand jury in the state of Florida for the crime of first-degree murder is eligible for the death penalty," he said. "The decision by the prosecutor is simply, should a jury, and ultimately, a judge, be allowed to make this decision?"

Further explaining why he believed the case was eligible for the death penalty, Ashton speculated what jurors might infer from the facts presented to them. He suggested that Caylee's killer may have either given the toddler a substance to knock her unconscious before applying duct tape to her mouth and nose, or had physically restrained her before doing so....

In her argument, the defense attorney noted the toddler's undetermined manner of death, saying that the death penalty infringes on Anthony's constitutional rights. "They cannot be seeking the death penalty in good faith because there is insufficient evidence ... to establish first-degree murder," she argued.

New study suggesting Texas executions might lower homicide rates

Thanks to this post at C&C, I saw this piece from USA Today reporting on this notable new study appearing in Criminology.  Here is how the USA Today piece captures the research:

Executions in Texas slightly lower homicide rates there, about five to 10 killings in the year afterwards, suggest criminologists.  The executions also may displace homicides to nearby states, however....

In the study, the team looked at Texas, where about one-third of all executions have occurred nationwide since 1973, and where past researchers have disagreed on deterrent effects.  Because legal decision led to greatly-increased executions in 1994, the researchers looked at cases starting with that year.

"We conclude that evidence exists of modest, short-term reductions in the numbers of homicides in Texas in the months of or after executions," the study concludes.  Based on statistics, about 2.5 fewer murders than would have otherwise took place in Texas in the one to four months after an execution, where the state had 8,511 murders in 2005, according to the FBI.  But the analysis statistics suggest the executions also displaced murders to later months and to other states, lowering the deterrent effect of each execution to 0.5 fewer murders in the next year.

This new piece looks like a must-read for any and everyone seriously interested in arguments about whether the death penalty may save lives.

Can one make a unique constitutional argument against a second execution attempt?

This AP article, which is headlined "Judge: Ohio inmate's execution appeal has limits," reports on the federal hearing conducted today concerning Romell Broom's claim that Ohio should not get a chance to try again to execute him after its failed attempt in September:

An Ohio inmate fighting the state's second attempt to execute him will be limited to a simple argument, a federal judge said Wednesday: Does the state, having failed once, have the legal right to try again? 

Beyond that, a recent court ruling likely limits how much condemned inmate Romell Broom could say about pain he might suffer, said U.S. District Court Judge Gregory Frost.

The 6th U.S. Circuit Court of Appeals ruled Monday that death row inmate Kenneth Biros hadn't presented evidence that the state's new backup execution method could cause severe pain in violation of the U.S. Constitution.  Biros, 51, was executed Tuesday for killing a woman he met at a bar in 1991.  He was the first person put to death in the country with a single drug in a lethal injection.

"We all agree that Mr. Broom suffered some pain from that attempted execution process," Frost said.  "We all agree that the state of Ohio intends to proceed again on a second attempt."  But Frost said he doesn't know what Broom's lawyers could present about Broom's experience that would overcome the 6th Circuit's ruling.  Frost said the appeals court ruling appears to limit Broom to his argument over whether the state has the right to carry out a second execution attempt. Lawyers will submit written arguments and Frost will rule within several weeks....

Following Broom's execution try on Sept. 15, which Frost has called a "debacle," the state changed its execution methods to one intravenous drug with a backup method involving intramuscular injection.

Broom said he was stuck with needles at least 18 times, the pain so intense he cried and screamed out.  His attorneys say it would constitute cruel and unusual punishment for the state to try again and would violate Broom's double jeopardy rights, punishing him twice for the same crime....

The only case similar to the botched Broom execution happened in Louisiana in 1946, when a first attempt to execute Willie Francis did not work. Francis was returned to death row for nearly a year while the U.S. Supreme Court considered whether a second electrocution would be unconstitutional. The court ultimately ruled 5-4 against Francis, and he was put to death in 1947.

I assume the Sixth Circuit ruling which Judge Frost is referencing is this 31-page opinion from the Sixth Circuitdated Monday that walks through and rejects all the claims made by Biros concerning Ohio's new one-drug lethal injection protocol.  Though Judge Frost seems wise to recognize that this Sixth Circuit opinion would make it hard for Broom to attack Ohio's new execution method, I cannot help but wonder if there is perhaps a unique constitutional argument that Broom can make to try to preclude a second execution attempt.  Of course, Willie Francis lost such an argument in the Supreme Court back in 1947, but constitutional doctrines have changed and the Eighth Amendment has evolved a lot over the last six decades.

UPDATE:  This local article about the Broom hearing provides more information about the hearing, suggesting that Judge Frost is focused on the issue set out in the question in the title of this post and also that litigation on this issue will likely drag deep into 2010:

"It seems to me that all that's left is a legal argument as to whether the state can attempt to execute Mr. Broom twice," Frost told attorneys for the state and Broom, who was in court wearing an orange prison jumpsuit and shackles on his wrists and ankles.  Broom's attorneys had suggested calling witnesses to testify about the suffering he endured in the first attempt, but Frost decided that written statements will be sufficient....

Broom's lawsuit argues that a second attempt to take his life would violate his Eighth Amendment protection against cruel and unusual punishment.  Frost gave Broom's attorneys until Jan. 8 to file an amended complaint, which would be followed by the state's response.  The judge could order a trial.

He extended a temporary restraining order that prevents the state from setting an execution date for Broom while the case is being considered.  Timothy Sweeney, one of Broom's attorneys, predicted that the next round of legal motions could take as long as four months.

Huge en banc ruling from Ninth Circuit reversing death sentence for ineffective assistance

I can only imaging what Kent Scheidegger at Crime & Consequences will think about today's en banc ruling from the Ninth Circuit in Pinholster v. Ayers, No. 03-99003 (9th Cir. Dec. 9, 2009) (available here). Here is how the majority opinion starts:

Scott Lynn Pinholster (Pinholster) was sentenced to death after a jury convicted him of double murder with a knife in the course of a home robbery and burglary.  After exhausting his state remedies, Pinholster sought a writ of habeas corpus in federal district court in which he alleged, among other claims, ineffective assistance of counsel at both the guilt and penalty phases of his trial.  Applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, in its final ruling, the district court upheld Pinholster’s conviction, but granted habeas relief on his death sentence because the court found that trial counsel’s deficient performance at the penalty phase of the trial unconstitutionally prejudiced Pinholster’s defense.

A three-judge panel of this court affirmed the district court’s guilt phase determination but reversed its grant of habeas relief on the penalty phase.  Pinholster v. Ayers (Pinholster II), 525 F.3d 742 (9th Cir. 2008).  Sitting en banc, we affirm the district court.  Although the denial of Pinholster’s guilt phase ineffective assistance claim was appropriate, his penalty phase ineffective assistance claim warrants habeas relief even when considered under AEDPA’s deferential standards.

The majority then takes 50+ pages to explain its ruling.  In response, Chief Judge Kozinski writes nearly 75 pages of a dissent explaining why he thinks the majority is wrong.  Here is how that opinion concludes:

The trial in this case took place over a quarter century ago.  Pinholster’s lawyers are both dead.  Justice Mosk, who wrote the California Supreme Court’s unanimous opinion in Pinholster’s direct appeal and participated in both of his habeas petitions, is also dead. Pinholster’s two victims are long dead and forgotten; whatever hopes and aspirations they may have had were cut short because they had the misfortune of getting in the way of Pinholster’s greed and anger.

Meanwhile, prison has been good to Pinholster.  He sits in his cell reading Machiavelli, Voltaire “and all the philosophers”, drawing pictures to sell over the internet.  He enjoys the gravitas, authority and mentoring opportunities that come with being an elder in his prison gang, and has surgery performed on his knees at taxpayer expense.  He still stabs people whenever he can, without passion or regret; “it was just business,” he explains.  His conscience doesn’t trouble him about the fact that he took the lives of two fellow human beings; he has never expressed the least remorse for his killings.  The people of California are entitled to put an end to Pinholster’s paid vacation and insist that the punishment lawfully imposed on him be carried out.

I have no doubt that my colleagues sincerely believe they are following the Supreme Court’s directions. Admittedly, the Court has been less than clear in this area. See, e.g., Rompilla, 545 U.S. at 377 (majority), 395 (Kennedy, J., dissenting); Wiggins, 539 U.S. at 514 (majority), 538 (Scalia, J., dissenting); Terry Williams, 529 U.S. at 367 (majority), 416-17 (Rehnquist, J., dissenting).  But I believe it’s been clear enough, and Pinholster’s death sentence must be reinstated. If we do not do it ourselves, it will surely be done for us.

"New execution method unlikely to gain traction in California"

The title of this post is the headline of this notable (and disappointing) article in today's Los Angeles Times.  Here is how it starts:

An Ohio murderer put to death with the nation's first single-drug lethal injection died swiftly Tuesday, inaugurating an execution method some analysts consider more humane than the three-drug procedure used in California and 33 other states.

But the method used in Ohio is unlikely to gain traction in California, experts say, because of procedural hurdles and persistent concerns about how the drugs -- whatever their number -- are administered to the condemned.

This is significant news because California has the nation's largest death row and because its current lethal injection protocol has been in constitutional purgatory for more than three years.

Some recent related posts about Ohio's new execution method:

• Ohio adopting a new one-drug lethal injection protocol
• "Ohio inmate to get 1-drug, slower, execution"
• Reports on Ohio's success with one-drug lethal injection protocol
• A few early questions following Ohio's successful one-drug lethal injection execution

A few early questions following Ohio's successful one-drug lethal injection execution

As noted here, the state of Ohio today succeeded in completing an execution using a single-drug lethal injection  protocol.  Time will tell if this event proves to be a big turning point or just a blip in the dynamic story of the modern administration of capital punishment in the United States.  But, before we have the benefit of historical hindsight, let me pose a few early post-execution questions:

1.  Does this development prove the death penalty can be effectively improved or that it usually cannot?  In the copious litigation over three-drug lethal injection protocols during the past decade, opponents of this protocol have often suggested the one-drug alternative adopted in Ohio.  The fact that Ohio finally moved to this approach might provide support for the claim that some states are genuinely interested in improving their capital systems.  But the fact that it took so long for even a single state to change course, and the fact that all other states still currently have the three-drug protocol in place, perhaps reveals that Ohio is an exception to the usual death penalty administration rule.

 2.  Does this development really please any who complained vociferously about the old three-drug protocol?  If any of the strenuous opposition to three-drug protocols was really focused only on possible suffering by the condemned while being executed, these opponents should be going out to celebrate tonight.  But I have long suspected that most (if not all) vocal opponents of three-drug lethal injection protocols are categorical opponents of the death penalty more generally, and thus I suspect there will be little celebration within this crowd tonight.

3.  Will Ohio have to deal with any more litigation over its new lethal injection protocol? Ohio has roughly one execution scheduled for each of the next six months.  I suspect that the condemned defendants scheduled to go next to the death chamber in Lucasville will have a hard time getting a stay based on a lethal injection challenge.  But, then again, one should never discount what clever capital defense lawyers can achieve.

4.  Will Ohio now be able to try to "re-execute" Romell Broom?  Ironically, the troublesome veins of condemned inmate Romell Broom, which resulted in Ohio failing when trying its old execution protocol  on him in September, deserve credit for forcing Ohio to adopt its new one-drug approach.  It remains to be seen, however, if Ohio will get to "reward" Broom through another trip to the death chamber.  I believe a hearing is scheduled tomorrow in federal court to consider Broom's claim that it is unconstitutional to try to execute him again now, and I really am chary to predict how this matter might get resolved.

Some related posts on Ohio lethal injection issues:

• Ohio considering new (and novel) method of lethal injection
• "Ohio GOP lawmakers: Execution process can be fixed"
• Ohio adopting a new one-drug lethal injection protocol
• How quickly will Ohio be able to get back to executions after adopting one-drug lethal injection protocol?
• Ohio death row defendant claiming new lethal injection protocol involves "human experimentation"
• Ohio news about execution efforts past and execution efforts future
• Will litigation over Ohio's new one-drug lethal injection protocol move fast or slow?
• Biros seeking federal stay to prevent Ohio's use of new one-drug lethal injection protocol
• Sixth Circuit judges duel over Ohio defendant's old lethal injection challenge 
• "Ohio inmate to get 1-drug, slower, execution"
• Reports on Ohio's success with one-drug lethal injection protocol

Still awaiting word Reports on Ohio's success with one-drug lethal injection protocol

Ohio was scheduled to go forward with its first execution using its new on-drug protocol this morning at 10am.  But as this AP article notes, one final appeal pushed the scheduled execution time to 11am.  But now the noon hour approaches, and I still await a report that the execution was completed.  And now I need to head off-line (and I think it would be tacky for me to complain about the delay). 

I suspect the AP article linked above will get updated, and I'll report on the reports from the execution chamber when I return on-line this afternoon.

UPDATE:  Here is a segment of this Columbus Dispatch report on the execution itself:

Ohio prisons director Terry Collins said there were "no problems whatsoever" with the new one-drug method. "The process worked as expected," he said.

John Parker, one of Biros' attorneys, said after witnessing the execution that he still has "major concerns" about the intravenous access issue. He said he counted nine times technicians tried before gaining acess for a single IV line in Biros' left arm....

Watching Biros' execution from a room about 10 feet away and separated by glass were Mary Jane Heiss, [the murder victim Tami] Engstrom's mother, and Tom and Debi Heiss, her brother and sister. Mary Jane Heiss was in a wheelchair and had a supply of oxygen. "It's my happy day that I was here to see this execution," she said.

Debi Heiss said Biros' death "went too smooth. I think he should have gone through some pain for what he did." Members of the Heiss family applauded briefly when the time of Biros' death was announced....

Biros was the fourth person to be executed in Ohio this year and the 33rd to die since the state resumed capital punishment in 1999.

All systems go (for now) as Ohio prepares for first one-drug lethal injection

As detailed in this new ABC News story, Ohio is geared up "to execute a convicted killer on Tuesday using an untested method of lethal injection that no other state has ever employed." Here is more:

The planned execution of Kenneth Biros, who was convicted of killing and dismembering Tammy Engstrom in 1991, will mark the first time a lethal single-drug dose of an anesthetic has ever been used on a death row inmate.

On Monday morning, a federal judge denied a request from Biros to delay his execution until attorneys could conduct a review of the new protocol.  U.S. District Judge Gregory L. Frost said that Biros had not demonstrated "at this juncture" that the new protocol is unconstitutional.

But the judge added, "it does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio's policies and practice rise to a constitutional error."  Lawyers for Biros are scrambling to appeal the decision.

For anyone who cannot get enough of lethal injection debates, the full 191-page ruling by Judge Frost denying Biros a stay is available at this link. 

Based on the recent work of the Sixth Circuit in Biros's mooted appeal of the prior injection method, I will be surprised if the Circuit is going to stay matters.  But, of course, then lawyers are likely to ask SCOTUS for a stay, and I am not prepared to predict with confidence what the Justices might do.  But, barring Supreme Court intervention, Ohio may be trail blazing a new chapter of death penalty administration tomorrow morning at 10am.

Some related posts on Ohio lethal injection issues:

• Ohio considering new (and novel) method of lethal injection
• "Ohio GOP lawmakers: Execution process can be fixed"
• Ohio adopting a new one-drug lethal injection protocol
• How quickly will Ohio be able to get back to executions after adopting one-drug lethal injection protocol?
• Ohio death row defendant claiming new lethal injection protocol involves "human experimentation"
• Ohio news about execution efforts past and execution efforts future
• Will litigation over Ohio's new one-drug lethal injection protocol move fast or slow?
• Biros seeking federal stay to prevent Ohio's use of new one-drug lethal injection protocol
• Sixth Circuit judges duel over Ohio defendant's old lethal injection challenge 
• "Ohio inmate to get 1-drug, slower, execution"

UPDATE:  As this morning press report details, "

options have run out for convicted killer Kenneth Biros, who will become the first person in the United States to be executed using a single-drug protocol."  Here's why:

The United States Supreme Court refused to hear a last minute appeal from Biros, 51, who is scheduled to die in Lucasville Tuesday for the 1991 murder and dismemberment of Tami Engstrom of Hubbard.

Earlier, the Sixth Circuit Court of Appeals denied Biros argument that Ohio's new one-drug procedure for executions was untested and could be a violation of the United States Constitution.  In a dissenting opinion, Judge Griffin wrote that the court's denial of Biros' appeal "appears to be a classic rush to judgment."

"Ohio inmate to get 1-drug, slower, execution"

The title of this post is the headline of this new AP report noting that Ohio is getting pretty close to trying out its new lethal injection protocol.  Here are some excerpts:

Condemned killer Kenneth Biros could become the first person in the country put to death with a single dose of an intravenous anesthetic instead of the usual — and faster-acting — three-drug process if his execution proceeds Tuesday.

The execution could propel other states to eventually consider the switch, which proponents say ends arguments over unnecessary suffering during injection.  California and Tennessee previously considered then rejected the one-drug approach.

Though the untested method has never been used on an inmate in the United States, one difference is clear: Biros will likely die more slowly than inmates put to death with the three-drug method, which includes a drug that stops the heart.  Lethal injection experts on both sides of the debate over injection say thiopental sodium, which kills by putting people so deeply asleep they stop breathing, will take longer....

Ohio officials contend the single-drug method should end a five-year-old lawsuit against the state that claims injection can cause inmates severe suffering. Lethal injection experts and defense attorneys for death row inmates have said the one-drug method, a single dose of an anesthetic, would not cause pain....

States with active death chambers are keeping an eye on Ohio's switch but have no immediate plans to switch.  Florida, South Carolina, Texas and Virginia are among those keeping the three-drug system for now.  "Virginia's method has been successfully used in over 75 executions and repeatedly been upheld as constitutionally acceptable," state prisons spokesman Larry Traylor said Friday.

States will likely watch Ohio's experience and the court challenges before making a decision, said Richard Dieter, executive director of the Death Penalty Information Center. The U.S. Supreme Court said last year that states would only have to change the three-drug process if an alternative method lessened the possibility of pain. Defense attorneys have also supported the one-drug option, reducing the possibility of legal challenges, Dieter said. If Ohio is successful "in making this transition, and if a few other states follow that lead, I think we will see the majority of states changing to this method of lethal injection," Dieter said.

Biros' attorneys want his execution delayed, saying the new untested method has never been used in "any other civilized country" and would amount to human experimentation.  But the same attorneys earlier advocated for the state to switch to the one-drug method.  The state "could and should shift to a one-drug protocol designed to cause death by means of an overdose of an anesthetic," John Parker, one of Biros' attorneys, said in a court filing last year.

Doctors conducting euthanasia in Europe administer thiopental sodium but also usually add pancuronium bromide.

Some related posts on Ohio lethal injection issues:

• Ohio considering new (and novel) method of lethal injection
• "Ohio GOP lawmakers: Execution process can be fixed"
• Ohio adopting a new one-drug lethal injection protocol
• How quickly will Ohio be able to get back to executions after adopting one-drug lethal injection protocol?
• Ohio death row defendant claiming new lethal injection protocol involves "human experimentation"
• Ohio news about execution efforts past and execution efforts future
• Will litigation over Ohio's new one-drug lethal injection protocol move fast or slow?
• Biros seeking federal stay to prevent Ohio's use of new one-drug lethal injection protocol
• Sixth Circuit judges duel over Ohio defendant's old lethal injection challenge 

Interesting report on review of capital costs in New Hampshire

This article from the Nashua Telegraph, which is headlined "Death penalty costs N.H. millions: Commission examines capital punishment," discussing an on-going capital study in the Granite State. Here are snippets:

The taxpayer cost to prosecute, defend and sentence William "Stix" Addison for the October 2007 murder of a Manchester police officer has reached nearly $3 million and will grow by half a million dollars a year while he appeals the verdict.  Meanwhile, state prosecutors spent $2.4 million to convict John Brooks of Londonderry for ordering the 2005 murder of a Derry handyman.  The jury turned down the state's bid to apply the death penalty and instead Brooks is now serving serve life in prison without the possibility of parole.

The Commission to Study the Death Penalty in New Hampshire spent Friday examining the costs to carry out capital punishment.  The state hasn't executed anyone since 1939 and it's rare event that two capital murder cases went all the way to the jury in the past two years.

Retired, Superior Court Chief Justice Walter Murphy said gauging the cost to execute someone versus life in prison without parole is a key charge the Legislature gave this commission.  "We appreciate the cost is not driving anything here but I think there is a public perception that somehow the prosecution of someone for a non-capital offense is cheaper," said Murphy who chairs the commission.

The commission learned Friday it will be difficult to come up with all those costs.  Deputy Attorney General Orville "Bud" Fitch said it has cost $1.6 million already for the prosecution in the Addison case.  This does not include costs spent by local and state police to investigate and testify in the matter.  Addison is indigent so the state paid for his defense.

N.H. Public Defender Executive Director Christopher Keating told commissioners that by next June 30 the state will have spent $1.3 million to defend Addison and appeal his verdict to the state Supreme Court. Keating estimates the defense will spend about $400,000 each year on Addison's appeal.  Fitch said the AG's office couldn't give an estimate on what their appeal expenses will be....

The state's death penalty law is narrowly drawn to cover premeditated murders against judges, court officers, members of law enforcement or if it's part of a murder-for-hire scheme or linked to a felony rape, kidnapping or major drug deal.  Murphy said the commission might not be able to answer the cost comparison issue completely.  "It may be that we will come to the conclusion that we can't tell," Murphy said.