Thursday, January 29, 2015

With overwhelming public support, Japanese Justice Minister continues with capital punishment

As reported in this news article, "Japan is to continue applying the death penalty after over 80 percent of the country's population expressed their support for the measure, media Thursday cited Justice Minister Yoko Kamikawa as saying."  Here is more:

A recent government survey revealed that 80.3 percent of respondents backed the death penalty, while 9.7 percent felt that it should be abolished.  Kamikawa termed the results as positive and said strict and careful measures would continue in this regard.

She said there was no intention of revising the current policy in the short term, despite having hinted at times the possibility of introducing life sentences for capital crimes. "Most people believe it is unavoidable for those who committed extremely malicious crimes to face (execution)," Kamikawa said, according to the Asahi daily newspaper.

Kamikawa also made a reference to the global trend against the death penalty and the petition by activists for Japan to end capital punishment.  "It is a problem associated with what country Japan should be, and it is (the Japanese people's) business," she said.

Eleven convicts have been executed since the current government took office in December 2012.  Japan, along with the US, is the only developed and democratic country that still imposes the death penalty.

I tend also to include India on a list of "developed and democratic country that still imposes the death penalty," but maybe some would dispute characterizing India as developed.

January 29, 2015 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (3) | TrackBack

Tuesday, January 27, 2015

"The Humane Death Penalty Charade"

The title of this post is the headline of this New York Times editorial.  Here are excerpts:

When the United States at last abandons the abhorrent practice of capital punishment, the early years of the 21st century will stand out as a peculiar period during which otherwise reasonable people hotly debated how to kill other people while inflicting the least amount of constitutionally acceptable pain.

The Supreme Court stepped back into this maelstrom on Friday, when it agreed to hear Warner v. Gross, a lawsuit brought by four Oklahoma deathrow inmates alleging that the state’s lethal­injection drug protocol puts them at risk of significant pain and suffering.

In accepting the case, the justices had to change its name.  The lead plaintiff, Charles Warner, was executed on Jan. 15 after the court, by a vote of 5-­to-­4, denied him a last­minute stay.  That may sound strange until you consider that while it takes only four justices to accept a case for argument, it takes five to stay an execution.  The case is now named for another inmate, Richard Glossip. (On Monday, the Oklahoma attorney general requested temporary stays of the impending executions of Mr. Glossip and the other two plaintiffs.)...

The justices have been here before.  They upheld the constitutionality of lethal injection in 2008.  But, since then, the battles over the practice have grown more warped.  Many drug makers now refuse to supply their products for killing, leaving states to experiment on their inmates with other drugs, often acquired under cover of official secrecy and administered by authorities with no medical training.  During a hearing last month on Oklahoma’s protocol, a state witness who testified that midazolam is effective appeared to rely on the website drugs.com, not scientific studies.  It would all be a laughable farce if it didn’t involve killing people.

There is disingenuousness on both sides.  Many who oppose the death penalty, this page included, are obviously not interested in identifying more “humane” methods of execution; the idea itself is a contradiction in terms.  Nor are many capital punishment supporters concerned with how much suffering a condemned person might endure in his final moments.  In the middle sit the armchair executioners who engage in macabre debates about the relative efficiency of, say, nitrogen gas.

It is time to dispense with the pretense of a pain­free death.  The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable.  When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.

I love the phrase "armchair executioners," even though I could not help reacting with a classic "Taxi Driver" response.

Recent related posts:

January 27, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, January 26, 2015

The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"

The title of this post is drawn from the headline of this New York Times piece by Adam Liptak that highlights why the Supreme Court's decision on Friday to grant cert to review Oklahoma's execution protocol is so interesting and creates much death penalty drama for this coming week and the months ahead.  Here is how the piece starts:

There are nine justices on the Supreme Court.  It takes four votes to hear a case, but it takes five to stay an execution.

That can leave a lethal gap.  A death penalty case can be important enough to claim a spot on the court’s docket of perhaps 75 cases a year.  But the prisoner who brought it may not live to see the decision.

In agreeing on Friday to hear a challenge to the chemicals Oklahoma uses to execute condemned prisoners, the court brought fresh attention to the life-or-­death importance of a single vote.  The lead petitioner in Friday’s case, Charles F. Warner, was already dead. He was executed eight days earlier, after the Supreme Court refused to stay his execution. The vote was 5 to 4.

“What happened to Charles Warner was not an isolated glitch,” said Eric M. Freedman, a law professor at Hofstra University and the author of a new article on the court’s voting procedures in capital cases. “It was a typical, if high­-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.”

The case the court agreed to hear used to be called Warner v. Gross, No. 14­7955.  On Friday, taking account of Mr. Warner’s death, the court changed it to Glossip v. Gross, No. 14­7955. It may change again.  The new lead petitioner, Richard Glossip, is scheduled to be executed on Thursday.  The other two petitioners in the case also have execution dates in coming weeks, all of them well before the court is expected to hear arguments in the case, in April.  

The Supreme Court did not say on Friday whether it would stay the other three executions. In a statement, Scott Pruitt, Oklahoma’s attorney general, made a pointed reference to the fact that it took only four votes to grant review.  He seemed to indicate that the state was prepared to proceed with the executions.

The petitioners’ lawyers will doubtless seek stays.  In Mr. Glossip’s case, they will have to act quickly.  How the court responds will illuminate the current vitality of its fitful commitment to a procedure it sometimes uses to bridge the voting gap: the “courtesy fifth” vote to stay executions.  Such votes are said to be available once the court makes a formal decision to grant review of a condemned prisoner’s case.

Recent related posts:

January 26, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

High-profile capital trials put spotlight on dynamics of death-qualification of jurors

This new AP story, headlined "Death-qualified' juror search slows marathon, theater cases," effectively reviews the distinct notable realities that attend jury selection in a capital case. Here are some excerpts:

One prospective juror was brutally frank when asked whether he could consider a sentence of life in prison for the man accused of bombing the Boston Marathon. "I would sentence him to death," he said, then added: "I can't imagine any evidence that would change how I feel about what happened."  Another prospective juror said he couldn't even consider the death penalty, telling the court, "I just can't kill another person."

The two men are on opposite sides of the capital punishment debate, but both unlikely to make it on the jury for the trial of Dzhokhar Tsarnaev: to be seated for a death penalty case a juror must be willing — but not eager — to hand down a sentence of either life or death.

The process of finding "death qualified" jurors has slowed down jury selection in federal case against Tsarnaev, who is charged with setting off two bombs that killed three people and injured more than 260 during the 2013 marathon.  It is expected to do the same in the state trial of James Holmes, the man accused of killing 12 people and injuring 70 others in a suburban Denver movie theater in 2012.

The process is designed to weed out jurors who have strong feelings for or against the death penalty.  A 1985 ruling from the U.S. Supreme Court said a juror can lawfully be excused if his views on the death penalty are so strong that they would prevent or substantially impair his ability to follow the law.

But death penalty opponents have long said the process is fundamentally unfair.  They argue that death-qualified juries do not represent a true cross-section of the community and are less likely to be sympathetic to the defense.  "You end up with a jury with less women, less blacks, less Democrats ... you end up with a jury that is skewed in ways that make it probably more conservative, more accepting of prosecution arguments, of state authority," said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization that opposes executions.

The Capital Jury Project, a consortium of university researchers, interviewed about 1,200 jurors in 353 capital trials in 14 states beginning in the early 1990s.  The group's research has shown that death penalty juries are more likely to convict and that jurors often make up their minds about what punishment to hand down long before they're supposed to, said William Bowers, director of the project....

Death penalty opponents have argued that to get around this kind of pre-judgment, separate juries should be chosen to hear evidence in the guilt phase and the punishment phase. But that idea has not gained traction....

In the Holmes case, an unprecedented 9,000 jury summonses were mailed. As of Friday, 210 prospective jurors had been excused over four days. Individual questioning is set to begin next month.  In the marathon bombing case, 1,373 people filled out juror questionnaires. Individual questioning of prospective jurors has been slowed as the judge has probed people at length about their feelings on the death penalty. The judge had originally said he hoped to question 40 jurors each day, but during the first five days only averaged about 15.

Capital punishment supporters say the current system of screening out strong pro- and anti-death penalty jurors is the only fair way to choose juries in death penalty cases.  "The process simply says that jurors must be willing to abide by the law," said John McAdams, a Marquette University professor who supports the death penalty.

January 26, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, January 23, 2015

Seven years after Baze, Supreme Court takes up another lethal injection challenge

As reported in this new USA Today piece, taking up a "case that could have broad implications for hundreds of death row inmates, the Supreme Court will consider whether a drug protocol used in recent lethal injections violates the Constitution's prohibition on cruel and unusual punishment."  Here is more:

The justices agreed Friday to consider a case originally brought by four death-row inmates in Oklahoma -- one of whom was put to death last week, after the court refused to block his execution with a combination of three drugs that has caused some prisoners to writhe in pain.

Because the court's four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court. Only four votes are needed from the nine-member court to accept a case. It will likely be heard in April, though it could be held over until the next term begins in October.

Lawyers for Charles Warner and three other convicts set for execution in Oklahoma over the next six weeks sought the Supreme Court's intervention after two lower federal courts refused their pleas. While the court's conservatives refused to stop Warner's execution, the request for a full court hearing had been held for further consideration.

The lawyers claim that the sedative midazolam, the first drug used in the three-drug protocol, is not approved by the Food and Drug Administration as a general anesthetic and is being used in state executions virtually on an experimental basis. They say inmates may not be rendered unconscious and could suffer painfully as the other drugs in the protocol are administered.... "States now experiment with various drug formulations that have resulted in multiple malfunctioning executions — indeed, spectacles — over the past year," the challengers' brief says....

The court's four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- voiced deep concern about the three-drug protocol in their eight-page dissent last week. They also dissented last September when the court rejected a stay application from a Missouri inmate executed with the same drug.

I presume this cert grant will halt all scheduled executions in Oklahoma until the Supreme Court rules.  Left unclear, however, is whether other states will be able to move forward with executions while this case is pending.  This DPIC page with scheduled executions suggest that at least a half-dozen states have more than a dozen serious execution dates scheduled before the Supreme Court is likely to resolve this new case from Oklahoma.

I am sure that these states will try to move forward with executions, especially if their protocols are dissimilar to what Oklahoma does in executions. But I am also sure that death row defendants and their lawyers will urge states to postpone all execution until the Supreme Court rules in this new case (as happened when the Supreme Court first took up this issue eight years ago in Baze v. Kentucky). In short, here we go again!

Recent related posts:

January 23, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Wednesday, January 21, 2015

Speculating about how new California Supreme Court will now handle capital cases

This new Los Angeles Times article, headlined "Brown appointees to Supreme Court renew hopes in death penalty cases," reviews reasons why some think that new California Justices might mean a new type of California capital justice. Here are excerpts from the piece:

In the long run, the new composition [of the California Supreme Court] could affect an array of cases, including medical malpractice and medical marijuana, but probably will be most felt in the criminal arena. The court, long dominated by former prosecutors, has affirmed about 90% of the death sentences it has reviewed. Criminal defendants rarely win.

"Brown certainly seems to have reshaped this court in a fairly dramatic way," said Jan Stiglitz, a co-founder of the California Innocence Project, which is representing a client in a case before the newly constituted court. Instead of appointing former prosecutors, Stiglitz said, "Brown has brought in not just people from the outside but people who don't have this background that sort of predisposes them to be cynical in criminal cases."

But little experience in criminal law also can be a handicap, critics said. Former prosecutors have "stared evil in the face and know what it looks like," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. None of the Brown appointees have had prior judicial experience. "The academic view of criminal law is what produces bad decisions," Scheidegger said.

[Mariano-Florentino] Cuellar, the court's only Latino, is a former Stanford law professor. [Leondra] Kruger, the only African American justice, has worked primarily in Washington, where she represented the federal government in cases before the U.S. Supreme Court. Justice Goodwin Liu, Brown's first appointee last term, was a law professor at UC Berkeley....

Legal analysts expect the Brown justices may form a new majority with Justice Kathryn Mickle Werdegar, a moderate to liberal Republican appointee.  Unlike the other Republican appointees, she was never a prosecutor.  She worked for the federal government on civil rights matters and as staff attorney on appellate courts.

January 21, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, January 20, 2015

Should we be concerned about the economic or human costs of Colorado's efforts to get Aurora killer James Holmes on death row?

The question in the title of this post is my first reaction to this lengthy Denver Post piece discussing what to expect now that jury selection is about to begin in the Colorado's high-profile capital trial of Aurora theater shooter James Holmes.  The piece is headlined "Aurora theater shooting trial could strain limits of jury service," and here are some excerpts:

After 50 days of testimony and deliberations, the jurors who decided the fate of Oklahoma City bomber Timothy McVeigh emerged haunted. "Have you ever seen 12 people cry?" one juror told reporters about deliberations for the 1997 verdict, handed down in a federal courtroom in Denver.  "I'm 24," another said, "But I don't feel 24 anymore."

Pummeled with horrific accounts of the attack, freighted with finding justice amid tragedy, the jurors had been pushed to near shattering. "I personally felt subject to the same sort of trauma that some of the victims and survivors went through," another said.

Now, imagine if that trial had lasted twice — even three times — as long.  The trial of Aurora movie theater gunman James Holmes, which starts Tuesday with jury selection, is expected to be so lengthy and arduous that it could strain the very process of justice it seeks to uphold.

Nine thousand potential jurors — one of the largest pools in American history — have been summoned for the case.  If picked, jurors will be ordered to serve for as long as five straight months, longer than any state criminal trial in memory in Colorado. They will weigh whether Holmes was sane in July 2012, when he killed 12 people inside the Century Aurora 16 movie theater and tried to kill 70 others, and, if they find he was, they will decide whether he should be executed.

For their service, they will be guaranteed a wage of only $50 a day, a rate that could plunge their income to near the federal poverty level.  Even harder, during what will likely be the most stressful time of their lives, they will be forbidden from talking to anyone about the experience — not their family or fellow jurors or counselors.  Until deliberations begin sometime late this year, the jurors will bear that stress in silence, despite a growing body of research that shows jury service on traumatic cases can lead to mental and physical illness and impact jurors' decision-making....

Since the 1930s, perpetrators of public mass shootings nationwide are more likely to die at the scene than to be captured, according to research by Minnesota Department of Corrections official Grant Duwe.  Of the 45 percent who were arrested, only a fraction ever faced a jury.  And even fewer of those were charged with killing in an attack as devastating to the community as Holmes is for the Aurora theater shooting.

William Bowers, a researcher for the Capital Jury Project at the State University of New York in Albany, likens the theater shooting trial to that currently taking place for one of the suspected Boston Marathon bombers.  "There's nothing really comparable to these cases in modern experience, in terms of duration of the trial and effect on the jury," Bowers said....

But, at its most extreme limits, jury service can become less of a duty and more of an ordeal, legal experts say.  Studies have shown that jurors in traumatic trials can suffer from insomnia, anxiety, anger and depression.  One study documented cases of jurors who broke out in hives, developed ulcers or increased their alcohol consumption while serving at trials. And after the trial is over, some jurors have said they experienced flashbacks....

In recognition of the strains of jury service, courts across the country increasingly offer counseling to jurors. Jon Sarche, a spokesman for the Colorado Judicial Branch, said counseling will be made available to jurors in the theater shooting case once the trial is over.  But — because judges routinely order jurors not to talk about the case with anyone, to protect the trial's integrity — counseling is almost never available to help jurors manage stress during the case.

While this piece effectively highlights some economic and human costs to be borne the jurors in this case, the question in the title of this post also suggests thinking about the economic and human costs sure to burden the lawyers and the court system throughout this case.  And, as the question in the title of this post is meant to highlight, these costs are all endured in service now only to having Holmes sentenced to death; inevitable appeals and other factors will likely mean Holmes is unlikely ever actually to be executed by Colorado for his crimes.

I suspect these kinds of costs and uncertainties explain (and clearly justify?) why the feds were willing to cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter).  But Colorado prosecutors in this case appear quite committed to enduring all these costs in service to trying to get James Holmes sentenced to death. 

Recent and older related posts (with lots of comments):

January 20, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, January 16, 2015

LawProf and federal judge propose special evidence rules for penalty phase of capital cases

This new article available via SSRN, titled "The Proposed Capital Penalty Phase Rules of Evidence," reflects a notable capital punishment reform proposal put together by Professor David McCord and District Judge Mark W. Bennett. Here is the abstract:

No person or organization has ever proposed model rules of evidence for the unique penalty phase of a death penalty trial.  Now a law professor skilled in the scholarship of both death penalty jurisprudence and evidence, and a federal judge with extensive federal death penalty experience, do just that.

This work transcends the hodge-podge of evidentiary approaches taken by the various state jurisdictions and federal law.  The result is the Proposed CAPITAL PENALTY PHASE RULES OF EVIDENCE — clear and uniform rules to govern the wide-ranging evidentiary issues that arise in the penalty phase of capital trials.  Death penalty trials, long criticized for the arbitrariness of their results, will greatly benefit from these Rules.

January 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Thursday, January 15, 2015

Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)

As reported in this USA Today article, a "sharply divided Supreme Court refused Thursday to block the execution of an Oklahoma inmate over concerns about a drug protocol that has caused problems in the past."  Here is more:

The court's five conservative justices denied the request for a stay of execution without comment.  But the four liberal justices issued an eight-page dissent in which they questioned whether the drug protocol.

"The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution," Justice Sonia Sotomayor wrote. "Petitioners have committed horrific crimes and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions."

Warner's execution was to come within hours of another in Florida, where Johnny Shane Kormondy, 42, was awaiting death for killing a man during a 1993 home invasion. Both executions were to use the same combination of three drugs.

Lawyers for Warner and three other convicts set for execution in Oklahoma over the next seven weeks had sought the Supreme Court's intervention after two lower federal courts refused their pleas.

Justice Sotomayor's eight-page dissent, which was joined by Justices Ginsburg, Breyer and Kagan, is available at this link and it ends with these two paragraphs:

I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol.  It is true that we give deference to the district courts.  But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed.  We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain.  Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.

I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution.  Petitioners have committed horrific crimes, and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions.

Not long after this decision was handed down, Oklahoma finally was able to carry out the death sentence imposed on Charles Warner for him murder of his girlfriend's 11-month-old daughter way back in 1997.  This AP report suggests that this Oklahoma execution, as well as another one taking place at roughly the same time in Florida with the same combination of drugs, were completed "without incident."  Consequently, I hope Justice Sotomayor feels at least some relief that these two murderers, roughly two decades after they killed, apparently were seemingly not "subjected to an execution that causes searing, unnecessary pain before death."

UPDATE:  This CBS News story suggests that I may have been too quick to assume that the Oklahoma execution was without incident.  Here is what the CBS News story reports about what unfolding in Oklahoma:

The execution lasted 18 minutes.

"Before I give my final statement, I'll tell you they poked me five times. It hurt. It feels like acid," Warner said before the execution began. He added, "I'm not a monster. I didn't do everything they said I did."

After the first drug was administered, Warner said, "My body is on fire." But he showed no obvious signs of distress. Witnesses said they saw slight twitching in Warner's neck about three minutes after the lethal injection began. The twitching lasted about seven minutes until he stopped breathing.

January 15, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Oklahoma geared up to restart its machinery of death nine months after ugly execution

As reported in this Politico article, headlined "Oklahoma prepares to use controversial execution drug," a notable state is about to get back into the execution business. Here is how the article starts:

The state of Oklahoma plans to perform its first execution this week since a botched procedure last April, using a variation of the same three-drug cocktail that left an inmate writhing in pain for nearly 30 minutes before he died.

Thursday’s scheduled execution of Charles Warner, who is on death row for the rape and murder of an 11-month-old, is the first of four that was stayed following last year’s incident but that are now set to take place over the next two months.

Lawyers for all four inmates filed a last-ditch appeal with the Supreme Court on Wednesday but, if it is denied, Warner and the three others will be given different quantities of the same three-drug regimen, including the sedative that failed to induce unconsciousness and contributed to the visible agony of the man executed last April, Clayton Lockett.

That sedative, midazolam, is at the center of the appeal effort, as attorneys for Warner and the other three inmates argue that the drug does not sufficiently knock out the person receiving it.

January 15, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Tuesday, January 13, 2015

"Georgia executes Vietnam veteran who killed a sheriff's deputy"

The title of this post is the headline of this extended CNN report on the first execution in the United States in 2015.  Here are the details:

Andrew Brannan, a decorated Vietnam War veteran convicted of murdering a 22-year-old sheriff's deputy in 1998, was executed Tuesday, said Gwendolyn Hogan, spokeswoman for the Georgia Department of Corrections.  Earlier in the day, the Georgia Supreme Court joined the state's parole board in declining to stop the execution....

Hogan said the court ordered execution was carried out at 8:33 pm ET.  She said a final statement was given, expressing remorse to the family of the slain deputy.

The state's high court had also denied Brannan's request for an appeal on the basis that it is unconstitutional to execute a person with his medical conditions and combat history.... Attorneys for the 66-year-old Brannan had hoped his sentence would be found unconstitutional.

His defense attorneys claim Brannan, who served in Vietnam in the early 1970s, was suffering from post-traumatic stress and bipolar disorder at the time of the shooting and was off his medication. In a petition filed Monday with Butts County Superior Court, Brannan's attorneys requested his life be spared because "executing American combat veterans whose service-related mental impairments played a role in subsequent violent conduct violates the Eighth and Fourteenth Amendments to the United States Constitution and analogous provisions of the Georgia Constitution."...

The killing of Laurens County Deputy Kyle Dinkheller was captured on the deputy's dash camera just outside Dublin, Georgia.... Brannan is seen in the video confronting Dinkheller after being pulled over for driving almost 100 mph in his pickup.

Brannan appears to be confrontational from the start, acting irrational as the deputy tells him to keep his hands out of his pocket.  He then mocks the deputy and at one point seems to dance around yelling, "Shoot me," at Dinkheller.  Brannan then yells that he is a Vietnam veteran.  He lunges at the deputy before he runs back to his truck, grabs a rifle and begins to shoot.

The video goes on to show a heated gunbattle as both men hide behind their vehicles for cover.  Bullets appear to pierce the windshield of the deputy's car.  Brannan's car door window shatters above his head.  In the video, Dinkheller and Brannan are shot and wounded in the battle.  Brannan advances on the deputy, and off camera, you hear the deputy scream before Brannan repeatedly shoots him and then flees the scene.  Dinkheller died, leaving behind a wife and child....

During the trial, attorney Kammer says the defense presented evidence that Brannan suffered from PTSD but claims that crucial testimony from a Veterans Affairs doctor treating him was never heard. His sentence was appealed, and a judge ordered a new sentencing trial, but that was later overturned by the Georgia Supreme Court.

Dinkheller's father, Kirk Dinkheller, posted on his Facebook page this month that "January 12, 2015 it will be 17 years since my son Kyle was murdered in the line of duty and on January 13, 2015 his killer will finally be held accountable.  Nothing will ever bring my son back, but finally some justice for the one who took him from his children and his family."

Some related posts:

January 13, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (17) | TrackBack

Sunday, January 11, 2015

"An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington State"

The title of this post is the title of this lengthy new research study produced by a group of folks at Seattle University. Helpfully, this Seattle Times article, headlined "Seeking death penalty adds $1M to prosecution cost, study says," provides a summary of some of its findings:

Seattle University has released the results of a seven-month study into the costs of the death penalty in Washington state and has found a more than $1 million price break in cases where capital punishment is not sought....

Criminal-justice professor Peter Collins called the study one of the nation’s most “rigorous” examinations of the costs associated with the death penalty. Collins said he wasn’t surprised by the price difference. “I don’t know who coined this term, but this is social science supporting common sense,” he said on Tuesday. “I wasn’t surprised because there was so much anecdotal and other evidence that we’re spending money on these cases.”

In the study, Collins and three other professors reviewed 147 aggravated first-degree murder cases filed in Washington state since 1997, according to the study. They found the average cost of a death-penalty prosecution and conviction is just over $3 million. Not seeking a death-penalty prosecution and sending a person to prison for life costs the state roughly $2 million.

“What this provides is evidence of the costs of death-penalty cases, empirical evidence,” Collins said. “We went into it [the study] wanting to remain objective. This is purely about the economics; whether or not it’s worth the investment is up to the public, the voters of Washington and the people we elected.”

The study was funded by a grant from the American Civil Liberties Union of Washington Foundation. Seattle University School of Law professor Bob Boruchowitz, the former head of one of King County’s top public-defense agencies, said that “as far as I know this is the only study of its kind in the country that combines the perspective of social scientists with capital [death penalty] qualified lawyers.”...

The study’s authors point to a rise in costs in death-penalty cases. Starting this month, two of three defendants charged in King County with aggravated murder will have their death-penalty trials begin. The prosecution and defense costs in the three cases have cost King County more than $15 million, according to figures supplied by county officials....

The future of the death penalty in Washington remains unclear. Last February, Gov. Jay Inslee issued a moratorium on the death penalty while he is in office.

January 11, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (4) | TrackBack

Saturday, January 10, 2015

Should honoring vets and PTSD call for commuting a death sentence?

The question in the title of this post is prompted by this Reuters story headlined "Vietnam veteran in Georgia pleads to be spared the death penalty." Here are excerpts:

Lawyers for a decorated Vietnam War veteran due to be executed in Georgia next week say his life should be spared because he was suffering from a combat-related mental disorder when he killed a sheriff’s deputy in 1998.

Andrew Brannan's guilt is not disputed. He shot Laurens County Deputy Sheriff Kyle Dinkheller, 22, nine times during a traffic stop, a scene caught on tape by the deputy's patrol car camera.

Defense attorneys argue Brannan, 66, should not be put to death for behavior they say is linked to post-traumatic stress disorder triggered by his combat service. On Monday, they will ask the state Board of Pardons and Paroles to commute Brannan's sentence to life in prison without parole. “Commuting his sentence would honor his very meritorious service to this country,” said Brian Kammer, one of Brannan’s lawyers. “We should not be executing those we sent into harm’s way and who were deeply wounded, physically and mentally.”...

Brannan received Army commendations and a Bronze Star for his service as an officer, Kammer said. He was on full Army disability for PTSD and had been diagnosed with bipolar disorder before killing Dinkheller, the lawyer said.

Brannan, who had no prior criminal record, was driving 98 miles per hour on a Georgia highway when Dinkheller pulled him over in January 1998, according to court records. The video recording showed Brannan stepping out of his truck, cursing and telling the deputy to shoot him....

Brannan pleaded not guilty by reason of insanity at his trial. Some experts testified that during the shooting he suffered a flashback from combat, but a court-appointed psychiatrist said Brannan was sane and may have killed the deputy because he believed the officer was being disrespectful.

Brannan's execution is scheduled for Tuesday. He would be the first person put the death in the United States this year.

I am inclined to assert that this offender's decorated service on behalf of our nation as well as his undisputed mental problems indisputably means that Brannan is not one of the "worst of the worst" killers. For that reason, I would be inclined to support this defendant's commutation request.

Do others agree?

Some older related posts:

January 10, 2015 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (21) | TrackBack

Thursday, January 08, 2015

Ohio to delay scheduled executions early in 2015 after adopting another new execution protocol

This Columbus Dispatch article, headlined "State revises death penalty protocol, will delay executions," provides the latest news in the ever-dynamic Ohio execution story. Here are the details:

Ohio will switch its lethal injection protocol, adding thiopental sodium, a drug used previously, and dropping the two-drug regimen of midazolam and hydromorphone that caused problems in the last execution a year ago.

The Ohio Department of Rehabilitation and Correction said today until it secures supplies of pentobarbital, a drug already permitted, or thiopental sodium, the Feb. 11 execution of Ronald Phillips, and possibly others, will be postponed. The state used thiopental sodium from 1999 until 2011.

Gov. John Kasich will likely have to postpone the executions of Phillips, 41, of Summit County, and Raymond Tibbetts, 57, of Hamilton County, scheduled for March 12. The execution of Gregory Lott, 53, of Cuyahoga County, is scheduled May 14.

The first two executions would take place before House Bill 663, a new lethal injection law passed by the legislature and signed by the governor, takes effect in late March. The law allows the state to buy drugs from small compounding pharmacies, which mix batches of drugs to customer specifications. It also permits the state to keep secret the identities of drug suppliers because of security concerns....

The state had to file legal paperwork detailing the new drug protocol with U.S. District Judge Gregory Frost 30 days in advance of the next scheduled execution on Feb. 11. Frost has presided over most of the recent contested lethal injection cases filed on behalf of Ohio Death Row prisoners.

The change means that Dennis McGuire 53, will be the one and only person in Ohio to be put to death using the combination of midazolam and hyrdomorphone. During his Jan. 16, 2014, execution, McGuire choked, coughed, gasped and clenched his fists for about 20 minutes prior to succumbing to the drug mixture. His son and daughter, who watched their father’s troubled execution, subsequently sued the state, alleging his death was cruel and unusual punishment, a violation of the U.S. Constitution....

The controversy over McGuire’s executions resulted in the postponement of all remaining executions in Ohio last year. It will be the fifth time in 2 1/2 years that Phillips has had a new execution date. Dates in September and July last year, and November 2013 were delayed either by Kasich’s clemency actions or reprieves from Frost. Phillips was given a reprieve by Kasich to explore his desire to have transplant surgery to provide a kidney to his ailing mother, but the surgery never took place....

In addition, a lawsuit was filed late last year on behalf of Phillips, Tibbetts and two other inmates challenging the secrecy shrouding the revised execution process. Frost will also hear that lawsuit which claims that state officials, through the new law, are trying to stifle public debate about capital punishment by “seeking to punish, disarm, suppress and silence” opposition.

January 8, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, January 05, 2015

Gearing up (finally) for start of capital trial of Boston Marathon bomber

TsarnaevsketchNearly two years after the vile (alleged?) crimes and challenging capture of Dzhokhar Tsarnaev, a very high-profile federal capital trial gets started today.  This lengthy Boston Globe story, headlined "Marathon bombing trial to start today with jury selection: Long 1st phase for Marathon bombing trial; testimony may begin next month," provides a helpful preview. Here are excerpts:

Starting Monday, the judge, prosecutors, and defense lawyers will start whittling down a list of more than 1,200 names, aiming to find 12 jurors and six alternates capable of deciding whether Dzhokhar Tsarnaev, 21, is guilty, and if so, whether he should be put to death.

The trial, which is attracting international attention, is expected to move especially slowly and with more than the usual care because a life is at stake; testimony probably will not begin until February, and a verdict may take until late spring or early summer....

For the jury to determine Tsarnaev’s sentence, the panel must be unanimous in its decision. If it is not, the judge would be required to step in and sentence him to life in prison. No declaration of mistrial would be allowed, lawyers who specialize in the death penalty said.

The potential jurors summoned by US District Judge George A. O’Toole Jr. over the next three days will start by filling out surveys to help determine whether they are qualified to serve on a death penalty jury. They will be intensely screened for impartiality, and the ability — and willingness — to sentence Tsarnaev to death, if the verdict warrants it.... The judge will also have to find jurors who, while willing to hand out the death penalty, also feel capable of opposing it if they find the crimes do not warrant death.

The Massachusetts courts last struck down the state’s death penalty in the early 1980s, and the last execution to take place in the state was in 1947. But Tsarnaev has been charged in the federal court system, which allows for capital punishment for about 50 crimes, including the detonation of weapons of mass destruction resulting in death, one of the crimes Tsarnaev faces.

Tsarnaev faces 30 charges — 17 of which carry the possibility of the death penalty — in the bombings at the Marathon finish line the afternoon of April 15, 2013, that killed three people and injured more than 260 others. Tsarnaev and his older brother Tamerlan also allegedly shot and killed an MIT police officer in Cambridge days after the bombings, a crime for which Tsarnaev is also charged.

Prosecutors are seeking the death penalty for Tsarnaev in part based on the vulnerability of his targets, and his “heinous, cruel, and depraved manner of committing the offense,” according to court filings.

Tsarnaev’s defense team has argued that it has not had enough time to prepare for the trial, and that finding impartial jurors in the same city where the bombs went off will remain impossible — an argument that has been echoed by legal analysts.

But O’Toole has ruled that the defense team has failed to show that he cannot impanel a fair jury in Boston, and he has said the defense team has had enough time to prepare. A federal appeals court in Boston on Saturday refused a last-minute defense request to intervene.

Since his arrest, Tsarnaev has been held at the federal prison at Fort Devens in Ayer, under special conditions that restrict his communications. Five lawyers are assigned to his case. The prosecution team also includes five lawyers, with assistance from the federal Department of Justice.

The jury selection process could take at least a month. O’Toole and the lawyers from both sides will begin by reviewing the jurors’ initial surveys to determine which of them should immediately be excluded: for example, if they have a personal connection to the case, or a hardship that would prevent them from serving, such as a young child or ill relative who needs care.

The trial will be split into two phases. If jurors find Tsarnaev guilty of the bombings, they would have to determine his fate in a second, full-fledged trial, with evidence and witness statements. In that trial, however, the rules of evidence are far more relaxed, giving prosecutors and defense more leeway in painting a picture of Tsarnaev.

Prosecutors will want to show that he was a determined, indiscriminate killer. Defense lawyers will seek to portray Tsarnaev as an impressionable teenager who was influenced by a dominant older brother who had grown extreme in his Muslim views, according to court records.

Some prior related posts:

January 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, December 31, 2014

Outgoing Maryland Gov commutes final four state death sentences to life

As reported in this CNN article, "Outgoing Maryland Gov. Martin O'Malley took the state's last four inmates off death row Wednesday, commuting their sentences to life in prison without parole in one of his final acts in office."  Here is more:

The move comes as the Democrat considers a run for president — a long-shot bid that many Democrats only expect to gain steam if Hillary Clinton opts not to run.

O'Malley's office announced the move in a release Wednesday morning, noting that the state's legislature had abolished the death penalty with a law that took effect in May 2013 and that the state's courts and attorney general have questioned whether the state has legal authority to carry out death sentences that were already imposed.

"In the final analysis, there is one truth that stands between and before all of us," O'Malley said in a statement.  "That truth is this — few of us would ever wish for our children or grandchildren to kill another human being or to take part in the killing of another human being. The legislature has expressed this truth by abolishing the death penalty in Maryland."

The four inmates whose sentences were commuted are Vernon Lee Evans Jr. and Anthony Grandison Sr., who were convicted of the 1983 contract killing of two witnesses scheduled to testify in a federal drug trial; Heath William Burch, convicted of killing an elderly neighbor couple in 1995; and Jody Lee Miles, convicted of robbing and shooting a theater manager in 1997.

O'Malley said in the statement that he'd met with the families of the victims of the four convicted killers whose sentences he commuted, and said they would suffer through "the additional torment of an un-ending legal process."

"In my judgment, leaving these death sentences in place does not serve the public good of the people of Maryland — present or future," O'Malley said.

Prior relates posts:

December 31, 2014 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

"Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations"

The title of this post is the title of this notable new article discussing notable new capital jury deliberation research authored by Mona Lynch and Craig Haney and available via SSRN. Here is the abstract:

This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes.  The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making.

The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others.  The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.

December 31, 2014 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, December 29, 2014

Split Ninth Circuit panel reverses Arizona death sentence over sharp dissent

The Ninth Circuit today issued a notable reversal of an Arizona death sentence by finding that the defendant's attorney was ineffective at sentencing even though the Arizona courts found to the contrary. The ruling in Mann v. Ryan, 09-99017 (9th Cir. Dec. 29, 2014) (available here), produced a notable dissent by Judge Kozinski starting this way:

Once more unto the breach.  Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.”  Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal quotation marks omitted).  In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review.  The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

If we are not summarily reversed, Mann’s death sentence will surely be reimposed by the state court.  One way or the other, Mann will be executed, if he doesn’t die of old age first.  But only after he — and the families of the two people he killed 25 years ago — endure what may be decades of further uncertainty.  Where’s the justice in that?  I respectfully dissent from Part III of the majority’s opinion.

December 29, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Sunday, December 28, 2014

Have messy executions in 2014 moved the death penalty debate in any way?

The question in the title of this post is prompted by this new AP article headlined "Death penalty backers stand firm despite botched executions." Here are excerpts:

Oklahoma’s last execution went so badly that the state tried to cancel it before the end came. With the inmate writhing while the lethal drugs seeped into his body, his executioners drew the viewing gallery curtains, concealing what the warden later described as "a bloody mess."

The botched execution of Clayton Lockett in April and other troubling ones this year in Ohio and Arizona gave capital punishment opponents a flicker of hope that areas of the country most enthusiastically supportive of the death penalty might have a change of heart. They did not.

Although Governor Mary Fallin suspended executions so that Lockett’s death and Oklahoma’s methods could be reviewed, the state held a ceremony for its overhauled death chamber only months later and is scheduled to resume executions in mid-January.

And rather than causing states to question whether capital punishment is just or worth the risk of subjecting someone to a potentially agonizing death, the prolonged executions and problems states have had securing lethal injection drugs have led them to explore new, old, and more efficient ways of killing, including gas.

"I think we had a little flash of hope that it would help our cause, but all it did was generate a lot of conversation about it," said Lydia Polley, a member of the Oklahoma Coalition to Abolish the Death Penalty. "It just led to people thinking of better ways to kill them."...

Lockett’s execution did little to dampen support for the death penalty in Oklahoma, which has executed more inmates than any other state except Texas since the 1976 reinstatement of the death penalty. In October, officials gave media tours of the renovated execution unit at the Oklahoma State Penitentiary, which got a $104,000 overhaul after Lockett’s death and now stands in sharp contrast to the rest of the shabby, 106-year-old facility.

Not content with just the upgrades to the prison and lethal injection equipment, Oklahoma’s Republican-led House conducted a study on the use of nitrogen gas for executions and is expected to consider legislation early next year that would make Oklahoma the first state to adopt hypoxia by gas — the forced deprivation of oxygen — as a legal execution method.

Other conservative states are exploring alternatives to lethal injection because of the problems securing the drugs.... Tennessee passed a law to reinstate the electric chair if it cannot get lethal injection drugs and Utah is considering bringing back the firing squad....

Ralph Shortey, a Republican state senator from Oklahoma City who is pushing for Oklahoma to adopt alternative execution methods to lethal injection, estimates that 90 percent of his constituents strongly support the death penalty, despite what happened to Lockett. "The average Oklahoman is saying he got exactly what he deserves," Shortey said. "A lot of people think they should suffer even more than they do. They think the lethal injection is too easy for them."

December 28, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (11) | TrackBack

Friday, December 26, 2014

Pennsylvania chief justice blames federal public defenders for death penalty problems

I highlighted a few weeks ago in this post the first article in a local series about the high costs and low productivity of the Pennsylvania death penalty system. Thanks to a helpful reader, I just now noticed this interesting final piece in the series headlined "State's chief justice cites 'meddling, intrusion' in death penalty cases." Here are excerpts:

The state's top judge, speaking after a Reading Eagle series examined the dysfunctional Pennsylvania death penalty system, blamed its failings largely on what he described as unethical intrusions and meddling by a group of federally funded attorneys.

Chief Justice Ronald D. Castille of the Pennsylvania Supreme Court made the comments in a telephone interview Thursday, the day after the newspaper's four-day series "When Death Means Life" ended. Also that day, state Sen. Daylin Leach, in a separate interview, said he believed the state was not getting its money's worth out of the death penalty and that there was momentum to abolish it.

The series delved into a system in which 429 death warrants have been signed since 1985 but only three people have been executed. Others who have extensive dealings with the system and read the newspaper stories spoke of the death penalty's expense and necessity, and of the need for caution in modifying its appeals process. The newspaper's research produced an estimate that the death penalty in Pennsylvania has cost more than $350 million, gave a glimpse of life on death row and detailed two death penalty cases....

[T]he Federal Community Defender Office [is] the group Castille singled out for criticism. The chief justice said the ... the organization prolongs death penalty proceedings, using unethical delaying tactics and summoning many experts.  

Beyond that, he said, the FCDO's mission is supposed to be federal in nature. Funded by $17 million a year in federal taxpayer funds, the federal office has injected itself into many Pennsylvania-jurisdiction death row cases, creating more costs for state taxpayers, Castille said. "Tremendous extra costs," Castille said....

Paid for by state taxes, the death penalty is essentially a government program, said Leach, a Montgomery County Democrat who plans to reintroduce a bill next legislative session to abolish capital punishment.  "Is this program getting us our money's worth? There's no way you can look at the death penalty and say that it is," Leach said.  "The death penalty is far more expensive than life in prison."...

Richard Long, executive director of the Harrisburg-based Pennsylvania District Attorneys Association, said he didn't think anyone disputed the fact that the system was expensive. "We have to be careful that we don't compromise public safety and doing the right thing strictly because of dollars and cents."...

Gov.-elect Tom Wolf said that when he takes office in January, he'll place a moratorium on executions until concerns about the state's death penalty system, voiced by the state Supreme Court and the American Bar Association, are properly addressed.

Three years ago Pennsylvania lawmakers ordered a government-run study of the state's death penalty system, and though that study was created with a two-year deadline, it's still not done.  Wolf said that once it's complete, he'll use the findings to help guide his actions regarding the death penalty....

Castille said it was up to the Legislature, not the courts, to change the system. But, he said,  "The only way you will be able to change the system is to get the Federal Community Defender Office out of the system."  Castille is nearing the end of his tenure as chief justice.  Having reached the high court's mandatory retirement age of 70, Castille will retire at the end of the month.

I am inclined to assert that Chief Justice Castille's criticisms of the public defenders amounts to "shooting the messenger." But given that Pennsylvania cannot find its way to carrying out any death sentences, I suppose I should just say that Chief Justice Castille is blaming the messenger.

December 26, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack