Wednesday, August 15, 2018

"The American Execution Queue"

The title of this post is the title of this new interesting article by Lee Kovarsky now available via SSRN. Here is its abstract:

The modern death penalty presents a puzzle: law and norms heavily constrain how American jurisdictions impose death sentences, but not how they select death-sentenced inmates for executions.  In this Article, I explain why this strange void persists, argue that its presence undermines equality, and offer workable institutional responses. In short, I advance a comprehensive theory of the American execution queue — the process by which death penalty jurisdictions decide which condemned inmates will actually die.

My first objective is explanatory.  Because executing a death-sentenced inmate now entails both significant litigation and extensive coordination among under-motivated state institutions, the process takes ten times as long as it did fifty years ago.  Modern executions have become “scarce,” as American jurisdictions simply cannot kill all of their condemned offenders.  Even though the state must make choices, there are no rules for choosing.  Because there is little consensus around decision-making criteria, the process operates with few constraints.  By the time the state must decide which condemned inmates to execute, the capacity of familiar decision-making criteria to meaningfully sort inmates by death-worthiness — things like offense conduct, blame, or future danger — has been exhausted during prior phases of the capital punishment sequence.

My second objective is normative.  I specify several preferred institutional design strategies, anchored to interests in legitimacy, transparency, fairness, and equality.  First, jurisdictions should centralize the process by which they select death-sentenced inmates for executions; localities should have no role in setting execution dates.  Second, a centralized entity should engage in administrative-law-like rulemaking in order to develop transparent, legitimate selection criteria.  Third, jurisdictions should separate the power to determine execution priority from the power to schedule execution dates.  By shifting to a centralized process grounded in transparent rulemaking and rational decision-making criteria, jurisdictions can curb the arbitrariness that plagues the existing system.

August 15, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, August 14, 2018

Nebraska completes its first ever lethal injection, which is first US execution to include use of the opioid fentanyl

The lengthy local article, headlined "'A monumental day'; Nebraska executes Carey Dean Moore in state's first lethal injection," reports on a milestone capital punishment even in the heartland today. Here are a few details:

Nebraska carried out its first execution in 21 years on Tuesday, using four drugs to end the life of double murderer Carey Dean Moore.

Moore, 60, became the first condemned inmate in the state put to death by lethal injection. He had served 38 years on death row for the 1979 killings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland. Helgeland and Van Ness were shot five days apart as Moore targeted cabdrivers because he knew they carried cash. Both men were 47 years old, fathers and military veterans.

Corrections Director Scott Frakes said the first of four execution drugs was administered at 10:24 a.m. The Lancaster County coroner declared Moore dead at 10:47 a.m. Frakes said the execution was carried it out with "professionalism, respect for the process and dignity for all involved."

The scene outside the Nebraska State Penitentiary, where the execution occurred, was subdued on Tuesday morning amid on-and-off rain showers. Only about a dozen death penalty opponents prayed outside the prison; only three capital punishment proponents attended. Many more state troopers and media members stood nearby.

Gov. Pete Ricketts, who helped lead an effort to overturn a 2015 repeal of the death penalty by the Nebraska Legislature, spent the morning in a meeting with state agency officials. “Today, the Nebraska Department of Correctional Services carried out the sentence the court ordered in accordance with the will of the people of Nebraska," Ricketts said in a prepared statement. "The death penalty remains a critical tool to protect law enforcement, corrections officers and public safety.”

Outside the governor's mansion in Lincoln just after the execution, a handful of protesters stood in the rain, one carrying a sign reading "Ricketts has blood on his hands.”

Among the death penalty supporters who came to the prison were Vivian Tuttle, whose daughter was slain inside a Norfolk bank in 2002. "I'm here to support the victims," Tuttle said. "That's the ones I have to stand for." Standing with her was Pierce County Sheriff Rick Eberhardt, who, along with Tuttle, collected hundreds of signatures to allow voters to restore the death penalty in 2016.

​Tuttle's daughter, Evonne Tuttle, was one of five people killed in a bank robbery in Norfolk on Sept. 26, 2002. Evonne Tuttle, a single mother, went to the bank in Norfolk to cash a $64 check. Three gunmen from the robbery, Jose Sandoval, Jorge Galindo and Erick Vela, all are on death row. "I think it's important that we have voices that still say it's important that we stand for the death penalty. And for the families of victims," Tuttle said.

Moore — who had served the longest time on Nebraska's death row — was led to the execution chamber at 10 a.m. After he was strapped to the execution table, he mouthed the words "I love you" multiple times toward his official witnesses, which included a brother and a niece.

His final words were delivered in a handwritten statement: He hoped that lawyers could get his younger brother, Donald, released from parole, and urged death penalty opponents to pursue claims of innocence by four others on Nebraska's death row....

The four official media witnesses to the execution said that Moore's face gradually turned slightly red, then purple, as the four drugs were administered. The execution was the first using the four drugs obtained by Nebraska, over legal objections by death penalty opponents and some drug manufacturers. The curtain to the execution chamber was lowered at 10:39 a.m. after the fourth drug was administered. The curtains reopened eight minutes later after he was pronounced dead....

Duggan called the execution "a monumental day" after the many debates in the state over capital punishment. The death penalty was restored by voters in 2016 by a 61-39 percent margin after a petition drive, in large part funded by Ricketts, placed the issue on the ballot. "There's no question it's a significant day in the state's history," the reporter said.

In a statement, Nebraska Attorney General Doug Peterson said, "Our sympathy is extended to the families of Reuel Van Ness and Maynard Helgeland for the loss of their loved ones nearly thirty-nine years ago. Today's somber event serves to provide a measure of closure for what has been a lengthy enactment of justice."

Nebraska has now carried out 38 state-sanctioned executions. Moore was put to death using a previously untried four-drug combination of diazepam, fentanyl, cisatracurium and potassium chloride.

He is the first inmate executed using the drug fentanyl, a powerful narcotic painkiller that has contributed to the nation's epidemic of drug overdoses. He was put to death despite two federal lawsuits filed last week by drug companies seeking to keep their products from being used. The state's last execution before Tuesday took place in 1997, when the electric chair was the method. Lethal injection was adopted in 2009 after the state Supreme Court outlawed electrocution as cruel and unusual punishment.

August 14, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Highlighting how many states have the death penalty in the books without an active execution chamber

John Gramlich at Pew Research Center has this new FactTank piece headlined "11 states that have the death penalty haven’t used it in more than a decade." Here are excerpts (with a few facts highlighted):

Tennessee carried out its first execution since 2009 this month and Nebraska soon may carry out its first since 1997.  The two states underscore the fact that while a majority of jurisdictions in the United States have capital punishment on the books, a considerably smaller number of them use it regularly.

Overall, 31 states, the federal government and the U.S. military authorize the death penalty, while 19 states and the District of Columbia do not, according to the Death Penalty Information Center, an information clearinghouse that has been critical of capital punishment.  But 11 of the states that allow executions — along with the federal government and the U.S. military — haven’t had one in at least a decade.

Nebraska, in fact, is among seven states that have the death penalty but haven’t carried out an execution in at least 15 years. New Hampshire hasn’t executed an inmate since 1939; the other states in this category are Kansas (last execution in 1965), Wyoming (1992), Colorado and Oregon (both 1997), and Pennsylvania (1999).  Executions have occurred somewhat more recently — though still more than a decade ago — in California, Montana, Nevada and North Carolina (all in 2006).

The last federal execution also took place more than 15 years ago, in March 2003.  While the U.S. military retains its own authority to carry out executions, it hasn’t done so since 1961.

All 11 states that have the death penalty but haven’t used it in at least a decade have inmates on death row, as do the federal government and U.S. military.  The size of these death row populations ranges from just one inmate each in New Hampshire and Wyoming to 744 in California, which has by far the largest death row in the nation.

California’s death row has grown by nearly 100 inmates, or 15%, since January 2006, when it carried out its last execution, and by nearly 30% since 2000, according to the NAACP Legal Defense and Educational Fund, which tracks death row populations for all states.  The increase reflects the fact that California juries have continued to sentence convicted defendants to death even as executions themselves have been on hold in recent years amid legal and political disputes....

The federal government’s death row has also grown substantially since the last federal execution.  There are currently 63 federal inmates sentenced to death, up from 26 in January 2003 (just before the federal government’s most recent execution).

I have highlighted the federal piece of this notable story of execution desuetude because I had thought that Prez Donald Trump and AG Jeff Sessions might seriously try to make America execute again.  But I have not seen any effort or even any discussion by federal officials to have any federal death sentences actually carried out.  As I have noted before, this Death Penalty Information Center list of federal death row prisoners reveals that some sentenced to death have been languishing on death row for a full quarter-century and a number of others have been that for at least two decades.  Because I doubt that Prez Trump and AG Sessions are secret abolitionists, I suspect that there is something going on behind the scenes that is keeping federal justice delayed.  But I still find it notable and a bit curious that the federal death penalty still now does not really exist, practically speaking.

August 14, 2018 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (3)

Sunday, August 12, 2018

While I was on road, did others notice that we "stopped being a civilized nation and accepted barbarism"?

The question in this title of this post is my somewhat tongue-in-check reaction after getting a chance to finally read Justice Sotomayor's remarkable dissent from the denial of the application for stay in Irick v. Tennessee handed down last week.  This dissent, which assailed the Court's refusal to stay an execution that Tennessee carried out this past Thursday, concluded this way:

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis.  I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1.  If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent.

Because no other justice joined this dissent and Irick's execution did in fact go forward around at 7:30 p.m. CDT on Thursday, August 9, 2018, it seems that last Thursday night according to Justice Sotomayor we "stopped being a civilized nation and accepted barbarism." And, notably, this local report on Irick's execution (and the crime that prompted it) reports that the execution was not completed smoothly:

The execution began later than scheduled. The blinds to the execution room lifted at 7:26 p.m., 16 minutes later than expected. Irick, with nearly shoulder-length hair, a scraggly beard and dressed in a white prison jumpsuit and black socks, was coughing, choking and gasping for air. His face turned dark purple as the lethal drugs took over.

August 12, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Thursday, August 02, 2018

Pope Francis official changes Catholic teachings on death penalty to work for abolition worldwide

As reported in this CNN piece, "Pope Francis has declared that the death penalty is never admissible and that the Catholic Church will work towards its abolition around the world, the Vatican formally announced Thursday." Here is more:

The change, which has been added to the Catechism of the Catholic Church, makes official a position that the Pope has articulated since he became pontiff.  The Church now teaches that "the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person" and states that it will "work with determination towards its abolition worldwide," the Vatican said.

The Catholic Church's teaching on the death penalty has been slowly evolving since the time of Pope John Paul II, who served from 1978 to 2005.  In his Christmas message in 1998, he wished "the world the consensus concerning the need for urgent and adequate measures ... to end the death penalty." His successor Benedict XVI, in a document published in November 2011, called on society's leaders "to make every effort to eliminate the death penalty."

Francis then wrote in a letter to the President of the International Commission Against the Death Penalty in March 2015 that "today capital punishment is unacceptable, however serious the condemned's crime may have been."  He added that the death penalty "entails cruel, inhumane and degrading treatment" and said it was to be rejected "due to the defective selectivity of the criminal justice system and in the face of the possibility of judicial error."

August 2, 2018 in Death Penalty Reforms, Religion, Who Sentences | Permalink | Comments (8)

Monday, July 30, 2018

Notable review of capital clemencies by Ohio governors

The AP has this interesting new piece, headlined "Gov. Kasich spares record number of death row inmates," that reviews the current and past Ohio gubernatorial records on the death penalty and capital clemencies. Here are excerpts:

Ohio Gov. John Kasich has finished dealing with executions for the remainder of his time in office following a modern-era record of death penalty commutations.  The Republican governor spared seven men from execution during his two terms in office, including commutations on March 26 and July 20. Kasich allowed 15 executions to proceed, including the July 18 execution of Robert Van Hook for strangling, stabbing and dismembering a man he met in a Cincinnati bar more than 30 years ago.

Not since Democrat Mike DiSalle spared six death row inmates in the early 1960s has an Ohio governor spared so many killers during periods when the state had an active death chamber. DiSalle allowed six executions to proceed. Democratic Gov. Richard Celeste commuted eight death sentences just days before leaving office in 1991, but none of those inmates' executions was imminent....

Kasich's immediate predecessor, Democratic Gov. Ted Strickland, commuted five death sentences and allowed 17 executions during his four-year term. Ohio resumed executions in 1999 under Gov. Bob Taft after a 36-year gap. Taft, a Republican, allowed 20 executions to proceed and spared just one inmate based on concerns raised by DNA evidence not available at the time of trial.

Nationwide, governors have spared 288 death row inmates since the U.S. Supreme Court upheld the constitutionality of capital punishment in 1976, with a handful spared each year over the past decade. That doesn't include mass clemencies in states — such as New Jersey in 2007 — where the death penalty was abolished and entire death rows were emptied.

Sparing inmates is not the political death knell it might have been in decades past, thanks to concerns about innocence raised by DNA testing and the role of severe mental illness on some offenders' behavior. "Kasich's decisions to commute reflect a societal shift away from an unquestioning belief in the value of the death penalty or at least the value in every case," said Lori Shaw, a University of Dayton law professor....

Taft said he's now opposed to capital punishment except in the most severe cases, such as acts of terrorism, multiple victims or the killing of a police officer. He also backs findings of a state Supreme Court commission that recommended against the death penalty for inmates suffering severe mental illness at the time of the crime, and in cases where a homicide was committed during other crimes such as burglaries or robberies. "The climate is a little different in regard to the death sentence today," Taft said. "Governors have more latitude or leeway to consider a number of factors that may not have been considered in prior times."

I noted in this prior post that Gov Kasich's capital record was notable, and I find the comments of former Ohio Gov Taft especially interesting here. (N.B.: the AP needs to fact-check Taft's executions record, as I am pretty sure he presided over 24 executions.)  When Taft says "Governors have more latitude or leeway to consider a number of factors that may not have been considered in prior times," he is not talking about any change in the legal standards or procedures for clemency in Ohio.  Rather, Taft is referencing a purely political evolution that now make it much less politically risky for a Governor to grant lots of capital clemency.

July 30, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, July 28, 2018

State judge rejects constitutional attack on Tennessee's lethal injection protocol

The state of Tennessee has not conducted an execution in nearly a decade, but it has three scheduled for later this year including one slated for August 9.  The prospect of these executions going forward got more likely this past week after, as reported in this local article, a state judge rejected a suit brought by many death row inmates challenging the constitutionality of the state's lethal injection protocol.  Here are the basics:  

Tennessee can use controversial drugs to execute inmates on death row despite concerns from defense attorneys and experts that doing so is "akin to burning someone alive," a Nashville judge ruled Thursday. The ruling is a blow to 33 death row inmates who had challenged the state's lethal injection protocol, saying it led to cruel and unusual punishment forbidden by the U.S. Constitution. Among them is Billy Ray Irick, who is scheduled to be executed Aug. 9.

But the ruling won't be the final word.  The inmates' attorneys quickly announced they would appeal.

Davidson County Chancellor Ellen Hobbs Lyle issued the 51-page ruling on the case Thursday evening, forcefully denying the inmates' claims and saying they failed to meet two critical bars necessary to overturn an execution method....  "Although dreadful and grim, it is the law that while surgeries should be pain-free, there is no constitutional requirement for that with executions," Lyle wrote, echoing an argument made by attorneys for the state....

The inmates, who filed the suit against the state in February, did not argue against the death penalty itself. Instead, they focused on the use of midazolam, the first drug in the state's new protocol, that is meant to put an inmate to sleep before two other drugs stop the heart and lungs.

Experts who testified on the inmates' behalf said midazolam is often ineffective, leaving people awake and aware of the acidic poison that kills them. The experts pulled examples from executions across the country, in which witnesses saw inmates thrashing, moaning and crying as the drugs coursed through their veins. "That is akin to burning someone alive. That is not hyperbole. That is not an exaggeration," said Henry. "That's avoidable."

Lyle acknowledged that the inmates' case included testimony from "well-qualified and imminent experts," and she conceded "the inmate being executed may be able to feel pain from the administration of the second and third drugs."... But, Lyle wrote, the inmates' attorneys did not prove that the three-drug protocol would lead to prolonged periods of "needless suffering," one of the key factors that could lead to unconstitutional torture. She pointed to the relatively brief executions cited by the inmates' attorneys, which ended after an average of 13.55 minutes.

Deputy Attorney General Scott Sutherland, who represented the state and the Department of Correction, tied midazolam to ongoing work to make executions more humane. He pointed to rulings from the U.S. Supreme Court and other judicial panels that upheld executions using midazolam. And he said that the inmates had failed to prove pentobarbital was readily available to be used instead of the three-drug protocol.

Lyle agreed. "It is not enough, the United States Supreme Court has held, for the inmate to claim that the State’s method of execution is cruel and unusual," Lyle wrote. "The inmate must also make a claim in the lawsuit he files and must prove at trial in his case that there is a known and available method to execute him that, in comparison to the State’s execution method, significantly reduces a substantial risk of pain."

The state court ruling referenced in this article is available at this link, and here is a portion of the introduction to the 50-page opinion:

The law of the United States requires that to halt a lethal injection execution1 as cruel and unusual, an inmate must state in his lawsuit and prove at trial that there is another way, available to the State, to carry out the execution.  That is, the inmate is required to prove an alternative method of execution. Glossip v. Gross, 135 S. Ct. 2726, 2732-33 (2015). Absent proof of an alternative method, an execution can not be halted....

Thus, whether a lethal injection method is unconstitutional is a comparative analysis.  To halt a lethal injection execution as cruel and unusual, an inmate must prove not only that there is a better drug for lethal injection but that the better drug is available to the State.  That proof has not been provided in this case.

The Inmates who filed this lawsuit have failed to prove the essential element required by the United States Supreme Court that there exists an available alternative to the execution method they are challenging.  On this basis alone, by United States law, this lawsuit must be dismissed.

July 28, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, July 24, 2018

Louisiana Attorney General suggests pursuing alternative execution methods in letter to Governor

This local article, headlined "Electrocution, firing squads should be options for death penalty in Louisiana, AG Jeff Landry tells Gov. Edwards," reports on an interesting letter about the death penalty in the midst of a kind of intramural fight between Louisiana office-holders of different parties.  Here are the basics:

In their ongoing bickering over the death penalty, Louisiana’s Republican attorney general Tuesday asked the Democratic governor to support bringing back hanging, firing squads and the electric chair.

After the back and forth over capital punishment last week between the two possible rivals in next year's gubernatorial race, Attorney General Jeff Landry issued a letter Tuesday [available here] saying Gov. John Bel Edwards’ statements on why Louisiana hasn’t moved forward on executing convicted murderers are “both intentionally misleading and cold comfort to victims’ families.”

Landry again demanded Edwards say where he personally stood on the death penalty.  Then Landry proposed legislation that would change the state's capital punishment law to allow for different forms of execution other than just lethal injection.  He recommended the Legislature pass a law that would allow the state Department of Corrections to choose between hanging, firing squads, and electrocution to put condemned criminals to death if other methods are unavailable.  He asked for Edwards' support.

"Mr. Landry is accurate in that new legislation must be proposed to solve the death penalty issue.  However, in the past three legislative sessions Mr. Landry’s office has not presented any legislation to help alleviate this roadblock, until now," Department of Corrections Secretary James M. LeBlanc said.  Only a legislator can submit a bill for consideration of becoming law.  The next legislative session is scheduled to begin April 8.

Edwards has consistently ducked stating his personal view on capital punishment, saying instead that he has sworn to uphold state and federal laws.  “But I am not going to pretend that we have the ability to do something we don’t have. It’s not about scoring political points.  It’s about being realistic in the way we govern,” Edwards told reporters Monday, the day before Landry’s letter was released publicly.

In answering questions during a highway project groundbreaking ceremony on Monday, Edwards said he specifically did not favor hangings or firing squads. "I am not inclined to go back to methods that have been discarded (when) popular sentiment turned against methods that were deemed to be barbaric and so forth.  We have a law in place we will continue to try to search for solutions around that law," which allows execution by lethal injection, the governor said.

After Landry’s letter was released to a television station Tuesday, the governor’s spokesman, Richard Carbo, said in a prepared statement: “We are pleased that he has conceded that current law, not the governor, is standing in the way of the state resuming executions, which have been on hold since 2010.  Quitting the very lawsuit that was meant to bring justice for these families was never the answer, so his commitment to re-engage is welcome news.”...

Louisiana last executed an inmate, who volunteered to be put to death, in 2010.  Before that the last person executed was in 2002 during Gov. Mike Foster’s administration. Seventy-two inmates are on death row at the Angola penitentiary awaiting execution....

Landry would change the law to say that if lethal injection is unavailable then the method would be nitrogen hypoxia.  That mode basically fills an air tight mask on the condemned with nitrogen gas, thereby causing death by a lack of oxygen.  Oklahoma legislators have looked at that method of execution as a way around the inability to purchase the drugs needed for lethal injections. If nitrogen hypoxia is found unconstitutional or becomes otherwise unavailable, then Corrections Department secretary could choose between hanging, firing squad or electrocution, under Landry’s proposal.

July 24, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

Three+ years after death sentencing, lawyers for Boston Marathon bomber Dzhokhar Tsarnaev have "flagged roughly 30 issues" for his appeal

It seems like it has been a long time since I blogged by the Boston Marathon bomber, Dzhokhar Tsarnaev. And indeed it has been: a jury handed down Tsarnaev death sentence back in May 2015, a full month before Donald Trump had even announced he was running for President.  But now more than three years after his death sentencing, Tsarnaev is in the news via this Boston Globe story headlined "Lawyer for Boston Marathon bomber maps out appeal of death penalty sentence." Here are excerpts:

Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev have flagged roughly 30 issues they plan to raise when he appeals his death sentence, according to a recent legal filing. A motion filed last week with the US Court of Appeals for the First Circuit in Boston said the attorneys have “identified approximately 30 appellate claims to consider raising in Mr. Tsarnaev’s [appellate] brief.”

Tsarnaev’s lawyers requested that the Aug. 20 deadline for filing their highly anticipated brief be pushed back to Nov. 18, citing their ongoing analysis of some 10,000 pages of transcripts in the case.  “Even relative to other federal capital appeals and terrorism appeals across the country, the record here is voluminous,” David Patton, a member of Tsarnaev’s appellate team, wrote in the motion.

Tsarnaev, 25, was convicted in 2015 for his role in the April 2013 Marathon bombings, which killed three people including an 8-year-old boy and wounded more than 260 others. He was sentenced to death and is currently incarcerated at a federal supermax prison in Colorado. Tsarnaev and his older brother and accomplice, Tamerlan, also killed an MIT police officer while they were on the run. Tamerlan Tsarnaev was killed in a confrontation with police in Watertown days after the bombings....

Patton listed additional issues that Tsarnaev’s team expects to raise on appeal. “Counsel have completed drafts of a substantial portion of the remaining claims, including issues concerning venue, multiple errors in the selection of the death-qualified jury, the admission of evidence obtained through the use of Mr. Tsarnaev’s involuntary confession, the lawfulness of certain counts of conviction . . . the exclusion of relevant mitigation material, improper prosecutorial arguments, and the admission of victim impact evidence from survivors,” Patton wrote. “But, despite continuous effort, a number of issues identified and determined to be sufficiently weighty for inclusion remain to be drafted.”

I would expect the First Circuit to give Tsarnaev's lawyers into the fall to complete their brief, and I would also guess the feds will need at least a few extra months to complete a response. Consequently, the First Circuit argument in the case will surely be heard no sooner than 2019, and I would not expect an opinion from the First Circuit until probably early 2020. Then surely comes en banc petition, a cert petition and likely at least one 2255 motion.

July 24, 2018 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (12)

Sunday, July 22, 2018

Noting new challenges in securing death sentences now that juror unanimity is required in Florida

This extended local article, headlined "South Florida killers avoiding death row under new law," spotlights the new capital realities in Florida now that the state was forced by new constitutional rulings to require unanimous jury verdicts to secure death sentences. Here are excerpts:

South Florida juries appear to be less likely, so far, to send convicted killers to death row under the state’s newest death penalty law.  Two juries in Broward County decided to spare the lives of convicted killers in the past week in cases where capital punishment would have seemed likely just a few years ago.

On July 16, convicted cop killers Bernard Forbes, Eloyn Ingraham and Andre Delancy learned they would not face execution for the 2006 ambush murder of Broward Sheriff’s Deputy Brian Tephford.  And on July 19, Eric Montgomery’s life was spared by the same jury that convicted him of fatally shooting his stepdaughter in the face, chasing down her terrified mother and shooting her to death while his own grandmother physically tried to stop him, taking a bullet in the process.

In three first-degree murder trials in Palm Beach County since September, juries have recommended life sentences for the men they convicted. The challenge appears to be the stringent requirement of the death penalty law passed in the spring of 2017.  The state now requires juries to unanimously find at least one aggravating factor justifying the imposition of the death penalty, and a second unanimous vote recommending it....

Simple majorities were required before 2016, but a combination of federal and state supreme court decisions found that without a unanimous verdict, Florida’s death penalty process was unconstitutional.

Since the newest law was enacted, Broward juries have rejected the death penalty in three of four cases. In each of those cases, the defense put up a fight, calling witnesses and urging jurors to show mercy.  The unanimous death decision came against Peter Avsenew, convicted of killing a Wilton Manors couple near Christmas 2010, using their credit cards, stealing their car and trying to hide out at his mother’s house in Polk County.  After his conviction, Avsenew fired his defense lawyers and represented himself in front of the jury, making no effort to plead for his life or show a hint of remorse. “I have no regrets in my life and I am proud of the decisions I’ve made,” he said.

Defense lawyers and prosecutors agree that it’s too soon to determine whether the new law will result in a long term reduction in the number of capital sentences. According to the state corrections department, Florida sent 12 inmates to death row in 2014 and 2015.  From 2017 to 2018 so far, four have been condemned: one each from Collier, Polk, Duval and St. John’s County. But in Palm Beach, prosecutors have not gotten a death penalty since 1998, even under the old law....

“Whenever you have 12 people in a room, it’s hard to get them to agree on anything,” said former Broward prosecutor Marjorie Sommer, now a jury consultant with Focus Consulting Services.

Potential jurors in death penalty cases are typically removed if they have philosophical objections to capital punishment.  But sometimes they slip through. Last year, a Broward jury convicted Jacqueline Luongo of killing her roommate for insurance money, stuffing her body in a closet for days while disguising herself as her victim to make bank withdrawals.

When it came time to deliberate over the penalty, juror Sarah Miller said she was stunned to learn that a fellow panelist had no intention of even considering death.  “She faked her way onto the jury,” said Miller. “It was so unfair to the victim’s family. It didn’t sit well with me. We didn’t do justice.”  The vote, Miller said, was 11-1.  Luongo was sentenced to life in prison.

The outcome of that case has Miller worried that securing a death penalty in Broward will be impossible under the new law. Miller lives in Parkland and is a 2012 graduate of Marjory Stoneman Douglas High School, scene of last February’s mass shooting.  She worries that if the shooter is convicted, he will escape the death penalty because of the new law.  “It’s very scary to me to think that ... another dishonest juror pretends to be open minded about it,” she said.

July 22, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Friday, July 20, 2018

Following execution, Ohio Gov John Kasich closes his capital record with commuted death sentence and reprieve

As reported in this local article, "Ohio Gov. John Kasich spared death row inmate Raymond Tibbetts, who was convicted of killing his wife and landlord in Cincinnati more than two decades ago." Here is more on a (surprising?) decision, which was one of two notable capital changes today:

Kasich — going against the recommendation of the Ohio Parole Board — said that there were "fundamental flaws" in sentencing Tibbetts.  Jurors didn't learn about Tibbett's background as a neglected and abused child. Kasich commuted Tibbetts' sentence to life in prison without the possibility of parole.  Tibbetts had been set to be executed Oct. 17.

Tibbetts had been sentenced to death for beating his wife, Sue Crawford, to death and fatally stabbing his landlord, Fred Hicks, on the same day in 1997 in Over-the-Rhine.

The Ohio Parole Board had given Tibbetts' case a second look after a former juror, Ross Geiger of Loveland, wrote a letter to Kasich, expressing concern that jurors didn't know more about Tibbett's background before sentencing him to death.  But the parole board voted 8-1 against clemency.

Kasich disagreed. In a news release, the governor explained that "the defense’s failure to present sufficient mitigating evidence, coupled with an inaccurate description of Tibbetts’s childhood by the prosecution, essentially prevented the jury from making an informed decision about whether Tibbetts deserved the death penalty."

This press release from Gov Kasich's office also reports that "Gov. John R. Kasich granted a reprieve to delay the execution of Cleveland Jackson" with this accounting for this decision:

Cleveland Jackson was convicted for the 2002 murder of 17-year-old Leneshia Williams and three-year-old Jayla Grant in Lima.  The reprieve will delay his execution until May 29, 2019 to allow his newly appointed legal counsel sufficient time to review the case and properly prepare for his clemency hearing before the Parole Board.  Jackson’s previous court-appointed counsel withdrew their representation just four months prior to his initially scheduled execution after admitting that they failed to do any work to prepare his clemency application over the course of the previous four years.

With this commutation and reprieve, which follow an execution earlier this week which was Ohio's 15th execution during Gov Kasich's two terms in office, I believe Gov Kasich has closed out his capital record because there a now no more executions scheduled during his remaining time in office. (Interestingly, Ohio Gov Robert Taft presided over 24 executions from 1998 to 2006, and Ohio Gov Ted Strickland presided over 17 execution from 2007 to 2010.)

July 20, 2018 in Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

Thursday, July 19, 2018

Another look at how Justice Kennedy shaped capital jurisprudence and what his departure entails

I noted here a few weeks ago a short piece on how death penalty jurisprudence is likely to be impacted considerably by a coming SCOTUS transition, and another longer piece in the same vein now comes from Matt Ford at The New Republic.  The piece is headlined "America Is Stuck With the Death Penalty for (at Least) a Generation," and here are excerpts (with links from the original):

With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles.  In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row prisoners.

“In a very real sense, the Eighth Amendment meant whatever Justice Kennedy decided that it meant,” Robert Dunham, the executive director of the Death Penalty Information Center, told me. “He was often the fifth vote in denying stays of execution and in favoring the state on questions of lethal injection, but he was also often a fifth vote for determining that a particular death-penalty practice was unconstitutional.”

The high court will likely continue to intervene in death-penalty cases that stray too far from the legal mainstream.  But without Kennedy, it will no longer be the venue for a systemic attack on capital punishment as it had been in recent years.  “It seems likely that there will be a firm, five-person majority on the court in Kennedy’s wake with absolutely no interest in revisiting the status quo on the constitutionality of capital punishment,” Carol Steiker, a Harvard University law professor who specializes in the death penalty, told me....

With Kennedy now gone, it’s virtually certain that the Supreme Court won’t abolish the death penalty for at least a generation. Earlier this month, President Donald Trump nominated Brett Kavanaugh, a reliably conservative judge on the D.C. Circuit Court of Appeals, to fill Kennedy’s seat. While Trump himself is an unusually enthusiastic proponent of the practice, Kavanaugh’s own views on the death penalty are unknown. The D.C. Circuit’s narrow geographic jurisdiction means that it almost never hears death-penalty cases compared to the other federal appellate circuits.

As a result, there is no clear record for how Kavanaugh approaches the practice as a judge. Justices Clarence Thomas and Samuel Alito are resistant to curtailing capital punishment, and Justice Neil Gorsuch has voted alongside them during his first term on the court. If Kavanaugh votes in a similar manner, the court’s posture toward the death penalty would shift decisively away from limiting its scope. “The immediate impact of Kennedy’s retirement in terms of Eighth Amendment law is that it’s now whatever Chief Justice Roberts decides that it is,” Dunham said.

Roberts generally sides with the rest of the court’s conservatives on death-penalty matters. He has also joined the court’s liberals on occasion to rule in favor of defendants in certain egregious cases. In the 2017 case Buck v. Davis, he sided with a death-row prisoner after an expert testified during the sentencing phase that he posed a greater threat of “future dangerousness” because he is black. Though the exchange was a brief part of the overall trial, Roberts said in his majority opinion that it was still too much. “Some toxins are deadly in small doses,” he wrote.

Death-row prisoners will still bring cases to the Supreme Court, but Steiker said that the future of abolition efforts will now turn to the state and local level. “States are really where the story is happening,” she told me. “There are state constitutional challenges that can be brought. Seven state legislatures have voted to abolish the death penalty in the past ten or twelve years.” She also noted that a growing number of district attorneys are declining to seek the death penalty in cases where they otherwise could.

A local focus makes sense given the current geography of capital punishment. Death sentences increasingly come from only a handful of counties scattered across the country. Though state legislatures allow or forbid the death penalty as a matter of law, local prosecutors often decide in practice whether a defendant will face it. Cities like Houston and Philadelphia that once handed down dozens of death sentences have recently seen the election of district attorneys who are more skeptical of it.

For now, the rulings written by Kennedy will continue to mark the outer limits for American executions on a national level—unless the justices of a future generation choose to push them even further. “The law that Justice Kennedy leaves behind offers something of a blueprint for a future Supreme Court if it wanted to continue this project of reassessing the death penalty and its concordance—or not—with evolving standards of decency,” Steiker said.

Prior related post:

A quick look at how Justice Kennedy's retirement might impact capital punishment jurisprudence 

July 19, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, July 18, 2018

Ohio completes its first execution since botched execution of another inmate late last year

As reported in this local article, Ohio managed to get its machinery of death functioning again this morning. Here are the details and context:

Robert Van Hook horrifically murdered a Cincinnati man, but he seemed remorseful as he died by lethal injection on Wednesday at the Southern Ohio Correctional Facility.

Van Hook, 58, was strapped to the gurney in Ohio’s death house and the lines carrying the deadly drugs had been inserted in his arms when he turned his head to three witnesses from the family of his victim, David Self....

Van Hook served a violence-plagued 32 years in prison after a death-penalty conviction for what now could be considered a hate crime — of the utmost violence.

On Feb. 18, 1985, Van Hook met Self in a gay bar in downtown Cincinnati and went home with him. Van Hook’s clemency report says he lured Self into a vulnerable position and strangled him into unconsciousness. “He then took a paring knife from the kitchen and stabbed the victim behind the right ear, aiming the thrust upward toward the brain, accompanied by a blade-twisting movement,” the report said....

During his incarceration Van Hook amassed a disciplinary record of more than two dozen incidents, including stabbing another inmate in the face and chest, threatening to kill corrections officers and damaging property.

Joe D’Ambrosio served 22 years on death row with Van Hook until D’Ambrosio was exonerated and released in 2010. “He had mental problems, I don’t care what anyone says,” said D’Ambrosio who was at the prison Wednesday to protest Van Hook’s execution. “He would go for long periods of time and then he would explode.”

In their unsuccessful bid for clemency, Van Hook’s attorneys cited his difficult childhood. His mother, who had a history of mental illness, abused alcohol and drugs and became enmeshed in repeated, mutually abusive relationships. His father also drank heavily, beat Van Hook and was a virulent homophobe, the lawyers wrote.

Van Hook’s father, a musician, introduced his son to alcohol and drugs when Van hook was 11 or 12, his lawyers said. At 14, Van Hook moved with his father to Florida and eventually ran away. He lived on the streets, sometimes supporting himself by having sex for money with men....

D’Ambrosio said there was no point in killing Van Hook. “It was unneeded, unnecessary, cruel, unusual,” he said. “It’s barbaric.”

But three members of Self’s family, who sat quietly holding hands through the execution, wanted Van Hook to die. They declined comment on Wednesday. But Self’s sister, Janet Self, told the parole board that her brother’s murder reduced him in the public mind to nothing more than a gay man in a bar, when in reality he was an intelligent, witty person. She also noted that Self was abused by his own father and had to face prejudice because he was gay.

Van Hook’s execution was the first in Ohio in 2018. The last attempted execution — of Alva Campbell in November — was called off when corrections workers could not find a suitable vein for intravenous drugs. He died earlier this year of natural causes.

Gary Otte and Ronald Phillips were executed last year. They were the first to be killed in Ohio’s death chamber after a three-year moratorium following the 2014 execution of Dennis McGuire, 53, who gasped, choked, clenched his fists and appeared to struggle against his restraints for about 10 minutes before being pronounced dead.

Van Hook was the 56th man to be executed in Ohio since 1999. Two more executions are scheduled for later this year. A total of 137 people remain under death sentences in Ohio.

July 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Texas completes eighth execution of 2018 despite complaints about clemency process

This Texas Tribune article, headlined "Texas executes Chris Young, who fought the state parole board in a final appeal," reports on the latest lethal injection and litigation in the Texas capital system.  The subheadline summarizes the heart of the story: "The death row inmate claimed that the parole board likely rejected his clemency petition because he was black. The argument highlighted a long-standing criticism of clemency in Texas." Here are excerpts from a lengthy piece:

In his final fight before his execution Tuesday evening, Chris Young targeted Texas’ secretive clemency process.

On Friday, the Texas Board of Pardons and Paroles unanimously rejected Young’s clemency petition — often the final check in the death penalty process before an inmate is sent to the death chamber.  Hours later, Young’s lawyers filed suit against the board members, claiming that they likely voted against a recommendation to reduce his sentence or halt his execution because he is black.

The appeal was a long shot, and one he ultimately lost in federal court Tuesday, hours before the state put him to death for the 2004 robbery and murder of Hasmukh Patel at Patel's San Antonio store.  At 6:13 p.m., Young, 34, was injected with a fatal dose of compounded pentobarbital and pronounced dead 25 minutes later....

Though unsuccessful, the late filing highlighted a long-established criticism of Texas clemency — the reasoning for the board’s decision is unknown to the public, and individual members usually cast their votes remotely without comment or a hearing.  Though members must certify that they do not cast their votes because of the inmate’s race, they also don’t have to give any reason for their decision....

Young was 21 when he entered Patel’s San Antonio store in 2004 and fatally shot Patel during an attempted robbery, according to court records. He was convicted of capital murder and sentenced to death in 2006.

In his recent petition to the parole board asking for a sentence of life instead of death, his lawyers cited his growth in prison — they claim he prevented both an inmate’s assault on a guard and a suicide and that he eased racial tensions on death row — and the fact that Patel’s son, Mitesh, also pleaded for the state to spare his father’s killer.

They tried to draw comparisons between Young and another young man whose life was recently spared by the board and Gov. Greg Abbott — Thomas Whitaker, who was convicted in the planned deaths of his family in 2003, killing his mother and brother and wounding his father in a plot to get inheritance money....

The state responded to Young’s allegations of racial discrimination in court Sunday, claiming Young’s case for clemency was “far weaker” than Whitaker’s.  Assistant Attorney General Stephen Hoffman highlighted factors left out of Young’s petition, including an alleged sexual assault just before Patel’s murder, previous misdemeanor convictions and disciplinary reports from death row.  The response also notes that, unlike Young, Whitaker wasn’t the triggerman in his relatives’ murders....

Since 1998, a Texas governor has spared the life of someone facing imminent execution only three times, according to data obtained from the parole board. In the same two decades, there have been more than 400 Texas executions....

Abbott’s predecessor, Republican Rick Perry, chose to reduce a death sentence to life in prison for only one inmate (U.S. Supreme Court decisions forced him to reduce other sentences) in his 14-year tenure.  He also rejected board recommendations in at least two other cases.  The Whitaker clemency was the first and only board recommendation under Abbott so far.

Because of the minuscule success rate of these cases and the secrecy that surrounds the process, attorney groups and several lawmakers have criticized Texas clemency procedures in capital cases for decades.  In 1998, U.S. District Judge Sam Sparks called it “extremely poor and certainly minimal.” Sparks railed on how the public is kept from the board’s dealings and said no member fully reads the petitions, stating “a flip of the coin would be more merciful than these votes.”...

But for Young, the attempt to draw parallels between himself and Whitaker seemingly fell flat with the members of the parole board.  Instead of being moved off death row to another prison, he was sent to the death chamber, becoming the eighth person executed in Texas this year, and the 13th in the nation.

July 18, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 17, 2018

"McCleskey V. Kemp: Field Notes from 1977-1991"

The title of this post is the title of this notable paper authored by John Charles Boger available now via SSRN. Here is its abstract:

This Essay is an expanded version of a keynote address to a Symposium hosted by the Northwestern University School of Law.  It examines the handiwork of the Supreme Court in the McCleskey v. Kemp (1987) case and the adverse impact of McCleskey on the subsequent judicial consideration of statistical evidence -- even of widespread racial discrimination -- in the capital and criminal justice systems. 

As one member of the legal team who brought the McCleskey case, my contribution was to speculate on how and why the Court might have disregarded such meticulously documented and unrebutted patterns of racial disparities in capital sentencing, despite the Justices’ formal condemnation of racial discrimination in principle and their occasional intervention to curb particularly egregious acts of racial injustice.  This Essay ends by encouraging social scientists and legal scholars to continue to uncover and oppose patterns of racial discrimination that remain widespread in the administration of criminal justice.

July 17, 2018 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (0)

Friday, July 13, 2018

"'Finding' a Way to Complete the Ring of Capital Jury Sentencing"

The title of this post is the title of this paper newly posted on SSRN and authored by Maria Kolar. Here is its abstract:

In the modern death penalty era in America, two findings have emerged as generally required before a murderer can be sentenced to death.  First, the decisionmaker must find that the murder was especially egregious, due to specific, statutorily-defined characteristics of the murder or the murderer — typically referred to as “aggravating circumstances.”  Second, the decisionmaker must find that any aggravating circumstances in the case “outweigh” any “mitigating circumstances,” i.e., anything that makes the crime or the defendant seem less deserving of death.  Remarkably, regarding the second finding (the weighing finding) it remains unclear who “the decisionmaker” must be and how convinced the decisionmaker must be — even though the Supreme Court held back in 2002, in Ring v. Arizona, that the Sixth Amendment mandates that the decisionmaker for the aggravating circumstance finding must be a jury and that the jury must be convinced “beyond a reasonable doubt.”

This Article asserts that Ring’s use of the word “fact” to describe the kind of determination that must be made by a jury has completely undermined the functional and elements-based approach of Ring.  This approach, properly understood, mandates that the Sixth Amendment jury requirement applies to any finding (not just “fact”) that is required for a death sentence.  This Article traces the Court’s use of the term “finding” in this context — from the beginning of the modern death penalty era in 1976, through Apprendi v. New Jersey in 2000, Ring in 2002, and Hurst v. Florida in 2016 — and asserts that the Apprendi Court’s use of the broader term “finding” in this arena is more faithful to the Sixth Amendment and to substantive state law.  This Article catalogs how state supreme courts and federal circuit courts overwhelmingly concluded (post-Ring) that the capital weighing finding is not subject to the Sixth Amendment, because it is not a “fact” under Ring — aided by the Court’s Eighth Amendment “death eligibility” doctrine, which misleadingly suggests that defendants become “eligible” for a death sentence based solely on the finding of an aggravating circumstance.

The Court’s broader approach in Hurst does provide some hope in this realm and has led to momentous changes in Delaware, Florida, and Alabama. And all but two states now insist that a jury make all the findings that are required for a death sentence under state law.  Nevertheless, while nearly 75% of the current thirty-one death penalty states require a weighing-type finding for a valid death sentence, almost 75% of these states still fail to require that this finding be made beyond a reasonable doubt, as the Sixth Amendment mandates.  There is still much work to be done.

July 13, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, July 11, 2018

Drug company succeeds in getting Nevada execution using its drug postponed

As reported in this local article, "Nevada’s plan to execute a convicted murderer with a never-before-used combination of drugs is on hold for at least 60 days." Here is more:

The state was planning to use three drugs — midazolam (a sedative), fentanyl (the high-potency opioid) and cisatracurium (a paralytic) — to execute Scott Dozier on Wednesday night.

Clark County District Judge Elizabeth Gonzalez ruled in favor of the company that makes midazolam, which sued the state, saying Nevada had illegitimately acquired the product for the execution. It wants the state to return its stock of the drug to the company. Gonzalez granted a temporary restraining order. “If the state is permitted to use the midazolam manufactured by plaintiff, plaintiff has shown a reasonable probability it will suffer irreparable damages,” Gonzalez said in her Las Vegas court.

The drug maker, Alvogen, and the state are scheduled to return to court September 10 for another hearing in the case.

The execution would have been the first time that fentanyl, one of the central drugs in the US opioid epidemic, has been used in a capital punishment case in the United States, said Robert Dunham, executive director of the Death Penalty Information Center. It would likely have been a first for cisatracurium to be used as well, he said.

Dozier, 47, is not making legal challenges to halt his execution. “Life in prison isn’t a life,” he told the Las Vegas Review-Journal. “This isn’t living, man. It’s just surviving.”... His attorney, Thomas Ericsson, told CNN that his client wants to be executed.

Although Dozier is not trying to stop his execution, there is opposition to the drug cocktail the state plans to use in carrying out the death sentence. “Nevada should not use prisoners as guinea pigs in experimental executions, even if they ask to die,” tweeted the ACLU of Nevada.

Dozier was convicted of first-degree murder in the death of Jeremiah Miller, who was killed and dismembered in 2002. The victim’s torso was found in a suitcase dumped in a trash bin in Las Vegas, according to the Nevada Department of Corrections. Dozier was also convicted of second-degree murder in the death of another victim found buried in the Arizona desert.

Prior related posts:

July 11, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (9)

"Intellectual Disability, The Death Penalty, and Jurors"

The title of this post is the title of this new paper on SSRN authored by Emily Shaw, Nicholas Scurich and David Faigman. Here is its abstract:

In Atkins v. Virginia (2002), the United States Supreme Court held that intellectually disabled defendants cannot be sentenced to death; but since then, the Court has continued to grapple with how intellectual disability should be legally defined. Typically, however, it is jurors who determine whether a defendant is intellectually disabled and therefore categorically ineligible for the death penalty. Very little is known empirically about how jurors reason about and make these decisions.

This Article presents the results of a novel experiment in which venire jurors participated in an intellectual disability hearing and a capital sentencing hearing. The diagnosis of a court-appointed expert was experimentally manipulated (defendant is or is not intellectually disabled), as was the provision of information about the crime (present or absent). Jurors were considerably more likely to find the defendant not disabled when the expert opined that the defendant was not disabled.  They were also more likely to find the defendant not disabled when they learned about the details of the crime. Similarly, jurors were more likely to sentence the defendant to death after learning about the details of the crime, which increased perceptions of both the defendant’s blameworthiness and his mental ability.  These findings highlight the reality that jurors’ assessments of intellectual disability are influenced by crime information, contrary to pronouncements made by the United States Supreme Court, and they support the use of bifurcated disability proceedings, as some states have recently adopted.

July 11, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8)

Tuesday, July 10, 2018

Drug maker sues Nevada seeking to prevent state from using its drug in state's first execution in a dozen years

As reported in this local article, the "maker of a sedative set for inclusion in a Nevada execution on Wednesday — the state’s first in 12 years — is suing to stop it from being used to kill Scott Dozier." Here is more:

American pharmaceutical company Alvogen filed a lawsuit Tuesday in Clark County District Court, saying the Nevada Department of Corrections purchased the drug on false pretenses even though they knew Alvogen objected to its use for executions. The company is asking a judge for a temporary restraining order, for the drug midazolam to be impounded and for it to be barred from any use in capital punishment.

“Defendants intentionally defrauded Alvogen’s distributor by, on information and belief, concealing the April 2018 letter from the distributor and/or the fact that Defendants intended to use the Alvogen Midazolam Product for purposes of an execution,” the lawsuit said. “Defendants omitted relevant information and implicitly made the false representation that they had legitimate therapeutic rationale to purchase the Alvogen Midazolam Product.”

A spokeswoman for the Nevada Department of Corrections didn’t immediately respond to a request for comment on Tuesday, and it’s unclear whether the suit — filed a little more than 24 hours before the execution — will prompt a delay.

Alvogen says on its website that it tries to prevent its product midazolam from use in executions. But the Nevada Department of Corrections announced last Tuesday that it was adding midazolam to its three-drug lethal injection combination after another drug expired, and on Friday it distributed photos of the packaging with Alvogen labels — a response to a request from the American Civil Liberties Union of Nevada for more information about the drugs’ origins.

The pharmaceutical company said it learned its product would be used when it started to receive press inquiries on July 7. “Alvogen does not market, promote or condone the use of any of its approved prescription drug products, including midazolam, for use in state sponsored executions,” spokesperson Halldór Kristmannsson said in a statement on Monday. “To avoid any improper, off label use of our products, Alvogen does not accept direct orders from prison systems or departments of correction. Alvogen works with our distributors and wholesalers to restrict any resale, either directly or indirectly, of our midazolam product to any prison system or department of correction.”

Alvogen’s suit said the state has refused to return the products, and added that the prison agency “was aware of and actively fought disclosure of certain execution-related information because such information had been used to persuade manufacturers to cease selling their products for executions.” NDOC’s actions “have caused, and will continue to cause unless enjoined, substantial and irreparable injury to Alvogen, its reputation, and its goodwill,” the lawsuit said.

The 80-page complaint can be found at this link.

Prior related posts:

July 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (6)

Monday, July 09, 2018

Texas proves, yet again, where there is a will to get executions drugs, there seems to be a way

This local article from Texas, headlined "With 7 execution dates on the calendar, Texas just got more lethal injection drugs," spotlights yet again how the folks in Texas are uniquely able to continue with capital justice without much of a hitch. Here are the details and some context:

Amid speculation about its ability to carry out the flurry of new executions on the calendar, state records show the Texas prison system in recent weeks received 15 more doses of the powerful barbiturate used in its Huntsville death chamber.  The additional vials ensure that the state can now carry out all the currently scheduled death dates, but some experts say it raises questions about how officials obtained new doses of pentobarbital at a time when drug-makers have backed away from its use in executions.

"That I'm aware of, there is no legal source for pentobarbital, compounded or otherwise. None," said Maurie Levin, a defense attorney with expertise in lethal injection litigation. "All the companies that previously provided compounded pentobarbital are now subject to end-use controls by the manufacturers and if they are distributing it to a prison for use in executions they are violating that contract."

The state pushed back against that suggestion.  "The Texas Department of Criminal Justice complies with all state and federal laws," said department spokesman Jeremy Desel.

But whatever the provenance of the added supplies, the fact that they exist could impact death-sentenced inmates in other states. Weeks before the new doses showed up on the state's logs, a group of prisoners in Arkansas asked Texas to turn over the name of its lethal injection supplier, in the hope of convincing their own state to switch to the drug the Lone Star State uses.  Midazolam, one of the drugs currently used in Arkansas, has been repeatedly linked to "botched" executions.

Since 2012, Texas has relied on a single drug — compounded sodium pentobarbital — to carry out lethal injections.  The state came close to exhausting its supplies with executions still on the calendar in spring 2015. But in the end, TDCJ got more without needing to push back any death dates, prison officials said previously.

Then in January of this year, the state's stash of drugs was set to expire days before a scheduled execution. The state replenished its supply in time.  But it wasn't immediately clear whether they'd obtained new doses or established a new expiration date for the ones they already had, a possibility that's been raised repeatedly in lawsuits seeking to challenge the state's lethal injection procedures.

Again by May, Texas seemed poised to run out of drugs with three executions scheduled beyond the expiration date of the drugs.  Then on June 18, records show the addition of 15 five-gram vials.

In recent years, drug-makers have put up roadblocks to states seeking execution drugs, forcing states to switch protocols in some places.  "Every major pharmaceutical manufacturer in the U.S. has policies against the distribution of its medicines for unapproved medical purposes, and killing prisoners has never been an approved medical purpose," said Robert Dunham, executive director of the Death Penalty Information Center.  Many drug-makers, he said, also specifically prohibit the sale of their drugs for use in executions.

"If Texas is getting these drugs legally that's important to know for death penalty cases across the country," Dunham said.  "If they're getting them illegally or by making misrepresentations to pharmaceutical distributors that's also important to know because states should not be violating the law or breaching contracts in the name of law enforcement."

It's not clear exactly where the state is getting its drugs, and state secrecy laws keep the department from revealing its source.

July 9, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Sunday, July 08, 2018

Notable federal capital defendant claims his killing age (20) should make him ineligible for death penalty

The name Donald Fell is likely familiar to capital punishment followers: Fell was convicted and sentenced to death in federal court for the November 2000 abduction and slaying of Teresca King,but his initial conviction and sentence were thrown out after revelations of juror misconduct.  Prior to his retrial, his attorney's have brought a series of challenges to the federal death penalty.   This local article, headlined "Fell seeks to avoid death penalty based on age," reports on their latest filings:

Lawyers representing Donald Fell, who was charged in the 2000 homicide of a North Clarendon woman, are asking a federal judge to rule out the death penalty because Fell was 20 years old at the time of the alleged murder. A second trial is pending for Fell, 38, for the carjacking and kidnapping of 53-year-old Terry King.

Fell is accused of kidnapping King from the Rutland Shopping Plaza. Police said Fell and his friend, Robert Lee, took King to New York where she was bludgeoned to death. Fell was convicted of the crimes with which he’s now charged in 2005 and he was sentenced to the death penalty in 2006. However, Fell’s attorneys found evidence of juror misconduct and Fell’s conviction was overturned in 2014....

The motion by Fell’s attorneys, filed on Tuesday, referred to a 2005 U.S. Supreme Court decision from 2005 that found capital punishment is unconstitutional if the person convicted committed the crime before he or she was 18.  The motion, filed by San Francisco attorney Michael Burt, a member of Fell’s defense team, said the question of whether Fell was too young at the time he allegedly killed King had not been heard.

“Mr. Fell has had no opportunity to show that Roper‘s age-18 cutoff does not account for the current medical and scientific consensus that brain development is not completed by age 18, and that Mr. Fell’s particular development at age 20 is insufficient to justify capital punishment.  Simply put, his evidence will show that at the time of the offenses, Mr. Fell did not function as an adult with sufficient moral culpability for capital punishment,” the motion said.

Dr. James Garbarino also filed a brief discussing his findings working with young people dealing with severe violence.  He said doctors who had previously examined Fell found psychological problems but the science of brain development was not advanced enough at the time to recognize Fell’s problem was “developmental brain immaturity” from developmental delays.  “In the case of Donald Fell, his social history indicates he is just such an individual — growing up with much adversity, including psychological adversity such as experiences of parental rejection, and physical maltreatment, including physical traumas which may have resulted in insults to his brain,” Garbarino wrote....

The second half of the motion argued that society opposed the execution of young criminals. “Executing individuals barely old enough to vote or drink, unable to rent a car, unable to serve in Congress, and still in the throes of cognitive development — based upon now-disregarded views of culpability — undermines the Supreme Court’s commitment to dignity, and the possibility of rehabilitation and redemption,” the motion said.

Fell, through his attorneys, requested a hearing on the issue, followed by an order precluding the government from seeking the death penalty. Prosecutors have not yet responded to the 550-plus page motion.  Many of the exhibits in the motion were papers on the adolescent brain or court rulings on defendants who committed crimes while young, although only Kentucky was cited as banning the death penalty for someone younger than 21 rather than someone younger than 18.

Another motion, more than 1,100 pages long, was filed Tuesday seeking to stop prosecutors from having a mental health professional testify during the sentencing if Fell is convicted.

Prior related posts:

July 8, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

Thursday, July 05, 2018

"Police, Race, and the Production of Capital Homicides"

The title of this post is the title of this new paper now available via SSRN and authored by Jeffrey Fagan and Amanda Geller. Here is the abstract:

Racial disparities in capital punishment have been well documented for decades.  Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death.  Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims.  These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines.

This article backs up the research on racial disparities to an earlier stage of capital case processing: the production of capital-eligible cases beginning with the identification of potential defendants by the police.  It seeks to trace these sentencing disparities to examining earlier stages in the processing of homicides. Using data from the FBI’s Supplementary Homicide Reports, we examine every homicide reported between 1976 and 2009, and find that homicides with white victims are significantly more likely to be “cleared” by the arrest of a suspect than are homicides with minority victims.  We estimate a series of hierarchical regressions to show that a substantial portion of this disparity is explained by social and demographic characteristics of the county in which homicides take place.  Most notably, counties with large concentrations of minority residents have lower clearance rates than do predominantly white counties; however, county characteristics do not fully explain the observed race-of-victim disparities.  Our findings raise equal protection concerns, paving the way for further research into the production of capital homicides and the administration of the death penalty.

July 5, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Friday, June 29, 2018

A quick look at how Justice Kennedy's retirement might impact capital punishment jurisprudence

This new HuffPost piece, headlined "Justice Kennedy’s Retirement Is A Setback For Death Row Inmates," provides a quick account of one area of sentencing jurisprudence likely to be impacted considerably by a coming SCOTUS transition. Here are excerpts:

President Donald Trump’s likely choice of a deeply conservative justice to replace Anthony Kennedy on the Supreme Court could have a significant impact on death penalty cases, experts say.

“Death row inmates will find it substantially more difficult to prevail,” said John Blume, a law professor at Cornell Law School and director of the Cornell Death Penalty Project. “Justice Kennedy was conservative on criminal justice and capital punishment matters, but most or all of the names being bandied about as his replacement are most likely going to be more to much more conservative.”

Though Kennedy was a reliable vote in allowing executions to proceed in cases involving the methods of execution, he was the only Republican appointee who frequently aligned himself with the more liberal justices in cases that limited the circumstances in which states could impose capital punishment.  “Kennedy was often the deciding vote in [death penalty] cases, sometimes on one side, sometimes the other,” David Menschel, a criminal defense attorney and activist, told HuffPost.  “Now I would expect SCOTUS to show even more complete deference to the states and to allow executions to proceed with little concern whether states are acting lawfully.”

Kennedy was the key swing vote in the court’s 2005 decision to prohibit the execution of juvenile defendants. He was the deciding vote in the 2008 decision that barred the use of the death penalty in cases where a defendant raped, but did not kill, a child.  And his vote was key in the 2014 ruling that established that a Florida law that set a strict IQ cutoff for determining intellectual disability in capital punishment cases was unconstitutional.  The Florida law, Kennedy wrote for the majority, “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”...

“The most profound effect is likely to involve those death penalty cases that involve the application of the evolving standards doctrine,” said Robert Dunham of the Death Penalty Information Center, a group doesn’t take a position for or against death penalty, but has been critical of how it has been administered.  The “evolving standards of decency” doctrine Dunham was referring to was coined by Chief Justice Earl Warren in a 1958 case in which the court recognized that the interpretation of what constitutes fair and cruel punishment is not static under the Eighth Amendment.

“In essence, the Eighth Amendment meant whatever Justice Kennedy thought it meant,” Dunham said.  “Now, it will mean whatever Chief Justice [John] Roberts thinks it means. That’s where I think it will have the most significant impact.”

The final quote by Robert Dunham here rightly flags that Chief Justice Roberts in now likely to be the closest thing to a swing vote in capital cases (and maybe in an array of criminal cases). The Chief has voted along with Justice Kennedy and the liberal justices in more than a few capital cases (see DPIC case list here) as well as one some other criminal justice issues, and his criminal jurisprudence has just become a lot more important to a lot more defendants and their lawyers.

Prior posts on Justice Kennedy's retirement (including one from MLP&R):

June 29, 2018 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Thursday, June 28, 2018

Some GVRs, summary reversal of the Ninth Cirucit and Justice Breyer dissenting to contend "the death penalty today lacks requisite reliability"

This lengthy final order list finishing up the current SCOTUS Term has its most exciting news for criminal justice fans from the single line  granting cert in Gamble v. United States so the Justices can reconsider the Double Jeopardy Clause's "dual-sovereignty doctrine" (discussed here).  But the order list also includes a number of GVR cases citing Carpenter and Rosales-Mireles and a number of notable summary reversals and statements concerning the denial of cert.   Of greatest interest to sentencing fans are:

 This per curiam summary reversal of the Ninth Circuit judgment in Sexton v. Beaudreaux, No. 17-1106 (which led to Justice Stephen Breyer dissenting without opinion).  Here is how the lengthy summary reversal starts:

In this case, the United States Court of Appeals for the Ninth Circuit reversed a denial of federal habeas relief, 28 U.S.C. §2254, on the ground that the state court had unreasonably rejected respondent’s claim of ineffective assistance of counsel. The Court of Appeals’ decision ignored well-established principles. It did not consider reasonable grounds that could have supported the state court’s summary decision, and it analyzed respondent’s arguments without any meaningful deference to the state court. Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is reversed.

This dissent from the denial of certiorari in Jordan v. Mississippi authored by Justice Breyer (which did not garner any additional votes).  Here is how his lengthy dissent starts:

In my dissenting opinion in Glossip v. Gross, 576 U.S. ___ (2015), I described how the death penalty, as currently administered, suffers from unconscionably long delays, arbitrary application, and serious unreliability. Id., at ___ (slip op., at 2).  I write to underline the ways in which the two cases currently before us illustrate the first two of these problems and to highlight additional evidence that has accumulated over the past three years suggesting that the death penalty today lacks “requisite reliability.” Id., at ___ (slip op., at 3).

June 28, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Texas completes execution of serial killer, its seventh of 2018

As reported in this local article, headlined "'Burn in hell for eternity': Houston serial killer Danny Bible executed in Huntsville," Texas completed another execution last night.  Here are the details:

Shaking from Parkinson's tremors, voice quavering as he muttered "it hurts," Houston serial killer Danny Bible took his last gasping breaths on the gurney in Huntsville before closing one eye, snoring and falling forever silent.  He offered no final statement Wednesday night, but protesters outside shouted angrily into a megaphone, defending the aging four-time killer.

Afterward, in a quiet conference room above the warden's office, the family of one of Bible's victims offered a final word.  "Danny Paul Bible is as a vile and evil a person that has ever drawn breath," said Larry Lance, whose sister fell prey to Bible's wrath in 1983. "We are glad to have witnessed him draw his last breath.  I know that he will burn in hell for eternity."

Despite concerns about the difficulty of finding a vein on the ailing murderer, the lethal injection team hooked up IV lines in under 15 minutes.  After the lethal dose began at 6:17 p.m., Bible started breathing heavily before saying it "burned."  He stopped moving three minutes later and was pronounced dead at 6:32 p.m.  He was the seventh killer to die in Huntsville this year.

Bible was sent to death row in 2003 after a crime spree zig-zagging across the country for the better part of 20 years.  Though he murdered two other women and a baby, raped five young relatives and claimed an assortment of other violent crimes, it was his first killing -- back in 1979 -- that sent him to the death chamber....

In the weeks leading up to his scheduled execution, his defense team launched a flurry of legal claims, arguing that the aging prisoner might be too sick to execute by injection. Instead, they said, he should die by firing squad or nitrogen gas. In the end, the lethal injection team found viable veins in Bible's hands.

The so-called ice pick killer had a "galaxy of medical issues" that raised the possibility of a prolonged and painful lethal injection process his lawyers argued would violate the Eighth Amendment's ban on cruel and unusual punishment.  "Texas will almost certainly join Alabama and Ohio and add itself to the unconscionable list of botched executions in America," his attorney Jeremy Schepers predicted beforehand....

Bible's attorneys on Wednesday took his case all the way up to the Supreme Court.  Denying his challenge, they argued, could shut the door on any other similar claims from ailing prisoners who could suffer botched executions. But the high court denied his plea just after 5:30 p.m....

The Lone Star State has now executed seven men this year, including another Houston serial killer, Anthony Shore.  There are seven other death dates on the calendar in Texas.

Notably, Texas only had seven executions through all of 2017, but it has hit that number through just the first part of 2018.

June 28, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Monday, June 25, 2018

Seven years in development, Pennsylvania task force issues huge report on state's (dormant) capital punishment system

As reported in this local press article from Pennsylvania, a "long-awaited report reviewing the state's death penalty has been released that could affect the death penalty moratorium that Gov. Tom Wolf imposed shortly after taking office in 2015."  Here is more:

The 270-page report, commissioned by a 2011 Senate resolution and compiled by the Pennsylvania Task Force and Advisory Committee on Capital Punishment along with the Justice Center for Research at The Pennsylvania State University and the Interbranch Commission on Gender, Racial and Ethnic Fairness, evaluates the pros and cons of the state's capital punishment law.

Specifically, it was charged with looking at the cost, bias, impact on and services for family members of death penalty inmates; mental illness, counseling, alternatives, and more. Work began on the study in 2012.  It was to have been completed by the end of 2013. However, delays in appointing members and in information gathering as well as conflicting work schedules of task force members bogged down the process, according to Glenn Pasewicz, executive director of the Joint State Government Commission, which oversaw the task force and advisory committee's work.

Despite the report's completion, don't expect an immediate decision by Wolf on whether the moratorium will be lifted. He has indicated the moratorium will remain in place until the recommendations and concerns that the report raises are satisfactorily addressed, his spokesman J.J. Abbott said.

Wolf's Republican gubernatorial opponent Scott Wagner has said he supports the death penalty and indicated in February he would pursue a mandatory death penalty for any school shooter who kills someone although legal analyst say laws like that have been ruled unconstitutional.

Pennsylvania has a death penalty law on the books since 1978, but its death row has shrunk to 149 men and only three people have been executed since capital punishment was reinstated in the 1970s. All three had voluntarily relinquished their appeals. The most recent execution was in 1999 when Philadelphia torture killer Gary Heidnik was put to death. The last time an inmate was executed involuntarily in Pennsylvania was 1962.

Penn State's Justice Center for Research, which conducted a study that was incorporated into this report, concluded death sentences are more common when the victim is white and less common when the victim is black. Among other findings, that study indicated prosecution of death penalty cases varies widely by county and defendants represented by public defenders were more likely to get a death sentence than those with privately retained lawyers.

Marc Bookman, a longtime public defender and co-director of the Atlantic Center for Capital Representation, issued an immediate reaction to the study's findings. He said the study confirms his belief that life without parole is "fairer, quicker, and more cost-efficient than capital punishment."...

But the Pennsylvania District Attorneys Association President John Adams' initial reaction to the report suggested it was not an objective look at the issue and fails to give proper consideration of victims of the crimes that result in death sentences as well as supporting data that suggests capital punishment is not disproportionately targeted against minorities.

The full massive report is available at this link, and it would likely take me the rest of the day just to fully and fairly consume the reports executive summary (which itself runs 30+ pages).  For students of the modern administration of the death penalty, I see a lot of interesting and important work within this report.  But, as the quotes in the press article reveal, I doubt this massive undertaking is going to change many (or any) personal or political perspectives on the application of the ultimate punishment in Pennsylvania.  

June 25, 2018 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Thursday, June 21, 2018

New Hampshire Gov (finally) vetoes state legislature's repeal of the state's death penalty

Back in April, as reported here, New Hampshire's legislature voted to repeal the state's rarely used death penalty.  But, as reported in this new article, "Gov. Chris Sununu delivered Thursday morning on his promise to veto a measure passed in the New Hampshire House and Senate to repeal the state's death penalty law."  Here is more: 

The governor was flanked by law enforcement officials from departments across the state as he vetoed the bill. "To repeal the death penalty today would deprive future victims of the justice they deserve," Sununu said. "Abolishing the death penalty would send the wrong message to those who would commit the most heinous offenses within our state borders."

The House passed Senate Bill 593 in April, but the vote fell short of the two-thirds supermajority that would be needed to override the veto. "While I very much respect the arguments made by the opponents of this bill, I stand with crime victims, members of the law enforcement community and advocates for justice in opposing this bill," Sununu said....

The last time a convicted murderer was put to death in New Hampshire was in 1939. State lawmakers last sent a death penalty repeal bill to the governor's desk in 2000, when then-Gov. Jeanne Shaheen vetoed it.

"We have made our arguments in front of both houses in the Legislature, and we believe that this is the right thing to do," Franklin Police Chief David Goldstein said.

Barbara Keshen, who chairs the Coalition to Abolish the Death Penalty, said many of the victims her group represents are against capital punishment. "They don't want to be part of a system that creates another grieving family, which is what the death penalty does," Keshen said. "That is not justice. Life in prison is sufficient justice for them."

The bill will head back to the Legislature, but death penalty opponents would need to get more votes in the House and Senate to reach the two-thirds majorities needed to overturn the veto.

June 21, 2018 in Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Nevada now scheduled to conduct execution, its first in a dozen years, using an opioid lethal injection cocktail

This new AP piece, headlined "Nevada sets 1st execution in 12 years after fight over drugs," reports on the latest development in Nevada's efforts to restart its machinery of death. Here are details:

Nevada plans to carry out its first execution in 12 years using a never-before-tried combination of drugs that drew a court challenge over concerns that a convicted murderer could suffer during the lethal injection.  Scott Raymond Dozier is scheduled to die July 11, Department of Corrections spokeswoman Brooke Santina said Wednesday, a day after a judge in Las Vegas signed the death warrant.

It comes after the state Supreme Court decided last month not to stop the execution on procedural grounds despite challenges by lawyers and a rights group, who argued that the procedure would be less humane than putting down a pet.  There also were concerns that some of the state's drugs would have expired.  "We have what we need to complete the execution order," Santina told The Associated Press.  "The same three drugs. We have some that are not expired."

Dozier's death warrant was signed Tuesday by Clark County District Court Judge Jennifer Togliatti, who last November blocked the scheduled execution over concerns that one drug in the three-drug cocktail would immobilize the inmate and mask any signs of pain and suffering.  The warrant didn't address her previous concerns.

Batches of the disputed muscle paralytic called cisatracurium began expiring April 1, but Santina has said the state had supplies that were good until Nov. 30.  The sedative diazepam, the powerful painkiller fentanyl and the paralytic cisatracurium have never been used for lethal injections in any state.  Diazepam is commonly known as Valium. Fentanyl is synthetic opioid that has been blamed for overdose deaths nationwide during an opioid epidemic....

Dozier, 47, has been on death row since 2007 for convictions in separate murders in Phoenix and Las Vegas. He has said repeatedly that he wants to be put to death as soon as possible and doesn't care what drugs are used.  Dozier, who also used the name Chad Wyatt, would become the first person put to death in Nevada since 2006.  His death would mark the first lethal injection since a new execution chamber was completed in 2016 at Ely State Prison, 250 miles (402 kilometers) north of Las Vegas.

Aides to Republican Gov. Brian Sandoval and state Attorney General Adam Laxalt did not immediately respond to messages Wednesday.  Jonathan Van Boskerck, a chief deputy Clark County district attorney involved in nearly a year of court hearings over Dozier's fate, pointed to the death sentence by a jury and the state high court ruling last month. "The decision of this jury deserves respect," he said.

Prior related posts:

June 21, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Tuesday, June 19, 2018

"Whether the Bright-line Cut-off Rule and the Adversarial Expert Explanation of Adaptive Functioning Exacerbates Capital Juror Comprehension of the Intellectual Disability"

The title of this post is the title of this new paper on SSRN authored by Leona Deborah Jochnowitz.  Here is its abstract:

This paper examines a sample of Capital Jury Project (CJP 1) cases with available trial transcripts in which jurors were presented with mitigating intellectual disability evidence and may have been confused by issues of proof, definitions, and extralegal factors.  It tests the hypothesis that jurors’ receptivity to mitigating intellectual disability (ID) was limited by their difficulties with the adversarial mental proof and clinical definitions needed to establish it.  Further the juror decision-making may have been obscured by distractions from extralegal factors, unrelated to the evidence like premature decision-making and heuristic shortcuts, pro-death bias, and racial prejudice.  It also examines whether the bright line cut-off rule, followed in some sample states prior to the Supreme Court decision in Hall v. Florida (2014), exacerbated jurors’ understanding of the disability, and encouraged popular stereotypes and misconceptions about intellectual disability.

In Kentucky, a state with the bright line cut-off rule, at the time these cases were decided, jurors were confused about a range of IQ scores and intellectual declines during developmental years. “IQ was perhaps not above what we consider a moron? I think they were contending that he had an IQ of 70 or 76 or so, had been tested as high as the 80s I recall.” (CJP KY death case #531, juror #725).  Even in non-bright line sample States like South Carolina, with no ID exemption at the time, jurors misunderstood the range of numerical IQ evidence. The study concludes that juror assessment of intellectual disability (ID) is variable.  Some jurors view ID as a more “organic” sympathetic disorder than other mental disorders, and they seem to understand it in practical, lay terms.  Yet, capital juror decision making is marred by extra-legal factors that impair consideration of the mitigating evidence.

The study concludes that juror misunderstanding regarding mitigating evidence has stubbornly persisted throughout the history of the Capital Jury Project and arises from shortcomings in human cognition which impede jurors’ moral consideration of intellectual disability evidence.  In light of these flaws, it may be impossible to avoid the unacceptable risk that persons with intellectual disability will be executed.  This study suggests that mildly intellectually disabled persons were indeed executed because jurors misunderstood the ID evidence and were persuaded by extralegal racial biases and premature decision making.

June 19, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Monday, June 18, 2018

Ailing "ice pick killer" in Texas, seeking to halt his scheduled execution, points to failed efforts in Alabama and Ohio

As reported in this Reuters piece, headlined "Too frail for death row? Texas inmate seeks execution reprieve," a notorious capital defendant has a notable new claim in federal court in an effort to avoid execution. Here are the details:

After two recent botched U.S. executions of inmates with compromised veins, a convicted murderer and rapist is arguing he is too ill to be put to death by lethal injection in Texas later this month.  Lawyers for Danny Bible, a 66-year-old inmate set to be executed on June 27, said in a federal court filing in June that his health and vein access were worse than inmates in Alabama and Ohio whose executions were called off after IV placements failed.

The cases have capital punishment critics questioning whether justice is served by executing a person convicted of horrific crimes but who is now too weak or sick to be considered a threat....  Some death penalty proponents counter that sympathy should not be shown to inmates who they accuse of trying to game the system by filing appeals that take decades to wind through the courts, denying justice to the victims’ families.

The average age of death row inmates has increased in the United States as the number of executions has trended downward, as fewer states conduct lethal injections and appeals take more time.  More than 40 percent of U.S. death row inmates are 50 years of age or older, according to U.S. data and the nonprofit Death Penalty Information Center.

In recent years, death row inmates were just as likely to die awaiting execution as they were to be executed.  Last year, 24 death row inmates across the country died in prison awaiting execution, mostly due to natural causes, while 23 inmates were executed, according to data compiled by Reuters.

Of the first group, six of those inmates died awaiting executions in California, which has the largest death row of 746 inmates but has not conducted an execution since 2006.

In 2016, there were 19 non-execution deaths and 20 executions in the United States, according to the Bureau of Justice Statistics.

Bible was sentenced to death in Texas for a string of rapes and murders that started in the Houston area in 1979 and earned him the nickname “ice pick killer” for the weapon he used.

His lawyers now are seeking to halt his execution, saying he is confined to a wheelchair after he fractured his spine in a prison bus crash in 2003 and has coronary artery disease, diabetes and hypertension.  “Under the current circumstances, attempts to place IVs in Mr. Bible would be futile and likely result in significant pain and suffering,” his lawyer wrote in their court filing.

The Texas Attorney General’s Office did not respond to a request for a comment, and the Texas Department of Criminal Justice said it had full confidence in its ability to complete Bible’s execution.

Lawyers for the inmates whose lethal injections were aborted in the past year say those cases offer a cautionary tale. The execution of convicted murderer Doyle Hamm, 61 and suffering from terminal cancer and chronic illnesses, was called off in February after medical personnel tried for 2-1/2 hours to place an intravenous line. The effort left Hamm with more than a dozen puncture wounds, court records showed, and came after his lawyers argued that any lethal injection attempt would be futile due to his compromised veins.

Ohio also called off the execution of convicted murder Campbell, 69, because death chamber personnel could not find a suitable vein in the inmate, frail from cancer and other diseases. Campbell died about four months later in prison.

Recent prior related posts:

June 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Thursday, June 14, 2018

Kentucky Supreme Court finds state's statute for assessing intellectually disability in capital cases does not comply with Eighth Amendment

As reported in this local article, the "Kentucky Supreme Court ruled Thursday that the state's practice for determining if someone is intellectually disabled and not eligible to receive the death penalty is “unconstitutional” and has established new guidelines."  Here is more about the ruling:

The order changing Kentucky’s rules on capital punishment came in the case of Robert Keith Woodall, who was sentenced to death for raping and killing a 16-year-old girl in Greenville two decades ago. The high court ordered a lower court to hold a hearing to determine if Woodall is intellectually disabled, preventing him from being executed.

It is unconstitutional to sentence a mentally disabled person to death – which has been defined in Kentucky as someone with an IQ below 70. However, Kentucky's high court ruled a person cannot be found intellectually disabled simply because they have an IQ of 71 or above. Instead, the justices determined defendants must undergo a “totality of the circumstances test,” including whether they have the ability to learn basic skills and adjust their behavior to circumstances, among other guidelines.

Those standards are in line with guidelines established by the U.S. Supreme Court that take other factors into account, according to the ruling. The federal court, for example, bars states from using a single, strict IQ standard to determine a prisoner's death penalty status.

In its ruling, the Kentucky high court found the state's current law to be “an outdated test for ascertaining intellectually disability." Kentucky was one of only a few states still using the fixed score cutoff to determine mental disability.

The full ruling from the Kentucky Supreme Court is available at this link, and here are few key paragraphs from the majority opinion:

Admittedly, the U.S. Supreme-Court has not provided crystal-clear guidance as to what exactly constitutes a constitutional violation regarding the determination of whether a defendant is intellectually disabled to preclude the imposition of the death penalty.  It is also true that the U.S. Supreme Court seems to suggest that a defendant's IQ score, after adjusting for statistical error, acts as the preliminary inquiry that could foreclose consideration of other evidence of intellectual disability, depending on the score.

Two things are clear, however: 1) regardless of some of the statements the U.S. Supreme Court has made, the prevailing tone of the U.S. Supreme Court's examination of this issue suggests that a determination based solely on IQ score, even after proper statistical-error adjustments have been made, is highly suspect; and 2) prevailing medical standards should be the basis for a determination as to a defendant's intellectual disability to preclude the imposition of the death penalty.

June 14, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, June 11, 2018

Pew Research Center reports uptick in support for death penalty

FT_18.06.08_DeathPenalty_widening-partisan-gapThe folks from Pew have some notable new survey research on the death penalty reported here under the headline "Public support for the death penalty ticks up." Here are the details:

Public support for the death penalty, which reached a four-decade low in 2016, has increased somewhat since then.  Today, 54% of Americans favor the death penalty for people convicted of murder, while 39% are opposed, according to a Pew Research Center survey conducted in April and May.

Two years ago, 49% favored the death penalty for people convicted of murder, the lowest level of support for capital punishment in surveys dating back to the early 1970s.

While the share of Americans supporting the death penalty has risen since 2016, it remains much lower than in the 1990s or throughout much of the 2000s.  As recently as 2007, about twice as many Americans favored (64%) as opposed (29%) the death penalty for people convicted of murder.

Since the mid-1990s, support for the death penalty has fallen among Democrats and independents but remained strong among Republicans. About three-quarters of Republicans (77%) currently favor the death penalty, compared with 52% of independents and 35% of Democrats.

Since 1996, support for the death penalty has fallen 27 percentage points among independents (from 79% to 52%) and 36 points among Democrats (71% to 35%).  By contrast, the share of Republicans favoring the death penalty declined 10 points during that span (from 87% to 77%)....

Support for the death penalty has long been divided by gender and race. In the new survey, about six-in-ten men (61%) say they are in favor of the death penalty and 34% are opposed. Women’s views are more divided: 46% favor the death penalty, while 45% oppose it. A 59% majority of whites favor the death penalty for those convicted of murder, compared with 47% of Hispanics and 36% of blacks.

Young people are somewhat less likely than older adults to favor capital punishment.  Those younger than 30 are divided — 47% favor and 46% oppose it — but majorities in older age groups support the death penalty.

There are educational differences in views of the death penalty. Adults who have a postgraduate degree are more likely to oppose the use of the death penalty in cases of murder (56%) than those whose education ended with a college degree (42%) and those who never received a postsecondary degree (36% some college experience; 38% high school degree or less).

White evangelical Protestants continue to back the use of the death penalty by a wide margin (73% favor, 19% oppose). White mainline Protestants also are substantially more likely to support (61%) than oppose (30%) the death penalty. But among Catholics and the religiously unaffiliated, opinion is more divided: 53% of Catholics favor capital punishment, while 42% oppose it. And while 45% of those who are religiously unaffiliated oppose the death penalty, 48% support it.

Especially because the spike in support for the death penalty here seems to be greater among Republicans and independents, I am inclined to describe these results as reflecting a "Trump Effect."   Notably, this poll was taken only a month after Prez Trump and his Attorney General were actively talking up the idea of the death penalty for some drug dealers (see all the links in this post), and I cannot help but wonder if these results somewhat reflect that particular use of the bully pulpit.

June 11, 2018 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Thursday, June 07, 2018

After SCOTUS rejected its standards, Texas Court of Criminal Appeals again rejects Bobby Moore's intellectual disability claim to preclude death penalty

As noted in this post last year, the US Supreme Court in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), rejected the restrictive factors then being used by the Texas Court of Criminal Appeals to assess intellectually disability for death penalty ineligibility under the Eighth Amendment.  But the defendant in that case, as reported in this local article, has now had his intellectually disability claim rejected again by the Texas Court of Criminal Appeals.  Here are the basics:

The Texas Court of Criminal Appeals has upheld the death sentence of Bobby Moore in a case over the definition of intellectual disability — despite pleas from both Moore and the prosecution to change his sentence to life in prison.

More than a year ago, the U.S. Supreme Court knocked down Texas’ method of determining intellectual disability for death-sentenced inmates in Moore's case, ruling the state used outdated medical standards and rules invented by elected judges without any authority. In a 5-3 ruling on Wednesday, the all-Republican Texas Court of Criminal Appeals accepted the use of current medical standards to determine intellectual disability but said Moore still fails to qualify — making him eligible for execution.

Moore was sentenced to death nearly 38 years ago, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to court documents....

In a new evaluation using the current medical framework, the majority of the Court of Criminal Appeals ruled that Moore still did not show enough adaptive deficits to qualify as intellectually disabled, citing the fact that he learned to read and write in prison and buys items from commissary — the prison’s store. The Supreme Court had warned against using strengths gained in a controlled environment like prison, but the Texas court said some of Moore’s deficits were due to the “lack of opportunity to learn,” according to the opinion written by Presiding Judge Sharon Keller.

The court’s opinion also noted that before the U.S. Supreme Court ruled in 2002 that people with intellectual disabilities were exempt from execution, Moore had claimed in court that he did not have a disability and that his difficulties were due to an abusive childhood and his lack of learning opportunities.

In a 67-page dissent, death penalty critic Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, said the court’s majority erred in its use of the current medical standards and that Moore is intellectually disabled. Alcala said the court disregarded the standards by improperly weighing Moore’s strengths against his deficits in his adaptive functioning and put too much weight on his progress in a controlled death row environment.

She cited the decision by the lower Texas court that held a live hearing on the issue, Harris County District Attorney Kim Ogg’s request for a change of sentence based on Moore’s deficiencies and many observations in the Supreme Court ruling that appeared to agree Moore was disabled. “I’m in good company in reaching this conclusion,” Alcala wrote. “There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters.”...

Though it hasn’t changed his sentence, the Supreme Court ruling in Moore’s case has had repercussions throughout Texas. At least two men on death row had their sentences changed to life in prison after the ruling, and on Tuesday, the Court of Criminal Appeals halted an execution set for June 21 because of the Moore case. The judges sent the case of Clifton Williams back to a lower court to look into claims of intellectual disability given the Supreme Court ruling.

Though Moore will remain on the row in solitary confinement, it seems unlikely he will get an execution date set while Ogg, a Democrat elected in 2016, is in office. Execution dates are set by convicting county courts after appeals have been exhausted, usually prompted by the district attorney’s office. And Ogg asked the Court of Criminal Appeals to change Moore’s sentence to life in prison last November, agreeing that he was intellectually disabled. Ogg did not answer a question from The Texas Tribune about seeking an execution date for Moore. Instead, she said in an emailed statement Wednesday afternoon that she anticipated the court’s decision to use “correct scientific standards” would immediately be applied to assess intellectual disability claims of other death row inmates, without mentioning Moore at all.

The 35-page majority opinion in Ex parte Bobby James Moore is available here, the 67-page dissenting opinion is available here.

June 7, 2018 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, June 05, 2018

Noticing a shrinking (but still functioning) death penalty in Georgia

The Atlanta Journal-Constitution has this notable new article headlined "Death sentences becoming increasingly rare in Georgia."  Here are excerpts, with a few remarkable lines highlighted:

The Georgia Supreme Court on Monday did something it once did on a fairly routine basis but now hardly ever does: It heard a death-penalty appeal. It had been almost two years since the court heard a direct appeal — the first appeal after a capital sentence is imposed — in a death-penalty case. And this once-unthinkable rarity shouldn’t change anytime soon.  It’s now been more than four years since a Georgia jury handed down a death sentence.

This is in keeping with what’s been going on nationally. Last year, 39 death sentences were imposed nationwide.  That’s a dramatic drop from 126 capital sentences imposed a decade earlier and from 295 death sentences imposed in 1998, according to the Death Penalty Information Center in Washington.

National polls show the death penalty is losing public support, said Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia.  That’s because people are becoming increasingly comfortable with the sentencing option of life in prison without the possibility of parole....

The last time a death sentence was handed down by a Georgia jury was March 2014 in Augusta against Adrian Hargrove, who committed a triple murder.  Last year, the two death cases that went to trial in Georgia involved the murder of law enforcement officers — a crime that traditionally results in a death penalty.  Yet both resulted in sentences of life without parole.

More often than not, district attorneys are now allowing capital defendants to enter guilty pleas in exchange for life-without-parole sentences.  “It’s a self-fulfilling prophesy,” Gwinnett County District Attorney Danny Porter said. “As more and more juries give fewer death sentences, prosecutors begin to think it’s not worth the effort.”  Even so, it’s not time to remove the death penalty as a sentencing option, Porter said. “I think there are still cases where there’s just no question that death is the proper punishment.”...

Opponents to capital punishment have traditionally been aligned with liberal causes. More recently, increasing numbers of conservatives are speaking out against it. Heather Beaudoin, national coordinator of Conservatives Concerned about the Death Penalty, said her primary concerns are the number of exonerations that have been disclosed over the years and the possibility of executing an innocent person. “We have a problem on our hands,” she said....

Beaudoin founded Conservatives Concerned about the Death Penalty in Montana in 2010. Five years ago, it became a national organization and has chapters in 13 states, including one in Georgia. “Many of our supporters are millennials who are pro-life like I am,” she said. “We believe that life is created by God and has value no matter what the circumstances are. Even someone who has committed an awful crime — that life has value.”

After four years without a death sentence, Georgia’s capital defender office is attracting national recognition. The capital defender’s office is part of the state’s public defender system and represents capital defendants who can’t afford their own lawyers.  The office’s intervention program, in which capital defenders seek plea deals from prosecutors early on in a case, has helped more than 20 defendants avoid a death-penalty trial, Jerry Word, who heads the defender office, said.  “The average time to resolve a case in early intervention has been less than eight months,” Word said. “The average time to get a case to trial is over three years. This results in a saving in court time and dollar savings to the state and county.”

I am not sure it would be entirely accurate to assert that a state has a well-functioning death penalty system if nobody gets sentenced to death. But I do think it is accurate to say that the death penalty is playing an important role in Georgia's criminal justice system: the mere possibility of capital charges seems to be essential to helping poor murder defendants get high-quality representation early in a case and also to helping the most wrenching cases get resolved within a matter of months.

June 5, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, June 04, 2018

Justice Sotomayor delivers lengthy dissent from denial of cert in Texas capital case concerning ineffective assistance of counsel

This morning's Supreme Court order list yet again lacks any grants of certiorari, but it does not lack some other interesting happenings.  The list includes a per curiam resolution of a dispute over access to abortion by undocumented teens in US custody that is sure to get the most attention. And a denial of cert in a capital case from Texas, Trevino v. Davis, may also generate some buzz because of a long dissent by Justice Sotomayor, joined by Justice Ginsburg. Here is a snippet from the start and close of this 13-page dissent:

When the Court of Appeals for the Fifth Circuit ultimately considered whether Trevino was prejudiced by his trial counsel’s failure to investigate and present evidence of his fetal alcohol spectrum disorder (FASD), the panel majority did not properly “reweigh the evidence in aggravation against the totality of available mitigating evidence.”  Wiggins v. Smith, 539 U.S. 510, 534 (2003).  Rather, the majority dismissed the new FASD evidence because it purportedly created a “significant double-edged problem” in that it had both mitigating and aggravating aspects, and stopped its analysis short without reweighing the totality of all the evidence.  861 F.3d 545, 551 (2017).  That truncated approach is in direct contravention of this Court’s precedent, which has long recognized that a court cannot simply conclude that new evidence in aggravation cancels out new evidence in mitigation; the true impact of new evidence, both aggravating and mitigating, can only be understood by asking how the jury would have considered that evidence in light of what it already knew.

Although this Court is not usually in the business of error correction, this case warrants our intervention and summary disposition.  I respectfully dissent from the Court’s refusal to correct the Fifth Circuit’s flagrant error....

The Fifth Circuit majority plainly misapplied our precedents.  Absent intervention from this Court to correct that error, Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.  That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state.

June 4, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Sunday, June 03, 2018

"Equal Protection Under the Carceral State"

The title of this post is the title of this new article authored by Aya Gruber now available via SSRN.  Here is its abstract:

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies.  In contrast to these conventional views, I argue that the primary anxiety exhibited by the McCleskey majority was a “leniency fear” of death penalty abolition. Opinion author Justice Lewis Powell made clear his view that execution was the appropriate punishment for McCleskey’s crime and expressed worry that McCleskey’s victory would open the door to challenges of criminal sentences more generally. 

Understanding that the Court’s primary political sensitivity was to state penal authority, not racial hierarchy, complicates the progressive sentiment that McCleskey’s call-to-action is securing equality of punishment. Derrick Bell’s “interest convergence” theory predicts that even conservatives with an aversion to robust equal protection law will accept racial-disparity evidence when in the service of crime-control values.  Indeed, Justice Powell may have been more sanguine about McCleskey’s discrimination claim had mandatory capital punishment been an option.  Accordingly, I caution that, outside of the death penalty context, courts and lawmakers can address perceived punishment disparities through “level-up” remedies, such as mandatory minimum sentences or abolishing diversion (which is said to favor white defendants).  There are numerous examples of convergence between antidiscrimination and prosecutorial interests, including mandatory sentencing guidelines, aggressive domestic violence policing and prosecution, and the movement to abolish Stand-Your-Ground laws.

June 3, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)

Friday, June 01, 2018

Making the case against nitrogen as an execution method

Download (14)Charles Blanke, an oncologist and professor of medicine, has this notable new commentary in Newsweek headlined "Death by nitrogen should not be america's new capital punishment method." Here are excerpts:

Ever since the first recorded state punishment, when the Jamestown colony executed a Spanish spy by firing squad more than 400 years ago, Americans have tinkered with the technologies used to kill condemned prisoners....  Since 2015, three states, Oklahoma, Alabama and Mississippi, trying to improve upon the current methods of execution in America — gas chamber, hanging and lethal injectio n— have added nitrogen gas asphyxiation to their capital punishment arsenals.

Nitrogen, which makes up about 78% of the air we breathe, is a colorless, odorless, tasteless gas used in a broad commercial range that includes ceramics manufacturing and steelmaking.  While it is not poisonous, breathing in pure nitrogen keeps the brain from getting enough oxygen, which itself is directly fatal.  In fact, a number of lethal industrial accidents involving inhaled nitrogen are reported every year.  Though its potential use in executions has not been formally studied, advocates have already suggested legal death via nitrogen inhalation would be quick, peaceful, and humane.

We need to ask three questions about the possible use of nitrogen in capital punishment cases.  Would it work? Does it offer advantages over current methods? And, is it cruel and unusual, violating the Eighth Amendment to the U.S. Constitution? The answers are yes, maybe, and we don’t know (but probably yes).

Though it has not yet been used in a death penalty case, there is no doubt using nitrogen to execute prisoners would be highly effective.  Placed into a pure nitrogen environment, the convict would be unconscious within a minute (possibly even after a breath or two) and would be dead soon after.  Its failure rate, that is, cases in which the prisoner survives, would likely be much lower than what we see with current death penalty methods.

The second question, whether or not using nitrogen is better than what we currently do, is harder to answer. We need to be cautious in adopting new methods for use in capital punishment cases.  Every technique embraced to date, no matter what advantages they were thought to offer in theory, has been fraught with real-life shortcomings, ranging from modest to heinous.  Convicts in the electric chair have burst into flames, or required multiple jolts. The gas chamber, adopted by 12 states as being humane, fails in five percent of cases, with some prisoners observed to gasp for air for prolonged periods. Others have convulsed.

Lethal injection, the go-to procedure in every state with a capital punishment provision, has the highest fail rate of any method, exceeding seven percent. It can require multiple needle pokes to access veins in prisoners scarred from drug abuse or chronic illness, and one recent botched execution attempt in Alabama reportedly led to profuse bleeding and a punctured bladder....

There are many unanswered questions on what could go wrong with nitrogen use. If prisons forced the convicts to wear a tight fitting mask, would this increase the feeling of suffocation?  Could they still leak?  Or, would an entire room need to be filled with pure nitrogen? Would accidental dilution with oxygen-containing room air (mask or room) slow or even prevent death, leaving prisoners in comas or brain-damaged?

Also, nitrogen use isn’t medically regulated, and it’s hard to imagine much quality control would be applied to inspecting the gas used in death penalty cases.  What happens if prisons buy contaminated product?  Finally, would the nitrogen manufacturers take their cue from those making medications used in lethal injection and restrict sales to penitentiaries?...

Humans normally breathe in life-sustaining oxygen and breathe out carbon dioxide produced during respiration.  Choking victims, who cannot get enough oxygen, say it is agonizing.  Supporters of using nitrogen in capital punishment cases believe the feeling of suffocation actually comes not from lack of oxygen (known as hypoxia), but from the buildup of carbon dioxide.  Since prisoners could still blow off carbon dioxide while breathing pure nitrogen, advocates say they wouldn’t suffer from air hunger.

What if they are wrong? Some studies suggest that fatal low oxygen levels alone do cause anxiety and the fear of suffocation.  And, it wouldn’t actually matter, even if they are right.  Hypoxia itself can cause severe nausea, disorientation, confusion, dizziness, inability to move, and seizures, regardless of what the carbon dioxide levels are doing.

Nitrogen gas doesn’t put people to sleep as do the medicines used in anesthesia, so prisoners could be painfully aware.  To be sure, sedating them first would prevent any distress from the hypoxia, but it would leave all the other problems associated with lethal injection.

It should be noted that nitrogen was previously used to kill animals, but it’s not a method that’s used anymore—the American Veterinary Medical Association does not recommend nitrogen euthanasia because evidence suggests gassed dogs and cats can actually suffer horribly before dying. Determining in advance whether or not nitrogen asphyxiation offers a “peaceful” death is impossible. We don’t have a lot of interviews with survivors of industrial nitrogen accidents, and experimentation is unethical—we can’t partly gas convicts and ask them how it went.

If our old-fashioned methods are not ideal, and nitrogen asphyxiation is not proven humane, are there other alternatives? Yes. I testified in hearing where the United States District Court for the Northern District of Alabama recently ruled in the case of Doyle Lee Hamm that oral drugs used medically in states allowing terminally ill patients to take their own lives — “death with dignity”. This method could lawfully be employed in capital punishment cases. Though Alabama still ultimately tried (unsuccessfully) to use standard intravenous injection following the legal action spawning that ruling, medications given by mouth are under consideration in death penalty cases elsewhere in the south....

Capital punishment remains constitutional, and it isn’t going away any time soon.  However, our Supreme Court has ruled the death penalty cannot involve unnecessary or wanton infliction of pain, and that there must be a constitutional means of applying it.  We need to put more thought into the methods used, especially since there are no means to scientifically test in advance whether or not they violate the Eighth Amendment.  We don’t and can’t know that nitrogen asphyxiation would be painless, and it simply doesn’t qualify as an acceptable means of carrying out a death sentence.

A few (of many) prior related posts:

June 1, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (10)

Wednesday, May 30, 2018

"Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in McCleskey v. Kemp — And Some Pathways for Change"

The title of this post is the title of this new paper by Reva Siegel recently posted to SSRN.  Here is its abstract:

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty.  This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive.  The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that seem responsive to conservative claims of the era about race, rights, and courts.  Scrutinizing the Court’s reasons for restricting inferences from statistical evidence opens conversations about the principles on which McCleskey rests and the decision’s prospective reach.

A close reading of the decision has led some courts to interpret McCleskey’s restrictions on statistical evidence as a response to particular concerns raised by the record in that case, opening the door to statistical evidence of bias in other equal protection challenges in criminal cases.  At the same time, revisiting McCleskey and its progeny raises questions about the capacity of courts to redress bias in the criminal justice system.  Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation.

May 30, 2018 in Data on sentencing, Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, May 22, 2018

Updated archive of European Union engagement concerning death penalty in the United States

I have the great honor and pleasure of talking today about the application of the death penalty in Ohio to a delegation of the European Union to the United States. Prior to the meeting, the EU delegation drew my attention to this online archive of (past) EU engagement in the US on death penalty.

This archive includes letters of appeal, official statements and the link, and it has been recently modified to update all the links, going back 18 years. Here is the description that sets up the links that follow:

The EU unconditionally supports the right to life and the right not to be subject to cruel, inhuman, and degrading treatment or punishment— standards recognized in the Universal Declaration of Human Rights, other international human rights agreements, and many national constitutions.

Abolition of the death penalty is a prerequisite for EU membership, and the European Union actively promotes a global moratorium on the use of the death penalty and protests against the practice in individual cases throughout the world.  The EU has insisted that bilateral extradition treaties with non-EU countries automatically preclude the use of the death penalty in all cases of extradited prisoners from EU Member States.

As a global leader in the fight against torture and other forms of ill treatment, the EU works to prevent and eliminate torture and to end the impunity of those responsible.  Through its Guidelines on Torture and Other Cruel, Inhuman and Degrading Treatment, the EU strives to persuade non-EU countries to produce and apply effective measures to outlaw torture.  The EU also champions anti-torture initiatives in international forums, consistently raises its concerns with other countries through political dialogue and bilateral initiatives, and provides substantial funding for relevant projects by civil society organizations.

May 22, 2018 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (6)

Monday, May 21, 2018

In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida

This local article from Florida, headlined "For victims' families, no easy answer on whether the ordeal of a death penalty case is worth it," take a thoughtful look at what a death penalty prosecution can mean for the families of murder victims. I recommend the piece in full, and here are excerpts:

The parents of the murdered students of Marjory Stoneman Douglas High School have been asked — directly by prosecutors, indirectly by defense lawyers, and while talking amongst themselves — whether the young man responsible for mercilessly slaughtering their children should be executed for the crime.

At stake is more than just the life of the killer, Nikolas Cruz.  Whenever the death penalty is ordered in Florida, the case is automatically appealed, guaranteeing the victims’ families will be locked with Cruz in a lengthy process that can take years or even decades to resolve. It’s a position no one envies, but some who have been through similar ordeals say the Parkland parents cannot give a wrong answer, no matter what they decide.

The South Florida Sun Sentinel talked to family members of three victims whose accused killers faced the death penalty. They agreed that the process is long, grueling and takes an emotional toll. Yet none regret their decisions to ask prosecutors to seek a death sentence.

The Broward State Attorney’s Office already announced that it plans to seek the death penalty against Cruz, 19, who killed 14 students and three staff members at the Parkland high school.  Prosecutors won’t say whether the families’ input could change the strategy.  And Broward Public Defender Howard Finkelstein, whose office is representing Cruz, has offered to have him plead guilty in exchange for a sentence of life in prison.

Fred Guttenberg, whose daughter Jaime was among the dead, said Finkelstein’s offer is tempting. “I support the death penalty,” he said. “But I don’t want to pursue it in the case of my daughter’s killer. … If there’s a chance Cruz is willing to take a plea deal, I say go for it.”  Guttenberg said his main concern is having to relive the case at every stage — a trial, followed by a penalty phase, followed by appeals, the specter of a retrial, repeating the process from the beginning, “only to end up at what is likely to be a life sentence anyway.”...

For Chris Crowley, staying away wasn’t an option.  Crowley waited 27 years to see his sister’s killer executed in 2013. William Frederick Happ confessed in the execution chamber and begged for forgiveness before he was put to death by lethal injection.  His victim, Angela Crowley, had lived in Lauderdale Lakes for just a few months and was working at a travel agency in the spring of 1986.  She was on her way to visit a friend in Citrus County when she was abducted and murdered by Happ.

Chris Crowley, 61, said watching Happ die gave him a kind of closure he never could have gotten had he known the killer was in a cell getting three meals a day. “He would have had the possibility to kill again,” Crowley said. “The possibility of escape. The possibility of a commuted sentence. With the death sentence, there’s finality.”...

Deborah Bowie calls her situation “the textbook case for everything that is dysfunctional about capital punishment.”  Bowie’s sister, Sharon Anderson, was murdered in 1994 along with two others in what became known as the Casey’s Nickelodeon murders.  The other victims were Casimir "Butch Casey" Sucharski, former owner of the popular Pembroke Park bar that gave the case its nickname, and Marie Rogers....  “It’s a marathon every time,” said Bowie. “I feel for any family that is starting a death penalty case at the beginning. They have no idea what they’re in for.” 

May 21, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Friday, May 18, 2018

Death penalty restoration may get a vote in Illinois House

I have not blogged before about the recent suggestion by the Illinois Gov to restore the death penalty in his state, but this new article reports that the idea may now be headed toward a vote in the Illinois House.  Here are the details:

Democratic House Speaker Michael Madigan agreed Thursday to allow a vote on Gov. Bruce Rauner’s controversial plan to reinstate the death penalty and expand the waiting period to purchase firearms, creating a political minefield Democrats contend could hurt re-election-seeking Republicans more than themselves.

Madigan said the issues the Republican governor raised “deserve a full hearing and consideration before the House.” “We look forward to hearing from stakeholders and continuing our effort to keep our children, our schools and our communities safe from senseless gun violence,” Madigan said in a statement.

Rauner’s rewrite would create a 72-hour “cooling off” period to buy any firearm and reinstate capital punishment for slaying a law enforcement officer or in cases where two or more people are killed. A new bill containing the governor’s plan will be discussed by the House Judiciary Committee on Monday, and Democrats said Madigan intends for it to be eventually called for a full House vote.

The move provides some political insulation for Madigan, the chief political nemesis of the re-election-seeking governor. It prevents the governor from attacking the veteran House speaker for defending the lives of cop killers by blocking a vote on Rauner’s crime-fighting initiative. It’s doubtful the Rauner plan would pass the House, but Madigan’s move carries several political risks for individual lawmakers in both parties. It also creates significant complications for rank-and-file Republicans.

Lawmakers on both sides who vote against the measure could find themselves targeted by political opponents as being soft on crime and weak in their support of law enforcement by refusing to lift the state’s seven-year ban on capital punishment. That could particularly impact suburban Democratic lawmakers in a region where the party has made increasing inroads on traditionally Republican territory. Still, several lawmakers who served in 2011 when the state abolished the death penalty following a tarnished history of wrongful convictions are already on record with their vote.

The bill is more complex for Republicans. While reinstating the death penalty has its appeal to Republican voters, Rauner’s plan also would create a 72-hour waiting period for all guns, not just military-style firearms contained in the original bill. An expansion of the waiting period is opposed by the politically powerful National Rifle Association and is at odds with many voters in rural Illinois legislative districts represented by Republicans who champion their support for gun rights.

Kudos to leadership for allowing debate and a vote on these matters. Especially in an election year, voters should be able to know when their representatives stand on an array of high-profile political issues. I wish Senator Mitch McConnell and other GOP leaders in Congress would take a page from the folks in Illinois when it comes to allowing high-profile criminal justice issues like sentencing reform and marijuana reform get a fair up-or-down vote so that voters can know for sure where there representatives stand and so that proposals with majority support can actually become law.

May 18, 2018 in Death Penalty Reforms, Who Sentences | Permalink | Comments (7)

Wednesday, May 16, 2018

Texas completes its sixth execution of 2018

As reported in this local article, in Texas "Juan Castillo was put to death Wednesday evening, ending his death sentence on his fourth execution date within the year."  Here is more:

The 37-year-old was executed for the 2003 robbery and murder of Tommy Garcia Jr. in San Antonio. The execution had been postponed three times since last May, including a rescheduling because of Hurricane Harvey.

Castillo's advocates and attorneys had insisted on his innocence in Garcia’s murder, pleading unsuccessfully for a last-minute 30-day stay of execution from Republican Gov. Greg Abbott after all of his appeals were rejected in the courts. The Texas Defender Service, a capital defense group who had recently picked up Castillo’s case, asked Abbott for the delay to let its lawyers fully investigate claims they said discredited the prosecution’s evidence against Castillo — including recanted statements and video of police interrogations that contradict testimony at trial.

But with no action from the governor, Castillo was taken into the death chamber in Huntsville, and at 6:21 p.m., injected with a lethal dose of pentobarbital, according to the Texas Department of Justice. Twenty-three minutes later, he was pronounced dead.... [H]e became the sixth person executed in Texas this year and the 11th in the country.

Texas appears to be on pace to return to its modern historical pattern of 10 or more execution per year.  As this Death Penalty Information Center chart reveals, from 1992 through 2015, the Lone Start State had 10 or more executions every single year save one year.  Over this 24-year period, Texas averaged more than 20 executions per year, including a single year high of 40 executions in 2000.  But in 2016 and 2017, Texas only executed 7 condemned inmates each year.  With six more executions scheduled in Texas before the end of September, it seems Texas is poised to regress toward its historical execution mean in 2018.

UPDATE:  I just saw this new AP piece reporting on two new Texas execution dates set for October "bringing to eight the number of inmates set for lethal injection in the coming months."

May 16, 2018 in Data on sentencing, Death Penalty Reforms | Permalink | Comments (9)

Friday, May 11, 2018

Nevada defense attorney loses latest battle, but may still be winning war, in effort to preclude an execution defendant apparently seeks

This local article, headlined "Nevada Supreme Court overturns lower court ban on using a paralytic in Scott Dozier execution, citing procedural issues," reports on a state Supreme Court ruling that might (or might not) increase the chance of the first execution in Nevada in more than a decade.  This matter seems to have a notable (and disturbing?) backstory, and here are the basics (with a few points emphasized):

Nevada’s Supreme Court has ordered a lower court to vacate its decision blocking part of the state’s proposed three-drug lethal injection combination, although one of the drugs it needs to carry out an impending execution has expired and it’s uncertain if and when the state can replace it.

The unanimous ruling comes two days after oral arguments were held in the case of 47-year-old Scott Dozier, whose execution was scheduled for November 2017 but has been indefinitely delayed.  Dozier, who was convicted of two murders in Nevada and Arizona, voluntarily gave up his appeals and says he wants to be put to death.

While a federal public defender raised the prospect that including the third drug and final drug in the protocol, a paralytic, could lead to a torturous execution that would violate prohibitions on cruel and unusual punishment, the justices focused their ruling on the procedural elements of the case. The justices rebuked both the District Court judge and federal public defenders representing Dozier, saying the challenge to the execution protocol was “procedurally improper” and led to confusion and a failure to follow the correct procedures for appealing a death penalty case.

The decision said the federal public defender didn’t file a 1983 action or another appropriate mechanism to challenge the execution method, and instead raised the challenge as part of a “Motion for Determination Whether Scott Dozier’s Execution Will Proceed in a Lawful Manner” in a post-conviction proceeding that had already been suspended....

Togliatti ruled in November that the state’s proposed drug combination to carry out the execution presented a “substantial risk of harm” to Dozier as the method had never been tested and because prison officials presented little evidence in court. The court found that the inclusion of the paralytic could mask symptoms that the first two drugs were not working, leading to the possibility that Dozier would be aware but unable to communicate as he suffocated.   Justices noted in a footnote that the federal public defender’s actions appeared to “be at odds” with Dozier’s directive that his counsel not take any actions to delay the execution.

A representative of the attorney general’s office told justices this week that the state’s supply of diazepam — the first of the three drugs proposed to be used in the execution — had expired on May 1, but said it might be possible to replace the drug. Pharmaceutical companies that have barred the use of their drugs for executions have made it difficult for states to carry out the killings. Lawyers for Dozier didn’t immediately respond to requests for comment Thursday on what their next steps would be.

A spokeswoman for the Nevada Department of Corrections said the agency was waiting for the issuance of a warrant of execution before they could get started setting a date for Dozier to be put to death.

I am generally sympathetic to what might be called "creative" lawyering by capital defense attorneys when an execution date looms and their client requests pursuing every possible means to block an execution.  But in this case, according the Nevada Supreme Court, the death-row defendant has "consistently stated that he wanted the State to carry out the death sentence and did not want counsel to take actions that might disrupt his execution."  Under these circumstances, I am troubled by the "creative" lawyering deployed here to thwart the express wishes of the capital client.

The defendant here has not only been languishing on death row for an extra seven months while a procedurally improper motion was litigated all the way up to the Supreme Court, but now Nevada may no longer have "valid" drugs it needs to carry out the execution that the defendant presumably still wants.  I assume the defense attorney here and perhaps others may be urging Dozier to reconsider his request to have his execution go forward, and it will be interesting to watch if any further appeals are brought whenever the state can get another execution date scheduled.  But unless and until one thinks the rule of law can and should be ignored whenever the stakes are high enough, the capital litigation backstory story should be considered disconcerting.

May 11, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

Tuesday, May 08, 2018

C-SPAN's Landmark Cases series examines 1976 SCOTUS decision in Gregg v. Georgia

C-SPAN has this ongoing series called Landmark Cases "produced in partnership with the National Constitution Center [that] explores the issues, people and places involved in some of the most significant Supreme Court cases in our nation's history." As C-SPAN puts it, "Landmark Cases introduces viewers to the stories of the plaintiffs who sparked these cases and to the justices and lawyers who were key to the Supreme Court's review. The series visits historic sites and other locations that bring these cases to life and studio guests interacting with C-SPAN viewers offer historic context and modern relevance to the programs."

This week's broadcast, linked here, is focused on the Supreme Court's the 1976 decision in Gregg v. Georgia, although a range of issues related to the history and constitutionality of the death penalty are discussed. The astutely-selected guests for participation in this C-SPAN program were Harvard Law Professor Carol Steiker and Criminal Justice Legal Foundation Legal Director Kent Scheidegger.

Notably, the first two seasons of Landmark Cases have yet to cover any case after 1978, so I suppose I cannot yet get grumpy that the Apprendi, Blakely, Booker line of cases. But C-SPAN says it picks "the most significant and frequently cited cases" for its program, and these sentencing cases certainly fit that description.  

May 8, 2018 in Death Penalty Reforms, Television | Permalink | Comments (2)

Monday, May 07, 2018

Examining whether nitrogen gas could be a viable new method for executions

538143779The New York Times has this extended new article about the latest innovation in execution methods under the headline "States Turn to an Unproven Method of Execution: Nitrogen Gas."   The piece is worth reading in full, and here are excerpts:

Hamstrung by troubles with lethal injection — gruesomely botched attempts, legal battles and growing difficulty obtaining the drugs — states are looking for alternative ways to carry out the death penalty. High on the list for some is a method that has never been used before: inhaling nitrogen gas.

Oklahoma, Alabama and Mississippi have authorized nitrogen for executions and are developing protocols to use it, which represents a leap into the unknown.  There is no scientific data on executing people with nitrogen, leading some experts to question whether states, in trying to solve old problems, may create new ones....

In March, Oklahoma’s attorney general, Mike Hunter, said that using nitrogen was “the safest, the best and the most effective method available.”  There is scant scientific data to back up that statement. What little is known about human death by nitrogen comes from industrial and medical accidents and its use in suicide.  In accidents, when people have been exposed to high levels of nitrogen and little air in an enclosed space, they have died quickly.  In some cases co-workers who rushed in to rescue them also collapsed and died.

Nitrogen itself is not poisonous, but someone who inhales it, with no air, will pass out quickly, probably in less than a minute, and die soon after — from lack of oxygen.  The same is true of other physiologically inert gases, including helium and argon, which kill only by replacing oxygen....

(Although nitrogen itself would be novel, gas chambers have existed as an American execution method since the 1920s. The last case was in 1999, when Arizona used clouds of hydrogen cyanide to execute an inmate.  Coughing and hacking, he took 18 minutes to die.)

Death from nitrogen is thought to be painless.  It should prevent the condition that causes feelings of suffocation: the buildup of carbon dioxide from not being able to exhale.  Humans are highly sensitive to carbon dioxide — too much brings on the panicky feeling of not being able to breathe.  Somewhat surprisingly, the lack of oxygen doesn’t trigger that same reflex.  Someone breathing pure nitrogen can still exhale carbon dioxide and therefore should not have the sensation of smothering.  Before passing out, a person may feel lightheaded, dizzy or maybe even a bit euphoric, and vision may dim.

Dr. Charles D. Blanke, who has studied data on physician-assisted dying, said it was not at all clear that nitrogen inhalation would bring a peaceful death.  Dr. Blanke, a medical oncologist and professor at Oregon Health and Science University, said he had consulted colleagues in pulmonary medicine and anesthesiology, and they had concerns that carbon dioxide actually could build up and cause feelings of suffocation....

Unlike lethal injection, the use of nitrogen would not require that the execution team dig around for a vein.  An anesthesiologist, who requested anonymity because medical societies bar members from participating in executions or providing information to encourage them, said that nitrogen inhalation was less cruel than lethal injection.  And since it presumably would involve no paralytic agent, witnesses would be able to see whether the person seemed to be suffering, he said.  Seizures might occur from inhaling nitrogen, he said. But if the technique appears to go smoothly, he predicted that other states would quickly adopt it. 

In fact, according to state documents, in May of 2016, an Arizona company sent a sales-pitch letter for nitrogen gas executions to Nebraska corrections officials. Among the standout features of its Euthypoxia Chamber: It “produces calm and sedation followed by inebriation and euphoria;” it “requires no medical expertise;” and it guarantees “the demise of any mammalian life in 4 minutes.” In passing along the letter to another official, a state corrections department executive hand-wrote: “I’m not intending to respond — just thought it was an odd correspondence.”

Ms. Moreno, of the Berkeley Law Death Penalty Clinic, said that implementing nitrogen gas is not as simple as states suggest.  There are different grades of nitrogen, including medical and industrial, she said, with commensurate purities and regulations.  Observers of the execution would need protection.  Officials would have to figure out how to safely clear nitrogen from the room before a physician could declare death and the staff could remove the body.

The Final Exit Network, a volunteer organization that supports the rights of people with terminal illness or intractable suffering to end their lives, considers nitrogen inhalation a reasonable method, and directs people to information about it.  The technique involves putting a plastic bag over one’s head and pumping in nitrogen.  Janis Landis, president of the network, said: “The science behind inert gases is quite well settled. Any inert gas, one can breathe it in, in place of oxygen. You don’t have air hunger.  You can keep breathing. You pass out and you die.”

A few (of many) prior related posts:

May 7, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (8)

Sunday, May 06, 2018

Leading newspaper in New Hampshire advocates "Governor, end the death penalty"

I have not blogged about the recent votes by New Hampshire’s legislature to repeal the state's rarely used death penalty because of reports that New Hampshire's Governor was sure to veto the repeal and there were not sufficient votes to override a veto. But since the veto has yet to take place, I figured I might note this new editorial in the Concord Monitor headlined "Governor, end the death penalty." Here are excerpts:

For the second time since the death penalty was reinstated by the U.S. Supreme Court in 1977, both houses of New Hampshire’s Legislature have voted to repeal the state’s capital punishment law.  The first attempt died in the face of a threatened veto by then-Gov. Jeanne Shaheen.  It was a dark hour in the state’s history.  New Hampshire is the only New England state to countenance the death penalty, indeed the only Eastern state north of Virginia whose laws call for putting transgressors to death.

This year’s repeal vote faces a promised veto by Gov. Chris Sununu.  We urge the governor to let the will of the people, as represented by the majority vote of their representatives, be expressed.  He should sign the bill or let it become law without his signature.  If he does neither, lawmakers should override his veto.  In the House, one more vote would have given repeal proponents a veto-proof majority.  In the Senate, just two more votes would have done the same.

John Breckenridge, a Manchester police officer who watched his partner, Michael Briggs, die from a bullet fired by Michael Addison, the only inmate on New Hampshire’s death row, spoke against the death penalty four years ago when the New Hampshire House voted to abolish capital punishment.  “As a Catholic, I could not justify the very pre-meditated act of executing someone who -- for all the evil of his crime and all the permanent hurt he caused others -- still lives . . . in the possibility of spiritual redemption.”

This year, another former Manchester police officer, Rep. Richard O’Leary, once the Queen City’s deputy chief, voted for repeal.  “I don’t believe we have the right under any circumstances, except immediate self-defense, to take a life.  Once the criminal has been subdued, arrested, segregated from society and rendered defenseless, I cannot see where the state has any compelling interest in executing him.  It’s simply wrong.”

It is also costly.  Because he was sentenced to death the state will spend millions to prosecute Addison for Briggs’s murder.  That’s money that could be put to far better use.  We urge Manchester Sens. Lou D’Allessandro and Kevin Cavanaugh to heed the words of Breckenridge and O’Leary and, if it comes to that, vote to override a Sununu veto.  Others who voted against repeal should change their vote and at long last put New Hampshire on the right side of moral history....

A wrongful death committed in society’s name cannot be undone.  It’s time for New Hampshire to join the enlightened states and nations that have abolished capital punishment.

May 6, 2018 in Death Penalty Reforms, Who Sentences | Permalink | Comments (10)

Friday, May 04, 2018

Georgia execution back on; stay lifted with clemency denied by state parole board

As reported in this prior post, earlier this week the Georgia Board of Pardons and Paroles issued an unusual stay on the even of a scheduled execution.  But now, as reported in this article headlined "Murdered Georgia man’s father thanks God inmate’s execution is back on," it appears that the execution will go forward only 48 hours after it had been originally scheduled. Here are the basics:  

Not long after halting the scheduled execution of Georgia inmate Robert Earl Butts Jr., the State Board of Pardons and Paroles lifted its own stay, putting the death penalty wheels back in motion.  Butts is now scheduled to die by lethal injection Friday at 7 p.m.  Before the parole board issued a stay Wednesday night, Butts was expected to get the needle Thursday evening for the 1996 murder of off-duty correctional officer Donovan Corey Parks.

“Oh Lord,” said Freddie Parks, the victim’s father. “I’m nervous. I’m really happy to hear the good news. I’ve been going through it 22 years. Nobody knows what I’ve been going through but me and the Lord. And I’ve been really talking to Him.” Just hours earlier, Parks, a 75-year-old retired prison guard, was angry and despondent at the same time over the stay of execution. “It wasn’t fair the way it came out, putting it off. Another blow,” he said at the time.

When the board issued its 90-day stay Wednesday night, its spokesman said the five-member panel needed time to review the “considerable amount of additional information” it received in a meeting with Butts’ attorneys, as well as in a subsequent session with those who wanted to see the execution carried out.  “Knowing the gravity of its decisions, the board extended deliberations in order to consider supplemental information submitted during the meeting that members had not previously reviewed,” spokesman Steve Hayes said. “Completing that process, the board voted to deny clemency.”

While the parole board has the sole constitutional authority to grant clemency, the courts have the ultimate power to decide whether to spare an inmate’s life. So Butts’ attorneys continued to file appeals on Thursday.

If Butts, 40, is executed, he will be the second man Georgia has put to death this year.

Prior related post:

UPDATE: This local article reports on the completed execution:

Robert Earl Butts Jr. was put to death by lethal injection Friday at the Georgia Diagnostic and Classification Prison. He was pronounced dead at 9:58 p.m. When asked for a final statement, Butts replied, “I’ve been drinking caffeine all day.”  Then he declined an offer for a prayer.

Butts kept his eyes closed from the moment he was placed on the gurney. He never looked at the father and brother of his victim, sitting on just the other side of the window that separates the witness area from the execution chamber.  Nor did he look at Baldwin County Sheriff Bill Massee or Putnam County Sheriff Howard Sills, who was chief deputy in Baldwin County at the time of the murder.

Two minutes after the pentobarbital began to flow into the vein in his arm, Butts mumbled, “It burns, man.” After that, he yawned and took a series of deep breaths until there was no movement about a minute before he was pronounced dead.

Butts, 40, was sentenced to death for the March 1996 murder of 25-year-old Donovan Corey Parks in Milledgeville. Butts and his co-defendant, Marion Wilson Jr., asked Parks — an off-duty correctional officer — for a ride from a local Walmart store, then minutes later ordered him from the car and shot him in the head. Butts was 18 at the time.

May 4, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (17)

Thursday, May 03, 2018

An uncertain execution stay for uncertain reasons from the Georgia Board of Pardons and Paroles

As reported in this AP piece, "Georgia's parole board on Wednesday issued a decision halting the scheduled execution of a condemned inmate less than 24 hours before he was set to be put to death." Here is more about the decision that strikes me as full of uncertainties:

Robert Earl Butts Jr., 40, had been scheduled to die at 7 p.m. Thursday at the state prison in Jackson.  The State Board of Pardons and Paroles issued its decision just before 8:30 p.m. Wednesday to grant a stay of up to 90 days to give board members more time to consider the case.

"Due to the considerable amount of additional information the Board has received regarding the case and because the Board understands the importance and seriousness of its authority and responsibility, a stay was issued," board spokesman Steve Hayes said in an emailed statement....  The board could issue a final decision in the case during the stay period or at the end of the 90 days, Hayes said. 

Earlier Wednesday, the board held a closed-door hearing to listen to arguments for and against clemency for Butts.  A judge in the Superior Court of Baldwin County, where Butts was sentenced to death, last month issued the order for the execution to be carried out within a window starting Thursday and ending May 10.  If the board decides to lift the stay and denies clemency within that period, the execution could go forward without a new execution order.

The board also has the option to commute Butts' death sentence to a sentence of life in prison with or without the possibility of parole.

Butts and Marion Wilson Jr., 41, were convicted of murder and armed robbery in the March 1996 slaying of Donovan Corey Parks in central Georgia.  The two men asked Parks for a ride outside a Walmart store in Milledgeville and then ordered him out of the car and fatally shot him a short distance away.  Prosecutors have said Butts fired the fatal shot.

Authorities said Butts and Wilson were gang members who had gone looking for a victim when they drove Butts' car to the Walmart store.  Juries in separate trials found sufficient evidence to sentence both men to death because Parks was killed during the commission of an aggravating felony, armed robbery.  Wilson's case is still pending in the courts.

Butts' attorneys had asked the parole board in a clemency application filed last week to spare his life.... His attorneys insisted in the clemency application that Butts wasn't the shooter. A jailhouse witness, Horace May, who testified at trial that Butts confessed to being the shooter has now signed a sworn statement saying he made the story up out of sympathy for Wilson, whom he also met in jail....

Butts' attorneys also argued in his clemency petition that the single aggravating factor wouldn't warrant a death sentence in Georgia today.  They also ask the board to consider commuting Butts' sentence to life in prison after weighing abuse and neglect during Butts' childhood, the fact that he was just 18 when the crime occurred and that he has expressed remorse.

Butts' lawyers submitted a supplement to the clemency application to the board at the clemency hearing Wednesday. In that supplement, they argued that evidence in the case indicates that Wilson consistently had possession of the gun used to kill Parks. They also said there's no evidence that Butts was a member of a gang or that Parks' killing was gang-related. They wrote that the fact that the two tried to sell the car at a chop shop shows the crime was financially motivated.

Because Georgia sets a week for an execution time, it seem possible that the clemency petition will be denied in the coming days and the execution still goes forward. Thus, I find it uncertain whether this stay connotes a real likelihood that this defendant will avoid execution in the coming day. And that uncertainty is itself built on top of uncertainty about what the Georgia Board might be finding troubling in this case.  Notably, this local article provides this account of the last time this kind of stay was granted and its aftermath: "The last time the board stayed an execution was on April 17, 2012. Daniel Green was scheduled to be executed for a 1991 Taylor County murder. The board commuted Green’s sentence to life without parole on April 20, 2017."

May 3, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, May 02, 2018

Interesting statistics in BJS statistical brief "Capital Punishment, 2016"

Earlier this week, the Justice Department's Bureau of Justice Statistics released this short new publication titled simply "Capital Punishment, 2016." The paper presents statistics on persons under sentence of death in the United States as of year-end 2016. Though already a bit dated, the publication is still an interesting accounting of summary trends in the death row population, including admissions to and releases from death row. Here are a few highlights from the publication's list of highlights:

May 2, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (1)

Tuesday, May 01, 2018

Feds forego capital prosecution for airport mass murderer, allowing guilty plea to LWOP

This new local article from Florida, headlined "Airport shooter Esteban Santiago to plead guilty, spend life in prison," highlights how (jury) sentencing discretion and other procedural rights in capital cases can impact how prosecutors approach charging and bargaining even in horrible murder cases.  Here are the details (with my emphasis added), with a bit of commentary to follow:

Esteban Santiago, the man who confessed to fatally shooting five people and wounding six at Fort Lauderdale’s international airport, has agreed to plead guilty and spend the rest of his life in federal prison.

Prosecutors have accepted his offer and are not seeking the death penalty but the judge first wants Santiago to undergo a mental health evaluation to make sure he’s legally competent to plead guilty.

The decision takes a very expensive and potentially long and emotional trial — followed by years of appeals — off the table.  Santiago’s documented history of severe mental illness, the fact that he went to the FBI and asked for help two months before committing the mass shooting, his willingness to plead guilty and his military service in the Iraq War were likely among the top factors that affected the decision, experts said.

Santiago, 28, had pleaded not guilty to a 22-count indictment in the Jan. 6, 2017 mass shooting at Fort Lauderdale-Hollywood International Airport.  Ten of those charges carried a potential death sentence or life in federal prison. His change-of-plea hearing is expected to be scheduled in the next several weeks in federal court in Miami.

Both sides are due back in court May 23 for a competency hearing with U.S. District Beth Bloom. If the judge is satisfied that Santiago is mentally competent, she would then allow him to plead guilty....

He was briefly hospitalized for psychiatric care in Alaska in November 2016, two months before the shooting. He had driven to the FBI office in Anchorage, asked for help and told agents he was hearing voices and thought the government was controlling his mind.

After Santiago surrendered at the airport, FBI agents said he confessed and told them he was “programmed” to act under government mind control. Later in the interview, he said he was inspired by the Islamic State extremist group, but authorities said no terrorism links have been found.

Though the line highlighted above tells a big part of the story, I still find myself left wondering about what factors played a central role in the sentencing decision-making of federal prosecutors here. I wonder if many or even most of the victims/family members supported this decision to forego a capital prosecution (and also wonder if they at all troubled that this critical decision lingered for 16 months from the time of this awful crime). I also wonder if prosecutors, perhaps concerned about a possible insanity defense and criticisms of mental health care given to veterans, we not even confident about getting a guilty verdict, let alone a death sentence, were this case to go to trial.

Whatever the reasons for the feds decision-making here (which will remain hidden and are essentially unreviewable), this case helps reveal the range of forces that necessarily place brakes on any efforts by the Trump Administration and Attorney General Sessions to make significantly more use of the death penalty.  A mass shooting in an airport of nearly a dozen people with five deaths would seem to be a textbook example of a "worst-of-the-worst" offense.  But because the defendant can make the case that he is not a worst-of-the-worst offender, federal prosecutors (in a pro-death penalty state) are not even willing to try to secure a death sentence.  

May 1, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)