Saturday, May 28, 2016

Two notable new article examing capital prosecutions of intellectually disabled defendants

Michael Perlin, whose interesting scholarship on mental health criminal always includes an extra-fun Bob Dylan reference in the title, has these two notable new articles on capital prosecutions now available via SSRN:

At the risk of being caught up in an idiot wind, I may wait until after the long weekend to read these pieces in order to avoid getting tangled up in blue.

May 28, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, May 27, 2016

"Killing Dylann Roof: A year after Obama saluted the families for their spirit of forgiveness, his administration seeks the death penalty for the Charleston shooter."

The title of this post is the headline of this intriguing Atlantic commentary authored by Ta-Nehisi Coates. I urge everyone, both those for and against capital punishment, to read he entire piece. Here are excerpts:

On Tuesday, Attorney General Loretta Lynch announced she would seek the death penalty for Dylann Roof. It has not been a year since Roof walked into Emanuel African Methodist Episcopal Church and murdered nine black people as they worshipped.  Roof justified this act of terrorism in chillingly familiar language — “You rape our women and you’re taking over our country.”  The public display of forgiveness offered to Roof by the families of the victims elicited bipartisan praise from across the country.  The president saluted the families for “an expression of faith that is unimaginable but that reflects the goodness of the American people.” How strange it is to see that same administration, and these good people, who once saluted the forgiveness of Roof, presently endorse his killing....

There are defensible reasons why the American state — or any state — would find [the nonviolent Martin Luther] King’s ethic hard to live up to. States are violent. The very establishment of government, the attempt to safeguard a group of people deemed citizens or subjects, is always violent.  In America, a president is the commander in chief.  Anyone who voted for Obama necessarily voted for violence.  Furthermore, there is indisputable evidence that violence sometimes works.  The greatest affirmation of civil rights in American history — emancipation — was accomplished at gun-point.

But one has to be careful here not to fall into the trap of lionizing killing, of pride in the act of destroying people even for just ends.  Moreover, even if nonviolence isn’t always the answer, King reminds us to work for a world where it is. Part of that work is recognizing when our government can credibly endorse King’s example.  Sparing the life of Dylann Roof would be such an instance — one more credible than the usual sanctimonious homilies delivered in his name.  If the families of Roof's victims can find the grace of forgiveness within themselves; if the president can praise them for it; if the public can be awed by it — then why can't the Department of Justice act in the spirit of that grace and resist the impulse to kill?

Perhaps because some part of us believes in nonviolence not as an ideal worth striving for, but as a fairy tale passed on to the politically weak.  The past two years have seen countless invocations of nonviolence to shame unruly protestors into order. Such invocations are rarely made to shame police officers who choke men to death over cigarettes and are sent back out onto the beat.  And the same political officials will stand up next January and praise King even as they act contrary to his words.  “Capital punishment is against the best judgment of modern criminology,” wrote King, “and, above all, against the highest expression of love in the nature of God.”

A few prior related posts:

May 27, 2016 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (14)

Thursday, May 26, 2016

This breaking news just in: the Connecticut death penalty is still dead

Download (2)I am demonstrating my age (and my affinity for Saturday Night Live) when I thought of one of the first famous SNL catch-phrases upon seeing this new local headline from Connecticut: "State Supreme Court Upholds Abolishment Of Death Penalty, Including For Death-Row Inmates."  Here are the serious details of a serious decision that prompted my not-so-serious reaction:

The Connecticut Supreme Court has upheld its decision to abolish the state's death penalty, including for inmates on death row. The 5-2 ruling, released Thursday, upholds the justices 4-3 decision last August that the death penalty was unconstitutional for all — including 11 convicts on Connecticut's death row — following the legislature's abolition three years ago of capital punishment in Connecticut. Lawmakers made the law prospective, meaning it applied only to new cases and kept in place the death sentences already imposed on those facing execution before the bill was passed.

Attorneys for those on death row challenged the law, saying it violated the condemned inmates' constitutional rights. The ruling last August came in the case of Eduardo Santiago, who had faced the death penalty for the December 2000 killing of Joseph Niwinski in West Hartford. Santiago has been resentenced to life in prison without the possibility of release.  In the August ruling, the justices in the majority wrote that executing an inmate "would violate the state constitutional prohibition against cruel and unusual punishment" and that the death penalty "no longer comports with contemporary standards of decency."

Chief Justice Chase T. Rogers, who joined with Justice Carmen E. Espinosa and Justice Peter T. Zarella in the August dissents, voted this time with the majority, saying she felt bound to the doctrine of "stare decisis," a Latin term meaning "stand by things decided."

"Just as my personal beliefs cannot drive my decision-making, I feel bound by the doctrine of stare decisis in this case for one simple reason — my respect for the rule of law," Rogers wrote. "To reverse an important constitutional issue within a period of less than one year solely because of a change in justices on the panel that is charged with deciding the issue, in my opinion, would raise legitimate concerns by the people we serve about the court's integrity and the rule of law in the state of Connecticut."

Rogers said, "stability in the law and respect for the decisions of the court as an institution, rather than a collection of individuals, in and of themselves, are of critically important value, especially on an issue of such great public significance as the constitutionality of the death penalty."

In separate dissents, Zarella and Espinosa rejected the assertion that respect for precedent mandated Thursday's ruling, saying that doctrine should never be used to enshrine a flawed decision. And they pointedly noted that Rogers herself had blasted the original Santiago decision as "a house of cards, falling under the slightest breath of scrutiny." They also criticized Justice Richard A. Robinson, who came on the court after the Santiago decision and voted with the majority, along with justices Richard N. Palmer, Dennis G. Eveleigh and Andrew J. McDonald. Like Rogers, Robinson cited the importance of respecting precedent.

"I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error," Zarella wrote....

Gov. Dannel P. Malloy, in a statement released Thursday afternoon, said the ruling "reaffirms what the court has already said: those currently serving on death row will serve the rest of their life in prison with no possibility of ever obtaining freedom."  Malloy noted that Connecticut in the last half century has executed only two inmates, both of whom volunteered for death....

Chief State's Attorney Kevin T. Kane said his office respects the decision and would "move forward" to re-sentence the individuals currently on death row to a sentence of life in prison without the possibility of release.  "The Division of Criminal Justice and I extend our deepest sympathy and condolences to the victims of these crimes and to their families," Kane said in a statement.  "I also wish to express my appreciation to the dedicated professionals in the Division of Criminal Justice who have devoted so much of themselves throughout this process."

All the opinions in this new case can be found right now at this Connecticut Supreme Court link.

May 26, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, May 24, 2016

Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof

Almost a year after Dylann Roof committed one of the worst mass murder hate crimes in modern US history, federal prosecutors have offically decided to make his federal prosecution a capital one.  Here are excerpts from this CNN report about this (too-long-in-development) decision:

Federal prosecutors will seek the death penalty for Dylann Roof, who is accused of killing nine people at a historic African-American church in Charleston, South Carolina, in July 2015.

Roof, who is white, is charged with 33 federal offenses, including hate crime charges for allegedly targeting his victims on the basis of their race and religion. A judge entered a not guilty plea on his behalf in July 2015. "The nature of the alleged crime and the resulting harm compelled this decision," Attorney General Loretta Lynch said.

Roof, 22, is accused of shooting participants of a Bible study class at Emanuel African Methodist Episcopal Church, known as Mother Emanuel, in downtown Charleston on June 17, 2015. Among the victims was the church's pastor, the Rev. Clementa Pinckney, who also was a state senator.

South Carolina has charged Roof with murder. Charleston County Solicitor Scarlett Wilson said last year that she will seek the death penalty in the state's case, which is scheduled to go to trial in January.

There is no date yet for his federal trial. Attempts to reach Roof's attorneys for comment were not immediately successful.

Roof, a high school dropout not known for violence, was captured in North Carolina the day after the shootings. He confessed in interviews with the Charleston police and FBI, two law enforcement officials told CNN. He also told investigators he wanted to start a race war, one of those officials said.

Three federal inmates have been executed in the United States since the federal death penalty was reinstated in 1988 after a 16-year moratorium. They were Timothy McVeigh, Juan Raul Garza and Louis Jones. Boston Marathon bomber Dzhokhar Tsarnaev is one of the most recent people to be sentenced to death by a federal judge. There are about 60 people on federal death row.

I fully share the Attorney General's view that the "nature of the alleged crime and the resulting harm compelled this decision," and that is why I have been critical in prior posts about it taking so long to make this decision. A well-functioning criminal justice system surely ought to be able to prosecute and sentence a mass murderer in the span of a year in a case like this one in which there is no doubt about guilt. But, remarkably, it seems it now takes a year just to decide whether the death penalty should be even sought. Sigh.

A few prior related posts:

May 24, 2016 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Reviewing the state and future of lethal injection as execution method

Lincoln Caplan has this New Yorker piece headlined "The End Of The Open Market For Lethal-Injection Drugs," which provides a useful primer on where matters stand regarding lethal injection as a means carrying out death sentences on condemned murderers. Here are excerpts from the start, middle and end of the lengty piece:

Last week, the global drug company Pfizer announced sweeping new restrictions on the distribution of seven of its products, preventing them from being used to carry out the death penalty. Pfizer came into possession of those products, which include sedatives, paralytics, a pain medication, and a drug used to prevent or treat low levels of potassium in the blood, when it acquired the pharmaceutical company Hospira, in September.  Its decision is an enormously significant one for the death penalty in the United States, and ends a long and chaotic chapter in which governments, drug companies, and activists worldwide have gradually closed the open market for the federally approved drugs that have been used for lethal injections.

Twenty of the thirty-one states with the death penalty on the books now have a formal or informal moratorium on executions, in almost all cases because they have been unable to obtain approved drugs to use in lethal injections. In 2015, there were twenty-eight executions in the U.S., the lowest number since 1994.  This year, there have been fourteen executions so far — six in Texas, five in Georgia, and one each in Alabama, Florida, and Missouri. Prisons in those states can’t buy drugs for lethal injections from American manufacturers.  They can’t import drugs from foreign manufacturers — which, in any case, will not supply them.  In short, their options are severely restricted, which will almost certainly lead to more botched executions.

Texas, Georgia, and Missouri are among the small number of states that have carried out executions using drugs made by compounding pharmacies, which combine, mix, or alter drugs, typically to meet the need of an individual patient — say, by removing an ingredient to which a patient is allergic.  These pharmacies are not required to register with the F.D.A., and the F.D.A. does not approve their products.  They must be licensed by the pharmacy board in the state where they operate, but state oversight has often been scandalously lax.  In February, Oklahoma Attorney General Scott Pruitt said he wants the state to open its own compounding pharmacy, in order to guarantee a supply of the drugs that the state needs for lethal injections. (This despite the fact that no department of corrections could meet a basic requirement for obtaining a drug made by a compounding pharmacy: a medical prescription for an individual patient.)

Oklahoma’s turn toward compounding pharmacies is part of the fallout from Glossip v. Gross, one of the most important death-penalty cases decided by the Supreme Court in the past generation....

The campaign to halt lethal injections as a mode of capital punishment by restricting access to the lethal drugs has not yet ended the death penalty.  But it may very well have accelerated the end game that Breyer invoked in his Glossip dissent.  In the five years between Hospira’s decision to stop making sodium thiopental and Pfizer’s decision to stop supplying drugs for executions, the unsuccessful effort, by one state after another, to carry out lethal injections in a manner that meets standards of fairness and reliability has made it increasingly clear that states cannot constitutionally perform these types of executions.  If they can’t do that, how can the Supreme Court continue to permit capital punishment under the Constitution?  The Court is unlikely to take on an issue this fundamental when it is at the mercy of a polarized Senate and self-important Republican leaders who refuse to confirm the President’s nominee for the Court’s ninth Justice.  But the churn that the campaign has quickened will inevitably give rise to a legal controversy that will force the Justices to face just such a question.

Interestingly, I have since Glossip was decided that the case would prove to be "one of the most important death-penalty cases decided by the Supreme Court in the past generation" only if states viewed the ruling as presenting a unique and new opportunity to move away from lethal injection as an execution method in light of all the drug shortages. Significantly, the Supreme Court has never formally declared any particular execution method unconstitutional, and I thought the Glossip ruling might prompt a number of jurisdictions to see a chance to seriously move forward with a return to firing squads or experimentations with nitrogen gas. But absent any such developments (and absent Justice Breyer finding thre more Justices to join his effort to judicially abolish capital punishment in the US), I have a hard time seeing Glossip as nearly as big practical deal as other recent SCOTUS cases placing limits on capital sentences and procedures like Kennedy and Hurst.

May 24, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, May 23, 2016

SCOTUS has "firm conviction" strikes in Georgia capital case were "motivated in substantial part by discriminatory intent"

The Supreme Court's one criminal justice ruling today comes in Foster v. Chatman, 14-8349 (S. Ct. May 23, 2016) (available here), a capital case out of Georgia involving a Batson claim. Chief Justice Roberts wrote the opinion for the Court, which garnered six votes, and its ruling is reasonably summarized via these passages: 

As we explained in Miller-El v. Dretke, “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.” 545 U. S. 231, 241 (2005). With respect to both Garrett and Hood, such evidence is compelling. But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence that “bear[s] upon the issue of racial animosity,” we are left with the firm conviction that the strikes of Garrett and Hood were “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 478, 485....

The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner. App. 41, 60 (pretrial hearing). The sheer number of references to race in that file is arresting....

The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.

Justice Alito has an interesting corcurrence about procedures that I will likely discuss in another post. Justice Thomas, in notable contrast, dissents on the merits, and his dissent starts this way:

Thirty years ago, Timothy Foster confessed to murdering Queen Madge White after sexually assaulting her with a bottle of salad dressing. In the decades since, Foster has sought to vacate his conviction and death sentence on the ground that prosecutors violated Batson v. Kentucky, 476 U. S. 79 (1986), when they struck all black prospective jurors before his trial.  Time and again, the state courts have rejected that claim.  The trial court twice rejected it, and the Supreme Court of Georgia unequivocally rejected it when Foster directly appealed his conviction and sentence. Foster v. State, 258 Ga. 736, 736, n. 1, 738–739, 374 S. E. 2d 188, 190, n. 1, 192 (1988), cert. denied, 490 U. S. 1085 (1989).  A state habeas court rejected it in 2013. App. 175–176, 192–196.  And most recently, the Supreme Court of Georgia again rejected it as lacking “arguable merit,” Ga. Sup. Ct. Rule 36 (2001). See App. 246.

Yet, today — nearly three decades removed from voir dire — the Court rules in Foster’s favor.  It does so without adequately grappling with the possibility that we lack jurisdiction. Moreover, the Court’s ruling on the merits, based, in part, on new evidence that Foster procured decades after his conviction, distorts the deferential Batson inquiry.  I respectfully dissent.

May 23, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Thursday, May 19, 2016

Former Chief of North Carolina Supreme Court make pitch against death penalty

The former Chief Justice of the Supreme Court of North Carolina, I. Beverly Lake, Jr., has this notable new Huffington Post capital punishment commentary under the headline "Why Protecting the Innocent From a Death Sentence Isn’t Enough." Here are excerpts:

I’ve always been known as a tough-on-crime, pro-law enforcement individual, and I still am. During my years as a North Carolina State Senator, I vigorously advocated for the death penalty.  As a superior court judge, I presided over trials where the death penalty seemed like the only suitable punishment for the heinous crimes that had been committed.  Finally, as a Justice, and then as Chief Justice, on the Supreme Court of North Carolina, I cast my vote at appropriate times to uphold that harsh and most final sentence.

After decades of experience with the law, I have seen too much, and what I have seen has impacted my perspective. First, my faith in the criminal justice system, which had always been so steady, was shaken by the revelation that in some cases innocent men and women were being convicted of serious crimes....

Last year in America, over half of the individuals that were executed had severe mental impairments.  Too much reliance is put on jurors to identify those who are the “worst of the worst.”  As Chief Justice of the Supreme Court of North Carolina, I was responsible for assessing the personal culpability of defendants in capital cases to ensure that the punishment would be applied appropriately, so I understand just how difficult this task can be.

In order for mitigation evidence to be considered it must be collected and introduced at trial.  In states where indigent defense systems are woefully underfunded, as it is in North Carolina, or where standards of representation are inadequate, this evidence regularly goes undiscovered.

Additionally, a number of impairments are difficult to measure.  For intellectual disability, we can use an IQ score to approximate impairment, but no similar numeric scale exists to determine just how mentally ill someone is, or how brain trauma may have impacted their culpability.  Finally, even when evidence of diminished culpability exists, some jurors have trouble emotionally separating the characteristic of the offender from the details of the crime.

The categorical exclusions for juveniles under the age of 18 and those with intellectual disability are simply drawn too narrowly to encompass everyone who has diminished culpability.  These categorical exclusions are particularly inadequate when multiple impairments exist....

After spending years trying to instill confidence in the criminal justice system, I’ve come to realize that there are certain adverse economic conditions that have made the system fundamentally unfair for some defendants.  These systemic problems continue to lead to the conviction of the innocent, as well as those individuals for whom the death penalty would be constitutionally inappropriate, regardless of the crime.  Our inability to determine who possesses sufficient culpability to warrant a death sentence draws into question whether the death penalty can ever be constitutional under the Eighth Amendment.  I have come to believe that it probably cannot.

May 19, 2016 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (0)

California voters in November to have "mend it or end it" death penalty initiative options

As reported in this new AP article, headlined "Showdown Set Over Future of California's Death Penalty," two competing ballot initiative appear poised to be before voters on the Left Coast this fall. Here are the details:

Death penalty supporters are setting the stage on Thursday for a November showdown over whether to speed up executions in California or do away with them entirely. Crime victims, prosecutors and other supporters plan to submit about 585,000 signatures for a ballot measure to streamline what both sides call a broken system.

No one has been executed in California in a decade because of ongoing legal challenges.  Nearly 750 convicted killers are on the nation's largest death row, but only 13 have been executed since 1978.  Far more condemned inmates have died of natural causes or suicide.

Supporters plan 10 news conferences statewide to promote an initiative they say would save taxpayers millions of dollars annually, retain due process protections and bring justice to murder victims and their families.  The measure would speed what is currently a lengthy appeals process by expanding the pool of appellate attorneys and appointing lawyers to the death cases at the time of sentencing.

Currently there is about a five-year wait just for condemned inmates to be assigned a lawyer.  By contrast, the ballot measure would require that the entire state appeals process be completed within five years except under extraordinary circumstances. To meet that timeline, appeals would have to be filed more quickly and there would be limits on how many appeals could be filed in each case....  Additional provisions would allow condemned inmates to be housed at any prison, not just on San Quentin's death row, and they would have to work and pay victim restitution while they wait to be executed....

Opponents say their measure, too, would save money by doing away with the death penalty and keeping currently condemned inmates imprisoned for life with no chance of parole. They submitted about 601,000 signatures on April 28 with much less fanfare, said deputy campaign manager Quintin Mecke.  Each side needs nearly 366,000 valid signatures to qualify for the ballot.  "It's unfortunate that the DAs (district attorneys) want to double down on a fundamentally broken death penalty system that simply can't be fixed," Mecke said. "You can't streamline or reform a failed policy."

A similar attempt to abolish the death penalty failed by 4 percentage points in 2012. Besides the latest initiative put forward by opponents, that failed effort spurred this year's counter-move by law enforcement and crime victims.

May 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, May 18, 2016

"Sentencing phase: did heredity play part in serial killer’s crimes?"

It is often said that the sins of the father should not befall the son, but an on-going capital case in Ohio suggests that at least one defendant is hoping the sins of his father and grandfather and great-grandfather might help keep him off death row. The title of this post is the headline of this local story which provides these details:

Was heredity to blame for the violent crimes of convicted serial killer, Michael Madison? A Cuyahoga County jury was presented with that possibility in the courtroom of Judge Nancy McDonnell on Tuesday.

Dr. Mark Cunningham, a clinical and forensic psychologist from the state of Washington, testified heredity was an aspect of sexual offending. "There is patterning within these family systems,” he said, “They found that having a brother or father who had been convicted of a sexual offense increased the odds of being convicted of a sexual offense four to five fold.”

Cunningham prepared a diagram showing the history of Madison’s family dating back to his great-grandfather. The chart illustrated how the serial killer’s relatives preyed on each other physically and sexually, including their own children. Social Service records and interviews with Madison’s family revealed he was abused for years by his mother and her boyfriends.

"The way that he was treated is the template of how he then goes about interacting with others throughout his life,” said Cunningham, “It's a core principle that the FBI's behavioral science unit identified as they looked at the histories of sexual homicide offenders and observed that the quality of attachments to parents and other members of the family during childhood is central to how the child will relate to and value other members of society.”

The 37-year-old was convicted of raping and murdering Angela Deskins, Shetisha Sheeley and Shirellda Terry, all of East Cleveland. Their bodies were found near his East Cleveland apartment in July of 2013.

May 18, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, May 16, 2016

President-elect in Philippines eager to bring back death penalty "especially if you use drugs"

Map-regions-2The worldwide story of capital punishment has generally involved an ever-growing number of nations moving away from regular use of the death penalty.  However, as this Time piece highlights, at least one notable nation has just elected a tough-on-crime leader eager to get his nation to execute again.  The piece is headlined "Philippine President-Elect Rodrigo Duterte Plans to Bring Back the Death Penalty," and here are the basics:

The tough-on-crime presumptive winner of the Philippine presidential election, Rodrigo Duterte, has told reporters in his first postvictory comments that he intends to bring back capital punishment.

According to Philippine news outlet GMA, Duterte told reporters in Davao City on Sunday night that he would “urge Congress to restore the death penalty by hanging, especially if you use drugs.”

Other news outlets reported that he would also give police shoot-to-kill powers against mobsters and those violently resisting arrest. “If you resist, show violent resistance, my order to police [will be] to shoot to kill,” he declared, adding: “Shoot to kill for organized crime. You heard that? Shoot to kill for every organized crime.”

Duterte’s election success has been credited to his promise to eradicate crime in a country that has the world’s 11th highest homicide rate. During his campaign, he said he would “fatten the fish” of Manila Bay with the bodies of criminals.

The President-elect’s 22-year track record as the mayor of Davao City gives him enormous credibility with Philippine voters. Before he took mayoral office, Davao was known for its war-zone-like lawlessness, but last year, a crowdsourced poll declared it fourth safest city in the world....

He is due to be sworn in as President on June 30 for a six-year term.

May 16, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2)

Saturday, May 14, 2016

"The Death Penalty & the Dignity Clauses"

The title of this post is the title of this notable new paper authored by Kevin Barry now available via SSRN. Here is the abstract:

“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.”  Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide.  Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.

Now, forty years after Gregg, the question is being asked once more.  But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes.  The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional.  No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.

Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in U.S. v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment.  Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments, which have long shared a commitment to dignity, and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment.  That is the aim of this Article.

This Article suggests that dignity embodies three primary concerns — liberty, equality, and life.  The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law. Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty. If dignity means anything, it must mean this.

In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence.  It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.

May 14, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9)

Friday, May 13, 2016

Pfizer gives states yet another reason to seriously consider execution alternatives other than lethal injection

As long time readers know, I have been urging states to seriously explore alternatives to lethal injection for the better part of a decade: in this December 2006 post, for example, I flagged a discussion of various new and old execution procedures and suggested that "states interested in continuing to employ the death penalty should start exploring alternatives to lethal injection." Today, via this New York Times article, states have yet another reason to take this advice to heart: "The pharmaceutical giant Pfizer announced on Friday that it has imposed sweeping controls on the distribution of its products to ensure that none are used in lethal injections, a step that closes off the last remaining open-market source of drugs used in executions."  Here is more:

More than 20 American and European drug companies have already adopted such restrictions, citing either moral or business reasons. Nonetheless, the decision from one of the world’s leading pharmaceutical manufacturers is seen as a milestone. “With Pfizer’s announcement, all F.D.A.-approved manufacturers of any potential execution drug have now blocked their sale for this purpose,” said Maya Foa, who tracks drug companies for Reprieve, a London-based human rights advocacy group. “Executing states must now go underground if they want to get hold of medicines for use in lethal injection.”

The obstacles to lethal injection have grown in the last five years as manufacturers, seeking to avoid association with executions, have barred the sale of their products to corrections agencies. Experiments with new drugs, a series of botched executions and covert efforts to obtain lethal chemicals have mired many states in court challenges.

The mounting difficulty in obtaining lethal drugs has already caused states to furtively scramble for supplies. Some states have used straw buyers or tried to import drugs from abroad that are not approved by the Food and Drug Administration, only to see them seized by federal agents. Some have covertly bought supplies from compounding pharmacies while others, including Arizona, Oklahoma and Ohio, have delayed executions for months or longer because of drug shortages or legal issues tied to injection procedures.

A few states have adopted the electric chair, firing squad or the gas chamber as an alternative if lethal drugs are not available. Since Utah chooses to have a death penalty, “we have to have a means of carrying it out,” said State Representative Paul Ray as he argued last year for reauthorization of the state’s death penalty.

Lawyers for condemned inmates have challenged the efforts of corrections officials to conceal how the drugs are obtained, saying this makes it impossible to know if they meet quality standards or might cause undue suffering. “States are shrouding in secrecy aspects of what should be the most transparent government activity,” said Ty Alper, associate director of the death penalty clinic at the University of California, Berkeley, School of Law.

Just a few prior related posts on firing squads and other alternatives over the last decade:

May 13, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8)

Thursday, May 12, 2016

Can and should Missouri, after completing its last execution for a while, send any extra execution drugs to other needy states?

The question in the title of this post is prompted by this AP article about the first and likely last execution in Missouri this year.  The piece is headlined "Missouri man put to death for killing deputy, 2 others; could be last execution for some time," and here are the basics:

A man who killed two people in a drug dispute and a sheriff’s deputy in a subsequent shootout was put to death Wednesday in what could be Missouri’s last execution for some time.

Earl Forrest, 66, went to the home of Harriett Smith in December 2002 and demanded that she fulfill her promise to buy a lawn mower and mobile home for him in exchange for introducing her to a source for methamphetamine. During an argument, Forrest shot Smith and Michael Wells, who was visiting Smith’s home. Forrest later fatally shot Dent County Sheriff’s Deputy Joann Barnes after she arrived at Forrest’s home.

Missouri has executed 19 men since November 2013. But the remaining 25 death row inmates either have appeals still pending or other reasons they will not face imminent execution. Forrest’s fate was sealed hours before his punishment when the U.S. Supreme Court refused to halt the execution and Missouri Gov. Jay Nixon, a Democrat, turned down a clemency request.

According to court documents, Forrest had been drinking when he went to Smith’s home in the southern Missouri town of Salem. Wells was visiting Smith at the time. An argument ensued, and Forrest shot Wells in the face. He shot Smith six times and took a lockbox full of meth valued at $25,000. When police converged on Forrest’s home, he fatally shot Barnes and injured Dent County Sheriff Bob Wofford, according to court documents. Forrest was also injured in the exchange of gunfire, along with his girlfriend, Angela Gamblin.

Missouri has been one of the most prolific states for executions in recent years, second only to Texas. The state has executed 19 prisoners since November 2013, including six last year. Forrest’s execution was the first in 2016.

Missouri’s death row population is dwindling. Robert Dunham, executive director of the Death Penalty Information Center in Washington, said juries today are less likely to opt for capital punishment, in part because of greater awareness of how mental illness sometimes factors in violent crime. Just 49 people were sentenced to death nationally last year, the fewest since the U.S. Supreme Court reinstated the death penalty as a possible punishment in 1976. No one was sentenced to death in Missouri in 2014 or 2015, Dunham said. “As these executions take place, fewer and fewer people are being sentenced to death, so the death penalty is withering on the other end,” Dunham said.

None of the 25 other men remaining on Missouri’s death row face imminent execution.  Sixteen have yet to exhaust court appeals and aren’t likely to do so soon.  Execution is on hold for nine others.  Two were declared mentally unfit for execution. Two were granted stays because of medical conditions that could cause painful deaths from injections. Two had sentences set aside by the courts due to trial attorney errors.  One inmate was granted a stay while his innocence claim is reviewed. One case was sent back to a lower court to consider an appeal.

And in one unusual case, inmate William Boliek was granted a stay by Democratic Gov. Mel Carnahan in 1997. The case wasn’t resolved before Carnahan died in a 2000 plane crash, and a court determined that only Carnahan could overturn the stay. Nixon’s office has said Boliek will not be executed.

As regular readers may recall and as Ohio capital lawyers know well, while Missouri has had the lethal injection drugs needed to carry out nearly 20 executions in the last few years, the Buckeye state has more than two dozen execution scheduled that have been persistently delayed because the state cannot seem to get its hands on any lethal injection drugs.  I do not know where Mizzou gets its lethal injection drugs or whether it has some additional drugs on hand now without any executions scheduled for the foreseeable future.  But I do know that a functioning legal system with large percentages of voters and elected officials supporting a functioning death penalty ought to be able to figure out some way for nearby states to help each other out in this arena.

I bring this up because I have long believed in the aphorism "where there's a will, there's a way."  And thus, I have also come to believe that the main reason Ohio has not been able to figure out how to secure needed execution drugs (while many other states seem to have these drugs) is because there just is not the political will to fix the state's enduring capital punishment administrative problems.

May 12, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (2)

Wednesday, May 11, 2016

How many death sentences nationwide would get overturned if juror unanimity were constitutionally required for death sentences?

The question in the title of this post came to my mind after seeing this Los Angeles Times opinion piece headlined "Florida's death penalty should require unanimous jury votes." Here are excerpts from piece:

In a criminal jury trial, a conviction requires a unanimous verdict of guilt, whether the crime is a low-level drug possession charge or capital murder. But in Florida, after all 12 members of a jury have found the accused guilty, only 10 of them have to agree that the defendant should die for the crime. It’s absurd to require a lower level of agreement to send someone to death than is required to find the person guilty in the first place.

Florida Circuit Judge Milton Hirsch reached the same conclusion in a decision Monday that declared Florida’s latest death penalty law in violation of the state’s constitution. That decision followed arguments a few days earlier before the state’s Supreme Court over whether the U.S. Supreme Court decision in Hurst v. Florida, which found the state’s sentencing-decision process unconstitutional, meant that all 390 people on Florida’s death row should have their sentences converted to life. Yes, it does. If the sentencing process is unconstitutional, then the sentences are, too....

In the Hurst case, the Supreme Court affirmed that only a jury can make a finding of fact. Florida, in an effort to save its death penalty, rewrote its law to say the jury must decide whether the death penalty was appropriate. But the U.S. Supreme Court didn’t say how many jurors must make that call, and the revised state law raised the threshold to 10 of the 12 jurors.

Hirsch’s decision on Monday said that no, under the state’s constitution, a super-majority is not enough. His logic is a bit attenuated, but sound. Florida’s constitution guarantees trial by jury but doesn’t specify that a unanimous verdict must be reached. However, decades of practice, and common law, set unanimity as the standard threshold for a verdict. And since the revised law calls the jury’s finding for the death penalty a verdict, then it must be unanimous....

The least Florida can do is require unanimity by a jury before deciding to kill someone. And it should either grant fresh sentencing trials for those on death row or — and this is the preferred, more humane solution — commute the death sentences to life sentences.

Notably, two of the four states in the US with the largest death rows (Florida and Alabama) have sentenced a significant number of murderers to death without a unamimous jury recommendation to that effect. Though it is not clear that roughly all 600 persons on those states' death rows would be sure to get relief from a constitutional rule requiring jury unanimity for death recommendations, a suspect a significant number would. And even if only half of those condemned would get relief, that could cut the size of the US death row population down by more than 10 percent.

The Supreme Court's ruling in Hurst studiously avoided weighing in on this jury unaniminty issue, but I am not sure it is point to be able to avoid it for too much longer in light of what is going on in Florida and perhaps other places in the post-Hurst world.

A few prior related post:

May 11, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Monday, May 09, 2016

Florida state judge declares unconstitutional state's post-Hurst revised death penalty procedures

As reported in this new local article, a "Miami-Dade judge has ruled that Florida’s death penalty is unconstitutional because jurors are not required to agree unanimously on execution." Here is more:

Circuit Judge Milton Hirsch on Monday issued the ruling in the case of Karon Gaiter, who is awaiting trial for first-degree murder. Hirsch wrote that Florida’s recently enacted “super majority” system – 10 of 12 juror votes are needed to impose execution as punishment for murder – goes against the long-time sanctity of unanimous verdicts in the U.S. justice system.

“A decedent cannot be more or less dead. An expectant mother cannot be more or less pregnant,” he wrote. “And a jury cannot be more or less unanimous. Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors – every single one of them.”...

In January, in the case of Timothy Lee Hurst, the U.S. Supreme Court declared the state’s death sentencing system unconstitutional because it gave too little power to juries. For decades, jurors only issued majority recommendations, with judges ultimately imposing the death penalty. The high court, however, did not rule on the unanimity question. Except for Alabama and Florida, all other states that have the death penalty require a unanimous jury verdict to impose the death sentence....

After the Hurst case was decided in January, Florida lawmakers were forced to fix the death-penalty sentencing scheme. Florida’s new law requires juries to unanimously vote for every reason, known as aggravating factors, that a defendant might merit a death sentence. Whether to actually impose the death sentence requires 10 of 12 jurors. “All of these changes inure to the benefit of the defendant,” Assistant State Attorney Penny Brill wrote in a motion in the Gaiter case earlier this year. “These requirements render Florida’s system constitutional under the United States Supreme Court’s precedents.”

Judge Hirsch, in his order, said the fixes don’t matter. “Arithmetically the difference between twelve and ten is slight,” Hirsch wrote. “But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

The full 18-page order referenced here is available at this link, and a quick scan of opinion reviews that it includes quotes from William Shakespeare, William Blackstone, Winston Churchill, Glanville Williams, the prophet Elijah, and lots of other notable sources.

May 9, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

"Louisiana’s Color­-Coded Death Penalty"

The title of this post is the headline of this new New York Times editorial, which gets started this way:

The last time a white person in Louisiana was executed for a crime against a black person was in 1752, when a soldier named Pierre Antoine Dochenet was hanged after attempting to stab two enslaved black women to death with his bayonet.

This is just one of many grim facts in a new report describing the history of capital punishment in Louisiana and analyzing the outcome of every death sentence imposed in that state since 1976, when the Supreme Court reversed its brief moratorium on executions and allowed them to resume.

Racism has always been at the heart of the American death penalty. But the report, in the current issue of The Journal of Race, Gender, and Poverty, drives home the extent to which capital punishment, supposedly reserved for the “worst of the worst,” is governed by skin color.

In Louisiana, a black man is 30 times as likely to be sentenced to death for killing a white woman as for killing a black man. Regardless of the offender’s race, death sentences are six times as likely — and executions 14 times as likely — when the victim is white rather than black.

May 9, 2016 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Saturday, May 07, 2016

An astute accounting of one view on how the post-Hurst hydra in Florida ought to be slayed

Regular readers know that, after the US Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe the multi-headed, snake-like capital litigation sure to develop as judges tried to make sense of what Hurst must mean for past, present and future cases.  Of particular significance in Florida, which has second largest death row in the nation and holds roughly one of every seven condemed murderers in the US, is what will become of all those sentenced to death before Hurst.

As noted in this post a few days ago, the Florida Supreme Court took up this question this past week, and some prominent Floridians argued that all those previously sentenced to death should have their sentences changed to life without parole.  But, with this is sure to be a popular view among death penalty abolitionists, death penalty supporters are not likely to readily embrace this solution.  And, very helpfully, Kent Scheidegger at Crime & Consequences has this lengthy and thorough post providing an astute review of what existing Supreme Court retroactivity jurisprudence should mean. The post is titled "What Happens to the Florida Death Row Cases After Hurst?", and here is how it starts and ends:

In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000). Yesterday, the Florida Supreme Court heard oral argument on remand in the Hurst case.  Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida. "Should" is easier to answer than "will":

1.  Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.

2.  Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so.  For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.

3.  Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure....

The Florida Legislature acted swiftly after Hurst to enact a new procedure meeting the newly minted constitutional requirements.  Why? Because it considers enforcement of the death penalty important. Why, then, would the legislature want a whole class of sentences wiped out? It would not.  Attributing such an intended result makes no sense given the purpose of the law.

Finally, there is the matter of arbitrariness. Arbitrariness necessarily works both ways. Just as people should not arbitrarily be sentenced to punishment, neither should they arbitrarily be spared a punishment they deserve.  Arbitrary sparing of some is necessarily arbitrary infliction on those not spared.

The whole point of our complex jurisprudence of capital sentencing is to make the sentence fit what the murderer deserves.  Commuting a wide swath of sentences based on an accident of timing without any regard for just deserts is arbitrary.  Absent strong evidence the legislature intended this result, it should not be attributed to them.

The new act should apply to any cases remanded for resentencing.

May 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, May 06, 2016

"Gutting Habeas Corpus: The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain"

The title of this post is the headline of this notable new Intercept piece, which gets started this way:

On the eve of the New York state primary last month, as Hillary Clinton came closer to the Democratic nomination, Vice President Joe Biden went on TV and defended her husband’s 1994 crime bill.  Asked in an interview if he felt shame for his role passing a law that has been the subject of so much recent criticism, Biden answered, “Not at all,” and boasted of its successes — among them putting “100,000 cops on the street.”  His remarks sparked a new round of debate over the legacy of the crime bill, which has haunted Clinton ever since she hit the campaign trail with a vow to “end the era of mass incarceration.”

A few days later, on April 24, a lesser-known crime law quietly turned 20. The Antiterrorism and Effective Death Penalty Act of 1996 — or AEDPA — was signed by Bill Clinton in the wake of the Oklahoma City bombing.  While it has been mostly absent from the recent debates over the crime policies of the ’90s, its impact has been no less profound, particularly when it comes to a bedrock constitutional principle: habeas corpus, or the right of people in prison to challenge their detention.  For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted.  Americans are mostly unaware of this legacy, even as we know more than ever about wrongful convictions.  Barry Scheck, co-founder and head of the Innocence Project, calls AEDPA “a disaster” and “a major roadblock since its passage.”  Many would like to see it repealed.

If the Clintons have not been forced to defend AEDPA, it’s partly because neither the law nor its shared history with the crime bill is well understood.  AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism.  But the law was also the product of an administration that long before the Oklahoma attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as political weapon.  After the Republicans seized control of Congress in the historic 1994 midterm elections, the Clinton White House sought to double down on its law-and-order image in advance of the 1996 presidential race. In the short term, it was a winning political strategy for Clinton.  In the long term, it would help pave the way to one of the worst laws of his presidency.

May 6, 2016 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, May 05, 2016

"The only way to get rid of racial bias in death penalty cases is to get rid of the death penalty"

The title of this post is the subheadline of this notable new Slate commentary authored by Robert J. Smith, which carries the main headline "There’s No Separating the Death Penalty and Race."  Here are some excerpts:

The mix of prosecutorial impropriety and the exclusion of black jurors has always been a potent combination for injecting racial bias into death penalty cases and racial cynicism into the electorate. It undermines not only the legitimacy of the death penalty, but also the legitimacy of the government as an entity capable of rendering impartial justice. It robs people of the right to participate in their government, and it makes whole swaths of people cynical about the government itself and their role in it. Yet, even if the Foster case [now before SCOTUS] provides another rebuke of the illegal practice of striking jurors because of their race, 30 years of experience suggests that the court’s case-by-case reversals will not eradicate racial discrimination in jury selection. It still happens all over the country and continues to taint our broken death penalty system....

An optimist might hold out hope that although racial bias infects these older cases, the ties between race and the death penalty have loosened in more recent cases as the nation continues to make racial progress. Unfortunately, though, while the death penalty has become increasingly rare in practice, many of the remaining cases are still intertwined with the nation’s long legacy of racism. And, even in the cases with explicit, unconscionable racial bias ... current elected prosecutors, governors, and state and federal courts have failed repeatedly to intervene or object.

May 5, 2016 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Wednesday, May 04, 2016

"Should His PTSD Keep Him From Death Row?"

The question in the title of this post is from the second part of the headline of this Mother Jones article.  The first part of the headline explains "An Ex-Marine Killed Two People in Cold Blood," and here is how the piece starts:

At 12:44 p.m. on March 6, 2009, John Thuesen called 911. "120 Walcourt Loop," he told the dispatcher, breathing hard. "Gunshot victims." The dispatcher in College Station, Texas, asked what had happened. "I got mad at my girlfriend and I shot her," he said. "She has sucking chest wounds…"

He'd not only shot Rachel Joiner, 21, but also her older brother Travis.  Thuesen had broken into the house after midnight, not sure what he'd do but wanting to see his estranged girlfriend.  She was out with her ex-boyfriend, but when she returned later that morning, things "got out of hand."  Thuesen, a 25-year-old former Marine reservist, called 911 and almost immediately expressed remorse.  When he was arrested, he repeatedly asked the police about the victims and tried to explain why he'd kept shooting Rachel and her brother: "I felt like I was in like a mode…like training or a game or something."

The prosecution in the case gave its opening statement on May 10, 2010. With DNA evidence and no other suspects, it only took prosecutors three days to make their case.  Over the next week, the defense team touched on the facts that Thuesen suffered from depression and post-traumatic stress disorder (PTSD) from his service in Iraq, but pleaded for leniency in his sentence. None of that swayed the jury: On May 28, 2010, he was sentenced to death.

While on death row, Thuesen was given new lawyers, death penalty experts from the state's Office of Capital and Forensic Writs.  In Texas, there are often two trials, one to determine guilt or innocence and the second to determine sentencing.  Lawyers argued in their 2012 petition to have both the death penalty and the conviction vacated, and for a new sentencing trial, arguing that if his lawyers had served him adequately, "John Thuesen would not be on death row today, awaiting an execution date." In July 2015, Judge Travis Bryan III — the same judge who had presided over the criminal trial — agreed, and ruled that Thuesen's lawyers hadn't adequately explained the significance of his PTSD to jurors, and how it had factored into his actions on the day of the murders.  Bryan also ruled that Thuesen's PTSD wasn't properly treated by the Veterans Health Administration.  He recommended that Thuesen be granted a new punishment-phase trial.  The Texas Court of Criminal Appeals could rule on Bryan's recommendation at any time.

The ruling on his case has implications for a question that has concerned the military, veterans' groups, and death penalty experts: Should service-related PTSD exclude veterans from the death penalty?  An answer to this question could affect some of the estimated 300 veterans who now sit on death rows across the country, according to the Death Penalty Information Center.  But it's unclear how many of them suffer from PTSD or traumatic brain injuries, given how uneven the screening for these disorders has been.

Experts are divided about whether veterans with PTSD who commit capital crimes deserve what is known as a "categorical exemption" or "exclusion."  Juveniles receive such treatment, as do those with mental disabilities.  In 2009, Anthony Giardino, a lawyer and Iraq War veteran, argued in favor of this in the Fordham Law Review, writing that courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process" who likely would not be in that position "but for their military service."  In a 2015 Veterans Day USA Today op-ed, three retired military officials argued that in criminal cases, defense attorneys, prosecutors, and judges often don't consider veterans' PTSD with proper due diligence.  "Veterans with PTSD…deserve a complete investigation and presentation of their mental state by the best experts in the field," they wrote.

That idea is utterly unacceptable to Kent Scheidegger of the Criminal Justice Legal Foundation, a California-based victims-of-crime advocacy group, who contends a process already exists for veterans' defense attorneys to present mitigating evidence.  To him, a categorical exclusion would be an "extreme step" that would mean "one factor — always, in every case — necessarily outweighs the aggravating factors of the case, no matter how cold, premeditated, sadistic, or just plain evil the defendant's actions may have been."

May 4, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, May 03, 2016

Prominent Floridians call for state Supreme Court to reverse all past Florida death sentences

As reported in this AP piece, now with "the fate of hundreds of Florida death row inmates in limbo, a group of former top judges and legal officials called on the state Supreme Court to impose life sentences on nearly 400 people now awaiting execution." Here is more about a notable amicus filing:

The group, which includes three former state Supreme Court justices and two former presidents of the American Bar Association, filed a legal brief Tuesday in a case that could determine the fate of Florida's death penalty.

After the U.S. Supreme Court declared Florida's death sentencing law unconstitutional in January, the state's high court halted two executions and state legislators overhauled the way convicted killers can be sentenced to death.  But the Florida Supreme Court still hasn't decided what should happen to the 389 people on death row under the previous sentencing scheme.  The court is taking the highly unusual step of this week of holding a second hearing before issuing a ruling — a sign that the seven-member court could be deeply divided.

The court said it wanted to hear from attorneys representing death row inmate Timothy Lee Hurst and the state on what affect the new sentencing law will have on his case....  In March, Gov. Rick Scott signed into law a new sentencing process for those convicted of murder.  The new law requires at least 10 out of 12 jurors recommend execution for it to be carried out.  Florida previously required that a majority of jurors recommend the death sentence. It remains one of only a handful of states that does not require a unanimous jury decision.  The new law also requires prosecutors to spell out, before a murder trial begins, the reasons why a death sentence should be imposed, and requires the jury to decide unanimously if there is at least one reason, or aggravating factor, that justifies it.

The decision to hold a second hearing in Hurst's case prompted three former state justices — Harry Lee Anstead, Gerald Kogan and former U.S. District Judge Rosemary Barkett — to join with two former heads of the bar association and an organization representing defense attorneys to argue that an existing state law requires those now on death row to have their sentences reduced to life in prison.

The state has objected and argued the U.S. Supreme Court ruling is not retroactive.

The full amicus brief referenced in this piece is available at this link, and here is its key heading:

Because the United States Supreme Court held Florida’s death penalty unconstitutional in Hurst v. Florida, section 775.082(2) of the Florida statutes requires that all persons previously sentenced to death for a capital felony be resentenced to life imprisonment without the possibility of parole.

May 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Some Dostoevsky-inspired insights on the death penalty delay canard

It is sometimes hard to find an academic eager to lambast death penalty abolitionists for even their weaker arguments, so I was somewhat surprised to see this new commentary by Noah Feldman titled "Delaying Execution Isn't Cruel and Unusual." Here are excerpts:

Following a view he has held since the 1990s, [Justice] Breyer argued that the death penalty is unconstitutional because it takes too long for condemned inmates to be put to death.  The claim that death delayed is worse than death itself is a particularly shocking one because it's the converse of arguing that taking a human life before its natural endpoint is fundamentally immoral.  Instead, the view asserts that death must be administered quickly after sentencing to avoid the convicted person living on many years in prison -- even if that person wants to live as long as possible.

Make no mistake: in every case where an inmate has been on death row for many years, it’s by choice. In the case considered Monday, the defendant had been on death row for 32 years.  That’s the result of numerous appeals by his lawyers, and numerous delays in hearing those appeals by state and federal courts.  A defendant who wants to die can skip the appeals, like Timothy McVeigh, the Oklahoma City bomber, who waived his appeals and was executed expeditiously.

The judges who hear capital appeals understand all this perfectly well.  They could put death penalty cases on the top of the docket.  But they don’t, at least in part because they know that every day of delay is another day of life for the defendant.  It’s one of the persistent facts about the death penalty that almost every person who is sentenced to die chooses to fight the sentence.

In theory, it's easy to say you’d rather be executed than spend your life in prison.  That sentiment is a stock line in television and film.  And I confess that I share it – or at least I think I do.  But no matter how powerful the thought, the empirical evidence suggests that, when push comes to shove, the human instinct to live another day is overwhelming. That’s why so-called “volunteers” such as McVeigh are vanishingly rare in our legal system....

So in what sense could it be cruel and unusual not to execute someone over a long period of time while his appeals are pending?  The answer has to be that the long-term prospect of death is itself a kind of torture, worse than the experience of contemplating your own execution in the immediate future.

That insight seems to follow from our imagined scene of the prisoner in his cell awaiting execution, like a character out of Dostoevsky.  The trauma and psychological pain of contemplating one’s imminent mortality seem bad enough. Imagine if that same trauma and pain were repeated for 32 years. In these terms, the delay could be seen as an unconscionable form of quasi-permanent torture.

But the reality must surely be otherwise.  A prisoner on death row doesn’t actually expect to be executed every day that he is there. Yes, courts often set execution dates.  But they do so in the full knowledge that those dates will probably be deferred.

From the perspective of the prisoner, the mere setting of the date is no doubt terribly upsetting.  But over time, even the most sensitive prisoner would surely get used to the repetitive structure of sentencing date followed by delay.  To cite Dostoevsky again, if imprecisely: “Man can get used to anything -- the brute!”

It emerges, I think, that the so-called Lackey claim to which Breyer is still devoted is psychologically unconvincing.  To live every day in the knowledge that eventually one will die is in fact the universal human condition.  Many of us will die in the next 32 years.  And none of us knows exactly on what day that will occur.

Those who oppose the death penalty on moral grounds have plenty of strong arguments on their side.  They don’t need this one, which in fact undercuts their claims about the inherent value of every day of human life.  The remedy for death delayed, after all, can only be death itself.

Prior recent related post:

May 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Monday, May 02, 2016

Justice Breyer dissents alone(!) in California capital case concerning long delays before execution

At the end of this morning's Supreme Court order list, Justice Breyer has a brief two-page dissent from the Court's decision to deny certiorari review in a capital case in which "Richard Boyer [who] was initially sentenced to death 32 years ago" requested that the Justices "consider whether the Eighth Amendment allows a State to keep a prisoner incarcerated under threat of execution for so long."  Here is part of what Justice Breyer has to say:

These delays are the result of a system that the California Commission on the Fair Administration of Justice (Commission), an arm of the State of California, see Cal. S. Res. 44 (2004), has labeled “dysfunctional.” Report and Recommendations on the Administration of the Death Penalty in California 6 (2008)....  It noted that many prisoners had died of natural causes before their sentences were carried out, and more California death row inmates had committed suicide than had been executed by the State.  Indeed, only a small, apparently random set of death row inmates had been executed. See ibid. A vast and growing majority remained incarcerated, like Boyer, on death row under a threat of execution for ever longer periods of time....

Put simply, California’s costly “administration of the death penalty” likely embodies “three fundamental defects” about which I have previously written: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.”  Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 2); see Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum of Stevens, J., respecting denial of certiorari); see also Valle v. Florida, 564 U. S. 1067 (2011) (BREYER, J., dissenting from denial of stay); Knight v. Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting from denial of certiorari). 

Notably, not a single other Justice joined this dissent, not even Justice Ginsburg who was along for ride a little less than a year ago when Justice Breyer wrote his anti-death penalty magnum opus dissent in Glossip.  That reality reinforces my belief that death penalty abolitionists should not be especially hopeful that a majority of Justices will find capital punishment per se unconstitutional anytime soon.

May 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, April 29, 2016

"Louisiana Death Sentenced Cases and Their Reversals, 1976-2015"

The title of htis post is the title of this new reseach paper by Frank Baumgartner and Tim Lyman now available via SSRN. Here is the abstract:

Since 1976, Louisiana’s experience with capital punishment has been deeply dysfunctional, with a significantly higher case reversal rate than the national average, and marked disparities in sentencing, reversals, and executions depending on the race and gender of the victim and accused.  Our comprehensive analysis of each of 241 death-sentence cases in the post-Gregg period suggests that the “modern” death penalty has not resolved the issues of arbitrariness and bias that concerned the US Supreme Court in the 1972 Furman decision, which invalidated previous death penalty statutes throughout the country.

Among 155 resolved death-sentence cases, there have been 127 reversals (of which nine were exonerations) and 28 executions.  Since 2000, Louisiana has seen 50 reversals of previous death sentences, including seven exonerations, and only two executions.

Not only are these reversal rates extremely high, but the racial discrepancies are shocking as well.  Death sentences are imposed in 0.52% of cases with black male offenders and black male victims, but in 15.56% of cases with black male offenders and white female victims — 30 times more likely.  No matter the race of the offender, killers of whites are more than six times more likely to receive a death penalty than killers of blacks, and 14 times more likely to be executed.  The racial disparities even extend into the appeals process, where cases of killers of whites are clearly less likely to be reversed.  No white person has been executed in Louisiana for a crime against a black victim since 1752.

April 29, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender | Permalink | Comments (1)

Tuesday, April 26, 2016

Detailing the death penalty's desuetude in two notable states

I recent came across these two notable extended articles discussing the notable extended difficulties that two notable states have recently experienced in trying to get any of their condemned death row murderers to an execution chamber. Here are the headlines with links and subheadlines from the pieces:

From Arizona: "Is the death penalty in Arizona on life support?: A judge will rule any day now on whether Arizona can resume executions; meanwhile, the state's limited drug supply is about to expire. Where does that leave capital punishment?"

From North Carolina: "These days, NC’s death row inmates die of natural causes: Nine have died of natural causes since the state’s last execution in 2006; Death row, like the prison population overall, is aging; The oldest death row inmate, Blanche Moore, is now 83"

April 26, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Sunday, April 24, 2016

Hey Prez Candidate Kasich: why can't you figure out the formula to make capital punishment work (as it does in Georgia and Texas)?

The question in the title of this post is prompted by this AP article headlined "Georgia to carry out its 5th execution of the year this week."  The piece reveals that the Peach State seems to have no problem securing lethal injection drugs for schedueld executions; meanwhile Ohio now has 25(!) condemned murderers scheduled for execution, but has been unable for three years to secure drugs to carry out these executions.

I am, generally speaking, a fan of Ohio Gov John Kasich, but in this arena he has not lived up to his campaign claims that he has "the formula" to make government work again.  Before I continue with bashing of my governor, here are the basic 2016 executions details via the AP story from Georgia:

Georgia plans to carry out its fifth execution of the year on Wednesday when a man convicted in the 1998 killings of a trucking company owner and his two children is set to die. Daniel Anthony Lucas is scheduled to be executed at 7 p.m. Wednesday at the state prison in Jackson. Georgia executes inmates by injecting the barbiturate pentobarbital.

Lucas, 37, was sentenced to die in 1999 for the killings of Steven Moss, 37, his 11-year-old son Bryan and 15-year-old daughter Kristin, who interrupted a burglary at their home near Macon in central Georgia....

If Lucas is executed Wednesday, he will be the fifth person put to death in Georgia. That will match the record — set in 1987 and tied last year — for the most executions carried out in a calendar year in the state since the death penalty was reinstated nationwide in 1976. With eight months left in the year, it seems likely the state will set a new record this year.

His execution would also mean that Georgia has executed more inmates in a 12-month period than at any other time since reinstatement of the death penalty. Georgia has executed seven people in the last 12 months, starting with Kelly Gissendaner on Sept. 30. The only other time the state executed that many people in a 12-month period was when seven inmates were put to death between October 2001 and August 2002.

Only four states have carried out executions this year for a total of 12. Aside from the four executed in Georgia so far, six inmates have been put to death in Texas and one each in Alabama and Florida.

This DPIC list of completed 2016 executions details that Georgia and Texas are completing executions with pentobarbital, which I believe is Ohio's execution drug of choice. I know there must be all sorts of legal and practical complications that prevents Ohio officials from simply getting execution drugs from these states, but that reality does not reduce the frustrations that everyone involved in capital justice in Ohio must have as this problems continues to fester and Gov Kasich continues to spend his time traveling to country talking about having the formula to make government work better.

I am busy finishing up a little article suggesting that, for practical and political reasons, most states would generally be wise to seek to end rather than mend its broken death penalty systems.  And, in part for reasons hinted in this post, I am using Ohio's modern experience with death penalty administration as exhibit one in my discussion.

April 24, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, April 20, 2016

Your tax dollars at work?: cost accounting for Aurora theater shooter James Holmes' failed capital trial

As a matter of abstract philosophy, I have struggled for decades concerning my opinion on capital punishment.  But as a matter of modern public policy, I have generally concluded that the death penalty is not a great use of limited resources for most states.  This new Denver Post article, headlined "Aurora theater shooting trial cost taxpayers at least $3 million: Final cost of James Holmes' trial in the Aurora theater shooting likely won't ever be known," reinforces my perspectives in this regard. Here are the details:

Jailing, evaluating and prosecuting the man who committed the Aurora movie theater shooting cost taxpayers at least $3 million, but the final expense of one of the mostly closely watched court cases in Colorado history may never be known. The $3 million tab was compiled by The Denver Post following multiple open-records requests over the past year. It covers the amount spent from 2012 through 2015 specifically on preparing for and seeing through the trial of James Holmes.

Nearly $1.6 million of the cost was covered by federal grants. When including the salaries of judges, prosecutors, sheriff's deputies and other government employees who spent most or all of their time on the case — but who would have been paid regardless — the total cost rises to more than $7 million.

And there's still a big chunk of expense missing from that amount. The state's taxpayer-funded public defenders — who represented Holmes — are not required to disclose what they spend on a case. Doing so, they say, would violate ethics rules and subject poor defendants to lower standards of attorney-client confidentiality. Generally, the office of the state public defender reports having spent nearly $2 million on death-penalty and potential death-penalty cases since July 2002, not including staff salaries.

The theater shooting trial was one of the longest in state history. Prosecutors sought the death penalty, and Holmes, who pleaded not guilty by reason of insanity, underwent two psychiatric evaluations by state-appointed experts — at a cost of more than $600,000 to the state Department of Human Services. Holmes ultimately was found guilty of murdering 12 people and trying to murder 70 more in the July 2012 attack on the Century Aurora 16 movie theater; he was sentenced to life in prison without parole in August.

While the case prompted public debates about the cost of the death penalty and mental health evaluations, the biggest expense that has been reported was for providing victims' assistance services. The Arapahoe County district attorney's office spent nearly $1.2 million on salaries for victims' advocates, travel expenses for victims to attend the trial and other costs. All of those costs were covered by a federal grant.

Arapahoe County District Attorney George Brauchler, whose office published its close-to-final cost figures last week, said the costs were about in line with what he expected. In addition to the federal grant, the state government appropriated about $500,000 to cover trial-related costs for the district attorney's office. He said more than half of what his office spent on the case was spent before the trial even began one year ago this month, and he rejected the criticism that seeking the death penalty ballooned the trial's price tag. Instead, Brauchler said the case was expensive because of the number of victims involved.

The county DA here make a reasonable point that the nature of the crime may be the reason for the considerable expense as much as the nature of the punishment sought. Nevertheless, I believe this case could and would have cost taxpayers a whole lot less if prosecutors had accepted the defense's early offer to plead guilty in exchange for an LWOP sentence. (That LWOP sentences was ultimately achieved in the end after a lengthy and costly capital trial.) Moreover, the costs here include the opportunity costs of having so many Colorado state justice officials (police, prosecutors, judges) working on this case so intensely when there surely were many other Colorado crime and criminals that might have otherwise gotten their attention.

Of course, and I think not to be overlooked in any accounting of general capital costs/benefits, Holmes' defense team likely was only willing to offer to plead guilty and take LWOP because Colorado has capital punishment on its books. Consequently, it would be unfair to suggest abolition of the death penalty will always produce massive savings in major murder cases. But, as regular readers should know, this kind of accounting leads me to suggest, yet again, that states ought to have ways to "delegate" major murders to the feds for more efficient and effective capital prosecutions.

A few (of many) older related posts (with lots of comments):

April 20, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, April 17, 2016

An interesting perspective on Virginia's recent capital experiences

Virginia made capital headlines last week after Gov. Terry McAuliffe altered a bill passed by the state's legislature calling for use of the electric chair if the state could not obtain need lethal drugs.  The headline of this Washington Post piece from last week explains his proposed alternative approach: "In a move that could jeopardize executions, McAuliffe wants to shield the identity of makers of lethal-injection drugs."

Meanwhile, this new commentary by Kerry Dougherty, a columnist for The Virginian-Pilot, provides some perspective on this execution method brouhaha and Virginia's recent experience with the death penalty. The piece is headlined "Lost in all the death-penalty drug talk is that there are only 7 men on death row in Virginia," and here are excerpts:

Last winter, state legislators came up with a solution: They said that if drugs are unavailable, the commonwealth should fire up Old Sparky.  Predictably, this sparked a heated debate among politicians. Some argued that the electric chair is cruel.

Others shrugged, saying painless deaths are not the goal of the state.  “I hear, ‘Oh my Lord, he might have to suffer,’ ” said the Senate’s Democratic leader, Richard Saslaw in March. “… If we don’t have the necessary drugs, then we need this bill.  When you commit acts like that, you give up your right, as far as I’m concerned, to say, ‘Well, I want to die humanely.’ ”

The governor seems to disagree.  “We take human beings, we strap them into a chair, and then we flood their bodies with 1,800 volts of electricity, subjecting them to unspeakable pain until they die,” McAuliffe said last week, according to news reports.  “Virginia citizens do not want their commonwealth to revert back to a past when excessively inhumane punishments were committed in their name.”

McAuliffe’s language calls for the state to buy the drugs needed to put prisoners to sleep from special pharmacies. The names of those companies would be cloaked in secrecy, as they are in some other states.  “All I’m doing today is providing a humane way to carry out capital punishment here in Virginia so we have options,” McAuliffe said. “If they do not take it up, I want to be clear, they will be ending capital punishment here in Virginia.”

Now the question becomes, should the people’s business be conducted covertly?  I can answer that: No, it shouldn’t.

Lost in all this talk about how to kill the last men on Virginia’s death row is the happy fact that there are just seven men living there. Seven.  According to an NBC news report, Virginia’s death row was at its most crowded in 1995 when it housed 57 condemned prisoners.  Both executions and death sentences have dropped sharply since then.

The ultimate penalty is imposed on those who commit the most heinous crimes.  Last year, for instance, Virginia executed one man: The loathsome Alfredo Prieto.  He killed a young couple in Fairfax in 1988, raping one of the victims as she died. The Washington Post reported that he had killed as many as seven others. One of those murders was of a 15-year-old in California while he was on the run after the double homicide in Fairfax.

I couldn’t gin up any sympathy for this predator.  Neither could the governor, who refused to block his execution in October. Yet Prieto was the first man executed in the Old Dominion in more than two years.

Why all the empty cells on death row?  Many reasons. But one component is certainly 1995’s “truth-in-sentencing” law pushed by then-Gov. George Allen.  The measure abolished parole and closed the revolving doors on Virginia’s prisons. Suddenly a 10-year sentence meant the convict would spend most of a decade in prison. And a life sentence? It actually meant life in prison.

Given this ironclad alternative to execution, it’s become rare for a Virginia jury — or judge — to send a convict to death row. Before we get back to arguing about the death penalty, can’t we all agree that’s a good thing?

April 17, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, April 15, 2016

Making in Oklahoma the modern "conservative appeal against death penalty"

Richard Viguerie has this notable new commentary in an Oklahoma paper headlined "A conservative appeal against death penalty." Here are excerpts:

This election year, Republican and Democratic voters in records numbers agree on something: They distrust political leaders and the political establishment.  That same distrust applies to ambitious prosecutors, who are part of the political establishment.  Too many have been caught cheating to win convictions, withholding exculpatory evidence and using coerced confessions.

The bipartisan distrust of the political establishment is certainly increasing with regard to the death penalty.  The government's troubling track record of exercising its life-ending authority provides ample reason for concern.  Since 1973, more than 155 people have been released from death row because they were wrongfully convicted. Ten were from Oklahoma.  As an anti-abortion, pro-law enforcement conservative who believes in the sanctity of life and society's duty to protect the innocent, I find this unacceptable.

Oklahoma's well-documented wrongful convictions and failure to adhere to established execution protocols have shown that it cannot be trusted with properly carrying out the solemn responsibility of executing inmates. Oklahoma officials might soon compound these known problems by attempting again to execute Richard Glossip, a man who may well be innocent....

Conservatives are the leaders against government abuse and lawlessness. We understand that government can be callous about its errors, which are costly and cause harm to the innocent. When government tries to execute a man who may well be innocent, I believe we have an even higher calling to speak out.

Oklahoma's systemic failures and Glossip's case in particular are emblematic of what is wrong with America's death penalty. The death penalty's problems are a confluence of things that all Americans loathe: a big, broken, costly and dangerous government program prone to mistakes, and with questionable positive benefits.

It was recently announced that a bipartisan group of eminent Oklahomans would be donating their time to a first-of-its-kind review of the Oklahoma death penalty system. I urge all Oklahomans, and especially conservatives, to support the call for a moratorium on the Oklahoma death penalty until this commission has finished its task and made its recommendations.

The death penalty system, where errors are gravest, is prone to flaws and lawlessness like any other government program.

Recent prior related post:

April 15, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Wednesday, April 13, 2016

Taking stock of how the continued lack of lethal drug stocks is altering execution dynamics

The folks at The Marshall Project have this effective new review of the state of death penalty states deep into the enduring challenges so many are having finding lethal injection drugs for executions. The piece is headlined "How the Drug Shortage Has Slowed the Death-Penalty Treadmill: Only 4 states are currently carrying out lethal injections, and 10 are considering other methods." Here is the piece's effective accounting (with links from the original):

We’ve determined the status of executions for the 31 states that allow the death penalty, as well as for the federal government. Here is the breakdown:

  • Only four states are currently carrying out lethal injections. Texas, Missouri, and Georgia use a single drug, pentobarbital (Georgia is set to use the drug for an execution on Tuesday). Alabama has scheduled an execution next month, and uses three drugs in its protocol, including midazolam and pentobarbital. The state’s Department of Corrections has refused to divulge the source of those drugs, which were used for an execution in January, the state’s first in two years.

  • Florida has also enveloped its lethal-injection process in secrecy — and may be able to carry it out — but executions are on hold there because of a Supreme Court decision, Hurst v. Florida, which invalidated the state’s rules surrounding how judges hand down death sentences.

  • Three active execution states have drugs that are about to expire (Virginia, Arizona, and Arkansas). Many states have turned to small compounding pharmacies, which make a version of pentobarbital that loses its potency more quickly than the type manufactured by larger companies.

  • Three states (Arizona, Arkansas, and Oklahoma) are tied up in court battles over their drug sources. In Arizona and Arkansas, state officials have said the drugs they have on hand could reach their expiration date before those battles conclude.

  • The difficulty of finding a source of drugs has led Louisiana to halt executions until at least July, and Ohio’s execution chamber will not be in use until 2017. Several of the 11 executions Ohio had planned for this year are rescheduled for as late as 2019. Nebraska is also looking for execution drugs, although the state legislature repealed the death penalty; a public referendum on the punishment is expected in November.

  • Since 2010, the year the drug shortage began to take hold, 17 states and thefederal government have carried out no executions. Five other states (Delaware, Idaho, Mississippi, South Carolina, and South Dakota) have carried out no executions since 2012.

At least 10 states have recently considered other methods of execution, including the firing squad (Utah, Mississippi, Wyoming, South Carolina, Missouri, and Arkansas), the electric chair (Louisiana, Tennessee, and Virginia), and the gas chamber (Oklahoma). Mississippi has considered all three.

April 13, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Tuesday, April 12, 2016

Anyone eager to predict when (or if) Ohio is likely to carry out its next execution?

The question in the title of this post is prompted by this new local article headlined "2016 is the second year without executions in Ohio. But death penalty foes won't claim victory yet." Here are excerpts:

This year will be the second in a row in which Ohio will not conduct any executions. Ronald Phillips, convicted in a Summit County murder, is scheduled to die Jan. 12, 2017. But until the state can procure more of the drugs, or changes the drugs it uses for lethal injection or changes its form of execution, there won't be more executions in Ohio.

"We're at a place where for progress to be made, if they're not going to fix it then they're going to have to end it," said Abraham Bonowitz, a spokesman for Ohioans to Stop Executions. The group, along with 23 partners, plan to hold a series of events Tuesday at the Ohio Statehouse to lobby for their cause. There is a sense opinions are changing as the state wrestles with how to carry out executions and as more people become critical of the years – sometimes decades – required to carry out the sentence....

Ohio has had trouble getting drugs to use for lethal injections in great part because pharmaceutical companies don't want their medical products used for killing people. Two years ago European pharmaceutical companies blocked further sales on moral and legal grounds. Ohio has looked for other options, but all have obstacles.

First it turned to a previously untried lethal-injection cocktail using drugs commonly found in hospitals.  But the only time it was used became controversial because Dennis McGuire took 25 minutes to die.  Other states tried the same drugs with more grisly results.

After that, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs. But so far, none have been willing. The state then looked to buy drugs from overseas, only to be told by the federal government that it would be illegal....

A bi-partisan bill that would abolish the death penalty in Ohio is pending in the Ohio House. It was introduced last July by Democratic Rep. Nickie Antonio of Lakewood and Republican Rep. Niraj Antani of Miamisburg.

Other states, too, have considered ending executions. The Republican-dominated Nebraska legislature overrode a veto of that state's Republican governor last year on legislation that halted executions. Voters have since put in initiative on the November ballot to restore the death penalty....

Of the 26 people on Ohio's death row with execution dates in 2017 into 2019, 17 have been on death row for at least 20 years. Five have been on death row for more than 30 years. The long period involved in the appeals process just stalls a victim's family from finding closure, Bonowitz said.

"It's also become pretty clear that the method of execution has become so challenging it calls into question whether its worth keeping the death penalty," he said.

April 12, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9)

Sunday, April 10, 2016

Detailing the desuetude of the death penalty in Pennsylvania

This new local story, headlined "In Pa. and elsewhere, death penalty is dying a slow death," tells a capital tale that has grown old in the Keystone State. Here is how the article gets started:

The crime was horrific: LaQuanta Chapman fatally shot his teenage neighbor, then dismembered him with a chainsaw. The Chester County District Attorney's Office promised it would seek the death penalty — and it delivered.

Chapman was sent to death row in December 2012.  But he remains very much alive, and two weeks ago the state Supreme Court reversed his death sentence, citing prosecutorial error.  Chapman is just the latest example of a death-row inmate spared execution.

In fact, no one has been executed in Pennsylvania since Philadelphia torturer-murderer Gary Heidnik in 1999.  And he requested it.  He is one of only three prisoners put to death since the reinstatement of the death penalty in 1976.

In Pennsylvania and in other states around the nation, the death penalty — once a hot-button political issue — has been dying a quiet death.  Experts cite a variety a reasons, including a general decline in crime nationwide that has turned voters' attentions elsewhere.

District attorneys and other law enforcement officials continue to advocate for it, but as a political issue, it has all but disappeared.  "Let's face it, how many people actually get put to death?" said G. Terry Madonna of Franklin and Marshall College, calling the death penalty "virtually nonoperative" in Pennsylvania.  "In many states, it's a dead letter."

Gov. Wolf last year imposed a moratorium on executions pending a bipartisan committee's report on the commonwealth's use of capital punishment.  The report, more than two years overdue, is looking at costs, fairness, effectiveness, alternatives, public opinion, and other issues.

The committee, formed in 2011 during Gov. Tom Corbett's administration, has been collecting data with Pennsylvania State University's Justice Center for Research, which has just begun to analyze the information.  The basis for the center's death-penalty analysis will be 1,106 first-degree murder cases completed between 2000 and 2010, said Jeff Ulmer, a Pennsylvania State University professor working on the analysis.

The committee's report should follow before the end of the year, said Glenn Pasewicz, executive director of the state commission that oversees the committee.  Richard Long, executive director of the Pennsylvania District Attorneys Association, which supports the death penalty, said the report needs to come out as soon as possible.

The moratorium, he said, "becomes less and less temporary with every day that passes." State Sen. Stewart Greenleaf (R., Bucks), one of the leaders of the state task force, stressed the need for it to be thorough.  "I think it's going to be a landmark review of the death penalty, certainly in Pennsylvania, maybe nationally," he said.

The American Bar Association and the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System are among the groups that have criticized the inequality of Pennsylvania's capital punishment system and have urged changes.  About 150 death sentences and capital convictions in the state have been overturned in the post-conviction process, according to the Death Penalty Information Center, a nonprofit anti-capital punishment group. Of those, 120 have had new sentences imposed.

But juries continue to issue death sentences.  Pennsylvania has 180 people on death row, the fifth largest number in the country.  The 178 men and two women are housed in three state correctional institutions.

April 10, 2016 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1)

Saturday, April 09, 2016

Death penalty abolition, broadened gun rights, heroin surge, police (mis)conduct, reduced sentences ... so many suspects in Chicago murder spike and NYC murder decline

The headline of this post is my effort to make some sense of this past week's dueling crime news headlines coming from two of America's largest cities:

As the title of my post is meant to suggest, I think there are so many notable legal and social developments that could be referenced in an effort to account for the increased mayhem in Chicago and the increased mildness in New York City.  Indeed, what is so remarkable is the reality that all of the high-profile developments referenced in the title of this post have occurred nearly in parallel in both jurisdictions over the last decade, and yet the potential impact of all these developments seems to be playing out so very differently.

In a number of prior posts in recent years (some of which I have linked below), I have tried to figure out what seems to be working and not working in these two big US cites and various others to reduce or increase violent crime. But, as some of the posts below suggest, it often seems that the only simple explanation for dynamic crime rate data is that they seem to defy simple explanations:

April 9, 2016 in Death Penalty Reforms, Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (1)

Wednesday, March 30, 2016

Harvard Law School launches "Fair Punishment Project"

While I was on the road yesterday, I received an email with some exciting news from my law school alma mater.  Here is the text of the email announcement:

We'd like to introduce you to a brand new initiative brought to you by Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable.  The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.

We'll be releasing our first report in the next day or two, so keep an eye out -- you don't want to miss it.  Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America's top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct. 

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.  The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers.  Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system.  We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.

And here are titles and links to some of the notable sentencing-related content already up at the FPP website:

March 30, 2016 in Death Penalty Reforms, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Mississippi Gov supporting state legislative effort to use firing squads as back-up execution method

A helpful reader alerted me to this local article from Mississippi headlined "Governor Bryant supports firing squad bill."  Here are the details:

The Mississippi House wants to allow the state prisons to execute prisoners using a firing squad if officials decide lethal injection is too expensive or unavailable.

Governor Phil Bryant voiced his support of the bill. “If the senate passes a firing squad bill, I’ll certainly sign it. My belief is we need to carry out a capital punishment that when the courts say that it’s necessary; and if it takes a firing squad we’ll do exactly that,” said Governor Bryant.

The house amended the bill Friday before passing it. It will now go back to the senate for more work. Attorney General Jim Hood has asked lawmakers to approve alternate execution methods such as electrocution, the use of nitrogen gas as well as the firing squad.

As long time readers surely know, I have been urging states to seriously explore alternatives to lethal injection for the better part of a decade: in this December 2006 post, for example, I flagged an discussion of various new and old execution procedures that might be explored suggested that "states interested in continuing to employ the death penalty should start exploring alternatives to lethal injection." I suppose I am pleased to hear leaders in Mississippi have come around, but there sure seems to have been a whole lot of capital justice delayed in that state and many others because of a failure of states to seriously explore alternative execution methods.

Just a few prior related posts on firing squads and other alternatives over the last decade:

March 30, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Tuesday, March 29, 2016

Oklahoma creates Death Penalty Review Commission full of prominent folks .... which will likely achieve ....?

Though I generally think of myself as an optimist, this notable news item out of Oklahoma, headlined "Oklahoma Bipartisan Death Penalty Review Commission formed, supported," triggers the cynical little voice in my head that comes out when I hear about the creation of a blue-ribbon commission in the sentencing arena.  (For those curious about aesthetic backstories, this Wikipedia entry highlights why we color expert panels blue instead of, say, having pink-ribbon commissions.)  Before I go cynical, here are the details of the latest governmental gathering of note:

A group of prominent Oklahomans joined together Monday (March 28) to form a blue-ribbon, bipartisan Oklahoma Death Penalty Review Commission.  The Commission will conduct what a press statement called “the first-ever independent, objective and thorough review of the state’s entire capital punishment system.”...

“Oklahoma has an opportunity to lead the nation by being the first state to conduct extensive research on its entire death penalty process, beginning with an arrest that could lead to an execution,” said former Gov. Brad Henry, of Henry-Adams Companies, LLC, one of the group’s co-chairs.“The Commission includes distinguished Oklahomans with differing views and perspectives on capital punishment who are donating their time to work together on a research-driven review,” he said.

Joining Gov. Henry as co-chairs are Reta Strubhar, a judge on the Oklahoma Court of Criminal Appeals (1993-2004) and an Assistant District Attorney of Canadian County (1982-1984); and Andy Lester, of the Spencer Fane law firm and a former U.S. Magistrate Judge for Western District of Oklahoma who served on President Ronald Reagan’s Transition team for the Equal Employment Opportunity Commission (1980-1981).

Members of the Commission have experience in a variety of aspects of the capital punishment system, including victim advocacy, policymaking, prosecution, defense, and judging. They also include leading lawyers, business leaders, and scholars.  In addition to the co-chairs, the members are Robert H. Alexander, Jr., of The Law Office of Robert H. Alexander, Jr.; Howard Barnett, President of OSU-Tulsa; Dean Andrew Coats, Dean Emeritus of OU College of Law; Dean Valerie Couch, Oklahoma City University School of Law; Maria Kolar, Assistant Professor of OU College of Law; Rob Nigh, Chief Public Defender, Tulsa County; Christy Sheppard, a victims’ advocate; Kris Steele, Director of The Education and Employment Ministry (TEEM) and former Speaker of the House; and Gena Timberman, founder of The Luksi Group.

“Our goal is to provide a resource for Oklahomans to allow them to make informed judgments about our state’s capital punishment system that, we hope, will benefit both Oklahoma and the country as a whole,” said Henry.

Though I have long been a fan of any "research-driven review" of any sentencing system, I am not optimistic based on my own experiences in Ohio that this kind of death penalty review commission will be able to achieve all that much other than producing a lengthy report that will be embraced or rejected by political leaders based entirely on their already established views on the death penalty.  This cynical prediction is based on how an array of ABA reports on state death penalty systems and how a recent Ohio Death Penalty Task Force report was received.

Critically, I do not mean to be asserting that this Oklahoma Death Penalty Review Commission is unimportant or sure to inconsequential.  But I do mean to assert that basic political dynamics rather than refined policy analysis defines and often limits the possibilities for reforming the administration of the death penalty.

March 29, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, March 28, 2016

"Time, Death, and Retribution"

The title of this post is the title of this notable new article by Chad Flanders now available via SSRN. To call this article timely and just dead on is both accurate and punny. Here is the abstract:

The heart of a Lackey claim is that when a death row inmate is kept waiting too long for his execution, this delay can amount to cruel and unusual punishment — either because they delay is itself cruel and unusual, or because the execution on top of the delay is.  All Lackey claims brought by death row inmates have failed, but not for want of trying.  The usual complaint against Lackey claims is that those who, by their own appeals, delay their execution date cannot turn around and use that delay as an argument against their death sentences.  I agree with other scholars that this argument is incorrect.  However, even if it is true that prisoner choice cannot make an otherwise unconstitutional sentence constitutional, Lackey claims can — and should — fail if the courts adopt a certain theory of retribution, what I call “intrinsic desert retribution”.  Examining that type of retribution, distinguishing it from other retributive theories, and showing how intrinsic desert retribution can refute most Lackey claims, is one of this article’s major contributions. In doing so, it breaks with most of the scholarly literature, which tends to be sympathetic to Lackey claims.

But the fact that Lackey claims may survive given a certain theory of retribution does not make that theory something the state may permissibly pursue.  And this is the second major contribution of the article: to make the case that retribution may in fact not be a permissible state purpose.  In short, Lackey claims do not fail because they are too strong — they fail because they are not strong enough.  The Supreme Court has traditionally held that the state may permissibly put someone to death because of retribution.  But the Court has also said, in other contexts, that the state may not pursue certain aims.  The state cannot promote religion, for one; nor can it adopt policies based solely on “animus” against a certain class of persons.  My article suggests that when the state adopts retribution as a goal in capital punishment, and pursues that goal even after years of delay, then retribution starts to look more and more like something that, while it may be morally right, cannot be a goal the state can legitimately pursue.

March 28, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Saturday, March 26, 2016

Japan conducts two old-school executions despite international criticisms

As reported in this Guardian article, headlined "Japan executes two prisoners amid protests," the land of the rising sun continues to raise its modern execution totals.  Here are the details:

Human rights campaigners have condemned Japan’s use of the death penalty after two inmates were hanged, bringing the number of executions to 16 since the prime minister, Shinzo Abe, took office in late 2012.  The executions were carried out on Friday, just weeks before Japan is to host the G7 leaders summit: Japan and the US are the only two G7 nations that retain the death penalty, while European countries are among the most vocal critics of Japan’s secretive executions.

Yasutoshi Kamata, 75, was hanged in Osaka for the murders of five people — including a nine-year-old girl — between 1985 and 1994, according to Japanese media. Junko Yoshida was convicted of killing two men in the late 1990s to obtain life insurance payments.  The 56-year-old, who was executed in Fukuoka, is the first woman to be hanged in Japan since 2012.

Campaigners accused Japan of resisting the global trend towards the abolition of the death penalty in the mistaken belief that the punishment acts as a deterrent.  “Despite the fact that about 140 countries in the world have already abandoned or have stopped executions for more than a decade, the Japanese government is turning its back on the trend,” said Hideki Wakabayashi, secretary general of Amnesty International Japan.

Opinion polls in Japan show high levels of public support for the death penalty, although campaigners say the surveys are worded in such a way as to play on the public’s fear of crime.  In a 2010 poll, 86% of respondents said the use of the death penalty was “unavoidable” — a sentiment that strengthened after a doomsday cult carried out a sarin gas attack on the Tokyo subway in 1995, killing 13 people and injuring thousands more.

Friday’s executions mean the number of inmates facing the death sentence in Japan now stands at 124. The hangings also highlighted the long periods — on average more than five years between 2005 and 2014 — that inmates are forced to wait to be executed.  Kamata’s sentence was finalised 11 years ago, and Yoshida’s almost six years ago, according to Japanese media.

Death row inmates are typically given only a few hours’ notice of their execution, with relatives and lawyers informed only after it has been carried out.  In a damning 2009 report, Amnesty claimed Japan’s death row inmates were being driven insane and exposed to “cruel, inhuman and degrading” treatment.

March 26, 2016 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (1)

Friday, March 25, 2016

Florida has first capital case head to jury sentencing after Hurst-required reforms

Roughly 10 weeks after the Supreme Court declared unconstitutionally Florida's death sentencing procedures in Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2015) (available here), a group of jurors have the chance to create a new capital test case as to whether the Florida's now-revised death sentencing procedures can survive another constitutional attack.  This local article, headlined "Hawkins test of new sentencing rules," explains:

For the first time since the Florida Legislature revised capital punishment sentencing guidelines — requiring a favorable vote by 10 of 12 jurors — a defendant could get the death penalty.

Antowan Hawkins was convicted Thursday of felony first-degree murder, robbery, arson, tampering with physical evidence and grand theft of a motor vehicle in the death of 24-year-old Aaron Goodwin. Today, jurors will return to determine Hawkins' sentence.

But prior to his week-long trial, his attorneys filed motions calling the new jury guidelines unconstitutional. “This scheme leaves Florida as one of only two states that authorize the imposition of the death penalty on less than a unanimous jury verdict,” Hawkins attorney David Collins wrote in a March 21 filing. “This scheme is contrary to evolving standards of decency regarding the humane imposition of capital punishment.”

Jurors Thursday found Hawkins guilty of felony murder instead of premeditated murder, a decision that could play into the sentencing guidelines introduced in court today. "That can be perceived that you’re not quite sure who is actually the one who killed Mr. Goodwin," said Chuck Collins, Hawkins' attorney, during his opening statement. "Are you prepared to sanction the execution of someone not knowing beyond a reasonable doubt that he is the actual person who killed him?"

Prosecutors said in court Friday Hawkins took measures to conceal the killing of Goodwin by setting his South Adams Street sneaker shop on fire and driving his car to Jefferson County to set it ablaze. Testimony in the trial also suggested Hawkins may have gone to the store prior to the crime. "We see a pattern of destroying evidence to avoid being caught," said Assistant State Attorney for the 2nd Judicial Circuit Eddie Evans. "There was evidence the victim had seen the defendant before."

UPDATE: If you click through to the local article linked above, it now reports that jurors sentenced this capital defendant to life in prison without the possibility of parole after only an hour of deliberation. Consequently, some other case is going to become the test case for Florida's new capital sentencing procedures.

March 25, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, March 23, 2016

State judge in Missouri decides state DOC purposely violated state law to avoid execution drug disclosure

As reported in this local article, headlined "Missouri Corrections Department Violated Sunshine Law In Execution Case, Judge Rules," a state judge reached some sharp conclusions about what the state DOC failed to show concerning execution drugs in the Show Me state. Here are the details:

The Missouri Department of Corrections purposely violated the state’s Sunshine Law when it refused to turn over records revealing the suppliers of lethal injection drugs for executions, a state court judge ruled late Monday. Cole County Circuit Judge Jon E. Beetem’s decision came in three parallel cases, including one brought by five news organizations: The Kansas City Star, The St. Louis Post-Dispatch, the Springfield News-Leader, The Guardian and the Associated Press.

Beetem last July ordered the DOC to disclose the names of the pharmacies from which it buys lethal injection drugs. But the issue remained moot while he reviewed the records in question to see if they needed to be redacted in order to protect the identities of members of the execution team.

On Monday, Beetem ruled that while an exemption in the Sunshine Law protects the identities of the doctor and nurse who are present during the execution as well as non-medical personnel who assist with the execution and are also present, it does not protect the identity of the pharmacists who supply the execution drugs. He ordered the DOC to produce those records without redactions. He also ordered the DOC to pay the plaintiffs’ costs and attorneys’ fees. In the news organizations' case, that amounted to $73,335.

The state has already indicated it plans to appeal. The Department of Corrections did not immediately return a call seeking comment on Beetem's decision. "At this point, it has cost the state of Missouri more than $100,000 to assert a frivolous position," said Kansas City attorney Bernard Rhodes, who represented the news organizations. "At what point will the state realize that they're wrong and at what cost to the taxpayers will it take before the state realizes they are wrong?"

The other lawsuits challenging officials' refusal to provide information about the state's execution protocols were filed by former Missouri legislator Joan Bray, a death penalty opponent, and by the Reporters Committee for Freedom of the Press, the American Civil Liberties Union and Christopher S. McDaniel, formerly of St. Louis Public Radio.

Missouri, like other states, has had difficulty finding lethal injection drugs after European and American drug makers began refusing to provide them. The state has resorted to using largely unregulated compounding pharmacies, often keeping the sources of the drugs secret. In their lawsuit, the five news organizations said that public disclosure of the source, quality and composition of the drugs “reduces the risk that improper, ineffective, or defectively prepared drugs are used; it allows public oversight of the types of drugs selected to cause death and qualifications of those manufacturing the chosen drugs; and it promotes the proper functioning of everyone involved in the execution process.”

March 23, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4)

Monday, March 21, 2016

Some interesting recent discussions of religion and the death penalty

Long-time readers know I have long been intrigued by (and uncertain about) the intersection of strong religious beliefs and strong opinions on the death penalty. For that reason, these recent pieces caught my eye:

From the New Yorker here, "The Catholic Movement Against Capital Punishment"

From Patheos here, "Why Authentic Christians Must Oppose the Death Penalty"

From RawStoy here, "Bible: 6 Ways Jewish Bernie Sanders Is More Like Christ, Christian Donald Trump More Like Anti-Christ"

The last of these pieces talks about a lot more than the death penalty, but I figured it might help generate some extra fun comments.

March 21, 2016 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (1)

Sunday, March 20, 2016

High-profile NYC cop-killer getting off death row spotlights continued challenges SCOTUS jurisprudence

This new AP article, headline "NY Killer Off Death Row as Definition of Disabled Gets Tweak," reports on a notable capital ruling in a high-profile federal capital case and details how the case taps into broader issues surrounding the Supreme Court's Eighth Amendment limits on the application of the death penalty. Here are the details:

Prosecutors say Ronell Wilson is a calculating murderer. Since his imprisonment for killing two New York City police detectives, he has been able to dash off emails, memorize passages from books and seduce a female guard.  But Wilson's lawyers were able to convince a judge that he is a person of such a low intelligence that he can't function in society, and therefore can't legally be put to death.

Wilson, 32, and others like him are at the center of a debate over how to enforce a nearly two-year-old U.S. Supreme Court ruling that adds more specificity to the concept that it is cruel and unusual punishment to execute killers who are intellectually disabled.  It says courts should go beyond mere IQ scores to consider the person's mental or developmental disabilities.  A federal judge in New York who revisited Wilson's case based on the ruling tossed out his death sentence, just three years after finding that Wilson's IQ score was high enough to make him eligible to be executed.

A similar review led a judge in California last November to reduce a death sentence given three decades ago to Donald Griffin, a man who raped and murdered his 12-year-old stepdaughter.  A third appeal based on the ruling, that of a Virginia serial killer with a borderline IQ score, failed. Alfredo Prieto was executed in October.

Legal scholars say similar death row decisions are likely to follow, depending on how the high court's ruling is applied around the country.  "We should see courts more carefully considering whether defendants have an intellectual disability ... that doesn't mean we will," said Robert Dunham, the executive director of the nonprofit Death Penalty Information Center.

Wilson is a case study in the difficulty of determining who fits the court's definition of someone too intellectually limited to qualify for capital punishment....  U.S. District Court Judge Nicholas Garaufis said in his ruling Tuesday that he had no sympathy for Wilson and also doubted most clinicians would consider him disabled.  But he said he had "significant deficits in adaptive functioning" - enough to make him ineligible for the death penalty.  Garaufis imposed a new punishment of life in prison.

March 20, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Friday, March 18, 2016

"How many times should a state be able to try to execute someone without running afoul of the Constitution?"

The question in the title of this post is the first line of this notable new commentary authored by Austin Sarat concerning the work of the Ohio Supreme Court  in Ohio v. Broom (previously discussed here).  Here is more of the commentary:

[T]he Ohio Supreme Court ruled on Wednesday that neither the federal nor the state constitution forbids Ohio from trying to execute someone more than once.  While this ruling may set up another opportunity for the U.S. Supreme Court to consider the constitutionality of capital punishment, it nonetheless allows the nightmarish possibility that the state can proceed in a negligent manner in carrying out an execution and, if it fails in the first attempt, to try, try again.  This should shock and trouble those who support capital punishment as well as those who oppose it....

On Sept. 15, 2009, Broom, who had been convicted of kidnapping, rape, and murder, was brought to Ohio's death chamber where he was to be executed by lethal injection.  His executioners repeatedly attempted to insert an intravenous line into Broom's arms and legs.  As they did so, Broom winced and grimaced with pain.  At one point, he covered his face with both hands and appeared to be sobbing, his stomach heaving.

After an hour had passed, Broom tried to help his executioners, turning onto his side, sliding the rubber tubing that served as a tourniquet up his left arm, and alternatively squeezing his fingers together and apart. Even when executioners found what they believed to be a suitable vein, it quickly collapsed as they tried to inject the saline fluid. Broom was once again brought to tears. After more than two hours of executioners sticking Broom's arms and legs with the needle, the prison director decided that the execution team should rest.  The governor of Ohio issued a reprieve stopping the execution....

It is almost certain that the Bromell case now will make its way to the U.S. Supreme Court and that it will offer that court the chance to revisit the unfortunate precedent it set more than 60 years ago [allowing Louisiana to try again after a failed electrocution in the Francis case].

One can only hope that the Court will now insist that if the government is going to carry out executions that there be no room for error. Neither simple human decency nor the 8th Amendment can tolerate a government carrying out a death penalty sentence in a shoddy manner.  If we are going to have a death penalty, we cannot allow death, as the dissenting justice in the Francis case put it, to be carried out on the installment plan.

Prior related post:

March 18, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, March 16, 2016

Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt

This official summary from the Ohio Supreme Court office of public information provides a detailed summary of a notable capital punishment ruling today, and it starts this way:

An execution had not begun when an IV line could not be established to deliver lethal drugs into an inmate’s body even though a needle was inserted multiple times, and neither the U.S. nor Ohio constitution bars the state from carrying out the execution, the Ohio Supreme Court ruled today.

The Supreme Court ruled 4-3 that a second attempt to execute Romell Broom by lethal injection would not violate the cruel and unusual punishment or the double jeopardy clauses of the federal and state constitutions. Justice Judith Ann Lanzinger stated in the majority opinion that by law the death penalty begins with the application of lethal drugs, and since the execution team stopped after it could not keep an IV catheter functioning, Broom’s punishment had not started.

In separate opinions, dissenting justices countered that Broom is entitled to a hearing to prove a second attempt would also fail under the state’s procedures, and that the first attempt constituted cruel punishment.

The full opinion in Ohio v. Broom, 2016-Ohio-1028 (Ohio S. Ct. March 16, 2016), is available at this link.  I may comment more about this novel Eighth Amendment case in coming days.  But even without having a chance to review the opinions, I can predict with relative certainty that there will be an appeal to the US Supreme Court that may well interest some of the Justices.  Given that likelihood, as well as the difficulties Ohio has had with obtaining execution drugs, I think we can and should still expect Romell Broom to remain alive for many, many more future election days in bellwether Ohio.

March 16, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, March 14, 2016

Interesting moment concerning Hillary Clinton and the death penalty at CNN town hall

I largely stopped watching much TV coverage of the Prez campaign except on election nights, in part because crime and justice issues continue to get precious little attention in debates or in coverage of what the various candidates might do if elected.  But, as reported here, last night's CNN town hall included a notable exchange concerning the death penalty:

An exonerated former death row inmate challenged Hillary Clinton on Sunday night to defend her continued support for capital punishment in some instances despite cases in which innocent people have been wrongly convicted.

"I came perilously close to my own execution," Ricky Jackson said during the CNN-TV One town hall event Sunday at Ohio State University, where he described the circumstances of his case and exoneration. He asked the Democratic front-runner, "In light of what I just shared with you and in light of the fact that there are documented cases of innocent people who have been executed in our country, I would like to know how you can still take your stance on the death penalty in light of what you know right now?"

In 2014, Jackson was freed after spending nearly four decades in prison for a crime he did not commit.  Convicted at the age of 18 for the 1975 killing of a money-order salesman in Cleveland, the Ohio man was exonerated after the prosecution's key witness, only 12 years old when he gave his damning account to police, recanted in court.

Calling his a profoundly difficult question, Clinton first criticized the states, saying they "have proven themselves incapable of carrying out fair trials that give defendants the rights that defendants should have."

"I've said I would breathe a sigh of relief if either the Supreme Court or the states themselves began to eliminate the death penalty."

But the former secretary of state did not retreat from her broader position.  "Where I end up is this, and maybe it's a distinction that is hard to support, but at this point, given the choices we face from terrorist activities primarily in our country that end up under federal jurisdiction, for very limited purposes, I think it can still be held in reserve for those."

Clinton referenced the April 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, an act of domestic terrorism that killed 168 people, as one example of the kind of crime she considered punishable by death.  "That is the exception that I still am struggling with, and it would only be in the federal system," she said.

Interestingly, this afternoon CNN just published this commentary authored by Ricky Jackson under the headline "Exonerated death row inmate: Clinton wrong on death penalty." Here is an excerpt from the later part of the commentary:

I know that the death penalty does not deter.  That can no longer be seriously debated. I also know that it is very expensive at a time when states are struggling financially and many are on the brink of bankruptcy.  As an expensive government program with no proven track record of effectiveness, it is, indeed, the proverbial "bridge to nowhere." But I also know that it sends innocent people to death row, and sometimes kills them.

Some of those likely innocents, such as Cameron Todd Willingham and Carlos DeLuna, have been executed at the hands of the government.  Other innocent inmates -- in fact more than 150 of them -- have been lucky enough to have been exonerated and freed before their execution.

Furthermore, I learned from my time on death row that even the guilty are worthy of salvation. As an innocent and scared 18-year-old boy sent to death row, it was only the kindness and humanity of death row's guilty, who took me under their collective wing, that kept my sanity and maintained my faith in humanity.  These inmates made horrible mistakes, and deserved to be punished, but they are not the animals our criminal justice makes them out to be.

A society should not be judged on how it treats its best, but rather on how it treats is lowest.  And even the lowest are capable of incredible acts of humanity and are worthy of decency.  They are worthy of God's grace, just as they bestowed grace upon me.

When I asked Clinton why she still supports the death penalty, she said she supported it only for the worst of the worst: those who committed acts of mass killing or terrorism.  I cannot accept that.  In cases such as those, the societal pressure to convict is at its highest.  And when an intense pressure to convict is present, that is when the risk of convicting an innocent is greatest.  The death penalty is also not a deterrent in terrorism cases.  In fact, death can serve the purpose of many terrorists who wish to become "martyrs" for their cause.

During all the decades I sat in prison as an innocent man, I saw societal views gradually change.  Not too many years ago, a Democratic candidate could not publicly support same-sex marriage and stand a chance of getting elected in a general election.  Now, a Democratic candidate could not be taken seriously if he or she didn't support same-sex marriage.

Likewise, no serious Democratic candidate should be able to support the death penalty. We have evolved. We have seen the evidence that the death penalty doesn't work and that it kills the innocent.  Given this evidence, it is time that no candidate -- Democrat or Republican -- should be taken seriously if he or she supports capital punishment.

The fact that Clinton continues to hang on to this antiquated relic confuses me.  She touts "criminal justice reform" -- and much reform is needed -- but she misses one of the lowest hanging pieces of fruit.  I said last night that I am an "undecided" voter.  I hope that Clinton reconsiders her position on capital punishment before I do what I have been waiting my entire life to do: cast my first presidential vote as a free and vindicated man.

March 14, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Sunday, March 13, 2016

"Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation"

The title of this post is the title of this interesting-looking article authored by Bidish Sarma and recently posted on SSRN. Here is the abstract:

What if Walter White had been captured by the federal authorities?  Considering that he committed the murders of many individuals and orchestrated many more in the course of building and running his global meth trade, the prosecution would be able to seek the ultimate punishment against him.  But, would a jury give him the death penalty? Walt’s gripping journey stirred within viewers a range of complex emotions, but even those revolted by his actions must concede that it is extraordinarily difficult to envision a random collection of twelve people unanimously agreeing that he deserves a state-sanctioned execution.  Indeed, it seems that many of us actually rooted for Walt throughout the series, even when we struggled to understand why.

This Essay explores the answer to the question of why we would spare Walter White from the death penalty.  Its exploration underscores the critical importance of “mitigation” — a capacious term that refers to evidence introduced by capital defense lawyers to persuade jurors to hand down something less harsh than a death sentence.

Breaking Bad, through its masterful construction of its core narrative, situated us to empathize with Walt, to view him as someone we could understand, to feel about him the way we might feel about a friend or colleague or neighbor. Whether we argued vociferously in online forums that his actions were nearly always justified or simply watched with a suppressed but distinct hope that he might emerge as a partially redeemed man, many of us never condemned Walt. We did not want him to die an undignified death at someone else’s hands.  In fact, we were relieved that death came to him on his own terms.  And, if he had been captured, we would not have sent him to the death chamber.  Knowing Walt — understanding his “mitigation” — bent us towards mercy.

To start, this Essay explains how a capital trial unfolds and sets out the factors that jurors must take into account when they decide whether to choose death for a convicted capital defendant.  After establishing the basic framework for the death-determination in Part I, this Essay focuses on Walter White’s hypothetical penalty phase in Part II.  It describes both the “aggravating” evidence the prosecution would use to persuade jurors that death is the appropriate punishment and the “mitigating” evidence the defense would use to persuade jurors that a sentence less than death is appropriate.  Part II concludes with an explanation of why a jury likely would not sentence Walter White to die.

Part III steps back to identify distinct conclusions that we could draw from viewers’ prevailing willingness to ride with Walt until the end.  It concludes that it would be unwise to dismiss Walt as a fictitious outlier. Rather than ask ourselves what makes Walt’s particular case for mercy special, we should ask ourselves how the show managed to make him so real.  Breaking Bad’s storytelling proved so powerful that the show’s writers were themselves amazed that viewers continued to stand by Walt’s side through it all.  If we would spare Walter White, surely we would spare many others facing capital punishment.  But to get there, we need to do more than hear that they have struggles and triumphs of their own; we need to walk with them on their journeys.  We must feel like we did when the last episode of Breaking BadI began — wondering exactly how things will end, but unwilling to bring that end by our hands.

March 13, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Thursday, March 10, 2016

Notable headlines concerning diverse death penalty developments nationwide

My Google News feed this morning has an array of notable headlines concerning an array of notable death penalty reform and litigation developments around the country in recent days.  Here are some links, moving from states in the east to the west:

Delaware: "ACLU, others join in Delaware death penalty arguments"

Florida: "Florida death penalty officially revamped after Supreme Court struck it down"

Kentucky: "Bill To Abolish Kentucky Death Penalty Fails In House Committee"

Texas: "Texas executes Houston death row inmate for 1997 shooting rampage that killed 5 people including his ex-wife"

Utah: "In Deep-Red Utah, Lawmakers May Repeal the Death Penalty"

Nevada: "Group builds a case against the death penalty"

Washington: "Prosecutors beg, but legislators fail to act on death penalty"

Among this bunch, I find the final story here about developments in Washington state especially intriguing.  And, of course, I welcome input from readers as to which of these stories they think are most notable.

March 10, 2016 in Death Penalty Reforms | Permalink | Comments (9)

Sunday, March 06, 2016

"Assessing and Ameliorating Arbitrariness in Capital Charging: A Doctrinally and Empirically Anchored Inquiry"

The title of this post is the title of this notable new paper now available via SSRN authored by Sherod Thaxton. Here is the abstract:

Justice Stephen Breyer recently made international headlines when he emphasized that reforms to the capital punishment process have apparently failed to ameliorate the rampant arbitrariness, capriciousness, and bias that led the U.S. Supreme Court to temporarily invalidate the death penalty over forty years ago.  According to the Justice, the primary cause of this failure has been the Court’s backpedaling on the very substantive and procedural protections it initially articulated as necessary for the constitutional administration of the death penalty.  The Court’s capital punishment jurisprudence initially underscored the importance of social scientific evidence in assessing the fairness of capital punishment systems, but now the Court routinely minimizes, or outright ignores, social science evidence on the operation of the death penalty.  This has led to the growing disjunction between the Court’s rhetoric and the reality of capital punishment. Justice Breyer underscored the Court’s responsibility in holding death penalty systems accountable and called for full briefing on the basic question of the social realities of the administration of capital punishment.

Meaningful death penalty reform, if possible, requires a more prominent role for social science in death penalty decision-making.  In this Article, I develop a doctrinally anchored statistical model that carefully disentangles and evaluates questions of arbitrariness, bias, and disproportionality in capital charging.  I begin by discussing the Court’s inconsistent efforts to rationalize and regulate capital punishment systems.  I then adopt a framework of statistical inference in an effort to provide greater definitional and analytical clarity. Finally, I describe a set of analytical tools uniquely suited for diagnosing capital charging errors that closely aligns with the Court’s conceptualization of unacceptable arbitrariness. I illustrate the usefulness of the model on data involving actual death penalty-eligible defendants from Georgia.

My analysis reveals that death penalty charging practices are highly inconsistent, irrational, and disproportionate, both within and across jurisdictions in Georgia.  The Article concludes by explaining how the empirical model might be used to improve accuracy and consistency in capital charging systems through empirically informed front-end charging screening.

March 6, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Iran measuring up white-collar nooses after sentencing three businessmen to death

As reported in this CBS piece, headlined "Iran sentences billionaire businessman to death," it seems that Iran's justice system does not view even prominent corporate executives as too big to kill.  Here are the deadly details:

An Iranian court has sentenced a well-known tycoon to death for corruption linked to oil sales during the rule of former President Mahmoud Ahmadinejad, the judiciary spokesman said Sunday.
Babak Zanjani and two of his associates were sentenced to death for "money laundering," among other charges, Gholamhossein Mohseni Ejehi said in brief remarks broadcast on state TV. He did not identify the two associates.
Previous state media reports have said the three were charged with forgery and fraud. "The court has recognized the three defendants as 'corruptors on earth' and sentenced them to death," said Ejehi. "Corruptors on earth" is an Islamic term referring to crimes that are punishable by death because they have a major impact on society.  The verdict, which came after a nearly five-month trial, can be appealed....
Iran's prosecutors contend Zanjani withheld billions in oil revenues channeled through his companies. A news website run by the judiciary identified the two associates as British-Iranian businessman Mahdi Shams, who was detained in 2015, and the other as Hamid Fallah Heravi, a retired businessman.
Zanjani was arrested in 2013 during a crackdown on alleged corruption during Ahmadinejad's rule.  Iran's Oil Ministry says Zanjani owes more than 2 billion euros ($2.25 billion) for oil sales he made on behalf of Ahmadinejad's government.  Zanjani is one of Iran's wealthiest businessmen, with a fortune worth an estimated $14 billion. He was arrested shortly after the election of President Hassan Rouhani, who ordered a crackdown on alleged corruption during the eight-year rule of his hard-line predecessor.  In a 2013 interview with the BBC, Zanjani claimed he was not a political person, saying: "I don't do anything political, I just do business."
Iran has in the past executed other wealthy individuals found guilty of similar charges. In 2014, Iran executed billionaire businessman Mahafarid Amir Khosravi over corruption charges.

March 6, 2016 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (3)

Friday, March 04, 2016

Post-Hurst hydra takes big bite into some capital cases in Alabama

Download (1)Regularly readers are perhaps now tired of hearing me use the term "post-Hurst hydra" (and what I still think is a cool image) to describe the litigation in various courts in various states as judges sort ought what Supreme Court ruling in Hurst v. Florida must mean for past, present and future capital cases.  But that hydra keep rearing its head, and yesterday it took a big bite in Alabama as reported in this local article

A Jefferson County judge Thursday morning ruled that Alabama's capital murder sentencing scheme, which allows judges to override jury recommendations of life without parole and instead impose the death penalty, is unconstitutional.  In making her ruling after a hearing, Jefferson County Circuit Judge Tracie Todd barred the death penalty in the cases of four men charged in three murders.

"The Alabama capital sentencing scheme fails to provide special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary," Todd said in reading her written ruling from the bench.  "As a result, the death penalty in Alabama is being imposed in a "wholly arbitrary and capricious" manner."

The result of Todd's order is that the judge won't allow the death penalty to be imposed in the cases before her.  But attorneys present at the hearing said it would be up to other judges whether to follow her example.  But Todd said her ruling likely will be appealed by prosecutors.  If an appellate court were to uphold her ruling, then it would become a precedent and apply to cases around the state, attorneys said.

"Judge Todd's ruling today is not a general pronouncement for the State of Alabama, but is strictly limited to the four cases upon which she ruled in the Jefferson County Circuit Court," Alabama Attorney General Luther Strange said Thursday afternoon.   "Alabama's capital sentencing statutes are constitutional.  Just yesterday the Alabama Supreme Court denied the appeal of a capital murder defendant who had filed a similar pre-trial motion, and the Court refused to declare Alabama's capital statute's unconstitutional. We are currently reviewing the Judge's written order, and expect to file an appeal.  We fully expect today's ruling by Judge Todd to be reversed."

As this press account of the trial court ruling highlights, the decision by Judge Todd covers a lot more ground than just the application of the SCOTUS Hurst opinion in Alabama.  The opinion is available at this link, and all persons concerned about the death penalty ought to read it in full.  Toward the end of the extended opinion, the judge discusses Hurst and seems to rest her decision in large part on its Sixth Amendment holding. But she also discusses a number of other issues surrounding Alabama's capital sentencing scheme, and it is actually hard for me to assess whether the interplay of concerns discussed in this opinion may make it more or less likely to be reversed on appeal.

March 4, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)