Monday, November 07, 2016
Focus on the federal death penalty as capital trial begins for Charleston mass murderer Dylann Roof
Today marks the start in Charleston, South Carolina of the highest-profile federal capital trial since the death sentencing of the Boston Marathon bomber. Here are some local and national stores/headlines providing some context and a sense of what to expect in the courtroom:
Meanwhile, for those unsure what some in the traditional media think about this capital case, here are links to a recent Los Angeles Times editorial and a New York Times op-ed arguing against capital punishment even in this case of mass murder in which there is no doubt about guilt:
Sunday, November 06, 2016
Do we need to worry seriously about voter confusion in the states in which the future of the death penalty is on ballot?
The question in the title of this post is prompted by this recent article from Governing headlined "As Voters Decide Death Penalty's Fate, Ballots Confuse Some: This year's proposals aren't as simple as marking whether you're for or against capital punishment." Here are excerpts:
The death penalty is legal in 30 states, but a growing number have repealed it in the last decade. Depending on the election, California and Nebraska could be next. While voters in those two states decide whether to do away with capital punishment, voters in Oklahoma — where botched executions have led to a temporary moratorium — could strengthen their state's ability to carry it out....
[But] like the issue of capital punishment, this year's ballot measures on the topic are complicated.
In Nebraska, the state legislature overrode their governor to repeal the death penalty in 2015, but the law never went into effect because opponents gathered enough signatures to put a referendum on the ballot. If voters ultimately uphold the law, it would be the first state under GOP control to ban capital punishment since 1973.
But first, voters will have to figure out which side they stand on — something that could be difficult for many. The ballot measure gives voters two options: "repeal" or "retain." People who choose "repeal," as confusing as it may be, won't be voting to repeal the death penalty — they'll be voting to repeal the legislature's repeal of the death penalty and thus keep the option of executions available.
Nebraska GOP Gov. Pete Ricketts is campaigning in favor of capital punishment and has contributed about $400,000 to the effort. In his veto letter to state lawmakers last year, he said their vote on a death penalty ban “tests the true meaning of representative government.” Though a bipartisan majority of legislators overrode his veto, Ricketts may be correct that the public is with him: An August poll found that about 58 percent of likely voters in Nebraska are in favor of the death penalty.
In California, the ballot features two conflicting propositions — one that would repeal the death penalty and another that would keep it. If both measures earn a majority of votes, whichever gets more will go into effect. Most polls suggest the pro-death penalty measure will pass.
And in Oklahoma, the legality of capital punishment isn't up for a vote. Instead, voters will decide whether to add a section to the constitution that affirms the state’s authority to carry out executions, regardless of which method is used. After several botched executions, the state halted any future ones until further notice. Oklahoma's ballot measure would also exempt the death penalty — but not specific methods of execution — from being invalidated by courts as cruel and unusual punishment. "It takes away the debate on whether or not we should have capital punishment," said state Rep. John Paul Jordan in an interview with The Oklahoman. "It allows us to direct our attention as a Legislature towards how we implement it and how we do it in the most humane way possible.”
Critics of the Oklahoma ballot question say the constitutional amendment is unnecessary, undermines the authority of the courts and could invite expensive lawsuits. Several civil rights experts have raised concerns that the measure would strip citizens of their constitutional protections against cruel and unusual punishment. Nevertheless, a July poll found that more than 70 percent of likely voters supported the constitutional amendment.
Although polling in all three states suggest that a majority of voters support the death penalty, there's evidence that the framing of the question makes a major difference in how people respond. I n Oklahoma, when likely voters were asked if they supported the death penalty, three-quarters said yes. But when given the option of eliminating the death penalty and replacing it with a life sentence without parole, along with other financial penalties, a slight majority favored a ban on the death penalty.
Friday, November 04, 2016
Supreme Court (surprisingly?) grants last-minute stay of Alabama execution
As reported in this Washington Post article, the "Supreme Court stayed the execution Thursday night of an Alabama inmate who had been scheduled to die by lethal injection." Here is more about this interesting development and its context:
This marked the seventh time that Thomas D. Arthur — who was convicted of murder and is the second-oldest inmate on Alabama’s death row — had faced an execution date that was called off, according to the office of Alabama Attorney General Luther Strange. Arthur’s execution was scheduled for Thursday evening, but the uncertainty stretched into the night as officials in Alabama waited for the Supreme Court to consider his appeals.
Supreme Court Justice Clarence Thomas — the Supreme Court justice assigned to the 11th Circuit, which includes Alabama — said in an order shortly before 10:30 p.m. that he was halting the execution until he or the other justices issued another order. Thomas referred the case to the full court, and shortly before midnight, the justices issued an order granting Arthur’s stay request. The order included a statement from Chief Justice John G. Roberts Jr. explaining that while he did not believe this case merited a review from the Supreme Court, he had decided to vote for a stay anyway as a courtesy to his colleagues.
Roberts wrote that four of the other justices had voted in favor of staying the execution. “To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy,” he wrote. Roberts said Thomas and Justice Samuel Alito would have rejected the request; he did not explain why an eighth justice was not involved in the vote.
According to the court’s order, Arthur’s stay request would remain granted until the justices decide whether to consider the case. If they decide against it, the stay will be terminated. “We are greatly relieved by the Supreme Court’s decision granting a stay and now hope for the opportunity to present the merits of Mr. Arthur’s claims to the Court,” Suhana S. Han, an attorney for Arthur, said in a statement.
Arthur, 74, was sentenced to death for the 1982 killing of Troy Wicker, described in court records as the husband of a woman with whom Arthur had an affair. According to a summary of the case from the Alabama Supreme Court, Arthur was serving a life sentence for fatally shooting a relative of his common-law wife and, while on work release, had an affair with Wicker’s wife before killing Wicker. After three trials, Arthur was sentenced to death. One of his executions was called off after another inmate confessed to the killing, though a judge ultimately dismissed that inmate’s claim.
In appeals filed Thursday, Arthur’s attorneys argued that Alabama’s “deficient lethal injection protocol” would have had “torturous effects,” pointing to the state’s planned use of the sedative midazolam, which has been used in at least three executions that went awry. Last year, the Supreme Court upheld Oklahoma’s execution protocol in a case that hinged in part on that sedative.
Arthur’s court filings also argued that the state should execute him by firing squad, arguing that “execution by firing squad, if implemented properly, would result in a substantially lesser risk of harm” than the proposed lethal injection method. Strange’s office, in its response, noted that under Alabama state law, the Department of Corrections is only allowed to carry out executions by injection and electrocution.
Strange criticized the justices for their action late Thursday. “With all due respect to the Supreme Court, tonight’s order undermines the rule of law,” Strange said in a statement. “While I agree with Chief Justice Roberts that ‘This case does not merit the Court’s review,’ in my view, there is no ‘courtesy’ in voting to deny justice to the victims of a notorious and cold-blooded killer.”...
There have been 17 executions in the United States so far this year, according to the Death Penalty Information Center, and the country is on pace to have its fewest executions in a quarter-century. Arthur’s was one of four executions scheduled through the end of 2016, according to the center.
Thursday, November 03, 2016
Death row defendants come up just short in big circuit panel rulings about lethal injection protocols
Though I am saddened that the lovable baseball club from Cleveland came up just short against a lovable baseball club from Chicago very early this morning, there are some death row defendants and lawyers who I suspect are much more troubled by a much more serious legal matter in which their arguments to federal circuit panels came up just short yesterday. Specifically, two court panels, one in the Sixth Circuit and one in the Eleventh Circuit, yesterday handed down two split 2-1 rulings against death row defendants in Ohio and Alabama. Here are links to the rulingsand the start of the majority opinions:
Phillips v. DeWine, No. 15-3238 (6th Cir. Nov. 2, 2016) (available here):
In this appeal, a group of inmates sentenced to death in Ohio challenge the constitutionality of the State’s newly enacted statutory scheme concerning the confidentiality of information related to lethal injection. The district court dismissed some of their claims for a lack of standing and the remainder for failure to state a claim. For the reasons stated below, we AFFIRM.
Arthur v. Alabama DOC, No. 16-15549 (11th Cir. Nov. 2, 2016) (available here):
It has been 34 years since Thomas Arthur brutally murdered Troy Wicker. During 1982 to 1992, Thomas Arthur was thrice tried, convicted, and sentenced to death for Wicker’s murder. After his third death sentence in 1992, Arthur for the next 24 years has pursued, unsuccessfully, dozens of direct and post-conviction appeals in both state and federal courts.
In addition, starting nine years ago in 2007 and on three separate occasions, Arthur has filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug protocol to be used in his execution. This is Arthur’s third such § 1983 case, and this current § 1983 case was filed in 2011. For the last five years Arthur has pursued this § 1983 case with the benefit of lengthy discovery. The district court held a two-day trial and entered two comprehensive orders denying Arthur § 1983 relief. Those orders are the focus of the instant appeal.
After thorough review, we conclude substantial evidence supported the district court’s fact findings and, thus, Arthur has shown no clear error in them. Further, Arthur has shown no error in the district court’s conclusions of law, inter alia, that: (1) Arthur failed to carry his burden to show compounded pentobarbital is a feasible, readily implemented, and available drug to the Alabama Department of Corrections (“ADOC”) for use in executions; (2) Alabama’s consciousness assessment protocol does not violate the Eighth Amendment or the Equal Protection Clause; and (3) Arthur’s belated firing-squad claim lacks merit.
Wednesday, November 02, 2016
How should Californians, as taxpayers, think about the state's competing death penalty initiatives?
The question in the title of this post is prompted by this notable new Los Angeles Times article headlined "Will ending the death penalty save California more money than speeding up executions?". Here are excerpts:
Past efforts to repeal the death penalty in California have centered on moral or ethical objections. This year, proponents of Proposition 62, which would replace the punishment with life in prison without parole, are focusing on economics. Prominent supporters of the measure have repeatedly pointed out that the state’s taxpayers have spent $5 billion on the executions of only 13 people in almost 40 years. Online ads have urged voters to end a costly system that “wastes” $150 million a year.
“Sometimes, something is so broken it just can’t be fixed,” a voiceover says in one commercial, as a blue-and-white china vase shatters to the ground. “Let’s spend that money on programs that are proven to make us safer,” a crime victim pleads in another.
But as voters weigh two dueling death penalty measures on the Nov. 8 ballot — one to eliminate executions, another to speed them up — researchers are at odds over the actual costs and potential savings of each. Independent legislative analysts, meanwhile, believe Proposition 62 could save taxpayers millions, while concluding that the fiscal impact of Proposition 66’s attempt to expedite death sentences is unknown.
Death penalty cases are often the most expensive in the criminal justice system because the costs associated with capital punishment trials and the incarceration of death row offenders are vastly higher. The expenses begin to accrue at the county level. Capital cases require two trials, one to decide the verdict and another the punishment. They require more attorneys, more investigators, more time and experts and a larger jury pool.
The costs grow as the state must pay to incarcerate inmates during a lengthy appeals process: The average cost of imprisoning an offender was about $47,000 per year in 2008-09, according to the nonpartisan state legislative analyst’s office. But housing a death row inmate can lead to an additional $50,000 to $90,000 per year, studies have found.
Paula Mitchell, a professor at Loyola Law School who is against the death penalty and has advised the Yes on Prop. 62 campaign, puts the cost of the entire death penalty system since 1978 at about $5 billion. That figure, updated from data compiled in a 2011 report, includes 13 executions since the death penalty was reinstated through a 1978 ballot measure and suspended in 2006 due legal challenges over its injection protocols. It also includes the cost of trials, lengthy appeals and the housing of nearly 750 inmates on California’s death row. The initial study estimated taxpayers spent $70 million per year on incarceration costs, $775 million on federal legal challenges to convictions, known as habeas corpus petitions, and $925 million on automatic appeals and initial legal challenges to death row cases.
Mitchell and other researchers said Proposition 62, which would retroactively apply life sentences to all death row defendants, would save the state most of that money. “It is sort of a fantasy that this system is ever going to be cost efficient,” said Mitchell, who has been named the university’s executive director of the Project for the Innocent.
But proponents of Proposition 66 argue the system can be reformed. The ballot measure would designate trial courts to take on initial challenges to convictions and limit successive appeals to within five years of a death sentence. It also would require lawyers who don’t take capital cases to represent death row inmates in an attempt to expand the pool of available lawyers.
In an analysis for its proponents, Michael Genest, a former budget director for Gov. Arnold Schwarzenegger, contends such changes would save taxpayers $30 million annually in the long run. Proposition 62, in comparison, would cost taxpayers more than $100 million due to this “lost opportunity” over a 10-year period.
But independent researchers with the legislative analyst’s office found plenty of factors could increase or reduce the chances of either ballot measure saving taxpayers money. Overall, they found Proposition 62 was likely to reduce net state and county costs by roughly $150 million within a few years.
The actual number could be partially offset if, without the death penalty, offenders are less inclined to plead guilty in exchange for a lesser sentence in some murder cases. That could lead to more cases going to trial and higher court costs, according the legislative office. Yet over time, the state could see lower prison expenses, even with a larger and older prison population, since the costs of housing and supervising death row inmates is much higher than paying for their medical bills, analysts said.
“If Prop. 62 goes into effect, they can be housed like life-without-parole inmates, some in single and some double cells,” legislative analyst Anita Lee said. “It would fall to [the California Department of Corrections and Rehabilitation] to do an evaluation of risks.”
Calculating the fiscal impact of Proposition 66 is much more complicated, the office found, as the measure leaves more open questions on implementation, such as how the state will staff up with additional private attorneys. Legislative analysts said the costs in the short term are likely to be higher, as the state would have to process hundreds of pending legal challenges within the new time limits. Just how much is unknown, but the actual number could be in the tens of millions of dollars annually for many years.
Also unknown, analysts said, is the proposition’s effect on the cost of each legal challenge. The limits on appeals and new deadlines could cut the expenses if they result in fewer, shorter legal filings that take less time and state resources to process. But they could increase costs if additional layers of review are required for habeas corpus petitions, the initial legal challenges in criminal cases, and if more lawyers are needed....
Mitchell said it was “pretty much delusional” to expect Proposition 66 to ever save the state money. For that to happen, she said, California would have to execute “one person every week, 52 people a year for the next 15 years, assuming they are all guilty.” But Kent Scheidegger, author of the proposition and legal director of the Criminal Justice Legal Foundation, argued the legislative office’s numbers were skewed, while security costs for dangerous inmates would likely have to remain just as high. “They don’t become any less dangerous if you change their sentence from death row to life without parole,” he said.
UPDATE: The article excerpted here has generate this series of notable posts (by a number of authors) at Crime & Consequences:
- The Muddled Cost Argument Against the Death Penalty
- The Muddled Cost Argument Against the DP, Part II
- The Muddled Cost Argument Against the DP, Part III
- The Muddled Cost Argument Against the DP, Part IV
- The Muddled Cost Argument Against the DP, Part V
Monday, October 31, 2016
Terrifically timed Northwestern JCLC symposium to ask "The Death Penalty's Numbered Days?"
I am so very fortunate and pleased and excited that at the end of next week — and less than 100 hours after the most significant and consequential elections for the future of the American death penalty — I am going to have a chance to participate in this amazing symposium being put on by Notherwestern Law's Journal of Criminal Law and Criminology. The title given to the event is "The Death Penalty's Numbered Days?", and this symposium page provides the schedule of panels and speakers. Here is how the web coverage introduced the event while also providing this quote from a notable recent SCOTUS dissent:
The Journal of Criminal Law and Criminology, with the significant support of the Irving Gordon Symposia Fund, is proud to announce the upcoming symposium, entitled "The Death Penalty's Numbered Days?" Since the 1970's, the existence and implementation of the death penalty has changed and evolved, as has the way the legal system and its various actors view and talk about the issue. This symposium, which includes a diverse group of some of the foremost scholars on the death penalty, will explore recent developments and attempt to provide a prognosis on the future application of the death penalty in the United States. Attendees will be eligible for up to 5 CLE credits, and no registration is necessary. Please direct any questions to our Symposium Director, Erica Stern, who can be reached at email@example.com.
Friday, November 11, 2016, 9:00 a.m. - 5: 00 p.m.
Thorne Auditorium, Northwestern University School of Law, 375 E. Chicago Avenue, Chicago, IL 60611
“Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court's view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. . . . The circumstances and the evidence of the death penalty's application have changed radically since then. Given those changes, I believe that it is now time to reopen the question.” ~ Justice Stephen Breyer, Dissenting Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015).
Though I am not yet sure about exactly what I will have say at this event, one theme I will be eager to stress in my comments is my strong belief that modern "evidence" concerning "the death penalty's application" actually suggests that this punishment is being imposed much more reliably and much less arbitrarily since President William J. Clinton left office.
As this DPIC chart and data reveal, during the William J. Clinton years (from 1993 to 2001), the United States averaged over 280 death sentences annually nationwide. Over the course of the next eight years (the George W. Bush years), the annual number of death sentences imposed throughout the United States declined by about 50% down to around 140 death sentences per year. And, over the last eight years (the Barack H. Obama years), we have seen yet another 50% reduction in annual death sentences imposed as we approach a BHO-term average of around 70 death sentences per year. The year 2015 hit a remarkable historic low of only 49 total death sentences imposed nationwide, and I believe 2016 is going to see a similar or even smaller number of total death sentence once the year's accounting gets completed.
For a bunch of reasons I hope to explain at this symposium, Justice Breyer's sincere concerns about death sentences being often imposed arbitrarily and unreliably seem to me to have been especially trenchant when he was first appointed to SCOTUS. At that time, states throughout our nation were imposing, on average, five or six death sentences every week. Fast forward more than two decades, and the evidence of death sentencing reveals that, circa 2016, states throughout the nation are now imposing less than a single death sentence every week. I strongly believe our death sentencing systems have become much, much more reliable and much less arbitrary as we have gotten much, much more careful about how gets subject to capital prosecution and about who ultimately gets sent to death row.
October 31, 2016 in Criminal justice in the Obama Administration, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Sunday, October 30, 2016
Mizzou State Representative wants to consider showing repeat sex offenders to execution chamber
As reported in this local article, headlined "State Rep. wants death penalty as option for repeat sex offenders," a local elected official has a notable idea for punishing certain sex offenders. Here are the details:
It’s the one issue in Jefferson City that State Representative Randy Pietzman says nobody likes to talk about. “This is not a popular topic to talk about if you’re just trying to get re-elected,” he said. But that’s not going to stop him from tackling it head on because he says it concerns the safety of every Missouri child. “We need to change something. We need to do something to curb this problem,” he said.
And it’s especially relevant for Lincoln County, where the Republican is running unopposed for his second term this November. The rural county, about an hour to the northwest of St. Louis, has a disproportionately high number of sex offenders and sex crimes against children. “If you compare us with other counties in the surrounding area, per capita, we have substantially more sex offenders,” said Detective Sean Flynn with the Lincoln County Sheriff’s Office. “There’s something attracting them here,” Pietzman said.
But whatever the reason for the unwanted popularity, it’s having an impact on multiple levels. “It seems these crimes are impacting people across the socioeconomic spectrum,” Flynn said.... “It’s impacted the department in a way that my time is monopolized by this. Really, we’re at the point where we need more people to investigate,” Flynn said.
And some in law enforcement go a step further to say the situation might be beyond repair. Captain Michael Merkel with the Lincoln County Sheriff’s Office said, “I don’t think stopping it is an option. I think slowing it down is something we could do.” One way of going about that, he said, is to strengthen the penalties statewide for what’s considered to be some of the most heinous crimes imaginable. “It’s not acceptable that somebody can pass a bad check and be punished more harshly than someone who has victimized a child,” Merkel said.
Capt. Merkel also suggests improving their ability to investigate child sex crimes. Right now, detectives in Missouri can only interview juvenile victims if their parents give permission. And the problem? “What we run into is we have a parent or family member who’s a suspect. And they’re the only ones who can authorize the interview,” Merkel explained.
It’s a loophole in state law that Rep. Pietzman said could help his county, and the state, if it was closed. “We’re talking about our kids. If the punishment doesn’t match the crime, then it’s going to keep continuing,” he said.
That’s why, following our initial report, Pietzman is working on a number of reforms, including one that would make the death penalty a possible punishment for repeat offenders. “That seems cruel when you think about it," he said, "but you got to think about what these guys have done. We’re talking about grown men having sex with kids as young as 3- or 4-years-old.”
There are several cases and states that have pushed for similar measures, but capital punishment in America right now is almost exclusively reserved for the crime of murder. Pietzman said at the very least, he hopes to start a conversation in the legislature that some in law enforcement say is long overdue.
I am eager to help State Representative Randy Pietzman start this conversation about making repeat sex offenders eligible for the death penalty. The first critical point in such a conversation, however, has to be about the Supreme Court's Kennedy ruling which seemingly declared the death penalty unconstitutional for any and all crimes of rape. An argument might be developed that the Kennedy ruling applied formally addressed a first-offense child rapist, and so perhaps a capital statute focused on only the worst of the worst repeat child rapists could be legally viable (and, of course, because Eighth Amendment doctrines evolve perhaps Eighth Amendment precedents have less stare decisis force).
Also important to consider here is the concern expressed by Capt. Merkel about challenges he faces investigating child sex crimes. I suspect and fear that making some sex offenders eligible for the death penalty could actually end up aggravating rather than mitigating this problem as family members fearing a capital prosecution may be uniquely unwilling to cooperate with authorities.
Thursday, October 27, 2016
Defense attorneys assert Ohio's new execution protocol is akin to "burning at the stake"
As reported in this local AP article, capital defense attorneys in Ohio are not so impressed with the state's recently announced new execution protocol. The piece is headlined "Lawyers: Ohio Execution Plan Like Burning Inmates at Stake," and here are excerpts:
Ohio's new lethal injection system is akin to burning inmates at the stake or burying them alive, say federal defense lawyers rushing to stop the state's first execution in three years.
Ohio's three-drug method, announced Oct. 3, is worse than a similar procedure used years ago, and multiple problems remain with the way the state prepares and carries out executions, federal public defenders said in a Wednesday court filing.
The filing attacks the first drug in that process — midazolam, meant to sedate inmates — as unlikely to relieve an inmate's pain. The drug was used in problematic executions in Arizona and Ohio in 2014. But the U.S. Supreme Court last year upheld the use of midazolam in executions in a case out of Oklahoma.
According to the filing, because midazolam is not a barbiturate and cannot relieve pain, inmates are likely to experience "severe physical pain," mental suffering and anguish, As a result, "such an execution would be inhuman and barbarous, akin in its level of pain and suffering to being buried alive, burning at the stake, and other primitive methods long since abandoned by civilized society," the filing said.
Executions have been on hold in Ohio since January 2014, when death row inmate Dennis McGuire gasped and snorted during the 26 minutes it took him to die. It was the longest execution since Ohio resumed putting inmates to death in 1999. The state used a 2-drug method with McGuire, beginning with midazolam, but then discontinued it. Afterward, Ohio struggled for years to find new supplies of drugs, which have been placed off limits for executions by drug makers. Now the prisons agency says it will use midazolam; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart.
On Jan. 12, Ohio is scheduled to execute Ronald Phillips for the rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993. The state also plans to carry out executions on Feb. 15 and March 15. But the federal defense lawyers say the new procedures are unconstitutional and executions in Ohio should be put on hold. The state will respond with its own filing, said Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine.
Prior related post:
- Ohio planning to use new three-drug execution protocol to get its machinery of death operative in January 2017
Looking into nuanced reality of death penalty perspectives in deep blue California
The always interesting Charles Lane has this interesting new Washington Post opinion piece headlined ""Most Americans don’t like the death penalty, right? Wrong." Here are excerpts:
You’d think Proposition 62, a referendum to abolish California’s death penalty and replace it with life without parole, including for the 749 current occupants of death row, would win easily on Nov. 8. Democrats dominate this state; their 2016 national platform advocated an end to capital punishment. Former president Jimmy Carter, left-populist icon Sen. Bernie Sanders (I-Vt.), the state’s major labor unions and 38 newspaper editorial boards are urging a “yes” vote.
California’s death row costs millions to maintain but the state has only executed 13 people since restoring capital punishment in 1978, mainly due to lengthy appeals processes, including recent successful challenges to its lethal-injection protocol. “Replace the Costly, Failed Death Penalty,” read the yellow-and-black “Yes on 62” sign I saw planted in a well-kept Brentwood yard.
And yet, 12 days before Election Day, Prop 62’s prospects are uncertain. Of five statewide polls since Sept. 1, only one, a Field Poll, showed Prop 62 ahead, 48 percent to 37 percent. Measures that poll below 50 percent tend not to win, even if they are leading, according to Field Poll director Mark DiCamillo. Meanwhile, four other polls showed “no” up by an average of 50 to 37. Survey USA, which has polled on Prop 62 twice, predicts flatly that it is “headed for defeat” — just like a similar anti-death-penalty measure that lost 52 to 48 in the state in 2012.
Prop 62 faces various local political headwinds — including competition for financial resources, and public attention, from more than a dozen other ballot measures, such as marijuana legalization and Gov. Jerry Brown’s pet project, parole reform. Given Prop 62’s potential impact — in one stroke, it would reduce America’s total death-row population of 2,905 by 26 percent — the debate about it is remarkably low-profile. There are next to no ads on TV; the Brentwood yard sign was the only one I saw in three days on the West Coast.
The main lesson, though, has to do with public opinion about the death penalty, which is much more nuanced than media coverage generally reflects....
Long-term Gallup trends suggest that the very high support for the death penalty of the mid-1990s — up to 80 percent one year — was an anomaly, probably a reaction to the soaring violent crime rates of the time. Now that crime has fallen, Gallup’s pro-death-penalty majority is reverting to historical norms; it may go lower still, unless this year’s spike in violent crime turns into a wave.
Another new Gallup survey intriguingly shows decreasing punitive sentiment: 45 percent say the justice system is “not tough enough” on crime, down 20 points since 2003. Meanwhile, 50 percent believe the death penalty is applied “fairly,” and 67 percent say it is imposed either “the right amount” or “not often enough.”
Gallup asks about capital punishment for “murder.” In 2013 and 2015 Quinnipiac interestingly asked whether “murder during acts of terrorism” should be punished by life without parole or death. Both times, about three-fifths said “death” — remarkably high, given that offering life without parole as an alternative usually reduces the number of poll respondents opting for capital punishment.
A rough summary of most Americans’ views of the death penalty might be: “Yes, though it depends.” It depends on what’s going on in society. It depends on the specific crime. It depends on whether you’re asking me in the abstract, as a juror or as a voter.
The very fact the Prop 62 campaign focused on what spokesman Jacob Hay calls a “cost-effectiveness message” implies that categorical moral opposition cannot command a majority, even in a deep-blue state. And two can play at the cost-effectiveness game. California’s pro-death-penalty forces, led by prosecutors and police unions, are promoting Proposition 66, which would deal with the system’s notorious backlog not by abolishing executions but by facilitating them, through streamlining the appeals process.
Both conflicting measures might lose, essentially perpetuating the status quo; California would continue having whatever satisfaction comes with sentencing people to death, without whatever risks come from actually executing them. Also, both might get a majority — Californians could vote yes and no on the death penalty — in which case the one with the most votes becomes law, and the nation’s largest death row would start shrinking, one way or the other.
UDPATE: This new Los Angeles Times opinion piece strikes similar notes under the headline "Despite optimism by abolitionists, the death penalty isn't on the ropes – yet." - 9 hours ago
Monday, October 24, 2016
Is the death penalty in the United States really "nearing Its end"?
The question in the title of this post is prompted by this notable new New York Times editorial headlined "The Death Penalty, Nearing Its End." Here is the full text of the editorial:
Although the death penalty is still considered constitutional by the Supreme Court, Americans’ appetite for this barbaric practice diminishes with each passing year. The signs of capital punishment’s impending demise are all around.
For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month. While that proportion has been going down for years, the loss of majority support is an important marker against state-sanctioned killing.
At the same time, executions and new death sentences are at historic lows, and each year they go lower. In 2015 only 49 new death sentences were handed down, the lowest one-year total since the Supreme Court reinstated capital punishment in 1976.
Since there were about 14,000 murders around the country last year, it’s easy to imagine that the small number of newly condemned people shows that the justice system is focusing on the “worst of the worst.” But that’s wrong. In fact the crimes of the people sentenced to death are no worse than those of many others who escape that fate. Rather, nearly all of last year’s death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors; inadequate public defenders; and a pattern of racial bias and exclusion. This was the key finding of a two-part report recently issued by the Fair Punishment Project at Harvard Law School.
Even in the most death-friendly counties, public support appears to be fading. In two of the worst — Duval County in Florida and Caddo Parish in Louisiana — local prosecutors lost elections at least partly due to voters’ concerns about their stance on the death penalty. In other counties around the country, prosecutors are finding that aggressive advocacy for death sentences isn’t the selling point with the public that it once was.
In some of the biggest states, death-penalty systems are defunct or collapsing. Earlier this month, the Florida Supreme Court struck down a terrible state law that allowed nonunanimous juries to impose death sentences — increasing the likelihood that innocent people and those with intellectual or mental disabilities would be condemned. A large number of Florida’s 386 death-row inmates could now receive new sentencing trials, or have their sentences thrown out altogether.
In California, which hasn’t executed anyone since 2006 even though more than 740 inmates sit on death row, voters will decide in November whether to eliminate capital punishment for good. A similar ballot initiative in 2012 was narrowly defeated. In 2014, a federal judge ruled that the state’s decades-long delays in capital cases violated the Eighth Amendment’s ban on cruel and unusual punishment. (The decision was overturned by an appeals court on technical grounds the following year.)
While capital punishment is used rarely and only in some places, only a definitive ruling from the Supreme Court will ensure its total elimination. How close is the court to such a ruling? In recent dissenting opinions, three of the justices — Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — have expressed deep misgivings about the death penalty’s repeated failure to meet the requirements of due process and equal protection. Justice Breyer has said it is “highly likely that the death penalty violates the Eighth Amendment,” and has called for the court to consider whether it is constitutional at all.
The death penalty has escaped abolition before, but there are no longer any excuses: The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.
I wonder if anyone who is a strong supporter of capital punishment will write (and get published) a response to this editorial which might be headlined something like "The Death Penalty, Poised for a Big Comeback." That response might highlight that, according to polls in deep blue California, voters there are seemingly going to provide "majority support" for making more efficient in California "state-sanctioned killing." That response might highlight that, in swing state Ohio, executive officials have been working extra hard to get the state's machinery of death operative again and have execution dates scheduled for nearly two dozen condemned murderers in 2017 and 2018. That response might highlight that, in swing state Florida, the state legislature has been quick and eager to retain and revise its death penalty statutes every time a court has found constitutional problems with its application. That response might highlight that, in deep blue Massachusetts, a federal jury in 2015 wasted little time in deciding that “worst of the worst” capital defendant Dzhokhar Tsarnaev should be condemned to die for his crime. And that response might highlight that, in the most liberal national criminal justice administration of my lifetime, federal prosecutors of the Obama Administration were seemingly eager to pursue capital charges against the Charleston Church shooter Dylann Roof.
I could go on and on (mentioning, inter alia, developments in Alabama, Oklahoma, Nebraska and elsewhere), but my main point here is highlight the critical reality that the description of "death-penalty systems [as] defunct or collapsing" is largely a product of effective litigation by abolitionists and the work of courts, not really a reflection of a sea-change in public opinion or radical changes in the work of most legislatures and prosecutors in key regions of the United States. The NYTimes editorial board my be right that we may soon see litigation by abolitionists achieve the ultimate success in the courts by having the Justices of the Supreme Court declare the death penalty per se unconstitutional. But, absent some surprising political and social developments over the next few years, would-be abolitionists ought to be careful about counting chickens too soon.
October 24, 2016 in Baze and Glossip lethal injection cases, Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Sunday, October 23, 2016
Anyone eager to predict the exact results of Nebraska Referendum 426, the state's "Death Penalty Repeal Veto Referendum"?
Practically and politically, the most important vote this fall concerning the present and future of the death penalty will be taking place in California where voters will weigh in on competing initiatives offering to end or to mend capital punishment in the state. But as highlighted effectively by this recent Marshall Project article, there are notable death penalty ballot questions before voters in two other states. This article, headlined "Three States to Watch if You Care About the Death Penalty: Nebraska, Oklahoma, and California will test the prospects of abolition," provides an astute review of all the measures and it ends this way:
Pew’s national poll numbers aside, the death penalty for years now has been a regional punishment, not a national one, largely confined to the South and West, where skirmishes over its application will continue to play out the way we see it this election. A mixed verdict on the four measures won’t change the national narrative reflected in the latest polls. But if the death penalty is restored in Nebraska, protected in Oklahoma, and expedited in California, we’ll know there are clear popular limits to the abolitionist movement. And if voters choose to keep the death penalty dead in Nebraska, kill it in California and leave it be in Oklahoma, the latest poll numbers will look more like a trend. Either way, these local battles, and not some grand pronouncement from the Supreme Court in Washington, are how the future of capital punishment will be decided.
There has been a good bit of (not-so-clear) recent polling on the death penalty issues in California, and Kent Scheidegger at Crime & Consequence unpacks the latest polling in this new post speculating that the "mend-the-death-penalty" initiative might win in a landslide. Meanwhile, I cannot find any recent polling from Nebraska on its Referendum 426, the state's "Death Penalty Repeal Veto Referendum." That reality has prompted the question in the title of this post, along with this notable new local article from the Cornhusker state headlined "Catholic Church intensifies effort to abolish Nebraska’s death penalty."
I am inclined to predict that Nebraska voters will end up reversing the repeal of the death penalty in the state. This prediction is based not only on Nebraska's status as a solid "red state," but also on the reality that pro-capital-punishment forces in the state have significant resources and a high-profile leader thanks to Gov. Pete Ricketts. (This recent article discusses some recent campaign funding realities under the headlined "Gov. Ricketts gives another $100,000 — for a total of $300,000 — to pro-death penalty group.")
For a variety of symbolic and practical reasons, I think the exact voting percentages on Referendum 426 could be nearly as important as which side prevails. If the vote end up reasonably close either way (e.g., if the winning side gets less than 60% of the vote), I suspect the losing side can and will suggest that it could have prevailed with more resources and more time to educate voters. But if one side wins big after this issue has been garnering attention in the state, I think the vote will be (perhaps rightly) viewed by national advocates as a very clear indication of what folks in the heartland think about the present and future of capital punishment.
Helpfully, some media in Nebraska are do their part seeking to educate voters as revealed by these links to special coverage:
From the Ohama World-Herald, "Death penalty in Nebraska: A three-part series"
From NET News, “Classroom Conversations: Nebraska’s Death Penalty Vote.”
Thursday, October 20, 2016
Georgia completes its seventh execution of 2016, bringing national execution total for year to 17
While many traditionally active death penalty states, such as Ohio and Oklahoma, have had their machineries of death inoperative in 2016 because of problems with lethal injection drugs or protocols, Georgia has had a record-setting peach of a year when it comes to carrying out executions. This CBS/AP story reports on the latest Peach State execution and provides a little numerical and historical context for it:
A man convicted of killing an Atlanta police officer and wounding a second officer with an AR-15 rifle was executed late Wednesday, becoming the seventh inmate put to death in Georgia this year. Gregory Paul Lawler, 63, was pronounced dead at 11:49 p.m. at the state prison in Jackson after he was injected with the barbiturate pentobarbital. He was convicted of murder in the October 1997 slaying of Officer John Sowa and of critically wounding Officer Patricia Cocciolone.
The Georgia Supreme Court said in a statement Wednesday it had unanimously denied defense requests to halt the execution, originally set for 7 p.m. Defense attorneys later appealed to the U.S. Supreme Court, which also declined to stop the execution late Wednesday night.
Lawler didn’t make a final statement and refused an offer of a prayer. Then he lay on the gurney with his eyes closed as the lethal drug flowed, taking several deep breaths and yawning before becoming still. Cocciolone arrived in a wheelchair and sat in the front row of the witness area, as did Fulton County District Attorney Paul Howard, whose office prosecuted Lawler.
The seven executions in Georgia this year are the most in a calendar year in the state since the death penalty was reinstated nationwide in 1976. Georgia executed five inmates last year and five in 1987.
Georgia is one of five states that have carried out executions this year for a total of 17 nationwide. Texas has executed seven inmates, while Alabama, Florida and Missouri have executed one apiece.
Wednesday, October 19, 2016
Is Florida really going to conduct full post-Hurst resentencings for hundreds of condemned murderers?
The question in the title of this post is prompted by this local article headlined "Death penalty ruling could mean new sentencing for 386 murderers in Florida." Here are excerpts:
The Florida Supreme Court’s decision last week to require unanimous jury votes for executions has thrown the state’s death penalty into disarray. In a Friday ruling in Hurst vs. Florida, the justices eliminated part of Florida’s death sentencing laws, but lawyers and legislators disagree about what comes next.
Some say that it could lead to sentences being thrown out for nearly 400 convicted murderers awaiting execution at Florida State Prison, and that it may cripple the state’s death penalty long term. Others say the only thing that has changed is that a jury must now vote unanimously in favor of the death penalty. What’s clear is this: Even with the case decided, Florida’s legal fights over capital punishment are far from over.
Death-row defense lawyers say the Hurst decision leaves Florida without a functioning death penalty until the state Legislature can convene and rewrite the law. “This is so big,” said Martin McClain, a Broward County lawyer who represents death-row inmates appealing their sentences. “I don’t know of a way to overstate the significance.”
But legislative leaders say that such action won’t be necessary. “With Friday’s ruling, imposing the death sentence will require a unanimous verdict with or without legislative action,” said Katie Betta, a spokeswoman for Senate President-designate Joe Negron, R-Stuart. “In the past, the Senate has been supportive of the unanimous verdict requirement.”
Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, which represents the 20 state attorneys, agrees that no legislative action is necessary. “The death penalty is certainly still legal in Florida,” he said. “The procedure is what the Supreme Court reacted to.”
The court’s ruling has raised other questions about how the state should handle the 386 inmates on death row under old sentencing rules that have since been thrown out. The Supreme Court has not indicated which inmates could be eligible to have their sentences changed. Even the most experienced death-row defense lawyers don’t know what to expect. McClain said he thinks the court will issue a ruling about which cases are going to be treated like that. “Until we have that sort of broad picture,” McClain said, “we’re kind of stuck waiting.”
Some death-row inmates — including Timothy Lee Hurst, convicted of killing a co-worker in Pensacola in 1998 — will have new sentencing hearings. The court will bring in a new jury to hear evidence and decide whether Hurst should be executed or sentenced to life in prison. But not all death penalty cases are the same. So it’s possible the court could decide that certain kinds of cases are eligible for a re-sentencing and others are not.
For example, the court could throw out sentences from time periods when the death penalty laws were overturned as unconstitutional, or they could only allow a new jury for death-row inmates who raised certain complaints in their appeals. But Maria DeLiberato, a defense lawyer with the Capital Collateral Regional Counsel in Tampa, warns that could be seen as an “arbitrary and capricious” enforcement of the law and raise new allegations that Florida’s death sentences flout the U.S. Constitution’s ban on cruel and unusual punishment.
She’s hopeful that the court would allow all inmates a new sentencing hearing, not just some of them. The state attorneys worry about the high costs of a small wave of re-sentencing hearings, let alone 386 cases. “We do not have the manpower to do that,” said Jacobs. “We’d have to get assistance to do that from the Legislature.”
Tuesday, October 18, 2016
Oregon Gov pledges to continue moratoriaum on executions if elected to a new term
As reported in this local article from Oregon, headlined "Brown to maintain death penalty moratorium," the chief executive in the Beaver State is promising not to execute those laws calling for excutions of condemned murderers. Here are the details:
The governor plans to continue a state moratorium on capital punishment that would extend through her upcoming term if elected, a spokesman said Monday morning. "Gov. Kate Brown has made clear her personal opposition to the death penalty and her support of the current moratorium on Oregon executions," spokesman Bryan Hockaday told The Oregonian/OregonLive.
Former Gov. John Kitzaber announced the moratorium two weeks before the scheduled 2011 execution of Gary Haugen, who then sought to speed his execution after waiving all appeals. After Brown took over the state's top office in February 2015, she said she would continue the stoppage of public executions until further study.
"Gov. Brown directed her General Counsel to conduct a review of the policy and practical implications of Oregon's capital punishment law," Hockaday said. "Though no executions are imminent, Gov. Brown will continue the death penalty moratorium, because after thoroughly researching the issues, serious concerns remain about the constitutionality and workability of Oregon's capital punishment law." Hockaday declined to immediately release, pending a records request, any study or records related to how the governor made her decision.
Reasons for her decision include the "uncertainty of Oregon's ability to acquire the necessary execution drugs required by statute," Hockaday said by email. "Looking nationally, America is on the verge of a sea change both by legislation and, more profoundly, through court decisions. The past few years have already seen a major shift in the landscape on capital punishment law, and Gov. Brown expects more changes are on the horizon."
Oregon voters approved the death penalty in 1984, and the state and U.S. Supreme Courts have repeatedly upheld its legality. Oregon's death row has 34 prisoners, all of whom stay in their cells 23 hours a day. In the past five decades, the state executed two men -- both in the 1990s. Those men had essentially volunteered for the death penalty after waiving their rights to appeal before their deaths.
Clatsop County District Attorney Josh Marquis, an outspoken supporter of the death penalty in Oregon, a month ago met with Brown counsel Ben Souede about the issue. After hearing the news Monday, Marquis said he was seething. "If she really believes the death penalty is so wrong, then she should have the guts to commute all those sentences," Marquis said.
If she were to take that extraordinary step, Marquis said about six or seven prisoners on death row could be released to the public within a year because they would qualify for an immediate parole hearing. He said those prisoners were sentenced after voters approved the death penalty and before the state adopted life sentences without parole in the early 1990s.
No executions may be imminent, Marquis argued, but at least three cases are pending in Oregon where defendants face aggravated murder charges, which bring a death penalty sentencing option if convicted. Brown's announcement could make it easier for defense attorneys to persuade jurors not to impose the death penalty, he said.
Highlighting how death is different when it comes to SCOTUS dissents from denial of certiorari
Adam Feldman has this notable new post at the Empirical SCOTUS blog titled "Dissents from Denial of Cert (2010-2015)." The whole post is an interesting read for SCOTUS aficionados, but these concluding passages struck me as especially noteworthy (though not all that unsurprising) for sentencing fans:
Justices Thomas and Sotomayor are also the only Justices that have at least one dissent from denial for each Term in this set. Additionally, Justices Thomas, Alito, and Breyer all have clear upswings in their charts. Is this due to frustration with the rest of the Justices’ choice of case selection? Is it to put certain cert denials in the spotlight?
Some additional clarity is shed by examining the issues at the heart of the denied petitions. Five of Justice Breyer’s six authored dissents from denial for this period and all four from 2015 came in death penalty cases. A majority of Justice Sotomayor’s dissents come from death penalty cases as well and all stemmed from criminal matters. As the Court dealt with several capital cases in 2015 and has several more on the 2016, perhaps these Justices that routinely vote against the death penalty seek greater reform on this issue, are attempting to spotlight specific cases they feel were unjustly decided by the lower courts, or are conveying alternative ways for lawyers to frame these such issues in their arguments.
Justices Alito and Thomas’ dissents are from cases composed of a more varied set of issues ranging from First Amendment and discrimination concerns to criminal matters in the form of habeas corpus relief. Absent from their dissents are any capital cases. While it is difficult to read too much into this lack of a clear pattern, these Justices’ general trends towards more such dissents is notable. The next Justice confirmed to the Court and the effect that this Justice has on the Court’s choice of cases will inevitably have a deep and prolonged impact on this form of behavior from all Justices, as the new ninth Justice will have a large say in what cases the Court hears as well as in the Court’s merits decisions.
Monday, October 17, 2016
Interesting lengthy dissent from SCOTUS cert denial from Justice Sotomayor joined (only) by Justice Ginsburg
There is a bit of interesting news with today's otherwise dull SCOTUS order list in the form of a lengthy dissent from the denial of certiorari penned by Justice Sotomayor and joined by Justice Ginsburg. The dissent in Elmore v. Holbrook is available here, and it gets started and ends this way:
Petitioner Clark Elmore was convicted of murder in 1995 and was sentenced to death. His court-appointed lawyer, who had never tried a capital case before, knew that Elmore had been exposed to toxins as a young adult and that he had a history of impulsive behavior. A more experienced attorney encouraged Elmore’s lawyer to investigate whether Elmore had suffered brain damage as a young man. Instead of doing so — indeed, instead of conducting any meaningful investigation into Elmore’s life — Elmore’s lawyer chose to present a one-hour penalty-phase argument to the jury about the remorse that Elmore felt for his crime. As a result, the jury did not hear that Elmore had spent his childhood playing in pesticide-contaminated fields and had spent his service in the Vietnam War repairing Agent Orange pumps. The jury did not hear the testimony of experts who concluded that Elmore was cognitively impaired and unable to control his impulses. The jury heard only from an assortment of local judges that Elmore had looked “dejected” as he pleaded guilty to murder, not from the many independent witnesses who had observed Elmore’s searing remorse.
The Constitution demands more. The penalty phase of a capital trial is “a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U. S. 280, 304 (1976). It ensures that a capital sentencing is “humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). Elmore’s penalty phase fell well below the bare minimum guaranteed by the Constitution. His lawyer acted deficiently in choosing a mitigation strategy without fully exploring the alternatives and in failing to investigate the mitigation strategy that he did choose to present. And had the jury known that Elmore — who had never before been convicted of a crime of violence and felt searing remorse for the heinous act he committed — might be brain damaged, it might have sentenced him to life rather than death.
This Court has not hesitated to summarily reverse incapital cases tainted by egregious constitutional error, particularly where an attorney has rendered constitutionally deficient performance. See, e.g., Hinton v. Alabama, 571 U.S. ___ (2014) (per curiam); Sears v. Upton, 561 U.S. 945 (2010) (per curiam); Porter v. McCollum, 558 U.S. 30 (2009) (per curiam). This case plainly meets that standard. For that reason, I respectfully dissent from the denial of certiorari....
All crimes for which defendants are sentenced to death are horrific. See Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip op., at 14); id., at ___ (THOMAS, J., concurring) (slip op., at 6–10). But not all defendants who commit horrific crimes are sentenced to death. Some are spared by juries. The Constitution guarantees that possibility: It requires that a sentencing jury be able to fully and fairly evaluate “the characteristics of the person who committed the crime.” Gregg v. Georgia, 428 U.S. 153, 197 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). That guarantee is a bedrock premise on which our system of capital punishment depends, and it is a guarantee that must be honored — especially for defendants like Elmore, whose lives are marked by extensive mitigating circumstances that might convince a jury to choose life over death. Only upon hearing such facts can a jury fairly make the weighty — and final — decision whether such a person is entitled to mercy. I respectfully dissent from the denial of certiorari.
UPDATE: In the comments, Cal. Prosecutor highlights this notable new post by Kent Scheidegger at Crime & Consequences to provide more context for understanding this lengthy dissent from a SCOTUS cert denial. Here is how that post gets started and ends:
The U.S. Supreme Court today declined to review the case of Washington State murderer Clark Elmore. Justice Sotomayor, joined by Justice Ginsburg, dissented in an opinion castigating the defense lawyer at trial. If the lawyer was so bad, one might ask, why did the Washington Supreme Court deny relief? That court has certainly had no difficulty ruling in favor of murderers in past capital cases. It is one of the country's more criminal-friendly forums. If the lawyer was so bad, why did six of the eight Justices of the U.S. Supreme Court decline to join Justice Sotomayor's vigorous dissent?
There is, of course, more to the story. After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office....
Defending people who have committed horrible crimes is not easy. Frequently tough choices must be made. If the defendant is sentenced to death, as people who commit horrible crimes frequently are and should be, the capital appeal defense cult stands ready to say that the trial lawyer was incompetent for taking the path that he did at each fork in the road, regardless of which one he took.
October 17, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)
Sunday, October 16, 2016
New Equal Justice Initiative animated video explores explores America’s lynching history
Via email I received recently a promotion of a notable new video produced by the Equal Justice Initiative titled "Lynching in America: Confronting the Legacy of Racial Terror." Here is a description of the video and embedded below is five minutes of fascinating content and animation thanks to EJI:
The video portrays the violent aftermath of the Civil War, when racial terror and lynching were used to create racial hierarchy, disenfranchisement, and oppression against African Americans despite emancipation.
Narrated by widely acclaimed public interest lawyer Bryan Stevenson, the five-minute video illustrates the widespread violence and racial terror created by lynching and mass atrocities perpetrated against African Americans, frequently with support from government officials. The threat of lynching forced millions of black people to flee the American South to the urban North and West as refugees from violent racism during the first half of the 20th century.
EJI has documented over 4000 racial terror lynchings of black men, women, and children, who were hanged, burned alive,shot, drowned, and beaten to death by white mobs between 1877 and 1950. Until EJI announced its plans earlier this year to build a national memorial commemorating the thousands of African American lynching victims during this era, very little public recognition of this period of racial terror was in evidence despite the presence of thousands of Confederate plaques, statues, and monuments across the American South.
“Our nation’s history of racial injustice casts a shadow across the American landscape. This shadow cannot be lifted until we shine the light of truth on the destructive violence that shaped our nation, traumatized people of color, and compromised our commitment to the rule oflaw and to equal justice,” Bryan Stevenson, Executive Director of EJI, said. “We all must engage this history more honestly.” Lynching in America: Confronting the Legacy of Racial Terror is part of EJI’s Race and Poverty project, which explores racial history and uses innovative teaching tools to deepen our understanding of the legacy of racial injustice. By telling the truth about our past, EJI believes we can create a different, healthier discourse that will lead to different choices and practicesthat can address America’s history of racial inequality.
Friday, October 14, 2016
In twin post-Hurst rulings, the Florida Supreme Court concludes capital sentencing requires jury unanimity
I was not planning to blog anymore today as I continued participating in this terrific symposium. But big death penalty rulings by the Florida Supreme Court changed my plans. This local report, headlined "Florida Supreme Court rules death penalty juries must be unanimous," provides the basics:
"We conclude that the Sixth Amendment right to a trial by jury mandates that under Florida's capital sentencing scheme, the jury — not the judge — must be the finder of every fact, and thus every element, necessary for the imposition of the death penalty," the court wrote in a 5-2 ruling, with Justices Charles Canady and Ricky Polston dissenting.
Their ruling comes just months after the U.S. Supreme Court found Florida's death penalty law unconstitutional because juries played only an advisory role in recommending life or death. The court said in that case, known as Hurst vs. Florida, Florida's system was a violation of a defendant's right to a jury trial.
Florida lawmakers responded by rewriting the state law, requiring a 10-2 vote of a jury to send someone to death. The new law also requires juries to unanimously determine "the existence of at least one aggravating factor" before defendants can be eligible for death sentences.
In a separate ruling in the case of Perry vs. Florida, also issued Friday, the Florida Supreme Court found the new statute cannot apply to cases still pending in which prosecutors are seeking the death penalty. That leaves the state legislature with the task of having to again rewrite the statute to comply with the court's ruling. It is unclear how soon that might happen or whether prosecutors could then continue to seek the death penalty in pending cases....
The court's opinions did not address the issue of whether their findings would apply retroactively. Florida has 385 inmates on death row. It was not clear how many prisoners will be entitled to new sentencing hearings. The retroactivity issue will likely be decided by two other cases — Lambrix vs. Florida and Asay vs. Florida — still pending before the state Supreme Court.
Attorney General Pam Bondi's office has said that as many as 43 death row inmates could get life sentences without parole or new sentencing hearings as a result of the Hurst decision. Those 43 inmates are those who are entitled to automatic post-Hurst reviews of their cases under the state Constitution. Of those cases currently before the court, Bondi's office argued, death sentences should be carried out.
Howard Simon of the ACLU of Florida, which intervened in the case, said he was not surprised by the court's decision: "This is what we have been warning the Legislature about for years. The Legislature can complain all they want about the court's running the government, but when the Legislature ignores the warnings from the court, they should not be surprised by this ruling."
He said that it is not clear if every inmate on death row will be entitled to a new sentencing trial. "Now I think it's a moral issue,'' he said. "If someone was sentenced to death by less than an unanimous it is unconscionable to put them to death now without a unanimous verdict."
I fear I will not get a chance to read these opinions in full until well into the weekend, but here are links to the full opinions. I would be grateful to hear from readers about what they consider especially important aspects of these rulings:
Hurst vs. Florida, No. SC12-1974 (Fla. Oct. 14, 2016) (available here)
Perry vs. Florida, No. SC16-547 (Fla. Oct. 14, 2016) (available here)
Remembering notable pre-modern moment of great concern over California capital case
This local article from California discussing a new play, headlined "'Chessman' explores crucial moment for Brown family, California death penalty," spotlights a California capital case more than a half-century ago that generated widespread attention. Here are excerpts from the article:
Buck Busfield is pondering the finer points of one of the most important phone calls in California political history. It was Feb. 18, 1960, the eve of the long-delayed execution of Caryl Chessman. A 21-year-old Jerry Brown, recently departed from the seminary and now a student at UC Berkeley, called his father, then-Gov. Pat Brown, asking him to grant a reprieve for the condemned inmate.
Across the world, millions awaited the fate of a man they had taken up as the poster boy for ending the death penalty. The freighted decision tore at Pat Brown, whose Catholic faith taught him that execution was immoral.
At the moment, however, Busfield is more concerned about the type of telephone Jerry would have used. During a recent rehearsal for “Chessman,” a new play about the case debuting this week at the B Street Theatre, director Busfield asked his stage manager whether they could hang a phone on the wall for the pivotal scene....
“Chessman” [is] a side project of political consultant Joe Rodota. The production attempts to capture the international, O.J. Simpson-like frenzy and divisiveness that surrounded Chessman for more than a decade, while also asking the audience to look beyond its cast of iconic California figures to a family split by a deeply personal, ethical dilemma.
It also strives to keep a neutral distance and a historical sheen on one of California’s most inflammatory political issues, just as voters are weighing two November ballot measures on capital punishment: one to abolish it and one to expedite the process. “This is not a documentary for or against the death penalty,” Rodota said....
Caryl Chessman was 27 and already a convicted felon when he was found guilty in 1948 of a series of robberies and rapes around Los Angeles. The “Red Light Bandit,” as the perpetrator was dubbed, had visited lovers’ lanes pretending to be a policeman and mugged couples in their cars.
On several occasions, Chessman took the young women back to his vehicle and sexually assaulted them. Under California’s since-discarded “Little Lindbergh Law,” named for the kidnapping and murder of aviator Charles Lindbergh’s infant son, Chessman was sentenced to death for kidnapping with bodily harm, though he had killed no one.
Chessman maintained his innocence and continued to fight his conviction. By 1954, he had been on death row for six years, longer than anyone in California history until that point. The unusual delay for his execution was gaining notice, and it would soon explode into sensation with the publication that year of his first memoir, written secretly and smuggled out of prison.
Translated into more than a dozen languages and adapted into a movie, “Cell 2455, Death Row: A Condemned Man’s Own Story” captured the public’s imagination with its searing and brutal dispatch from inside San Quentin State Prison....
The controversy also came at a relative highwater mark for opposition to the death penalty, when Americans were about evenly split on the issue. This allowed Pat Brown to openly grapple over Chessman’s fate without committing “automatic political suicide,” the biographer Rarick noted at a recent panel on the case.
Because Chessman had prior felonies, Pat Brown could not commute his sentence without the approval of the California Supreme Court, which voted 4-3 to uphold the conviction. Chessman was going to die.
But the night before the execution was scheduled to proceed, Jerry Brown called his father urging him to grant a 60-day reprieve and pursue a moratorium on the death penalty in the Legislature. As Pat recounted in “Public Justice, Private Mercy,” he believed there was not “one chance in a thousand” that lawmakers would act. “Then Jerry said, “But Dad, if you were a doctor and there was one chance in a thousand of saving a patient’s life, wouldn’t you take it?’
“I thought about that for a moment. You’re right, I finally said. I’ll do it.” For his decision, Pat Brown received a slew of negative responses – and a 16-page letter from a “surprised and grateful” Chessman.
With his usual aplomb about the social significance of his case – “the burning hope that my execution would lead to an objective reappraisal of the social validity or invalidity of capital punishment” – Chessman suggested that Brown put forth a proposal excluding him from the mercy granted to others, if it would persuade the Legislature to end the death penalty. “I do not overstate when I say I gladly would die ten thousand gas chamber deaths if that would bring these truths into hearts and minds of those who make our laws,” he wrote.
Lawmakers, however, had little interest in taking such a decisive step, particularly in an election year. Brown’s bill to abolish the death penalty was quickly swatted down in the Senate Judiciary Committee after a lengthy and highly publicized committee hearing.
Chessman was eventually gassed to death on May 2, 1960, his ninth scheduled execution date. The story appeared on the front page of newspapers from Italy to Brazil. Pat Brown ultimately believed he suffered greatly for his choice, blaming it in part for his loss to Ronald Reagan while running for a third term in 1966.
Thursday, October 13, 2016
Fair Punishment Project releases second part of report on small number of US counties still actively utilizing the death penalty
In this post earlier this year, I noted the significant new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And in this post a couple of months ago, I highlighted the new big project and first part of a report from the the FPP providing an in-depth look at how the death penalty is operating in the handful of counties still actively using it. The second part of this report has now been released under the title "Too Broken to Fix, Part II: An In-depth Look at America’s Outlier Death Penalty Counties," and it is available at this link. Here is its introduction:
As we noted in Part I of this report, the death penalty in America is dying.
In 2015, juries only returned 49 death sentences — the fewest number since the death penalty was reinstated in 1976. Of the 31 states that legally retain the death penalty, only 14 — or less than half — imposed a single death sentence in 2015. When we look at the county level, the large-scale abandonment of the death penalty in the country becomes even more apparent. Of the 3,143 county or county equivalents in the United States, only 33 counties — or one percent — imposed a death sentence in 2015. Just 16 — or one half of one percent — imposed five or more death sentences between 2010 and 2015. Among these outliers, six are in Alabama (Jefferson and Mobile) and Florida (Duval, Hillsborough, Miami-Dade, and Pinellas)—the only two states that currently permit non-unanimous death verdicts. Of the remaining 10 counties, five are located the in highly-populated Southern California region (Kern, Los Angeles, Orange, Riverside, and San Bernardino). The others include Caddo Parish (LA), Clark (NV), Dallas (TX), Harris (TX), and Maricopa (AZ). As Justice Stephen Breyer noted in his 2015 dissent in Glossip v. Gross, “the number of active death penalty counties is small and getting smaller.”
In this two-part report, we have endeavored to figure out what makes these 16 counties different by examining how capital punishment operates on the ground in these outlier death-sentencing counties. In Part II, we highlight Dallas (TX), Jefferson (AL), San Bernardino (CA), Los Angeles (CA), Orange (CA), Miami-Dade (FL), Hillsborough (FL), and Pinellas (FL) counties.
Our review of these counties, like the places profiled in Part I, reveals that these counties frequently share at least three systemic deficiencies: a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion. These structural failings regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities.
This is what capital punishment in America looks like today. While the vast majority of counties have abandoned the practice altogether, what remains is the culmination of one systemic deficiency layered atop another. Those who receive death sentences do not represent the so-called “worst of the worst.” Rather, they live in counties with overzealous and often reckless prosecutors, are frequently deprived access to competent and effective representation, and are affected by systemic racial bias. These individuals are often young, and many have significant mental impairments. Some are likely innocent. This pattern offers further proof that, whatever the death penalty has been in the past, today it is both cruel and unusual, and therefore unconstitutional under the Eighth Amendment.
Prior related posts:
- Harvard Law School launches "Fair Punishment Project"
- New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty
Wednesday, October 12, 2016
"The Challenges of 'Improving' the Modern Death Penalty"
I had the opportunity and honor of speaking at a Duke Law School symposium about the death penalty earlier this year, and the follow-up essay has now been published and can be accessed here via SSRN. The essay has the same title as the title of this post, and here is the SSRN abstract:
In his dissent in McCleskey v. Kemp, Justice William Brennan turned a famous phrase that has long resonated with criminal justice reformers. In upholding Georgia’s capital sentencing system, the majority expressed concern about Eighth Amendment claims based on statistics revealing racial disparities in the application of the death penalty, fearing that such claims “would open the door to widespread challenges to all aspects of criminal sentencing.” Justice Brennan lamented that “on its face, such a statement seems to suggest a fear of too much justice.”
Disconcertingly, almost everyone seriously involved in debates over the modern administration of death penalty seemingly has a fear of too much capital justice. This essay seeks to explain this practical reality of modern death penalty advocacy in order to spotlight the problems it necessarily creates for any sustained efforts to improve the modern death penalty. By unpacking the fear of too much capital justice among capital punishment’s active supporters and ardent opponents, this essay seeks first to expose an enduring disconnect between lay interest and insider advocacy concerning death penalty reform, and second to explain my pessimistic concern that even moderate and modest efforts to improve the modern administration of capital punishment may, more often than not, constitute something of a fool’s errand.
After discussing these dynamics surrounding modern capital punishment advocacy and reform, this essay closes by admitting uncertainty concerning what enduring lessons should be drawn from my observations for the future of the death penalty in the United States. It may be tempting to conclude simply that it would be far wiser for existing death penalty jurisdictions to try to end, rather than just mend, their modern capital punishment systems. But in an effort to provide a silver lining to what may otherwise seem like a dark story, this essay concludes by noting some unique potential benefits for American criminal justice systems when capital jurisdictions try (and fail) to achieve “too much justice” in their death penalty systems.
Tuesday, October 11, 2016
Fascinating SCOTUS per curiam summary opinion stresses that Eighth Amendment still limits victim testimony in capital cases
The Supreme Court's order list this morning includes a little and very interesting summary opinionin Bosse v. Oklahoma, No. 15-9173 (S. Ct. Oct. 11, 2016) (available here). The order rules in favor of Shaun Michael Bosse, who was convicted and sentence to death by a jury "of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children." Here is the per curiam Bosse ruling account of the problem below and its consequences:
Over Bosse’s objection, the State asked three of the victims’ relatives torecommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P. 3d 1203, 1226–1227. We grant certiorari and the motion for leave to proceed in forma pauperis, and now vacate the judgment of the Oklahoma Court of Criminal Appeals.
“[I]t is this Court’s prerogative alone to overrule one of its precedents.” United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); internal quotation marks omitted); see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). The Oklahoma Court of Criminal Appeals has recognized that Payne “specifically acknowledged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appropriate punishment. Ledbetter, 933 P.2d at 890–891. That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further and conclude that Payne implicitly overruled Booth in its entirety. “Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Hohn v. United States, 524 U. S. 236, 252–253 (1998).
The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless this Court reconsiders that ban. The state court erred in concluding otherwise.
The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law. See Brief in Opposition 14–15. Those contentions may be addressed on remand to the extent the court below deems appropriate.
Justice Thomas (joined by Justice Alito) added this one paragraph concurring opinion:
We held in Booth v. Maryland, 482 U. S. 496 (1987), that the Eighth Amendment prohibits a court from admitting the opinions of the victim’s family members about the appropriate sentence in a capital case. The Court today correctly observes that our decision in Payne v. Tennessee, 501 U.S. 808 (1991), did not expressly overrule this aspect of Booth. Because “it is this Court’s prerogative alone to overrule one of its precedents,” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997), the Oklahoma Court of Criminal Appeals erred in holding that Payne invalidated Booth in its entirety. In vacating the decision below, this Court says nothing about whether Booth was correctly decided or whether Payne swept away its analytical foundations. I join the Court’s opinion with this understanding.
Monday, October 10, 2016
Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade
I had the great fortune of having the Assistant Chief Counsel for Ohio Governor John Kasich come speak to my OSU Moritz College of Law Sentencing Class about the decade-long litigation in Ohio over the state's various lethal injection protocols (which, as this post explains, is now poised to kick into yet another new phase). With that class freshly in mind, I was intrigued to see this notable new local AP story headlined "Death penalty stalls in Mississippi." Here are excerpts:
With sprawling litigation over Mississippi’s use of execution drugs now scheduled to stretch into 2017, the state could go five years without executing a death row inmate. That would be the longest gap between executions in Mississippi in 15 years.
Mississippi has executed 21 people, all men, since the death penalty resumed. That includes a 13-year gap between the 1989 execution of Leo Edwards and the 2002 execution of Tracy Edwards. During that time, executions stalled out over concerns about adequate legal representation for the condemned. That’s also when Mississippi switched it execution method from the gas chamber to lethal injection. Multiyear gaps remained even after 2002, but the state picked up the pace, executing 11 people in a 25-month span ending in 2002. Then, just as it became routine, the death penalty sputtered out.
That halt is in some ways a tribute to lawyer Jim Craig. He’s tying state government in knots fighting Mississippi’s plan to use a new drug to render prisoners unconscious before injecting additional drugs to paralyze them and stop their hearts. Craig, of the MacArthur Justice Center, says the litigation isn’t aimed at overturning the death penalty in Mississippi, only at seeking a better way of executing people. But he’s doing a good job of keeping his clients alive.
On behalf of Richard Jordan, Ricky Chase and Charles Ray Crawford, Craig argues Mississippi can’t use midazolam as a sedative because it doesn’t meet state law’s specification for an “ultra-short-acting barbiturate” Until 2012, the state used pentobarbital. But drug makers have choked off supplies of the drug for executions.
Midazolam doesn’t render someone unconscious as quickly as a barbiturate. Craig argues midazolam leaves an inmate at risk of severe pain during execution, violating the U.S. Constitution’s prohibition on cruel and unusual punishment. The U.S. Supreme Court in 2015 upheld as constitutional Oklahoma’s use of midazolam, but Craig’s lawsuit is based in part on his claims about Mississippi state law. He’s also trying to reopen other issues surrounding midazolam.
One part of Craig’s legal offensive is a federal challenge to the drug’s use. U.S. District Judge Henry T. Wingate had issued a preliminary injunction freezing executions, but executions didn’t resume when appeals judges lifted the freeze in July. Last month, Craig and lawyers for Attorney General Jim Hood extended that lawsuit into next year, setting a trial for May. Craig rates it unlikely that the state Supreme Court will green-light executions with that case unresolved. “They aren’t stayed automatically,” Craig said. “But I think the Mississippi Supreme Court will respect the federal process and thus will not set execution dates while the federal case is active.”
To aid that case, Craig is also fighting Missouri, Georgia and Texas in court, arguing they must say who’s still supplying them with pentobarbital, so he can argue Mississippi has alternatives to midazolam and could return to its old drug. Mississippi said it destroyed all its pentobarbital and can’t get more.
There are also three cases before the Mississippi Supreme Court. Crawford is challenging the state’s ability to execute him with a drug compounded from raw ingredients, how other states are likely getting pentobarbital. Meanwhile, Jordan and Gerald Loden are fighting use of midazolam based on the barbiturate requirement.
Hood says he’s working to resume executions, but acknowledges Craig’s efforts are gumming the works. “The Mississippi Supreme Court’s resolution of those pending petitions will determine when any executions will be re-set,” Hood said in a statement. “Any delay in the federal lawsuit has been the result of the Jordan plaintiffs’ strategic decisions.”
Saturday, October 08, 2016
Reviewing the nature and stakes for death penalty ballot initiatives in three states
This lengthy new AP article, headlined "Repeal or Reform? Death Penalty Voter Decisions for 3 States," provides a useful rundown of the capital punishment issues coming before voters next month in three states. Here is how the article gets started:
California's dysfunctional death penalty faces a fate in November that seems fitting: voters can put it out of its misery, or fix it so it does what it promises. The state is among three where voters will make decisions on capital punishment. California's ballot initiatives — one would repeal capital punishment, the other would speed up appeals so convicted murderers are actually executed — are fueled by those who agree only that the current system is broken, leaving murder victims' kin grieving and the condemned languishing on death row.
Meanwhile, voters in Nebraska will be asked whether they want to reinstate the death penalty and Oklahoma residents will decide whether to make it harder to abolish it.
In California, more than 900 convicted murderers have been sent to death row since 1978 — but only 13 have been executed in the state. Many more have died of natural causes and no one has been put to death in more than a decade after a judge ordered an overhaul to the state's lethal injection procedure.
The votes for the three states come amid an evolution for capital punishment in the U.S. Executions have mostly been in decline since the turn of the century and last year reached their lowest level in 25 years, with 28 prisoners killed. Capital punishment has been either legislatively or judicially repealed in eight states since 2000, according to Robert Dunham, executive director of the Death Penalty Information Center.
Thursday, October 06, 2016
Texas completes first US execution in nearly three months and only third since April
As noted in this post last month, titled "A not-so-deadly summer: only one US execution from Memorial Day to Labor Day," and as detailed on this DPIC executions page, there was almost a quasi-moratorium on executions throughout the United States this past summer as there was only one completed execution in the months of June, July and August. But yesterday a mini-de-facto execution moratorium in the US ended thanks to, as reported here, Texas finally getting around to giving a lethal injection to a man who slaughtered his neighbors 13 years ago and then sought out his death sentence. Here are the details:
An East Texas man who pleaded guilty to killing a neighbor couple during a shooting rampage 13 years ago and said he wanted to be put to death for the crime was executed Wednesday evening. Barney Fuller Jr., 58, had asked that all his appeals be dropped to expedite his death sentence.
Fuller never made eye contact in the death chamber with witnesses, who included the two children of the slain couple. Asked by Warden James Jones if he had any final statement, Fuller responded: “I don’t have anything to say. You can proceed on, Warden Jones.”
Fuller took a deep breath as Texas Department of Criminal Justice officials injected a lethal dose of pentobarbital into each arm, then blurted out: “Hey, you fixin’ to put me to sleep.” He took a couple of breaths, then began snoring. Within 30 seconds, all movement stopped.
Fuller was pronounced dead 38 minutes later, at 7:01 p.m. CDT. The time between when the drug was injected and when he was pronounced dead was somewhat longer than normal. “Each person is unique in how his body shuts down,” prison agency spokesman Jason Clark said, explaining the extended time.
Fuller became the seventh convicted killer executed this year in Texas and the first in six months in the nation’s most active capital punishment state.
Fuller surrendered peacefully at his home outside Lovelady, about 100 miles north of Houston, after a middle-of-the-night shooting frenzy in May 2003 that left his neighbors, Nathan Copeland, 43, and Copeland’s wife, Annette, 39, dead inside their rural home. The couple’s 14-year-old son survived two gunshot wounds, and their 10-year-old daughter escaped injury because Fuller couldn’t turn the light on in her bedroom.
Court records show Fuller, armed with a shotgun, a semi-automatic carbine and a pistol, fired 59 shots before barging into the Copeland home and opening fire again. He had been charged with making a threatening phone call to Annette Copeland, and the neighbors had been engaged in a 2-year dispute over that. The Reuters news agency reports the gun was an AR-15 assault weapon and that the Copelands had also complained to police that Fuller had shot their dog, according to court documents.
Fuller pleaded guilty to capital murder. He declined to appear in court at his July 2004 trial and asked that the trial’s punishment phase go on without his presence. He only entered the courtroom when jurors returned with his sentence. Last year, Fuller asked that nothing be done to prolong his time on death row. “I do not want to go on living in this hellhole,” he wrote to attorney Jason Cassel.
A sheriff’s department dispatcher who took Annette Copeland’s 911 call about 1:30 a.m. on May 14, 2003, heard a man say: “Party’s over, bitch,” followed by a popping sound. Annette Copeland was found with three bullet wounds to her head. On Wednesday evening, one of her sisters who watched Fuller die said as she left the death chamber: “Party’s over, bastard.”
Cindy Garner, the former Houston County district attorney who prosecuted Fuller, described him as mean and without remorse. “It’s not a cheerful situation,” she said of the execution. “I just regret that this little, plain, country, nice, sweet family — bless their heart — moved in next door.”
Fuller’s execution was only the 16th in the U.S. this year, a downturn fueled by fewer death sentences overall, courts halting scheduled executions for additional reviews, and some death penalty states encountering difficulties obtaining drugs for lethal injections.
Tuesday, October 04, 2016
Racial issues in death sentencing (and insider trading and malicious prosecution) next up for SCOTUS oral argument
As I noted in this recent post, the Supreme Court is back in action with a new fall season chock full of cases involving criminal justice issues. Today's first official day of oral argument, as noted here, involved case on how to interpret the federal bank-fraud statute and on how to apply the Double Jeopardy Clause. And the SCOTUS action gets extra exciting for sentencing fans with the first big capital case of the season, Buck v. Davis, to be heard on Wednesday. Here are excerpts from Amy Howe's lengthy overview of the case at SCOTUSblog, "Argument preview: Justices to consider role of racial bias in death penalty case":
Even Duane Buck’s attorneys describe the facts of his crime as “horrific.” Buck believed that his former girlfriend, Debra Gardner, was in a romantic relationship with another man, Kenneth Butler. On July 30, 1995, he went to Gardner’s Houston home, where he shot and killed both Gardner and Butler. Buck also shot his step-sister, Phyllis Taylor, in the chest at point-blank range; the bullet missed her heart by only an inch, but she survived.
A Texas trial court appointed two lawyers to represent Buck at his trial. One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.
A key issue at Buck’s trial was whether he would be dangerous in the future: Unless the jury unanimously concluded that he would be, it could not sentence him to death under Texas law. One of Buck’s former girlfriends, Vivian Jackson, testified that he had repeatedly abused her, but that fear had kept her from going to the police. However, Buck did not have any convictions for violent crimes, and a psychologist testified that he was unlikely to be dangerous in the future.
Buck’s lawyers also retained another psychologist, Dr. Walter Quijano. Quijano provided the defense team with a report in which he indicated that, as a statistical matter, Buck was more likely to commit violent crimes in the future because he is black. That report was admitted into evidence, at the request of Buck’s lawyers. After two days of deliberations, the jury concluded that Buck was indeed likely to be dangerous in the future and sentenced him to death....
There are several points of contention in the Supreme Court. The first is the merits of Buck’s argument that his trial counsel violated his constitutional right to an effective attorney when he introduced Quijano’s opinion.
Buck emphasizes that Quijano’s “testimony was so directly contrary to Mr. Buck’s interests, no competent defense attorney would have introduced it.” And the introduction of that evidence, he contends, likely “tipped the balance in the prosecution’s favor”: Although the key question before the jury was whether Buck was likely to be dangerous in the future, prosecutors failed to provide any evidence that Buck “had been violent outside the context of romantic relationships with two women, and the jurors learned that he had adjusted well to prison.” Moreover, he notes, the jury apparently “struggled to determine the appropriate sentence” for Buck, which suggests that, if Quijano’s testimony had not been admitted, at least one juror — all that would be necessary — might have voted against a death sentence.
The state concedes both that “race is an arbitrary, emotionally charged factor that has nothing to do with individual moral culpability” and that the introduction of Quijano’s opinion “was at least debatably deficient performance” by Buck’s trial lawyers. But, the state contends, Buck had failed to show that the jury might have reached a different decision if the opinion had not been introduced, because there was plenty of evidence that Buck was likely to be dangerous in the future. The state further downplays the significance of Quijano’s opinion that Buck was statistically more likely to be dangerous in the future because he is black, asserting that it “played only a limited role at trial,” particularly when the psychologist’s “ultimate conclusion” was that Buck “would likely not be a future danger.”
The other issues before the Court are more technical, but no less important: whether Buck’s case presents the kind of extraordinary circumstances that would justify relief under Rule 60(b)(6) and whether the lower courts made a mistake when they rejected his application for a certificate of appealability....
In many of the court’s recent death penalty cases, the justices have been deeply divided. Two justices — Stephen Breyer and Ruth Bader Ginsburg — have even suggested that the court should consider whether the death penalty is constitutional at all. That question is not before the court in Buck’s case, but ... oral arguments could nonetheless elicit strong opinions on the administration of death penalty from the eight-member court.
Though the Buck case is likely to garner the most media attention, there are other big legal and practical issues before Justices in two other criminal cases tomorrow. Again, SCOTUSblog provides helpful resources for these cases:
On eve of VP debate, a deep dive into "Tim Kaine’s Long, Conflicted History With The Death Penalty"
BuzzFeed News reporter Chris Geidner (who just happens to be one of my favorite former students) did some important yeoman's work recently by looking closely at Democratic VP candidate's long professional engagement with capital punishment. The subheadline of BuzzFeed's lengthy report highlights its themes: "As a lawyer, the Democratic vice presidential nominee took cases defending death-row inmates, arguing that parts of Virginia’s death penalty process made the system 'shockingly unequal.' When he was governor, however, he allowed executions to proceed, even when some of those issues were raised again." I recommend the piece in full, and here is how it gets started:
In 2005, Tim Kaine faced a tight race for governor. He was running against Jerry Kilgore, then the state’s attorney general, and Kilgore was hitting him hard on the death penalty.
Two decades earlier, Kaine had arrived in Virginia a new lawyer who immediately called up the ACLU and asked how he could help. When he was asked to take over a death penalty appeal, he initially turned it down — but then changed his mind, believing that he had to put his principles to work. “The essence of human life is probably suffering and pain,” he would tell the Richmond Times-Dispatch, discussing the death penalty and his Catholicism. “The thing that redeems that is the presence of God in every person.”
Kaine took on representation of Richard Whitley — sentenced to death for a brutal murder in 1980 — and spent more than two years trying, ultimately unsuccessfully, to stop his execution. For Kaine, it wasn’t just about making sure an adversarial system worked properly — he called the death penalty in America “outrageous” in the extensive interview with the Times-Dispatch. Whitley was just the first of a handful of death row inmates that Kaine would try to keep from execution over the course of 15 years, working on behalf of the kind of convicted murderers whose stories do not make for sympathetic coverage.
And, in 2005, Kilgore reminded voters of just that. His campaign produced television ads that featured the family members of people killed in Virginia. In one, the wife of a police officer killed by “a drug dealer illegally in this country” who was on death row, expressed a concern that Kaine would put in place a death penalty moratorium. In another, the father of the man killed by one of the death row inmates who Kaine had represented said that Kaine’s death penalty opposition was so extreme that the would-be governor wouldn’t support the death penalty for Adolf Hitler.
Kaine had made a decision early on in his campaign that the response would be to reiterate his personal opposition to the death penalty, to explain that the position was informed by his Catholic faith, and then to say that he would follow the law and enforce the death penalty as governor. When the attack ads ran, the response ad had already been prepared. The attack didn’t appear to do any damage in the long run, and it may even have turned some voters against Kilgore because the ads were seen as unfair — or even as attacking Kaine’s faith. Kaine ultimately won the race on Election Day, 52%-46%, and took office on Jan. 14, 2006.
Less than three months later, Kaine would be faced with the convergence of two threads in his life — his work as a capital defense lawyer and his promise to enforce the death penalty — when he received a petition seeking executive clemency for Dexter Lee Vinson on April 13, 2006. Vinson was scheduled to be executed two weeks later, and his lawyers, including those from the Virginia Capital Representation Resource Center, held out hope that the new governor would take action to halt the scheduled execution.
In the clemency petition, obtained by BuzzFeed News, the lawyers wrote, “If this execution is carried out as scheduled, troubling questions about whether Vinson is innocent of the crimes for which he will be put to death will remain unresolved.” Specifically, the lawyers wrote, “The unique combination of newly discovered evidence, undeveloped evidence, and singular circumstances of Vinson’s case rattle the confidence the Commonwealth must have before taking an irremediable action like execution.”
Kaine denied clemency to Vinson and his execution took place on April 27, 2006, the first of 11 executions that took place under Kaine’s governorship. In that time, Kaine only commuted one death sentence, that of Percy Walton, who faced the death penalty for three murders. In 2008, Kaine concluded Walton was not mentally competent to face execution and commuted his sentence to life in prison.
“What I told Virginians was, ‘I’m against the death penalty, but I’ll uphold the law,’ and I did that,” Kaine said this June in a C-SPAN interview about his life and career. Of considering, and ultimately rejecting, most of the clemency petitions that came before him, he said, “Very, very difficult — the hardest thing in public life I’ve had to do was that. … I grappled with the cases, but only gave relief to people who I felt had made a case that they were entitled to clemency.”
Over the course of the past three decades, Tim Kaine’s experience with the death penalty is far more complex and nuanced than that of any other major party candidate for the presidency or vice presidency in the modern era of the death penalty. Kaine has represented multiple people on death row, seeking to highlight what he has described as a “shockingly unequal” system, and he also has governed one of the few states that has continued to carry out executions regularly over the past decade.
The questions Kaine raised as a defense lawyer were mostly related to process — from the time given for federal court review of cases and the rules that Virginia state courts had for review of capital cases to the quality of the lawyers provided to criminal defendants in those cases and the way those lawyers carried out that defense — but that process, as Kaine said at the time, is sometimes the difference between life and death. “If you had enough money to pay” for a top-tier criminal defense attorney at trial, he said at the time of Whitley’s execution, “you’re not going to get the death penalty.”
And yet, a decade later, in his four years as governor, Kaine found himself in the position of denying clemency requests in cases where those and other similar issues were being raised by people facing execution under his watch.
Monday, October 03, 2016
Ohio planning to use new three-drug execution protocol to get its machinery of death operative in January 2017
Long-time readers and/or hard-core death penalty fans perhaps recall that my own great state of Ohio way back in Fall 2009, in the wake of some problems administering the then-universal three-drug lethal injection approach, pioneered a new one-drug execution protocol. This one-drug approach to executions seemed to work reasonably well for the Buckeye state for a period, as the state completed 19 executions in the period from 2010 to 2013. But when Ohio struggled to get the needed supply of the drug being used in its one-drug protocol, the state in January 2014 tried a two-drug approach that did not seem to work our so well (as reported in this prior post).
Since January 2014, Ohio has been a de facto death penalty moratorium state because Ohio Gov John Kasich repeatedly delayed a long list of scheduled executions while the state sought to figure out how best to acquire drugs for conducting lethal injections. (During this period, the Ohio legislature enacted a law to shield the identity of some who helped the state move forward with executions (background here), and some advocates started calling for the state to consider nitrogen gas as an alternative way to carry out death sentences (details here). But today, as this new AP article reports, Ohio has now revealed that it is planning to get its machinery of death up-and-running again come January 2017 by returning to a (new kind of) three-drug execution protocol. Here are the details and context:
Ohio plans to resume executions in January with a new three-drug combination after an unofficial three-year moratorium blamed on shortages of lethal drugs, an attorney representing the state told a federal judge Monday.
Thomas Madden with the Ohio attorney general's office said the state will use the drugs midazolam, which puts the inmate to sleep; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart. He said the drugs are not compounded and are FDA approved. Madden told Columbus federal Judge Edmund Sargus that a new execution policy will be announced at the end of the week....
The development opens the way for the execution of Ronald Phillips for the rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993. Ohio hasn't put anyone to death since January 2014, when Dennis McGuire repeatedly gasped and snorted during a 26-minute procedure using a never-before-tried two-drug combo.
The state also used midazolam in McGuire's execution, making it disappointing that Ohio would again turn to that drug, said Allen Bohnert, a federal public defender representing several death row inmates.
The state has more than two dozen inmates with firm execution dates sitting on death row, with executions scheduled out as far as October 2019.
After McGuire's execution, the longest ever in Ohio using lethal drugs, the prisons agency changed its policies to allow for single doses of two alternative drugs. Complicating matters, neither of those drugs — sodium thiopental and pentobarbital — is available in the United States after their manufacturers put them off-limits for executions. The state has unsuccessfully tried to find compounded or specially mixed versions.
Last year, Republican Gov. John Kasich ruled out looking for alternative methods, such as the firing squad or hanging. In 2014, Kasich signed a bill into law shielding the names of companies that provide the state with lethal injection drugs.
Supporters said such confidentiality is necessary to obtain supplies of the drugs, and the measure is needed to restart Ohio executions. Opponents said it was naive to think the bill could truly protect companies' names from being revealed.
In 2014, former federal Judge Gregory Frost sided with the state, saying the prisons agency's need to obtain the drugs outweighed concerns by death row inmates that the information was needed to meaningfully challenge the source of the drugs.
"Dignity and the Death Penalty in the US Supreme Court"
The title of this post is the title of this new paper authored by Bharat Malkani now available via SSRN. Here is the abstract:
The US Supreme Court has repeatedly invoked the idea of dignity in its Eighth Amendment jurisprudence, particularly in cases involving capital punishment. However, it has never articulated a clear and consistent conception of dignity. The first half of this paper examines the Court's inconsistent use, and highlights how various justices have used different conceptions of human dignity, communitarian dignity, and institutional dignity to uphold the constitutionality of capital punishment. This stands in contrast to how foreign and international authorities have used the idea of dignity to advance abolition.
The second half of this paper uses the Supreme Court's own accounts of dignity, and philosophical approaches to dignity, to argue that respect for dignity must pull towards a finding that the death penalty is unconstitutional. Respect for dignity, it is argued, requires a consideration of how human, communitarian, and institutional dignity inter-relate and inform one another. For example, it makes little sense to examine the death penalty and the dignity of the legal system without considering the human dignity of the people involved in administering capital punishment. When these three dignities are considered together, it becomes clear that the death penalty cannot comport with respect for dignity, as required by the Eighth Amendment.
Sunday, October 02, 2016
Untroubled by SCOTUS Hurst ruling, unanimous Alabama Supreme Court upholds state's capital punishment procedures
As reported in this local article, headlined "Supreme Court of Alabama has unanimously upheld the state's capital murder sentencing scheme," a top state court has concluded that its capital punishment law is not to be consumed by the post-Hurst hydra. "post-Hurst hydra" (As regularly readers may recall, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases.) Here are the basics and the context for this significant ruling:
The Supreme Court of Alabama has unanimously upheld the state's capital murder sentencing scheme, which signifies Alabama as the last state in the country that allows for this type of scheme. The ruling allows for judicial override, which means a judge can impose the death penalty even after a jury has recommended a lesser sentence.
This happened in Montgomery county in 2008, when Circuit Judge Truman Hobbs overrode a jury’s decision to sentence Mario Woodward to life in prison without the possibility of parole for killing Montgomery police officer Keith Houts. After finding him guilty, the jury recommended life in prison without parole, “But Hobbs said the 34-year-old should die for killing Houts in September 2006,” the Advertiser reported at the time of the sentencing.
In March, Jefferson County Circuit Judge Tracie Todd ruled that the judicial override sentencing scheme was unconstitutional in light of Hurst v. Florida — a January U.S. Supreme Court decision stating that Florida’s sentencing scheme, which also incorporated a judicial override system, was unconstitutional. Florida’s scheme left it to the judge to find the aggravating factors, not the jury.
The case that sparked Alabama's judicial override appellate process stems from a case involving four men who were charged with three capital murders. Defense attorneys argued the men should be barred from receiving the death penalty based on that the Supreme Court of the United States' decision.
Todd ruled in their favor, which barred prosecutors from seeking the death penalty. In her 28-page ruling, Todd called the judicial override practice a “life-to-death override epidemic” and questioned Alabama’s partisan judicial elections. “There is a time and place for diplomacy and subtlety,” Todd wrote. “That time and place has been expunged by the dire state of the justice system in Alabama. It is clear, from here on the front line, that Alabama’s judiciary has unequivocally been hijacked by partisan interests and unlawful legislative neglect.”
Alabama Attorney General Luther Strange asked the Alabama Court of Criminal Appeals to vacate Todd’s order shortly after it was issued. In June the Alabama Court of Criminal Appeals vacated her decision, stating that Alabama’s scheme differs from Florida’s because in Alabama the jury determines the aggravating factors before deciding the sentence.
Jerry Bohannon, one of the defendants challenging Alabama's sentencing scheme, subsequently petitioned for a writ of certiorari. Upon review, Alabama Supreme Court Justices echoed points made by the Court of Criminal Appeals. "Because in Alabama a jury, not the judge, determines by a unanimous verdict the critical finding that an aggravating circumstance exists beyond a reasonable doubt to make a defendant death-eligible, Alabama's capital-sentencing scheme does not violate the Sixth Amendment," wrote acting Chief Justice Lyn Stuart....
Strange praised the court’s decision, stating “Today’s ruling is an important victory for victims and for criminal justice. The Hurst ruling has no bearing whatsoever on the constitutionality of Alabama’s death penalty, which has been upheld numerous times.” Since Hurst, The United States Supreme Court has told the Alabama Court of Criminal Appeals to reconsider appeals filed on behalf of at least three Alabama death row inmates.
The full opinion from the Alabama Supreme Court is available at this link. I would call it a near certainty that some Alabama death row defendants will continue to seek certiorari review based on Hurst, and I suspect SCOTUS review will eventually be more a question of when rather than whether.
Friday, September 30, 2016
Pew survey indicates "Support for death penalty lowest in more than four decades"
This new item from the Pew Research Center reports based on a new survey that "the share of Americans who support the death penalty for people convicted of murder is now at its lowest point in more than four decades." Here is more:
Only about half of Americans (49%) now favor the death penalty for people convicted of murder, while 42% oppose it. Support has dropped 7 percentage points since March 2015, from 56%. Public support for capital punishment peaked in the mid-1990s, when eight-in-ten Americans (80% in 1994) favored the death penalty and fewer than two-in-ten were opposed (16%). Opposition to the death penalty is now the highest it has been since 1972.
Though support for the death penalty has declined across most groups, a Pew Research Center survey conducted Aug. 23-Sept. 2 among 1,201 adults finds that most Republicans continue to largely favor its use in cases of murder, while most Democrats oppose it. By more than two-to-one, more Republicans (72%) than Democrats (34%) currently favor the death penalty.
Two decades ago, when majorities in both parties favored the death penalty, the partisan gap was only 16 percentage points (87% of Republicans vs. 71% of Democrats). And, for the first time in decades, independents are as likely to oppose the use of the death penalty (45%) as they are to favor it (44%). The share of independents who support capital punishment has fallen 13 points since last year (from 57%)....
Even as support for the death penalty has declined across nearly all groups, demographic differences remain: Men are more likely to back the use of the death penalty than women, white Americans are more supportive than blacks and Hispanics, and attitudes on the issue also differ by age, education and along religious lines. More than half of men (55%) say they are in favor of the death penalty and 38% are opposed. Women’s views are more divided: 43% favor the death penalty, 45% oppose it.
A 57% majority of whites favor the death penalty for those convicted of murder (down from 63% last year). But blacks and Hispanics support it at much lower rates: Just 29% of blacks and 36% of Hispanics favor capital punishment.
There are only modest difference by age and education in support for the death penalty, with 18- to 29-year-olds somewhat less likely to support it (42% favor) than those in older age groups (51% of those 30 and older). Those without a college degree are more likely than those with at least a college degree to favor the use of the death penalty in cases of murder (51% vs. 43%).
White evangelical Protestants continue to back the use of the death penalty by a wide margin (69% favor, 26% oppose). White mainline Protestants also are substantially more likely to support (60%) than oppose (31%) the death penalty. But among Catholics and the religiously unaffiliated, opinion is more divided: 43% of Catholics favor capital punishment, while 46% oppose it. And while 50% of those who are religiously unaffiliated oppose the death penalty, 40% support it.
Thursday, September 29, 2016
New HELP Act seemingly proposes death — and mandates LWOP — for spiked heroin dealing in every case in which "death or serious bodily injury results"
In this post yesterday I noted that Representative Tom Reed, who represents the 29th Congressional District of New York, last week introduced a bill (with four co-sponsors) that would respond to the current heroin epidemic by expanding the federal death penalty. In that post, you can find Rep Reed's press release, headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," explaining the background and reasons for his proposal.
This morning, I found that this page at Congress.gov providing more information about the Help Ensure Lives are Protected (HELP) Act now has this link to the (quite short) text of Rep Reed's bill. Somewhat disconcertingly, but not really all that surprisingly, the bill is written in a way that seems to mandate federal life without parole (and permits the death penalty) in any and every case in which any user of spiked heroin suffers even serious bodily injury and even if the person distributing the heroin does not know or even have any reason to know the heroin is spiked or that it could seriously injure a user.
In other words, as I read the key text of the proposed HELP Act, this bill calls for holding any and all heroin distributors strictly and severely criminally liable for any and all serious injuries or deaths that result from a user ingesting spiked heroin. This is because the HELP Act simply amends the "Penalties" provision of the Controlled Substances Act by adding "if the mixture or substance [of more than 100 grams] containing a detectable amount of heroin also contains a detectable amount of [spiked substance like fentanyl], and if death or serious bodily injury results from the use of such substance, such person shall be sentenced to life imprisonment or death."
Of course, the Supreme Court long ago concluded that the Eighth Amendment precludes even felony murderers from be subject to the death penalty unless and until it can be shown they were at least extremely reckless in the causing of a death. Thus, because of constitutional limits, there is little chance this bill if enacted would end up sending lots of drug dealers to federal death row. But, the Eighth Amendment was interpretted in 1991 to permit Michigan to mandatorily impose LWOP on adults for just the possession of a significant quantity of drugs. Thus, if the HELP Act were to become law, there is a real reason to expect that a huge numbers of persons involved in heroin distribution throughout the US could soon be facing mandatory life sentences if anyone who gets a spiked drug gets seriously injured.
Prior related posts:
- NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors
- Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
- "In Heroin Crisis, White Families Seek Gentler War on Drugs"
September 29, 2016 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)
Wednesday, September 28, 2016
NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors
This official press release from the offices of Representative Tom Reed, who represents the 29th Congressional District of New York, reports on the introduction of a bill that would respond to the current heroin epidemic by expanding the federal death penalty. The press release is headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," and here are the details form the press release:
Tom Reed continued his fight against heroin and opioid abuse by offering a proposal which would toughen penalties for drug dealers that supply users with illicit substances that cause an overdose death. “We care about the families of every overdose victim in our community and the addicts that are struggling. We’ve held several roundtable discussions and heard directly from the parents who have lost children to opioids and heroin. It’s only right that we hold those responsible for harming our loved ones accountable,” said Reed.
The bill, known as the Help Ensure Lives are Protected (HELP) Act, would allow federal prosecutor expanded access to more severe penalties, including life in prison or the death penalty, when prosecuting certain criminal drug cases where prosecutors can connect an overdose death to the drug dealer that sold heroin laced with fentanyl.
The move comes in the wake of several roundtable discussions held by Reed throughout the region as well as the recent spike in overdoses directly related to fentanyl laced heroin. The number of deaths due to synthetic opioids, mainly Fentanyl, rose 80% between 2013 and 2014.
Fentanyl is extremely addictive substance, 100 times more powerful than morphine, which is often included in heroin without the user’s knowledge, to maximize the dealer’s profits. The substance is so potent that law enforcement officers are forced to wear level ‘A’ hazmat suits following raids and seizures to avoid coming in contact with it. These hazmat suits are the same kind worn by medical professionals combating Ebola.
Reed supported the Comprehensive Opioid Abuse Reduction Act which was signed into law in July. The law provides for new programs that offer prevention and treatment options for addicts by offering grants to states, and groups of states, to implement and expand access to these services. The government funding proposal, which is expected to pass the House later this week, will designate $37 million to these efforts.
Reed says his proposal will “bring balance to the approach” by providing law enforcement with additional options to aid prosecution. “This is about justice for the victims and their families and giving our law enforcement and prosecutors the tools they need to stop the flow of these lethal substances into our communities,” said Reed. The proposal was introduced late last week.
I cannot yet find the Help Ensure Lives are Protected (HELP) Act on-line, but I am very interested in seeing just how this bill seeks to apply and administer LWOP and the death penalty in this setting.
UPDATE: I have found this page via Congress.gov providing more information about the HELP Act, which on that site goes by this description "H.R.6158 - To provide for enhanced penalties for certain offenses relating to controlled substances containing fentanyl, and for other purposes." Unfortunately, that webpage does not yet have either the bill text or the a substantive summary, but the page does note that H.R.6158, the HELP Act, was introduced with these four other sponsors:
Rep. Yoho, Ted S. [R-FL-3]
Rep. LaMalfa, Doug [R-CA-1]
Rep. Flores, Bill [R-TX-17]
Rep. Chabot, Steve [R-OH-1]
Sunday, September 25, 2016
Can and will California voters "save" the death penalty in the United States?
The quirky question in the title of this post is prompted by this lengthy new press article and its provocative headline: "Death penalty is dying across America. Will California save it?". Here are excerpts:
The last inmate executed in California was 76-year-old Clarence Ray Allen, legally blind and suffering from diabetes, who had his heart stopped with a lethal chemical cocktail as punishment for a triple homicide in Fresno he’d ordered from a Folsom Prison cell a quarter century earlier. It was more than a decade ago when Allen spoke his last words – “Hoka Hey, it’s a good day to die” – and the poisons flowed into his veins at San Quentin State Prison.
Now, with the death penalty dying across America, the nation is watching California as its voters weigh competing initiatives meant to either revive executions or abolish capital punishment. Several states in recent years ended their death penalties through court decisions or legislation, but California is a test of whether voters think executions are worth trying to save....
Proposition 62 on the November ballot would end the death penalty and convert the sentences to life without parole. Proposition 66 aims to speed up executions with – among other things – limits on appeals and deadlines on court rulings. Should both measures pass, the one with the most votes becomes law. California’s decision comes as the death penalty withers in the rest of the nation. There were 28 executions in America last year, the lowest number since the death penalty was reinstated in 1976, and a 70 percent decline from the peak in 1998.
Only six states had executions last year, most of them in the cotton belt. Even America’s execution capital of Texas is slowing down, with a 68 percent decline in inmates put to death over the past 15 years. A new Harvard University study found that just 16 counties in the U.S.’s 3,143 had imposed at least five death sentences since 2010. Supreme Court Justice Stephen Breyer noted last year that “the number of active death penalty counties is small and getting smaller.”
Reasons include legal challenges to death sentences, botched executions – including a 2011 Oklahoma injection where the condemned man writhed and moaned as it took him more than 40 minutes to die – difficulty obtaining lethal drugs from pharmaceutical companies reluctant to play a role in ending lives, and wrongful convictions. More than 150 people on death row nationwide have been exonerated since 1973, according to the Death Penalty Information Center, including three in California. Wrongful convictions doomed the death penalty in Illinois, which passed legislation to abolish it in 2011.
States are also balking at costs of a death penalty case and appeals. Lawmakers in conservative Nebraska voted to join the states shedding the death penalty last year, citing expenses and religious objections. The issue will go to Nebraska’s voters in a November referendum.
The death penalty is on hold in California, Arizona, Arkansas, Colorado, Kentucky, Louisiana, Montana, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania and Washington state as a result of legal challenges or moratoriums imposed by governors. Capital punishment has been abolished in eight other states over the past decade and is in limbo in Florida, which has the nation’s second-most-populous death row after California, following a Supreme Court decision striking down the state’s death penalty statute....
Sacramento County District Attorney Anne Marie Schubert said that regardless of what was happening in the rest of the nation she saw the death penalty as appropriate justice for the “worst of the worst” killers in California. “It’s a policy that Californians continue to support but they want the system fixed,” Schubert said.
?California voters supported keeping the death penalty in 2012 with 53 percent of the vote. Recent polling suggests this year’s initiative campaign to end capital punishment is struggling to win majority support. No state has repealed the death penalty by public vote since Oregon in 1964 – and voters there reinstated it in 1978. While courts and legislatures around the nation are abolishing capital punishment, when it goes to a public vote the hard line tends to have the advantage, said Franklin Zimring, a criminal justice expert at the University of California, Berkeley.
“The question is what do you do with the worst criminals you have?” Zimring said. “And if that ever becomes a question of sentiment the answer is boil them in oil.” California has the largest death row population in the Western Hemisphere, with 746 inmates who are sentenced to die. The nonpartisan Legislative Analyst’s Office estimates that eliminating California’s death penalty would save around $150 million a year, including reduced costs for trials and challenges to death sentences.
According to the study from Harvard’s Fair Punishment Project, five of the 16 U.S. counties in the U.S. that imposed at least five death sentences since 2010 are in Southern California – Kern, Los Angeles, Orange, Riverside and San Bernardino. Riverside County has become the nation’s leader in death sentences – with eight people sent to death row last year alone. Meanwhile, no one is actually being executed in California....
Cal-Berkeley’s Zimring predicts the initiative designed to speed executions in California will have minimal impact if it passes. The main result would be litigation and delay, he said, since the ballot measure has so many pieces open to challenge. That’s disputed by Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento. “The most important reforms of this carefully drafted initiative are virtually bulletproof,” he asserted.
Friday, September 23, 2016
Latest polling suggests California voters could benefit from more information about state's competing death penalty initiatives
This news report on the latest polling concerning the competing death penalty initiatives before voters this fall reinforces my sense that Californians could benefit from a lot more public discussion and debate over the state and possible fate of capital punishment there. The news piece is headlined "Is a plan to end the death penalty on the ropes in California?," and here are the details (with my emphasis added):
A plurality of likely voters backs the latest ballot effort to repeal the death penalty in California and shutter the nation’s largest death row, but support remains below the 50 percent threshold needed, a new poll shows. The survey, completed jointly by the Field Poll and the Institute of Governmental Studies at UC Berkeley, found Proposition 62 ahead 48 to 37 percent, with 15 percent of likely voters undecided.
Meanwhile, barely a third (35 percent) support Proposition 66, a competing initiative aimed at expediting the death-penalty process. With 42 percent undecided, it appears far less familiar to voters. Twenty-three percent are opposed.
The see-saw measures come four years after voters narrowly rejected Proposition 34, an initiative that would have replaced capital punishment with life in prison without parole. The Field Poll’s last survey of that measure, taken a week before the 2012 election, found it leading 45 to 38 percent.
Mark DiCamillo, director of the poll, said there are signs of encouragement for death-penalty opponents this time, despite hovering below a majority seven weeks before the Nov. 8 election. “This is not a bad-news poll for Prop. 62,” DiCamillo added....
Proposition 62 would replace death sentences with life in prison without the possibility of parole and apply retroactively to existing death sentences. Proposition 66 endeavors to speed up the process by requiring that appeals conclude within five years of sentencing. DiCamillo said there is “much greater confusion” about Proposition 66, adding, “Voters don’t fully understand what the impact is.” If both measures pass, the one with the most votes will prevail....
California’s last execution was in January 2006, with the state effectively halting executions over challenges to its lethal injection protocol.
Some of many prior related posts:
- California voters in November to have "mend it or end it" death penalty initiative options
- California initiative to reform death penalty officially qualifies for ballot (and will compete with repeal initiative)
- California DA makes the case for mending rather than ending California's capital punishment system
- "California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives."
- "It's Silicon Valley vs. law enforcement on California death penalty"
- Poll suggests Californians will vote in November 2016 to mend rather than end the death penalty in their state
- "Fourteen Years Later: The Capital Punishment System in California"
Thursday, September 22, 2016
"Under the Radar: Neuroimaging Evidence in the Criminal Courtroom"
The title of this post is the title of this notable (and quite lengthy) article available via SSRN authored by Lyn Gaudet and Gary Marchant. Here is the abstract (with one line emphasized therein for sentencing fans):
This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases.
In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual.
As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.
Interesting account of how Mexico invests in keeping its homicidal citizens from being sentenced to death in the US
The Marshall Project has this interesting new article headlined "How Mexico Saves Its Citizens from the Death Penalty in the U.S.: A fund is designated to train, pay and advise American defense lawyers." Here are is how it gets started:
When the body of 25-year old Lesley Hope Plott was found lying in a ditch in Russellville, Ala., in February of 2013, police had little trouble zeroing in on a suspect: hours earlier, a nearby church’s security camera had recorded her being beaten and stabbed by her estranged husband, Angel Campos Nava.
Then, Thomason received a call offering her something few lawyers in death penalty cases get: money, training, and advice, courtesy of the Mexican government. Nava’s case had caught the attention of the Mexican Capital Legal Assistance Program, created by Mexican officials in 2000 to save the country’s citizens from execution in the United States.
One of the program’s chief purposes is to help defense attorneys construct a biography of the accused—to humanize them. Poverty, family dysfunction, and developmental disability are frequent themes in their clients’ lives. When presented as part of a defense, such themes can encourage mercy among jurors and dissuade them from handing down a death sentence.
To that end, the program arranges for lawyers to go to Mexico to track down school and hospital records and stories about their clients’ lives, either paying for their travel costs or advising them on how to request money from local courts. Under the program, Mexico pays American lawyers up to $220 an hour to track potential death penalty cases around the country—watching court decisions and news stories from the moment of arrest, all the way through the last minute scramble before an execution—and advise court-appointed lawyers like Thomason.
Since 2008, the program has provided these attorneys with an average annual budget of around $4 million to track as many as 135 cases at a time, according to the program’s filings with the Department of Justice. That comes out to roughly $29,000 per case, per year. By contrast, the Equal Justice Initiative, which represents numerous inmates on Alabama’s death row, has reported that many of them were sentenced to death after their attorneys’ fees were capped at $1,000 for out-of-court trial preparation.
Tuesday, September 20, 2016
What should we make of why and how New Mexico's Gov is pushing hard to bring back the death penalty in her state?
One notable sentencing reform story in the United States over the last decade has been the growing number of states abolishing capital punishment legislatively while no new state has come to (or come back to) embrace the penalty. Specifically, in the last decade, we have seen legislatures in New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland and Nebraska take their machineries of death off-line. (The 2015 Nebraska repeal, as regular readers know, might be reversed by voter referendum this November.)
But as highlighted by this new AP article, headlined "New Mexico Governor Wants Vote on Reinstating Death Penalty," a notable chief executive is now making a notable hard push for bringing the death penalty back in her state. Here are the latest details:
P>New Mexico Gov. Susana Martinez stepped up pressure on lawmakers Tuesday to consider reinstating the death penalty by promising to add the issue to a legislative agenda for a pending special session that was aimed solely at fixing the state's budget shortfall.
The second-term Republican governor said that she wants the death penalty as an option for convicted killers of police, children and corrections officers. New Mexico repealed the death penalty in 2009 before Martinez took office by replacing provisions for lethal injection with a sentence of life in prison without parole. The move by Martinez could compel lawmakers to take a public stand on capital punishment ahead of November elections for the Republican-controlled state House of Representatives and Democrat-dominated state Senate.
"Cop killers and child murderers deserve the ultimate punishment," Martinez said in a written statement. "If you kill an officer, you deserve the death penalty. If you kill a child, you deserve the death penalty. It's time we say enough is enough."...
Her push to restore capital punishment follows the killings in southern New Mexico of two police officers in separate shootings in August and September by wanted fugitives, along with the horrific killing and dismemberment of a 10-year-old New Mexico girl in Albuquerque last month.
New Mexico executed nine men starting in 1933 until more than seven decades later when it abolished the death penalty. The state's most recent execution in 2001 was its first since 1960. Former Gov. Bill Richardson, a Democrat, cited flaws in how the death penalty was applied when he signed the legislation that abolished it. He said the criminal justice system must be perfect if it will be used to put someone to death.
I presume Gov Martinez genuinely believes that justice demands the death penalty for cop killers and child killers (although her strong rhetoric makes me wonder if she shares GOP Prez nominee Donald Trump's view that we should have a mandatory capital punishment for cop killers as well as for child killers). And yet, given the current timing of her push for bringing the death penalty back to New Mexico, I cannot help but wonder if Gov Martinez (1) has some strong internal polling numbers suggesting citizens in the state also strongly favor a return of the death penalty, and (2) thinks that the death penalty can be an effective "wedge" issue for her to help get her preferred state legislative candidates elected this fall.
"Lethally Deficient: Direct Appeals in Texas Death Penalty Cases"
Texas’ system of providing direct appeal representation in death penalty cases is in dire need of reform, according to a new report by Texas Defender Service. The report, Lethally Deficient, evaluates six years of direct death penalty appeals and concludes that the current system is broken. The Texas Legislature should, Texas Defender Service recommends, create a capital appellate defender office to handle these appeals, establish a statewide appointment system with caseload controls and uniform compensation, and require the appointment of two qualified lawyers to each death penalty direct appeal.
Lethally Deficient: Direct Appeals in Texas Death Penalty Cases is the first report to engage in an in-depth examination of direct appeals for Texas death penalty cases. Texas law requires all death sentences to be directly appealed from the trial court to the Texas Court of Criminal Appeals. A direct appeal is based on the trial record and transcript.
“This report documents that, in case after case, most death row inmates are not well represented on direct appeal,” said Kathryn Kase, Executive Director of Texas Defender Service, a nonprofit law firm that works on capital cases and related criminal justice issues. “Texas should do what it did to address the crisis in capital habeas representation: create a public defender office that handles only direct death penalty appeals.”
TDS examined all direct appeals filed in each of the 84 death penalty cases decided by the Court of Criminal Appeals between January 1, 2009 and December 31, 2015. The study uncovers multiple deficits in capital direct appeal representation. Lawyers submitted briefs that recycled failed legal arguments without updating to reflect current law, failed to meet — and at times, correspond with — their clients, failed to request oral argument, and avoided filing reply briefs and applications for U.S. Supreme Court review. And while other jurisdictions reported attorneys needing between 500 and 1,000 hours to brief a capital direct appeal, defense lawyers for the cases in the TDS study billed between 72.1 to 535.0 hours for each appeal, for an average of only 275.9 hours.
In the six years – 2009 through 2015 – that these deficiencies occurred, TDS found that the CCA did not reverse a single conviction in a death penalty case on direct appeal. The CCA affirmed convictions and death sentences in 79 cases, and reversed death sentences in just three cases.
When compared to capital litigants in other jurisdictions, Texas death penalty appellants fare far worse. Death row inmates outside Texas are 2.8 times more likely to have their cases reversed on direct appeal. TDS reviewed 1,060 capital direct appeal decisions issued by the highest courts in the 30 other death penalty states between 2005 and 2015, and these courts collectively reversed 16.0% of all death sentences. By contrast, the Texas Court of Criminal Appeals reversed just 5.7% of the death penalty cases heard on direct appeal between 2005 and 2015.
Sunday, September 18, 2016
"What Executioners Can — And Cannot — Teach Us About the Death Penalty"
The title of this post is the title of this notable new paper authored by Susan Bandes now available via SSRN. Here is the abstract:
Executioners and others who come into close proximity with the condemned often come to reject the death penalty. They reject it not only in individual cases, and not only on the ground that the death penalty is poorly implemented. They conclude that capital punishment is wrong. I argue that the perspective of the executioner helps illuminate the debate about whether to abolish capital punishment, and raises the troubling possibility that support for the death penalty can survive only at a great remove.
The essay responds to a recent article by Jeffrie Murphy focusing on the question of whether executioners can take pride in their work. I contend that Murphy asks the wrong question, and that the better question is whether anyone ought to be asked to do such work. On this latter question, the perspective of the executioner sheds important light. Like Murphy, I draw on works by and about Albert Pierrepoint, the “last hangman” of Britain. I also draw on the perspectives of numerous executioners, wardens, chaplains and other death row personnel. I argue that their perspectives offer a powerful argument against the main rationale for the death penalty: retribution. If retribution is keyed to the offender’s character as well as his wrongful act, then post-conviction character ought to matter. The executioners’ accounts share a common theme: that death row inmates change over time and hold the potential for redemption.
Saturday, September 17, 2016
Notable opposition to initiative seeking to enshrine the death penalty in Oklahoma's state constitutions
Two big substantive fights via voter initiative concerning the death penalty this fall are taking place in California and Nebraska. But this AP article highlights that Oklahoma voters are being presented with an important kind of stylistic question concerning capital punishment. And, as the article explains under the headline "Oklahoma death penalty question faces bipartisan opposition," there is some notable disaffinity for its proposition. Here are the basic details:
A proposal to ask Oklahoma voters to enshrine the death penalty in the state’s nearly 100-year-old constitution sailed easily through the Legislature, but now is facing opposition from groups on opposite ends of the political spectrum. In addition to various faith and civil rights organizations that traditionally oppose capital punishment, several conservative groups and the newly recognized Oklahoma Libertarian Party also are joining the fight against State Question 776.
“The conservative position is against the death penalty because it costs more than life (in prison), more than life without parole,” said Marc Hyden, national advocacy coordinator for Conservatives Concerned About the Death Penalty, one of several organizations that helped kick off rallies in Oklahoma City and Tulsa opposing the question. “Beyond that … we believe the founding fathers had the foresight to institute checks and balances, and this aims to subvert those checks and balances.”
A group opposing the state question — Say No To SQ 776 — has raised about $4,000, according to its most recent report with the Oklahoma Ethics Commission. There don’t appear to be any organized groups supporting the question.
The state question was sent to the voters through a resolution approved by the Legislature in 2015 following a botched execution and problems with the administration of lethal injection. Sponsored by two pro-death penalty lawmakers, it would ensure that death sentences would not be reduced if a method of execution is ever ruled invalid and gives the Legislature the explicit power to designate any method of execution not prohibited by the U.S. Constitution. It also states that the imposition of the death penalty will not be considered cruel and unusual punishment, which is currently prohibited under the Oklahoma Constitution.
Because the language would be added to the state constitution, it would also make it more difficult for the courts or future Oklahoma legislatures to eliminate the death penalty, said Rep. Mike Christian, a former highway patrolman who authored the bill. “It’s such a serious issue, we decided to put it in the Constitution,” said Christian, R-Oklahoma City. “I believe it will get overwhelming support. We thought we should put it in the constitution, just to send a message that we support it as a people.”
The measure passed 80-10 in the House and 44-0 in the Senate, receiving support from Democrats and Republicans. But since its passage, Oklahoma has continued to have problems administering lethal injections....
“If we cannot trust our state government to fund our schools, our hospitals, fund our infrastructure, how in the world can we continue to trust them to strap someone down on a table, put a needle in their arm and fill it full of poison until they’re dead,” said Ryan Kiesel, executive director of the Oklahoma Civil Liberties Union of Oklahoma. “We cannot continue to trust them to do that.”
Friday, September 16, 2016
"What crimes warrant the death penalty? Depends on the prosecutor"
The title of this post is the headline of this new Los Angeles Times editorial, which gets started this way:
If the government is going to impose a punishment as medieval and irreversible as the death penalty, it should take pains to ensure that the penalty is invoked only for the most heinous crimes and that it is applied fairly and consistently. Data compiled by the state attorney general’s office, however, suggest that California is falling short of those ideals because of the individual judgments of local prosecutors.
To be eligible for a death sentence in this state, a person must be convicted of first-degree murder enhanced by any one of about three dozen special circumstances — more than just about any other state (if California wants to reduce death sentences, it could start by reassessing these threshold crimes). There’s murder for hire. Murder to silence a witness. Killing a police officer. Wrecking a train. Using poison. Murder, even, when killing wasn’t the intent but occurred during the commission of any of a dozen other crimes. And on and on.
Who decides whether a murder case involves one of those special circumstances, and thus warrants the death penalty? A jury, followed by the trial judge’s affirmation (a judge can reduce a death sentence, but not order one if the jury didn’t recommend it). A jury, though, doesn’t consider a death sentence unless a prosecutor asks it to. And that’s one of the places where capital punishment is inherently inconsistent. National studies have found that whether someone faces a death sentence depends significantly on the county in which the crime is committed because county-level prosecutors are the ones who decide whether to put the death penalty in play. In fact, 2% of counties nationwide account for a majority of death sentences.
How inconsistent is application of the death penalty? From 2011 to 2015, California juries handed down 74 death sentences, more than half from Los Angeles and Riverside counties, with 23 each. Yet Riverside County is only one-quarter the size of Los Angeles County and had fewer than one-sixth of the homicides during that same time. Is the nature of homicide in Riverside that much more heinous than in Los Angeles County? No. The difference between the two counties lies in the makeup of the prosecutorial teams deciding whether to seek the death penalty, with the standard set by the elected district attorney.
Tellingly, there was a change in the Riverside district attorney’s office in January 2015, and the current top prosecutor, Mike Hestrin, has been less aggressive in pursuing the death penalty than his predecessor, Paul E. Zellerbach, who himself sought it less often than the D.A. he replaced. Further evidence that individual prosecutors make a difference: Hestrin inherited 22 capital cases and, after reviewing them, dropped the death penalty against seven defendants. So two different district attorneys, looking at the same seven cases, came to different conclusions on whether the crimes merited a death sentence.
Hestrin and others argue that county district attorneys represent the views of their constituents, which explains why liberal San Francisco County tends not to seek the death penalty and more conservative Riverside County does (of the 747 people on death row, one is a San Francisco County case compared with 89 from Riverside). Yet that is one of the many grave flaws of capital punishment in general, and in California specifically. Capital punishment is authorized only by state law, but there is no objective statewide standard against which factors are weighed and a decision is made. It is unconscionable that the specifics of a crime are subordinate to a prosecutor’s whim in determining whether a death sentence will be sought.
Wednesday, September 14, 2016
Highlighting polling reality that death penalty remains pretty popular on Left Coast
Ed Morrissey has this effective new commentary about the latest capital punishment polling under the heading "Hmmm: Blue California wants to keep its death penalty, 52/36." Here are excerpts (with a few links retained from the original):
California voters, among the most reliably liberal in the nation, have an opportunity to pass a repeal of the death penalty in November. Proposition 62 would commute the sentence of those on California’s Death Row to life without parole and require a higher percentage of inmate income to go to victim restitution. With opposition to the death penalty a big progressive goal, and with California’s execution process among the slowest and most frustrating in the nation, one would expect overwhelming support for Proposition 62.
Not so, according to a new poll from Survey USA. In fact, opposition to repeal leads by sixteen points, 36/52, and leads among almost all demographics. Majorities of both men (38/54) and women (33/50) oppose repeal. Voters under the age of 35 oppose it in plurality (40/45), but all other age groups oppose it by majorities and double-digit gaps. Black voters and Democrats support repeal, but not significantly enough to overcome overwhelming opposition among all other ethnic and partisan groups. Perhaps most tellingly, the only ideological demo to support repeal are those who identify as “very liberal” — and even then unimpressively at 52/32. Even the ultra-liberal Bay Area has a slight plurality opposed to repeal, 42/47....
The problem with the death penalty in California (besides the issues that form my general opposition to it) is that it’s almost purely academic. California hasn’t executed anyone since 2006, and Clarence Ray Allen had been on Death Row for more than 23 years at that point. That was the second-longest string for those who eventually got executed; Stanley “Tookie” Williams spent almost 25 years waiting for his execution, which finally came in December 2005. They are two of only 13 inmates executed since the reinstatement of the death penalty in 1978.
How many are actually on Death Row now? The state’s September 2016 lists 747 inmates, with sentencing dates from 1982 to this past May. Eight times more inmates have died of other causes (104) than of executions (13).
Death penalty proponents will also have a referendum on the November ballot. Proposition 66 would offer several reforms to speed up the execution process, including expediting all appeals to the state Supreme Court and having attorneys assigned to death-penalty appeals immediately. Presumably this will find more support than Proposition 62, although SUSA didn’t poll on it. Will Californians take steps to fix its capital-punishment system — or be satisfied with a Death Row that just waits inmates to death?
Monday, September 12, 2016
Former GOP Ohio Attorney General explains why he is convinced "the death penalty is just not worth it any more"
Over the weekend my local paper published this capital commentary by Jim Petro, a widely-respected local Republican leader who served as Ohio Attorney General from 2003 to 2007. Here are excerpts:
As Ohio attorney general, I oversaw 18 executions in accordance with Ohio law. As a state legislator before that, I helped write Ohio’s current death-penalty law. We thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong. What I am coming to understand is just how wrong we were, and what needs to be done to fix our mistake.
My direct experience with executions makes me more than a mere spectator as Ohio continues to struggle with capital punishment. Since I left office in 2007, I’ve been following developments and watching those most deeply engaged with it.
Earlier this week, Ohioans to Stop Executions (OTSE) released its third report in as many years, providing perspectives on the status of Ohio’s death penalty. I am in agreement with the report, “A Relic of the Past: Ohio’s Dwindling Death Penalty,” which details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases.
In 2015, only one new death sentence was handed down. Cuyahoga and Summit counties, two jurisdictions responsible for more than 25 percent of death sentences, initiated zero new death penalty cases last year. In fact, new death sentences overall were down for the fourth year in a row. There were three in 2014, four in 2013, and five in 2012.
It has become clear to me that what matters most is the personal predilections of a county prosecutor. Consider Cuyahoga County, which until 2012 was seeking the death penalty in dozens of cases a year. Last year Cuyahoga County sought none. Crime rates did not plunge. There was a new prosecutor. On the other hand, consider Trumbull County, with one of the lowest homicide rates of Ohio counties which sentence people to death. Trumbull County leads the state with the highest death-sentence-per-homicide rate. Why? Again, the personal preference of the county prosecutor matters most.
The new OTSE report addresses many other issues, including 13 wrongful convictions and exonerations in Ohio death cases. After serving as attorney general, my chief concern was that our state has sentenced individuals to death or lengthy prison sentences for crimes they did not commit....
Most urgently in my view, the new report catalogs the reluctance of Ohio legislators to consider most of the 56 recommendations made in 2014 by the Supreme Court Joint Task Force on the Administration of Ohio’s Death Penalty. The charge to that task force was to find ways to make Ohio’s death penalty more fair and accurate.
Only a handful of the recommendations have been considered, and not those which would make the biggest difference. For example, the recommendation to narrow the felony murder rule would address much of Ohio’s disparity in death sentencing. Thirteen of the recommendations, individually and collectively, would go a long way toward preventing wrongful convictions. In failing to act, legislators effectively maintain the status quo, which is a broken system that currently serves only the interest of Ohio prosecutors. That is a grave mistake.
Another grave mistake is the terrible suggestion by the director of the Ohio Prosecuting Attorneys Association that Ohio adopt the gas chamber to conduct executions. I hope Gov. John Kasich and all Ohio legislators soundly reject that notion. It is offensive to the human experience and has no place in our great state.
I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. Starting in January 2017, 28 Ohioans have execution dates. If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy.
Sunday, September 11, 2016
Is Ohio again about to pioneer a new execution method?
The question in the title of this post is prompted by this Columbus Dispatch article from last week headlined "Ohio looks at nitrogen as a new execution method." Long-time readers may recall, from this post back in 2009, that Ohio was the first state to switch to a one-drug lethal injection protocol after it botch an execution. And, as this new article explains, new problems with lethal injection plans may prompt Ohio to become an execution pioneer again. Here are the details:
Ohio might consider adding nitrogen gas as a new execution method because of problems securing lethal injection drugs.
There have been no executions in the state for 2½ years, largely because of lawsuits and difficulty obtaining drugs for lethal injection. Beginning in January, there are 28 convicted killers with execution dates scheduled over four years.
John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said today lethal injection is "stalled" and it's time for a change. Prosecutors have long been strong supporters of Ohio's death penalty law. "I think the legislature ought to recommend another method of execution," Murphy said in an interview. He recommends switching to nitrogen gas, a method he called "humane and reasonably inexpensive."
Nitrogen gas, pumped into an air-tight chamber, produces asphyxiation by a lack of oxygen in the blood. It has not been used for executions, although Oklahoma adopted it as a backup method. The sponsor of the Oklahoma law called it "foolproof." People occasionally die accidentally from nitrogen asphyxiation. Deep-sea divers sometimes suffer from a form of it, producing an effect often described as euphoric. The gas is widely available and inexpensive.
JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction, said the agency "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions." State Rep. Jim Butler, R-Oakwood, chairman of the House Judiciary Committee, said, "It's good to look at alternative methods that are humane. That's something we should definitely do." But Butler added, "One problem is if it's something that's not been tried before, you need to vet it to make sure it's appropriate. It's certainly going to be tested in the court system."
Other states have moved ahead with alternatives. Tennessee permits use of the electric chair, Utah allows the firing squad, and Oklahoma allows nitrogen gas.
Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University College of Medicine, said using nitrogen gas could be "dangerous and impractical."
"You and I are breathing 78 percent nitrogen right now," he said. "It's not a poison. It's an inert gas." When nitrogen is introduced, oxygen is pushed out of the bloodstream, causing potentially painful suffocation, Groner said. "I would challenge that it's foolproof. We've heard that before," he said.
Thursday, September 08, 2016
Top Texas criminal judges wonders about value of LWOP sentencing and its lesser process
This local article from Texas reports on interesting comments by a top state judge in the state about LWOP sentences. Here are excerpts from the article:
Judge Larry Meyers, the longest-serving member of the state’s highest criminal court, has grown uncomfortable with the way Texas allows for life in prison without parole, calling it a slow-motion death sentence without the same legal protections given to defendants who face the death penalty. It can be argued, Meyers said, that the prospect of decades of prison — ended only by death from old age, medical problems or even violence — is as harsh or harsher than execution.
Even so, life without parole can be given in some capital murder cases without jurors answering two questions that must be considered before issuing a death sentence — is the defendant a future danger to society, and are there any mitigating factors such as mental disability or childhood abuse that weigh against capital punishment?
“I’m not saying the death penalty is unconstitutional. I think right now it’s about as fair as it could be,” Meyers said. “But there are two variations of the death penalty; one is just longer than the other. People are getting a (life without parole) death sentence without the same safeguards and procedures that you get when there is a death sentence.”
Larry Meyers has been a judge on the Texas Court of Criminal Appeals since 1993. Meyers, the only Democrat on the Texas Court of Criminal Appeals, plans to make changing the life-without-parole system an issue of his re-election campaign, an admittedly uphill battle after he switched from the Republican Party in 2013 over disagreements in its direction under the surging tea party movement.
His Republican opponent in the Nov. 8 election, 22-year state District Judge Mary Lou Keel of Houston, believes Meyers has strayed from his principal task as a judge. “Policy issues like this are best left to the Legislature,” Keel said. “Doesn’t he have enough work to do as a judge?”...
Life without parole, an option for capital murder cases since 2005, has been credited with helping to sharply reduce the number of death row inmates by allowing prosecutors to reserve capital punishment for the worst cases, yet ensure that other convicted murderers are permanently removed from society.
Since life without parole became an option, the population of Texas’ death row has fallen to 244 inmates, down about 40 percent, as the pace of executions has outstripped the number of new death sentences. In contrast, 782 inmates were serving life without parole for capital murder as of July 31. An additional 54 inmates are serving life without parole after repeat convictions for sexually violent offenses, including crimes against children, since the Legislature allowed the punishment for the crime of continuous sexual abuse in 2007....
Seeking life without parole is by far the simpler option. Jurors are easier to seat — death penalty opponents aren’t allowed on juries if execution is an option — and there is no punishment phase trial. The appeals process also is less rigorous, with death row inmates granted two appeals before the state’s highest criminal court, while inmates serving life without parole go through the normal process. Meyers, a 23-year member of the Court of Criminal Appeals, believes life without parole has been made too simple, providing “an easy, inexpensive way of getting the death penalty.”
It would be fairer, he said, to let jurors consider some variation of the future danger question and to allow defense lawyers to present mitigating evidence. If jurors cannot agree that life without parole is appropriate, the defendant would get a life sentence and be eligible for parole after 40 years or some other suitable time, Meyers said.
The bigger reform — what Meyers called the “smarter fix” — would be for the Legislature to end capital punishment, making life without parole the ultimate punishment and including an option for parole. The political reality in Texas, by far the nation’s top death penalty state, makes that an extremely unlikely option for legislators, Meyers admits. “But right now, as I see it, there’s just two options — both for death,” he said....
Meyers said his change of heart on life without parole didn’t come about because of appeals. Nobody is going to tell his court that they improperly received a no-parole term when the alternative is a death sentence, he said. Instead, Meyers said, his qualms arose after coming to see the sentence as a delayed death penalty — one that is particularly harsh on young people — when a typical murder conviction is often enough to lock away killers until they are no longer a danger.
When the Legislature debated life without parole in the mid-2000s, prosecutors were divided on the best course to take, but many opposed adding a “long, drawn-out” sentencing hearing to determine the difference between a no-parole sentence and parole eligibility after 40 years, said Shannon Edmonds, staff attorney with the Texas District and County Attorneys Association. “You could argue that it’s not much difference. It was a lot of squeeze without much juice,” Edmonds said.
In addition, many capital murder cases are decided by a plea bargain that allows defendants to choose perpetual prison time over execution. Some prosecutors feared losing bargaining leverage to a defense lawyer who threatened, for example, to drag out a sentencing hearing for three weeks unless offered a sentence with parole for a lesser crime like murder, Edmonds said.
Life without parole raises questions about whether Texas is imprisoning people long past the point that they “will ever be dangerous,” said Kathryn Kase, executive director of Texas Defender Service, a nonprofit that provides capital murder legal representation at trial and on appeal. “We’ve got places in prisons that look like nursing homes. It makes me wonder, as a taxpayer, are these people dangerous? Why are we paying the extra cost of imprisoning them when they are geriatrics?” Kase said.
September 8, 2016 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Wednesday, September 07, 2016
Feds file motion seeking to limit how jury might consider mercy in capital trial of Charleston mass murderer Dylann Roof
This new BuzzFeed News article, headlined "Prosecutors Want To Limit Dylann Roof’s Use Of A “Mercy” Defense," provides an effective summary of this interesting motion filed by prosecutors in a high profile federal capital case. Here are the basic details:
Federal prosecutors trying the death penalty case against alleged Charleston church shooter Dylann Roof want to limit the use of “mercy” when he goes on trial later this year. In a new court filing, prosecutors argue that should Roof be convicted, the jury should determine his sentence based on a weighing of the factors for and against — known as aggravating and mitigating factors — the death penalty. Roof is accused of fatally shooting nine people inside the historically black Emanuel AME Church on July 17, 2015.
The prosecutors argue that allowing the defendant to instruct the jury that, regardless of their findings, they are never required to sentence someone to death isn’t consistent with the Federal Death Penalty Act. In arguing against a mercy defense, prosecutors point out that during the sentencing phase of the trial, if it gets to that, the government’s burden is much higher — they must convince the jury to unanimously find that the aggravating factors outweigh the mitigating factors. The defendant’s burden is “significantly lower” — he needs to convince one juror that there is enough mitigating evidence to merit a sentence less than death, such as life in prison without parole.
In the filing, the prosecution did say that mercy may enter into equation when the jury debates aggravating versus mitigating factors. “It is within that context, and that context alone, that mercy may enter into the death penalty process,” the prosecution writes....
Earlier this month, the court revealed that 3,000 people were sent jury summonses notifying them that they are being considered to serve on the jury at Roof’s trial.
This week, a South Carolina circuit court judge set the date for Roof’s state trial, which is expected to be tried after the conclusion of the federal trial. That case, where Roof is also facing the death penalty, is scheduled to begin in late January 2017.
Monday, September 05, 2016
A not-so-deadly summer: only one US execution from Memorial Day to Labor Day
I have been fascinated to see Texas courts, as detailed here by the Death Penalty Information Center, intervene to stay roughly a half-dozen scheduled executions in the state in the summer months. Consequently, as detailed on this DPIC executions page, on this Labor Day as we mark the unofficial end to the summer, throughout the United States there was only one completed execution in the months of June, July and August.
A quick review of yearly execution lists leads me to think that it has been more than three decades since the US had a year in which so few murderers had their death sentences carried out in the summer months. Thus, for those rooting for the death of the death penalty, I think this Labor Day there is a notable milestone to celebrate.
Wednesday, August 31, 2016
Latino legislator group calls for ending the death penalty
As reported in this NBC News piece, a "group of Latino legislators passed a resolution demanding the end of the death penalty in the United States because it disproportionately affects people of color of all ages." Here is more:
The National Hispanic Caucus of State Legislators said there is disproportionate punishment for Latinos, Black Americans and Native Americans. "The disproportionate and prejudicial application of the death penalty towards Latinos and other minorities, the high costs of this cruel and unusual punishment to our tax payers and the increasing likelihood that innocent people can be wrongfully executed by the states — among many other compelling reasons — led us to raise our voices to call for an end to capital punishment," said NHCSL President and Pennsylvania State Representative Ángel Cruz in a statement.
The non-profit, non-partisan group is made up of 320 Hispanic legislators in the U.S., Puerto Rico and the Virgin Islands. "Black, Latino, Native Americans, and all people of color are sentenced to longer prison terms, more likely to be tried as an adult, and are more likely to be sentenced to death in the USA," the resolution reads.
The resolution asks the U.S. congress and local municipalities to search for alternatives to combating violence and repeal the death penalty. The group points out that death penalty cases often cost taxpayers millions of dollars — an Urban Institute study found death penalty cases cost an average $3 million per trial, nearly three times as expensive as a trial without the possibility of a death penalty. "We cannot allow more government dollars to be diverted to killing people, instead of investing them in prevention, rehabilitation, and effective crime fighting measures that ensure greater safety in our communities," Cruz stated....
Rep. Dan Pabón, D-Colorado, said the death penalty is the "civil rights issue of our time."
"Even if repealing the death penalty results in one innocent life being saved, it's worth it. Our criminal justice system should focus on 'justice,'" Pabón said.
As I noted in this prior post, because Latinos make up nearly 40% of the population in California, how they cast their votes in this November's death penalty reform/repeal initiative battle is going to play a huge rule in the future of the death penalty in that state. But, if they focus a bit on the fuzzy thinking of Rep. Dan Pabón, they might end up being inclined to vote in favor of retaining the death penalty. Though the evidence about the deterrence effective of the death penalty are mixed, I think it is likely folks think that the death penalty is more likely to save innocent lives than to end them. For that reason (and because many think justice supports capital punishment for the worst murderesrs), I am not sure he is making a strong argument for repeal.
In addition, I cannot help but find remarkable the assertion that the death penalty, which impacts at most a few dozen people of color each year, should be considered the "civil rights issue of our time." I guess the Representative must think that all the other civil rights issues that impact tens of millions of individuals in the US are now all squared away.
Saturday, August 27, 2016
"Fourteen Years Later: The Capital Punishment System in California"
The title of this post is the title of this new and timely article authored by Robert Sanger and avaiable for download via Bepress. Here is the abstract:
Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed. The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if California’s system was in need of the same reforms. The study concluded that over ninety-two percent of the same reforms were needed in California. In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead to the execution of the innocent.
This article is an effort, fourteen years later, to determine what has transpired in California during the last fourteen years. It will survey of the major scholarly and judicial work that has been published in the last fourteen years on the death penalty nationally and specifically with regard to California as well as on the progress, if any, to meet the unmet recommendations of the Illinois Commission.
This article concludes that there has been much additional criticism of the failures of the criminal justice and death penalty systems in the country and specifically in California. Nevertheless, the empirical study demonstrates that no additional Recommendations of the Illinois Commission have been met in California in the last fourteen years. Illinois, itself, enacted significant reforms to meet at least some of the Illinois recommendations. Nevertheless, Illinois repealed its death penalty. California, despite no reforms, has not, as yet. The voters will have that option on November 8, 2016. By voting “Yes“ on Proposition 62, the California death penalty would be repealed.