Wednesday, November 19, 2014

"Death, Desuetude, and Original Meaning"

The title of this post is the title of this notable new paper by John Stinneford now available via SSRN. Here is the abstract:

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law.

This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.

November 19, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Missouri completes ninth execution of 2014

As reported in this AP piece, headlined "Missouri Executes Leon Taylor for 1994 Killing," the Show Me state showed another murderer that death sentences still get carried out in Mizzou. Here are the basic details:

A man who killed a suburban Kansas City gas station attendant in front of the worker's young stepdaughter in 1994 was put to death early Wednesday -- the ninth execution in Missouri this year.

Leon Vincent Taylor, 56, was pronounced dead at 12:22 a.m. at the state prison in Bonne Terre, minutes after receiving a lethal injection. With Taylor's death, 2014 ties 1999 for having the most executions in a year in Missouri.

Taylor shot worker Robert Newton to death in front of Newton's 8-year-old stepdaughter during a gas station robbery in Independence, Missouri. Taylor tried to kill the girl, too, but the gun jammed.

Taylor's fate was sealed Tuesday when Gov. Jay Nixon declined to grant clemency and the U.S. Supreme Court turned down his appeal. His body covered by a white sheet, Taylor could be seen in the execution chamber talking to family members through the glass in an adjacent room. Once the state started injecting 5 grams of pentobarbital, Taylor's chest heaved for several seconds then stopped. His jaw went slack and he displayed no other movement for the rest of the process.

Four of Taylor's family members sat in a room to his left and looked on without reaction as the drug killed Taylor in about eight minutes. At a time when lethal injections have gone awry in Oklahoma, Ohio and Arizona and taken an extended period to kill an inmate, Taylor's execution went off without any visible hitches or complications with the drug or equipment.

In a final statement, Taylor apologized to Newton's family because "our lives had to entwine so tragically" and thanked his family for their support and love. "I am also sorry to have brought all of you to this point in my life to witness this and/or participate," Taylor said. "Stay strong and keep your heads to the sky."

Speaking to reporters after the execution, Newton's brother, Dennis Smith, noted that it had been about 7,500 days since the killing and said the family has missed Newton every one of them. Smith described Newton as a hard worker, generous and with a memorable laugh. At times, Smith paused to compose himself as tears rolled down his cheeks. "It would just take a coward to want to hurt someone like him," Smith said.

November 19, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Tuesday, November 18, 2014

"Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism"

The title of this post is the title of this very interesting article with empirical research on private prisons and time served. The piece, authored by Anita Mukherjee and now available via SSRN, has this abstract:

I contribute new evidence on the impact of private prisons on prisoner time served and recidivism by exploiting the staggered entry and exit of private prisons in Mississippi between 1996 and 2004. Little is known about this topic, even though burgeoning prison populations and an effort to cut costs have caused a substantial level of private contracting since the 1980s. The empirical challenge is that prison assignment may be based on traits unobservable to the researcher, such as body tattoos indicating a proclivity for violent behavior.

My first result is that private prisons increase a prisoner's fraction of sentence served by an average of 4 to 7 percent, which equals 60 to 90 days; this distortion directly erodes the cost savings offered by privatization. My second result is that prisoners in private facilities are 15 percent more likely to receive an infraction (conduct violation) over the course of their sentences, revealing a key mechanism by which private prisons delay release. Conditional on receiving an infraction, prisoners in private prison receive twice as many. My final result is that there is no reduction in recidivism for prisoners in private prison despite the additional time they serve, suggesting that either the marginal returns to incarceration are low, or private prisons increase recidivism risk.

These results are consistent with a model in which the private prison operator chooses whether to distort release policies, i.e., extend prisoner time served beyond the public norm, based on the typical government contract that pays a diem for each occupied bed and is imperfectly enforced.

November 18, 2014 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Marshall Project investigation, "Death by Deadline," looks at capital appeals impact of AEDPA

As noted here yesterday, The Marshall Project, an important new reporting outlet focused on criminal justice issues, is now running full steam and has now lots of notable new content on its slick website. And the big first feature from The Marshall Project is a lengthy two-part investigative report titled "Death by Deadline" focused on the legal and practical impact of the capital appeal restriction in the Anti-Terrorism and Effective Death Penalty ACt (AEDPA).  Below are links and key passages from each part of the report.

Part One: How bad lawyering and an unforgiving law cost condemned men their last appeal:

An investigation by The Marshall Project shows that since President Bill Clinton signed the one-year statute of limitations into law — enacting a tough-on-crime provision that emerged in the Republicans' Contract with America — the deadline has been missed at least 80 times in capital cases. Sixteen of those inmates have since been executed — the most recent on Thursday, when Chadwick Banks was put to death in Florida.

Part Two: When lawyers stumble, only their clients fall:

[A]n investigation by The Marshall Project has found that in at least 80 capital cases in which lawyers have missed the deadline — sometimes through remarkable incompetence or neglect — it is almost always the prisoner alone who suffers the consequences.

Among the dozens of attorneys who have borne some responsibility for those mistakes, only one has been sanctioned for missing the deadline by a professional disciplinary body, the investigation found.  And that attorney was given a simple censure, one of the profession's lowest forms of punishment. The lack of oversight or accountability has left many of the lawyers who missed the habeas deadlines free to seek appointment by the federal courts to new death-penalty appeals.

November 18, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 17, 2014

"Death Penalty Drugs and the International Moral Marketplace"

The title of this post is the title of this timely new paper by James Gibson and Corinna Lain now available via SSRN.  Here is the abstract:

Across the country, executions have become increasingly problematic as states have found it more and more difficult to procure the drugs they need for lethal injection. At first blush, the drug shortage appears to be the result of pharmaceutical industry norms; companies that make drugs for healing have little interest in being merchants of death. But closer inspection reveals that European governments are the true instigators of the shortage. For decades, those governments have tried — and failed — to promote abolition of the death penalty through traditional instruments of international law. Turns out that the best way to export their abolitionist norms was to stop exporting their drugs.

At least three lessons follow. First, while the Supreme Court heatedly debates the use of international norms in Eighth Amendment jurisprudence, that debate has largely become an academic sideshow; in the death penalty context, the market has replaced the positive law as the primary means by which international norms constrain domestic death penalty practice. Second, international norms may have entered the United States through the moral marketplace, but from there they have seeped into the zeitgeist, impacting the domestic death penalty discourse in significant and lasting ways. Finally, international norms have had such a pervasive effect on the death penalty in practice that they are now poised to influence even seemingly domestic Eighth Amendment doctrine. In the death penalty context, international norms are having an impact — through the market, through culture, and ultimately through doctrine — whether we formally recognize their influence or not.

November 17, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, November 13, 2014

Florida finally completes execution 22 years after murderer's horrific crime

As reported in this AP article, a "Florida man who fatally shot his sleeping wife and then raped and killed his young stepdaughter 22 years ago was put to death Thursday for the child's slaying." Here is more: 

Chadwick Banks, 43, was pronounced dead at 7:27 p.m. EST Thursday after a lethal injection at Florida State Prison, the office of Gov. Rick Scott said. Banks was condemned for the September 1992 killing of 10-year-old Melody Cooper. Banks also received a life sentence for the murder of his wife, Cassandra Banks, in the attack in the Florida Panhandle region.

Banks wore the white skullcap of the Muslim Brotherhood before the lethal drugs were administered, looking directly at the family of the victims when he delivered his final statement. "I'm very sorry for the hurt and pain I have caused you all of these years," Banks said. "Year after year I have tried to come up with a reasonable answer for my actions. But how could such acts be reasonable?"

Authorities said Banks was drinking and playing pool at a bar before going home around 3 a.m. the night of the slayings. Banks shot his wife point-blank in the head and then raped and shot his stepdaughter, according to authorities. Banks, who was 21 at the time of the killings, received a life sentence for his wife's murder, and a jury recommended the death penalty for the stepdaughter's slaying....

The execution was the eighth in Florida this year and the 20th since Gov. Rick Scott took office in 2011. That's one fewer than under Gov. Jeb Bush during both of his terms. Bush presided over the most executions since capital punishment was reinstated in the state in 1979, but Scott was just re-elected to a second term.

November 13, 2014 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Tuesday, November 11, 2014

Legislation to get Ohio back on track with lethal injections being fast-tracked

As reported in this local article, headlined "Death-penalty reform bill would protect execution drug makers, physicians who testify," it appears that the state legislative process is moving forward to enact new regulations to help Ohio get back into the business of executions. Here are the details (with my emphasis added at the end):

Makers of Ohio's lethal-injection drugs would be kept anonymous, and physicians who testify about the state's execution method couldn't have their medical license revoked, under House legislation introduced Monday.  Attorney General Mike DeWine has said that lawmakers need to pass the reforms if Ohio is to resume executions next year, once a court-ordered moratorium ends.

Ohio, along with many other states, has been struggling to settle on an execution method, as many large pharmaceutical companies have refused to continue selling drugs used for lethal injection.  The state's current two-drug cocktail is being challenged in court and has been used in controversial executions in Ohio and Arizona.

House Bill 663 would keep secret the identities of compounding pharmacies, small-scale drug manufacturers that create individual doses of lethal-injection drugs on demand.  The proposed change is a sign that state officials could turn to compounding pharmacies for lethal-injection drugs that courts have upheld but that larger companies have stopped selling, such as pentobarbital.  Rep. Jim Buchy, a Greenville Republican co-sponsoring the bill, said the measure would protect compounding pharmacies from lawsuits.

Another proposed change in the bill would prevent the Ohio State Medical Association from revoking or suspending the license of any physician who provides expert testimony on the state's death penalty.  Such immunity is needed, supporters say, because the state is worried that doctors will refuse to testify in defense of Ohio's lethal-injection protocol for fear that they'll run afoul of medical ethics....

House Speaker Bill Batchelder, a Medina Republican, and Senate President Keith Faber, a Celina Republican, each said last week they plan to pass the legislation.   "That is something that we cannot leave in abeyance, otherwise we're going to have people who pass away prior to execution," Batchelder said.

I have a inkling that Speaker Batchelder's comments emphasized above may have been taken a little out of context, as the quote makes it seem he considers it is essential to fix quickly Ohio's machinery of death so that prisoners do not die on their own before being able to be killed by the state.

November 11, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, November 07, 2014

After state's capital repeal, Maryland AG argues the state cannot execute those already on death row

As reported in this Baltimore Sun piece, headlined "Gansler argues state must vacate sentences of death row inmates," Maryland's Attorney General has concluded that it would not be proper to see execution of those on state's death row after the legislature repealed capital punishment. Here are the details:  

More than a year after the repeal of capital punishment in Maryland, Attorney General Douglas F. Gansler says the state has no choice but to change the sentences of its remaining death row inmates.

Gansler has filed a legal brief in support of an appeal by Jody Lee Miles, who is asking to be resentenced for the 1997 murder of an Eastern Shore musical theater director. Miles' lawyers — and Gansler — argue the state no longer has the authority to execute the four men already on death row because lawmakers abolished capital punishment in 2013. With repeal, they argue, legislators took away the state's power to issue the regulations necessary to put someone to death.

Instead, Miles should be sentenced to life without the possibility of parole, Gansler argued in a brief filed with the Court of Special Appeals. "Whether or not you agree with the death penalty, the recent repeal of capital punishment in Maryland nevertheless demands that we pursue a prison sentence that ensures Jody Lee Miles dies behind bars, where he belongs," Gansler said in a statement Thursday.

Speaking at a news conference, Gansler called capital punishment in Maryland "illegal and factually impossible." Though the brief relates only to Miles, Gansler acknowledged that his position has implications for the other death row inmates.

His position drew criticism from the family of Miles' victim, Edward Joseph Atkinson, and from the Wicomico County state's attorney, whose office prosecuted the case.

Atkinson's mother, Dottie Atkinson, said Miles should be put to death. "It's been appeal after appeal. We get some hope each time, and all these appeals have been in our favor, and all of a sudden we get this news. We've been let down," she told reporters on the Eastern Shore, according to The Daily Times. "It's an impact people shouldn't have to go through."

Wicomico County State's Attorney Matt Maciarello also denounced the decision. But he added that, if the state's position is set, Gov. Martin O'Malley should move to commute Miles' sentence and spare the family the court hearings and drawn-out process associated with appeals. "If the attorney general is committed to this approach, let's give this family some finality," Maciarello said. "It's cruel to put this family through more suffering."

Gansler noted that O'Malley, who supported repeal, could commute the death sentences to life without the possibility of parole. The governor has at least one petition — from inmate Heath William Burch — on his desk that he has yet to take action on, Burch's attorney said.

Through a spokeswoman, O'Malley declined to comment on Gansler's opinion, saying only that the attorney general "has a constitutional obligation to determine how the law applies." Regarding the governor's ability to commute sentences, the spokeswoman said O'Malley "continues to consider each case and will address the issue when a decision has been made."

Gov.-elect Larry Hogan and incoming attorney general Brian Frosh did not respond to requests for comment.

Gansler — who opposed the repeal legislation but never sought the death penalty as the top prosecutor in Montgomery County — said his office was obligated to weigh in on Miles' case before the Court of Special Appeals. He noted that after a court threw out Maryland's lethal injection procedure as unconstitutional in 2006, the state did not adopt new regulations. When his staff researched the issue, the conclusion was that the "uncertain enforceability" of the death penalty in Maryland threatened due process, he said....

His opinion contrasts with that of a Queen Anne's County judge, who rejected Miles' argument last year. In that case, Judge Thomas G. Ross found the lack of rules for executions "troubling" but said even after the repeal went into effect the Division of Correction retained the authority to develop new rules....

Miles' attorneys commended Gansler's move but said they believe he should be eligible for release at some point, not sentenced to life without parole. Miles has expressed "extreme remorse" for the killing, had a "devastating childhood history" and has been a model inmate while behind bars, the attorneys say. Gansler said life without parole is the appropriate sentence because the jury had a choice between that and the death penalty.

November 7, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, November 02, 2014

Interesting review of the (too cautious?) work of California's Attorney General

Images (1)The Los Angeles Times has this notable review of the tenure and work of Califronia's Attorney General. Here are excerpts:

Kamala D. Harris, California's top law enforcement officer, had little to say in July when an Orange County federal judge declared the state's death penalty system unconstitutional.  Several weeks later, Harris announced that she would challenge the decision, but her reasoning was curious: The ruling, she said, "undermines important protections that our courts provide to defendants."

That she delayed making her views known — and then used a liberal justification to explain a response sought by conservatives — has fueled a perception that Harris is reluctant to stake out positions on controversial issues....

On the conservative side, Kent Scheidegger of the Criminal Justice Legal Foundation said Harris "hasn't done anything really bad but also hasn't been the vigorous leader California needs.…  [Former Republican Atty. Gen.] Dan Lungren would have been out the next day denouncing the opinion and vowing to take it to the Supreme Court."

Harris, 49, bristles at the suggestion that she is afraid to take stands.  "On the issue of same-sex marriage, my position was very clear," Harris said in a recent interview.  She was referring to her refusal to defend Proposition 8, the 2008 ballot measure limiting matrimony to one man and woman, which was struck down in court....

During her time as attorney general, Harris has used the office to draw attention to transnational crime, recidivism and truancy.  She also has created units to focus on cyber-crime and cyber-privacy.  In deciding to appeal the ruling against the death penalty, which excoriated the system for decades-long delays, Harris said she was moved by concern that appeals might be streamlined "at the expense of due process" — meaning the protection of inmates' rights.  In his decision, however, U.S. District Judge Cormac J. Carney had not suggested that defendants' protections should be curtailed.  He pointed to a study that blamed logjams in the system on various factors.

Although Harris personally opposes the death penalty, her aides have emphasized that she would vigorously defend the law.  If the U.S. 9th Circuit Court of Appeals agrees with Carney, Harris then would have to decide whether to appeal to the Supreme Court.  If she decided against an appeal, the death penalty in California would probably end.  "We will have to see what the court rules," Harris said, without elaborating on her thinking.

She delighted death penalty supporters Wednesday by appointing Gerald Engler, a longtime assistant attorney general and former county prosecutor, to head the office's criminal division.  Scheidegger, a strong proponent of executions, called the choice "an out-of-the park home run."

When she first ran for attorney general four years ago, Harris barely defeated former Los Angeles Dist. Atty. Steve Cooley, who had heavy backing from law enforcement. Today, police groups back Harris.  "She has not let her personal views undermine the constitutional role of the office," said John Lovell, a lobbyist for the California Police Chiefs Assn., which has endorsed her. "She has been very accessible and she has a real problem-solving, analytical style."...

[Her Republican opponent Ron] Gold has blasted her for failing to take a stand on the legalization of marijuana. He favors legalization, while Harris has not made up her mind. "She does not take chances," Gold said. "AG for her doesn't mean 'attorney general.' It means 'almost governor.'"

Harris attributes her reticence to a desire for more information. She said she wants to review Washington's and Colorado's experiences with legalization before deciding whether it would be good for California. "It would be irresponsible for me as the chief law enforcement officer to take a position based on its popularity without thinking it would actually work," Harris said.

She backed the legalization of marijuana for medical needs, but has done little to clarify the law or push for regulation, activists complain. "She has been largely absent" from efforts in Sacramento to establish regulations, said Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego and author of a textbook on drug law. "It's less about trying to be middle of the road and more about not rocking the boat."

November 2, 2014 in Death Penalty Reforms, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, October 30, 2014

"Physicians, Medical Ethics, and Execution by Lethal Injection"

The title of this post is the title of this new article by I. Glenn Cohen, Robert Truog, and Mark Rockoff available via SSRN. Here is the abstract:

In the wake of the recent botched execution by lethal injection in Oklahoma, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project issued a set of recommendations for sweeping legal and administrative reforms of this method of capital punishment.  This Article discusses the Committee’s recommendation that medical personnel perform the medically-related elements of lethal injection executions.  Noting that such involvement is prohibited by the codes of medical ethics of professional societies in every medical profession, this Article argues that significant ethical concerns dictate that medical professionals should refuse to participate in lethal injection executions.

Related post: 

October 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Notable criticism of Pope's advocacy against LWOP and "nurturing mommy" approach to government

9780829441703_p0_v2_s260x420As noted in this post last week, Pope Francis spoke out last week against life imprisonment and harsh sentencing systems focused more on punishment than social justice.  This intriguing new American Spectator commentary by Mark Tooley takes issue with this papal advocacy, and concludes with complaints about governments failing to balance a "nurturing mommy" role with a "stern father role." Here are excerpts from an interestinf read:

Opposing life imprisonment raises questions. Should mass murderers be freed during their active lifetime? And what if they show no sign of remorse or rehabilitation? (My questions come respectfully from a Protestant who appreciates Catholic teaching.)

The Pope’s remarks acknowledged that official Catholic teaching still accepts the state’s rightful power to execute, quoting the Catechism that “the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.” News reports say he quoted the Catechism that “cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent.” It is not clear but presumably he also included the Catechism phrase immediately before those words, which cites the “possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm.”

What power does the state have for “rendering one who has committed an offense incapable of doing harm” except for the option of life imprisonment for recalcitrant murderers? It seems unlikely that many Americans, Catholic or otherwise, will advocate abolishing life imprisonment for heinous crimes. But recently Colorado’s pro-death penalty Republican gubernatorial candidate, a Catholic, recalled that Denver’s former bishop, Charles Chaput, had assured him that church doctrine is not against the death penalty....

The subtleties of Catholic teaching on capital punishment are difficult to translate into media sound bites or political explanations. Pope Francis’s comments against life imprisonment seem to go beyond the letter of the Catechism. Some activist American religionists, Catholic or otherwise, may latch on to them for a new campaign. But such an effort potentially would provoke a backlash and embolden defense of the death penalty.

Much of the American religious political witness today is totally uncomfortable with the state’s divine vocation for punitive action, much less lethal force. The New Testament offers little direct counsel on civil government’s responsibilities except, in St. Paul’s Romans 13, which warns that that “if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoers.” This language is pretty punitive.

But so much of modern American religious political witness prefers a highly non-punitive version of government. Their preferred vision likens the state to an indulgent, nurturing mommy, whose primary role is to feed, clothe, and ensure health care for all her children, while also welcoming all illegal immigrants, protecting the environment, lecturing against politically incorrect “hate speech,” and offering universal love, while simultaneously disarming in a way ironically that likely inhibits physical protection for her children.

Most of this mommy work the Scriptures and Christian tradition actually assign chiefly to the church, which is metaphorically a mother and the Bride of Christ. The Romans 13 focus for the state more resembles a stern father, who dispenses impartial but severe justice for the protection of his children. This sort of paternal state, unlike the sensitive mommy, reserves its interventions for dangerous misconduct. And it lets its charges pick themselves up from their stumbles, that they might grow strong, not remain immature through ceaseless coddling.

A true balance in society aligns nurturing mommy with stern father, both fulfilling their complementary roles in creation. The absence of one distorts human reality and creates corruption and tragedy. Pope Francis doubtless has earnest reasons for speaking against even life imprisonment. But his sentiments will likely only inspire the chronic mommy vision of the state already preferred by so many do-gooding religionists.

Religious leaders need to restore balance by citing Romans 13 and explaining the punitive, morally imperative stern father role of the state that is divinely ordained and essential for human justice.

Prior related post:

October 30, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Wednesday, October 29, 2014

Is the death penalty really dying a slow death . . . in Texas?!?

The question in the title of this post is prompted by this new piece from The Atlantic, headlined "In Texas, the Death Penalty is Slowly Dying Out: The Lone Star State carried out its fewest executions since 1996 this year." Here are excerpts:

On Tuesday night, the state of Texas executed Miguel Paredes by lethal injection for murdering a woman and her two children sixteen years ago.  With no executions scheduled by the state department of criminal justice for November or December, Paredes' death marks the tenth and final execution for Texas this year — the fewest in almost two decades.

2014 wasn't anomalous either.  Executions in Texas, the most prolific death-penalty state in the country, spiked after Congress restricted federal appeals in death-penalty cases with the Antiterrorism and Effective Death Penalty Act in 1996.  Since then, however, the death penalty has been in overall decline both in Texas and nationwide.  Thirty people have been executed so far this year in the entire United States, whereas Texas alone executed 40 people at its peak in 2000.

What's driving the decline?  Since executions peaked nationally in the late 1990s, multiple Supreme Court rulings have limited the death penalty's scope and application.  The justices barred executions of the mentally disabled in Atkins v. Virginia in 2002, for example, and eliminated the death penalty for individual crimes other than first-degree murder in their 2008 decision in Kennedy v. Louisiana....

But for Texas, the greatest shift came in 2005. First, the Supreme Court ruled in Roper v. Simmons that executing defendants who were minors when they committed the crime violated the Eighth Amendment.  Texas had led the nation in imposing the death penalty on under-18 defendants prior to Roper; 29 inmates had their sentences reduced accordingly after the ruling.  More inmates left Texas' death row alive than dead that year for the first time since 1989.  At the same time, legislators gave Texas juries the option to sentence murder defendants to life without parole, thereby lowering the number of new death-penalty convictions.

Other extrajudicial factors are also slowing down the death penalty in Texas and around the United States.  Thanks to a European Union embargo that bars the sale of lethal-injection drugs to the U.S., executions nationwide have slowed precipitously as states scramble to find replacements and substitutes....

This doesn't mean executions will completely halt any time soon in Texas.  State officials say they have a sufficient supply of pentobarbital for upcoming executions thanks to a secret supplier they refuse to name through 2015.  Six in 10 Americans still support the death penalty according to a recent Gallup poll, and Greg Abbott, who will likely be elected governor of Texas next week, is also a staunch proponent.  Reversing the overall downward trend, however, would require either a drastic shift in the Supreme Court's jurisprudence or a complete overhaul of Texas sentencing law.  Neither are imminent.

I am glad this piece concludes by noting a number of reasons why the death penalty is very likely to persist in Texas for the years to come. Rather than talking about the death penalty potentially dying in Texas, I think the notable data on death sentences and executions in the state over recent years ought to be examined and analyzed as part of an effort to assess what might be deemed a "sound" or "stable" use of the death penalty within a state clearly committed to having the punishment be a significant aspect of its modern punishment system.

October 29, 2014 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, October 27, 2014

Two condemned New Mexico murderers left behind after death penalty repeal seek relief from NM Supreme Court

As reported in this local article, headlined "Convicted murderers ask to be taken off death row," in New Mexico the "last two inmates on death row are asking the state’s highest court to get them off the list."  Here is more:

New Mexico’s only inmates facing possible execution want the state supreme court to declare their death sentences unconstitutional because capital punishment was abolished after their convictions.

Attorneys for the two convicted killers say their sentences are unconstitutional, while the state is still backing their death penalty. The hearing lasted around an hour and half Monday morning, but no official decision will be made for at least a few months.

Attorneys for Timothy Allen and Robert Fry argued this morning that carrying out their death sentence would be cruel and unusual punishment and would violate “equal protection” rights for the two as New Mexico residents.

New Mexico repelled the death penalty in 2009 and the two are arguing that because of that, their sentences should be changed, even though they were both convicted when the death penalty was still law.  Allen killed 17-year old Sandra Phillips in 1994 after kidnapping her and trying to rape her.  Robert Fry was convicted of killing a mother of five in 2000.  He also murdered three other people in the ’90s.

Attorneys for the two men argued that the death penalty is cruel and unusual based on a report from the state’s Death Penalty Task Force which cited cost and liabilities with a death sentence. They also argued that it violates equal protection to effectively set a date when people can and can’t face the death penalty.

Meanwhile, the state argued that justices would be “overstepping” their reach if justices chose to allow Allen and Fry to live. The state says that would be like the justices re-interpreting what the legislature wished to do....

New Mexico has only executed one person in the last 54 years. It was Terry Clark who was a convicted child rapist and killer.

October 27, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, October 26, 2014

Media coalition sues Arizona on First Amendment grounds seeking more info on executions

As detailed in this article from The Guardian, the "secrecy imposed by Arizona on the source and quality of the lethal injection drugs it uses to kill death row inmates has been challenged in a new lawsuit brought by the Guardian and other media organizations." Here is more about the lawsuit (including a link to the filing):

The secrecy imposed by Arizona on the source and quality of the lethal injection drugs it uses to kill death row inmates has been challenged in a new lawsuit brought by the Guardian and other media organizations.

In the lawsuit, filed with a federal court in Phoenix, the Guardian together with the Associated Press and four of Arizona’s largest news outlets argue that the state’s refusal to disclose any information about its lethal injection drugs is a breach of the public’s first amendment right to know about how the death penalty is being carried out in its name. It follows agroundbreaking first amendment case brought by the Guardian and others in Missouri in May....

Use of midazolam in executions in recent months has proved particularly problematic and contentious. It has been associated with gruesome and prolonged deaths in Florida, Ohio and Oklahoma. The Arizona complaint has been joined, in addition to the Guardian and the Associated Press, by two of the state’s most important newspapers, the Arizona Republic and the Arizona Daily Star. Two major television channels, KPNX-TV Channel 12 and KPHO Broadcasting Corporation, are also party to the suit.

The action is lodged in the US district court in Arizona and is directed against Charles Ryan, director of the department of corrections, and the state’s attorney general, Thomas Horne, both in their official roles. The Guardian and fellow plaintiffs are represented by the Media Freedom and Information Access Clinic at Yale law school, with the assistance of Ballard Spahr LLP in Phoenix.

Unlike most other lawsuits that have been brought relating to the creeping secrecy that surrounds lethal injection drugs – which have argued the prisoners’ constitutional rights have been violated – the Arizona lawsuit starts with the principle that the public has a right to know how capital punishment is being carried out.

The complaint argues that “the public cannot meaningfully debate the propriety of lethal injection executions if it is denied access to this essential information about how individuals are being put to death by the state.” It says that the established constitutional right of public access to aspects of government procedures means that the state should be obliged to reveal “the source, composition, and quality of drugs, as well as the protocols, that have been or will be used in lethal injection executions and to view the entirety of an execution”.

This is the fourth lawsuit that the Guardian has launched against various manifestations of secrecy in the US death penalty. As well as the actions in Arizona and Missouri, there are ongoing legal complaints currently before the courts in Pennsylvania and in Oklahoma, where the state is being challenged for having drawn the curtain halfway through the botched execution of Clayton Lockett in April.

October 26, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Friday, October 24, 2014

Unpacking the reasons given for public support and opposition to the death penalty

Gallup now has published this intriguing piece, headlined "Americans: 'Eye for an Eye' Top Reason for Death Penalty," which provides some interesting additional insights concerning Gallup's latest polling data on support for capital punishment (reported here).  Here are some of the highlights:

Americans who favor the death penalty most often cite "an eye for an eye" as the reason they hold their position, with 35% mentioning it. "Save taxpayers money" and "they deserve it" tie as the second-most-popular reasons Americans volunteer in this open-ended measure, at 14% each....

This is the fourth time Gallup has probed Americans to state, in their own words, why they hold the position they do on the death penalty. Americans who say they support the death penalty have given a variety of responses over the years, but the biblical phrase "an eye for an eye," or retaliation, consistently has been named as the No. 1 reason why the death penalty should be applied. However, this reason's pre-eminence has waned since Gallup first asked this question in 1991, when half of Americans who favor the death penalty mentioned it....

While a majority of Americans tilt in favor of the death penalty, the one in three Americans who oppose it also have a diversity of views as to why the ultimate penalty should not be used. "Wrong to take a life" has been the top reason for opposing it since 1991, by comfortable margins.

In two of the three times Gallup has asked this question, "persons may be wrongly convicted" has been the No. 2 justification Americans give for opposing the death penalty, along with reasons grounded in religious beliefs, including that "punishment should be left to God." Yet "wrong to take a life" is still the most popular open-ended response by a more than 2-to-1 margin.

Over at Crime & Consequences, Kent Scheidegger has an extended discussion of what these results should help us understand about modern death penalty perspectives and arguments.  Here is how that post finishes up:

Most folks make up their minds on justice and morality. These positions are largely undebatable. One who believes that executing Ted Bundy was fundamentally right and reducing Charles Manson's sentence to life was fundamentally wrong isn't going to change his mind, and the person who believes the opposite isn't going to change his either.

The utilitarians are a minority, but a substantial one.  That is where the people who might change their minds based on data and arguments are, so that is where the arguments are directed.

October 24, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Thursday, October 23, 2014

Gallup polling shows "Americans' Support for Death Penalty Stable"

-b79rvaqne-7owakcl4d5gGallup has this new report highlighting that "[s]ix in 10 Americans favor the death penalty for convicted murderers, generally consistent with attitudes since 2008."  Here is more:

Americans' support for the death penalty has varied over time, but apart from a single reading in 1966, the public has consistently favored it. Support ebbed from the 1960s to the mid-1970s, when the application of the death penalty was questioned and ultimately led to the Supreme Court's invalidating state death penalty laws. Subsequent to that, newly written laws passed constitutional muster and states began to use the death penalty again in the late 1970s, with support among Americans increasing to 70% or more in the mid-1980s to the late 1990s.

The broader trend over the last two decades has been diminished support for the death penalty, including a 60% reading last year, the lowest since 1972.

Over the last two decades, Democrats' support for the death penalty has dropped significantly, from 75% to 49%. Now, Democrats are divided on whether it should be administered to convicted murderers. Republicans' and independents' support is also lower now -- down nine and 18 percentage points, respectively -- though both groups still solidly favor the death penalty.

Gallup's long-standing question asks about basic support for the death penalty, but does not explicitly mention an alternative punishment for murderers. Gallup separately asks Americans to choose between the death penalty and "life imprisonment with absolutely no possibility of parole" as the better punishment for murder. Support for the death penalty has been significantly lower using this approach, but Americans still tilt in favor of it by 50% to 45%. These attitudes are similar to recent years, but show reduced support for the death penalty from the 1980s and 1990s.

Americans' support for the death penalty has stabilized at a lower level than was the case prior to 2008, and is well below the highs from the mid-1980s to mid-1990s. And in recent years the public has shown only a slight preference for the death penalty over life imprisonment as the better penalty for murder. These trends toward diminished support seem to be reflected in state death penalty laws, as six U.S. states have abolished the death penalty since 2007, and no new states have adopted it.

Democrats are mostly responsible for this shift in attitudes, and thus it is not surprising that most of the states that have abolished the death penalty in recent years are Democratic leaning. The death penalty is another example of how Democrats' and Republicans' opinions on political matters have become increasingly divergent compared with recent decades, including their views of the job the president is doing and on issues such as global warming and labor unions.

October 23, 2014 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Wednesday, October 22, 2014

"The Death Penalty’s 'Finely Tuned Depravity Calibrators': Fairness Follies of Fairness Phonies Fixated on Criminals Instead of Crimes"

The title of this post is the title of this new article by Lester Jackson available via bepress SelectedWorks.  Here is the abstract:

It has been loudly and repeatedly proclaimed by opponents that capital punishment is “unfair.”  In their view, it is unfair because (1) only some murderers receive the ultimate sentence and (2) they are not the most deserving.  Underlying this view is the remarkable assumption that fairness is subject to “fine tuning” and “moral accuracy.”

It is argued here that this assumption is indefensible both in theory and in practice.  As a theoretical matter, it is insupportable to suggest that matters of conscience, right and wrong, are subject to calibration or “accuracy.”  Right and wrong are not determined in the same manner as taking blood tests.  Moreover, and this lies at the heart of the fallacy, there simply is no agreement upon what is fair punishment for unlawful intentional killing. Regarding the death penalty, the values chasm is unbridgeable.

In practice, this is clearly demonstrated by the considerations employed by those who allege unfairness.  Using chicanery, outright falsehood and abuse of power, they have a laser focus on convicted criminals with no concern for past -- and future -- victims.  It is easy to worry about criminals when the suffering of victims is left out of so-called fairness calibrations.  When the assessment of fairness is confined to comparing the fate of one criminal against another, the reductio ad absurdum is that there should be no punishment for any violent crime.

This is the inevitable result of what is nowhere found in the actual written Constitution but, nevertheless, has been ordered by anti-capital punishment United States Supreme Court justices: “individualized sentencing.”  That mandate, which places a heavy focus upon a criminal’s background and record, should be reconsidered.

Penal codes make certain conduct criminal.  It is conduct that should be the prime (and perhaps exclusive) consideration.  In determining punishments, the focus should be on crimes and not on the criminals who commit them.  Based on such determinations, another view of fairness is presented.

October 22, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Tuesday, October 21, 2014

Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias

A high-profile (and high-cost) capital case starts its next big phase as reported in this new AP article headlined "Opening statements expected in Jodi Arias sentencing retrial." Here are the basics:

Jurors in Phoenix will once again be asked to decide whether Jodi Arias should be executed for the gruesome murder of her former boyfriend. Lawyers are expected to make opening statements Tuesday at the sentencing retrial, more than a year after a jury found her guilty of killing Travis Alexander in June 2008. The first jury deadlocked on whether to sentence her to life imprisonment or death.

A new jury that was picked over the past several weeks will be sworn in as the former waitress tries to make another case that her life should be spared.  They won't consider whether or not she's guilty -- that's already been decided.  The retrial is expected to last into December....

Arias stabbed and slashed Alexander nearly 30 times, slit his throat so deeply she nearly decapitated him and shot him in the forehead.  She left his body in his shower where friends found him about five days later at his suburban Phoenix home.  She acknowledged she killed Alexander, but claimed it was self-defense after he attacked her.  Prosecutors said it was premeditated murder carried out in a jealous rage after the victim wanted to end their affair and planned a trip to Mexico with another woman.

Weeks after Arias was convicted, the jury failed to reach a unanimous decision on her punishment.  Her attorneys have since sought, unsuccessfully, to dismiss the death penalty as an option.  If another deadlock occurs, the death penalty would automatically be removed as an option, leaving a judge to sentence Arias to one of two options: life in prison or life in prison with the possibility of release after 25 years.

The sentencing retrial will be a mini-trial of sorts to get a fresh jury up to speed on the case.  Four hundred people were called as prospective jurors.  Many of them were cut after they said they either made up their minds about the case or knew too much to be impartial.  Some jurors cited their objection to the death penalty.

At her last trial, she testified for 18 days, describing for jurors an abusive childhood, cheating boyfriends, dead-end jobs, a shocking sexual relationship with Alexander, and her contention that he was physically abusive....

The costs of defending Arias have topped $2.5 million and will mount during a second penalty phase. Prosecutors have declined to provide their costs to try the case.

I am pleased this AP article ends with a discussion of the economic costs of this notable case. Because it is unlikely Arias will ever be executed even if she is sentenced to death, and because imposition of a death sentence will ensure years of state and federal appeals at taxpayer expense, I think prosecutors in this case are likely to do more harm to Arizona taxpayers than to Jodi Arias via this retrial. 

Some prior posts on the Arias case:

October 21, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, October 19, 2014

Judicial misconduct complained against Fifth Circuit Judge Jones based on provocative death penalty speech dismissed

Thanks to recent posts at Hercules and the Umpire and at Crime & Consequences, I see that the judicial misconduct complaint filed against US Circuit Judge Edith Jones of the Fifth Circuit based on a provocative speech she gave concerning the death penalty at a law school.  The lengthy dismissal order is available here, and this AP article reviews the basics:

A council of federal judges has dismissed a misconduct complaint against a conservative appellate judge who was alleged to have made racially discriminatory remarks at a lecture on the death penalty.

Judge Edith Jones ... allegedly said at a speech in February 2013 at the University of Pennsylvania law school that certain racial groups like African-Americans and Hispanics are predisposed to crime, and are prone to commit acts of violence and to be involved in more violent and heinous crimes than people of other ethnicities.

Thirteen individuals and public interest groups filed a judicial misconduct complaint against Jones, and Chief Justice John Roberts assigned the case to the appeals court in Washington at the request of the chief appeals judge in New Orleans. The dismissal, which took place in August, was publicly disclosed Wednesday.

In a lengthy inquiry, a three-judge panel of the judicial council was unable to find any recording of Jones' remarks, forcing them to rely on varying recollections of audience members about precisely what Jones said. "It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are `disproportionately' involved in certain crimes and `disproportionately' present in federal prisons," said the panel. "But we must consider Judge Jones' comments in the context of her express clarifications during the question-and-answer period that she did not mean that certain groups are `prone to commit' such crimes," the panel of judges said.

"In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial," said the panel. "They resemble other albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system."

Attorney Maurie Levin, who represents the complainants, said the ruling "essentially credits Judge Jones' stale recollections over the testimony of a lawyer and five law students who set down their recollections not long after the lecture. There is simply no way to understand that as a fair weighing of the evidence." The complainants are appealing to the Committee on Judicial Conduct and Disability of the judicial council.

I especially recommend Judge Richard Kopf's analysis and reactions in his post at Hercules and the Umpire, and I found noteworthy and important these particular reactive insights from Judge Kopf:

The work of the Special Committee and Professor Jeffrey Bellin makes me proud to be a federal judge. The clarity, tone, thoroughness and objectivity which is evident in the Report of the Special Committee is remarkable....

In my opinion, the essential allegations of the complaint lack a credible factual basis. With the aid of Professor Bellin’s searching investigation, the Report of the Special Committee, in restrained terms, explains why that is so.

I fear that complaints like this one will chill, and may even be intended to chill, judicial speech concerning the law, the legal system, and the administration of justice, particularly when the judge does not share the jurisprudential or ideological views of the listeners, and despite the fact that federal judges are expressly encouraged under the Code to speak about the law and how to improve it.

As distinguished from my fears expressed in the preceding paragraph, the Report of the Special Committee does a skillful job of explaining why controversial speech by a federal judge in the context of a talk on the law does not violate the Code.

Prior related posts:

UPDATE: Judge Kopf now has this additional interesting post on this matter titled "On being 'uncomfortable' and 'offended' — the ethics complaint against Judge Jones and the student affiants."

October 19, 2014 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, October 14, 2014

"Could firing squad make a comeback in Utah, elsewhere?"

1424181The question in the title of this post is the headline of this lengthy new article discussing, yet again, possible alternatives to lethal injection as a means to carry out death sentences.  Though covering some familiar ground, this article provides a useful reminder that it has been only a few years since the last firing squad execution in the United States and highlights reasons why states seriously committed to carrying out executions ought to be seriously considering this "classic" execution method again. Here are excerpts:

When Ronnie Lee Gardner was executed by firing squad in 2010 at the Utah State Prison in Draper, more than 59 journalists from news outlets from around the globe descended upon Utah to cover the event. Reporters from Japan and Great Britain called it “a Wild West way of dispatching people” and referenced John Wayne movies.

But as anti-death penalty pharmaceutical companies in Europe refuse to sell the drugs necessary for lethal injections to prisons in the United States and in the wake of botched lethal injection executions in recent months, the firing squad could be making its return to Utah and other places. “I’ve had several states actually call (to ask about the firing squad),” Rep. Paul Ray, R-Clearfield, said. “They asked me not to name them because they don’t want the media circus on it. But they’re in the same boat we are — they can’t get the drugs, either.”

Botched executions involving lethal injections in Arizona, Oklahoma and Ohio earlier this year have led Ray to believe that the method could face constitutional challenges as well. For that reason, he is proposing legislation that would bring back the firing squad as the secondary execution method in Utah, should the primary method, lethal injection, be found unconstitutional or unavailable. “It really won’t do anything,” Ray said. “It’s just the plan B if we need it.”

A law passed in 2004 eliminated death by firing squad in Utah, but those on death row who requested such a death prior to the new law still have the option. Ray said the legislation he is proposing would restore the firing squad as a possible execution method, but eliminate the inmate choice. “It will be lethal injection, and then, if the drugs are not there, or it is unconstitutional, then it will be firing squad,” Ray explained. “There is no option for the inmates.”

Utah's firing squad comprises five riflemen, all certified law enforcement officers, using 30-30 rifles. Four of the guns are loaded with live ammunition and one is loaded with a blank before the officers shoot in unison.

Ray acknowledged that part of the reason the method was eliminated was due to the extra attention that surrounded it. But he said there is always going to be interest around executions, especially among international media. The firing squad may heighten that interest, but Ray doesn't balk at it as an execution method.

“It is actually the most humane,” he said. “The individual is usually dead before they can even hear the gunshot. It’s four bullets to the heart, so it’s not ‘How long did it take for him to die? Could he breathe? Did he feel it?’”

Wyoming Sen. Bruce Burns, R-Sheridan, decided to propose the firing squad as Wyoming’s secondary execution method, because he said it is what he would choose if forced to select to among the alternatives to lethal injection. “It became a matter of personal prejudice and if I was the one that was being executed,” Burns said.

Wyoming’s current backup if lethal injection is unavailable is the gas chamber, which Burns felt was impractical for a number of reasons. For one, the state doesn’t have a gas chamber, and building one — and the possible litigation prompted by a decision to build one — would be expensive. “It would cost millions of dollars to build one,” Burns said. “And sometimes you have to put your own experience into it and I think the gas chamber would be a horrible way to kill somebody.”... “I do like the way Utah did it,” Burns said. “Utah has a very good protocol. If we pass this, I would hope the Wyoming Department of Corrections would look to the protocol that Utah uses.”...

Even before the botched executions, Burns noticed the difficulty getting lethal injection drugs from companies in the European Union. He proposed a bill to implement the firing squad in Wyoming’s legislative session this past January. It didn’t pass, but officials from the Wyoming Department of Corrections came forward and spoke about the difficulties states around the nation are facing when it comes to obtaining drugs for lethal injections, and the Wyoming Legislature’s Judiciary Committee decided to look at the issue. Lawmakers have since decided to sponsor the firing squad bill in the upcoming legislative session in January....

Burns said the the Wyoming Legislature’s Judiciary Committee recently had an extended debate about the death penalty and whether to eliminate it altogether. A proposed bill was even drafted. “It went down and not by a whole lot,” Burns said, before adding that he likes where Wyoming stands now with just one man on death row. “We have 22 people in prison for life without parole, and any one of those 22 could have been a capital case. We haven’t executed anyone since 1992, so we use it infrequently.”

Still, he believes the death penalty is an important tool in the criminal justice system to be used as needed. “I’m not a fan of using it more, but I would like to have it there in reserve for those crimes that are so horrible and so heinous that the person doesn’t even deserve life without parole,” Burns said.

A few recent related and older posts:

October 14, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack