Wednesday, July 22, 2015
Do gubernatorial moratoria on executions impact securing of death sentences?
The question in the title of this post is raised by the start of the capital phase of the death penalty trial of Aurora theater shooter James Holmes and is discussed in this interesting Los Angeles Times article. The article is headlined "Death penalty is sought against James Holmes, but governor stands in the way," and here are excerpts:
When the jury found James E. Holmes guilty, Marcus Weaver cried. For his friend Rebecca Wingo, who died beside him in the Aurora, Colo., multiplex. For the dozens of victims in the 2012 rampage during a midnight showing of "The Dark Knight Rises." For the families of the dead and wounded. Then he cautioned that last week's verdict "is just a stepping stone" on the path to justice.
The next step, Weaver hoped, would be the death penalty. But even if the jury decides to sentence Holmes to death in the penalty phase of his trial, which begins Wednesday, there are some questions about whether the sentence will be imposed. In the time since the Aurora shooting case got underway, Gov. John Hickenlooper has made it his policy that no one in Colorado will be executed as long as he is in office....
Juries across the U.S. continue to hand down death sentences, and prosecutors continue to seek them. But the effective moratorium in Colorado — no capital punishment can be carried out unless the governor signs the death warrant — is part of a political retreat that is gaining momentum. The number of U.S. executions has dropped dramatically since 1999, along with the number of death sentences handed down by juries.
Governors in four states, including Hickenlooper, have declared that they will not sign death warrants during their terms, citing the uneven way the punishment is carried out. This year, for the first time since these policies were adopted in Oregon, Colorado, Washington and Pennsylvania, major capital trials are taking place in two of those states that are testing juries' willingness to carry out the ultimate punishment. "What's the role of these reprieves? I don't think there's an independent effect, but it's part of an overall drift away from the death penalty," said Michael Radelet, a University of Colorado sociology professor who has studied the punishment for 35 years.
Although a gubernatorial moratorium will undoubtedly spur debate about a critically important issue, death penalty critics worry that the policies ultimately could end up changing nothing. Once the governors leave office, their replacements could decide to go back to signing death warrants. Anyone whose execution was on hold could again be sent to the death chamber....
In Washington state, 15 months after Gov. Jay Inslee imposed a death penalty moratorium, a Seattle jury in May refused to sentence Joseph McEnroe to death for killing six of his then-girlfriend's relatives on Christmas Eve 2007. The victims spanned three generations of Michele Anderson's family, including a 5-year-old girl and her 3-year-old brother. Anderson, also charged in the killings, goes on trial in September.
The Holmes case is the first death penalty trial in Colorado since Hickenlooper announced in 2013 that he would grant an "indefinite reprieve" to Nathan Dunlap, who killed four people at a suburban Denver Chuck E. Cheese's pizza restaurant in 1993 and was sentenced to death three years later.
The reprieve was granted as Dunlap's execution date neared and will last as long as the Democrat remains in office. Hickenlooper, who campaigned in 2010 as a death penalty supporter, has since said he is against capital punishment.
The political pushback was swift. Moments after the governor announced Dunlap's reprieve from the rotunda of the Capitol in Denver, Arapahoe County Dist. Atty. George Brauchler denounced Hickenlooper from the Capitol steps. Brauchler called Dunlap's execution "a no-brainer," according to the Denver Post, and said the governor refused "to make any hard decision today.... This is inaction. This is shrugging. This is not justice."
Brauchler is the same district attorney who said he would seek the death penalty against Holmes. He also turned down Holmes' offer to plead guilty in exchange for life in prison without a chance of parole, and he is leading the prosecution case against the gunman.
Still, a sitting governor's ability to veto a death penalty appears to be absolute in Colorado. And though many argue that such moratoriums are political posturing with no lasting effect, others say such gubernatorial declarations are a force for change.
"I think it's impactful when the governor of your state says your state should never be involved in killing anyone," said Craig Silverman, a former Denver chief deputy district attorney. "However, in the Holmes case we have jurors who are all death qualified, meaning they have committed to following Colorado law, which includes capital punishment, but we have a governor who is not."
Monday, July 20, 2015
Local coverage of compelling realities to be at heart of Aurora shooter penalty phase
Not suprisingly, the Denver Post now has especially fullsome coverage of the key issues to surround the upcoming penalty phase following the capital conviction of James Holmes last week. Here are two pieces (and their extended headlined) that caught my eye:
"Mental health will loom large in Aurora theater shooting death penalty debate: Quick verdict doesn't necessarily lead to a death sentence"
"Death penalty a complex issue for theater shooting victims' families: While some shooting survivors and relatives of victims support capital punishment for James Holmes, others are more ambivalent."
Sunday, July 19, 2015
Notable talk of bringing back the death penalty in two nearby US states
Two states that recently repealed their death penalty are now having folks discussing, as detailed in these two new media pieces, bringing back the ultimate punishment:
While the capital reform story in Nebraska has received broad coverage, I have not seen too much discussion on this topic from New Mexico. Here are excerpts from the capital story from the Land of Enchantment:
State leaders, including Governor Susana Martinez, discussed possible solutions to New Mexico's beleaguered justice system in the wake of an investigation about the state's 'boomerang thugs.'
KOB revealed how there are only 12 officers tasked with locating roughly 1,700 absconders and learned many criminals charged with child sex crimes have mastered the art of receiving sweetheart plea deals.
Commit a violent crime, there should be expectations -- courtrooms, fines and handcuffs. However, the system that's supposed to uphold those expectations, and keep the worst of the worst criminals locked up, has fallen apart. "So, the problem isn't throwing people in jail, or sending people to prison, it's who we send to prison," Rep. Moe Maestas, D-Albuquerque, said....
Maestas said the system is backwards when it comes to prosecuting drug crimes versus violent crimes. He said drug users are demonized, in need of help, as violent criminals go free. "To prosecute violent crimes, it is very labor intensive," Maestas said. "You have to build a relationship with the alleged victim, and that's just not being done."...
Corrections Department Secretary Gregg Marcantel is just as frustrated as the 12 people on his fugitive task force unit responsible for trying to round up the absconders. "It's a never-ending game, a revolving door," one of them said. That comes as Secretary Marcantel struggles to keep people working in the state's prisons. "I hate to admit this, but I compete with McDonald's in Santa Fe for my staff," he said. Marcantel said some prospective employees to corrections facilities in Santa Fe would prefer to flip burgers for the city's minimum wage of $10.84 rather than earn slightly more, $12.35, to be a corrections officer cadet.
KOB approached Governor Martinez, a longtime prosecutor, to hear her thoughts on a justice system that seems badly broken. Last year, she supported a pay raise for some corrections officers, which helped reduce job vacancies in one office from 50 percent to five percent. Her office said it improved the career ladder and offered promotion opportunities for probation and parole officers. Martinez also wants to beef up the fugitive task force unit to send a message to absconders....
She said lawmakers should step in for once to make laws and penalties tougher while allocating more resources to the Corrections Department on the whole. Martinez also said she wants lawmakers to reinstate the death penalty in New Mexico, which was abolished in 2009. She said, in her experience, criminal offenders feel more compelled to cooperate with investigators when confronted with it.
Saturday, July 18, 2015
Is Prez Obama truly "close" to opposing the death penalty?
The question in the title of this of this post is prompted by this recent Washington Post Wonkblog posting, which gets started this way:
A long-time associate and mentor to President Obama says the president is "close" to opposing the death penalty but not quite there yet -- and needs to be pushed to do it.
"He's not there yet, but he's close, and needs some help," said Charles J. Ogletree, Jr., a law professor at Harvard University and prominent death penalty opponent who taught the president and First Lady Michelle Obama when both were students there. The legal scholar said he was planning on meeting with his former student next month and would confront him about the issue then.
As Obama has increasingly confronted racial disparities in the criminal justice system and in American society in in his second term -- including on Tuesday before the National Association for the Advancement of Colored People -- Obama has committed to doing more to address these issues in his final year-and-a-half. This week alone, he commuted the sentences of more than 40 low-level offenders, and is visiting a prison in Oklahoma today, becoming the first president to visit a federal penitentiary.
Obama, who has said he supports executions in some circumstances but raised concerns about the application of capital punishment, has not yet focused in this new push on racial disparities in capital trials -- the most serious cases before any criminal court. Now, just as he publicly changed his opinions on other major social issues in which public opinion changed, like gay marriage, some have wondered whether the president will change his perspective. As the charts below show, support for the death penalty, for decades strong in the United States, has been declining in recent years, just as support for gay marriage has increased.
Ogletree predicted that the president will eventually have no choice but to oppose the death penalty, confronted with the data on racial disparities in capital punishment, as well as on the costs of litigating capital cases and on the number of defendants who are eventually exonerated. "Even if he doesn't change his mind in the next year and a half, I think the public's point of view is going to influence him," Ogletree said. "As a citizen, he can have an enormous amount of influence."
Friday, July 17, 2015
Previewing the penalty phase after James Holmes found guilty on all charges
This article, headlined "After the guilty verdict: What happens next in theater shooting case to decide James Holmes' fate?," provides a preview of what will define the penalty phase for the Colorado mass shooter after his conviction on multiple murder counts on Thursday. Here are the basics:
Now that the gunman has been found guilty on all 165 counts, the court is preparing to move to the part of the trial where a sentence will be determined. Prosecutors are seeking the death penalty for James Holmes, who on Thursday was found guilty of murdering 12 people, injuring 70 others and assembling incendiary booby-traps inside his Aurora apartment....
In the first portion of the penalty process, the prosecution must prove to the jury beyond a reasonable doubt that the crimes included at least one statutory aggravating factor. There are several such factors in Colorado, but these are the ones that might apply to this case:
- The defendant committed the offense in an especially heinous, cruel, or depraved manner
- In the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense
- The defendant intentionally killed a child who has not yet attained twelve
- The defendant unlawfully and intentionally, knowingly, or with universal malice manifesting extreme indifference to the value of human life generally, killed two or more persons during the commission of the same criminal episode
Based on the defense team's statements in court Thursday evening, that phase of the case is only expected to last a few hours but the jury does have to deliberate and agree to move on.
If they do move to the next phase, jurors will be asked to hear mitigating factors presented by the defense. At this point, they're likely to hear from family and friends of the convicted shooter who could testify about his life. They are also likely to present information about his mental illness. Mitigating factors under Colorado law that could be included in this case are:
- The defendant's capacity to appreciate wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution
- The defendant was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution; or
- The emotional state of the defendant at the time the crime was committed
- The absence of any significant prior conviction
- The extent of the defendant's cooperation with law enforcement officers or agencies and with the office of the prosecuting district attorney
- The good faith, although mistaken, belief by the defendant that circumstances existed which constituted a moral justification for the defendant's conduct
- The defendant is not a continuing threat to society
- Any other evidence which in the court's opinion bears on the question of mitigation.
After hearing those presentations, the jury needs to deliberate again to decide if the mitigating factors outweigh the aggravating factors. If they do, the case will move to the third phase.
In that third and final phase, the jury will be asked to judge the defendant's character against his crime. They need to decide if the prosecution has proven beyond a reasonable doubt if the death penalty is the appropriate penalty.
If at any point in the process the jury decides not to move to the next phase, the gunman would be sentenced to life imprisonment without the possibility of parole. Also, the vote must be unanimous to deliver a death sentence.
Thursday, July 16, 2015
New talk of abolishing the death penalty in Ohio spurred by pro-life conservative
As reported in this local piece, headlined "Renewed Effort Underway To Abolish Ohio's Death Penalty," talk of death penalty abolition is afoot again in the Buckeye State. Here are the details:
One state lawmaker is finding new allies in her fight to get rid of the death penalty. State Rep. Nickie Antonio has been down this road before. The Democratic lawmaker from Lakewood has tried several times to pass a bill that would eliminate the death penalty. “The state of Ohio needs to take the compassionate pragmatic and economically prudent step to abolish capital punishment,” Antonio said.
But while Antonio’s bill has stalled every session, this time she has picked up some support — from freshman legislator Niraj Antani, a Republican from Miamisburg. He says capital punishment is too expensive and represents the epitome of big government. “To me there can be no bigger government with no bigger power than the right to execute its own citizens,” said Antani.
Antani is alarmed that about a dozen people on death row in Ohio have had their sentences commuted or exonerated. He calls on his fellow pro-life conservatives to side with him in getting rid of the death penalty. “I believe that — just the chance that an innocent individual could be put to death is reason enough to repeal it,” Antani added.
But other Republicans disagree. State Rep. John Becker who represents a portion of Clermont County says there are criminals such as mass murderers and serial killers who deserve execution. “So part of it is the inability to rehabilitate and part of it is simply punishment and it would be reserved for the most heinous of crimes,” said Becker.
There’s another issue at play when it comes to capital punishment in Ohio. The state has delayed executions until next year due to questions over the drugs used for lethal injections. Last year, death row inmate Dennis McGuire took an unusually long time to die during his execution and was reportedly seen struggling for air.
The U.S. Supreme Court has ruled that it’s okay for states to use certain combinations of drugs, but Ohio must still find suppliers and manufacturers. And Ohio Department of Rehabilitation and Corrections Director Gary Mohr has said the state is having problems getting those drugs because international companies don’t want to sell them for lethal injections and pharmacists don’t want to create them for executions.
Antonio and Antani use this as a reason to steer clear of executions but State Rep. John Becker makes a different argument and says it doesn’t have to be death by injection. “Frankly I like the idea of giving people choices they can have death by firing squad—death by hanging—death by guillotine," Becker said. "I’m not really sure I care how they die and they can choose their own method for all I care.”
Becker and other death penalty supporters have used another argument is support of capital punishment. They say prosecutors can use the threat of execution as a bargaining chip for plea deals.
Wednesday, July 15, 2015
Missouri completes first post-Glossip execution
As reported in this National Law Journal article, headlined "Supreme Court Rejects Plea to Strike Down Death Penalty," not a single US Supreme Court Justice seemed at all interested in re-considering the basic consitutionality of the death penalty as Missouri moved forward with the first US execution since the Supreme Court's Glossip ruling upheld the basic consitutionality of the death penalty. Here are the details:
The U.S. Supreme Court on Tuesday night turned away a full-scale challenge to capital punishment in the case of a convicted murderer in Missouri set for execution at 6 p.m. Without comment or dissent, the court rejected multiple appeals from David Zink’s lawyers. Missouri Gov. Jay Nixon also denied clemency for Zink, who was found guilty in the brutal 2001 murder of a 19-year-old woman.
Lawyers for Zink had earlier invoked U.S. Supreme Court Justice Stephen Breyer’s recent death penalty dissent in seeking a stay. Some commentators saw Zink's case as an opportunity for the full court to reexamine the constitutionality of the death penalty, as Breyer urged in the dissent. But the court’s action late Tuesday dashed those hopes.
Zink’s execution by lethal injection was the first since the high court issued Glossip v. Gross on June 29. In Glossip, a 5-4 majority upheld the use of a controversial drug in lethal injections. Breyer, joined by Justice Ruth Bader Ginsburg, wrote a lengthy dissent questioning whether capital punishment, as it is now carried out, is constitutional....
Richard Sindel of Sindel, Sindel & Noble in Clayton, Missouri, another of Zink’s lawyers, said in an interview Tuesday that the legal team decided to cite Breyer’s dissent because it reflected his and Ginsburg’s long experience in dealing with the death penalty. “They’ve been at it a long while,” Sindel said. Unlike the late justices Thurgood Marshall and William Brennan Jr. who dissented from the death penalty “as a matter of course,” Sindel said Breyer’s dissent was “a different animal,” full of detailed analysis and detail on why capital punishment is not working.
Late Tuesday morning, Missouri Attorney General Chris Koster filed a brief with the Supreme Court urging it to reject Zink's appeal as "meritless" and procedurally flawed. Addressing the Glossip dissent, the brief stated, "A two-justice dissent does not establish a new rule of constitutional law made retroactive to cases on collateral review."...
On Monday, a federal judge considering Zink’s appeal also made short shrift of the Breyer dissent. U.S. District Judge Beth Phillips in the Western District of Missouri wrote: “The court is not inclined to rely on the dissenting opinion in Glossip to declare the death penalty unconstitutional when the majority opinion clearly states that the death penalty is constitutional.”
Monday, July 13, 2015
"Some major U.S. religious groups differ from their members on the death penalty"
The title of this post is the headline of this intriguing new piece via the Fact Tank blog from the Pew Research Center. Here are excerpts:
When the Nebraska Legislature voted in May to ban the death penalty in the state – overriding the governor’s veto – supporters of the ban shared some of the credit with religious leaders who had spoken out on the issue, including several Catholic bishops. In fact, many large religious groups have taken positions in opposition to the death penalty even though that stance is sometimes at odds with the opinions of their adherents.
The Catechism of the Catholic Church says the death penalty is acceptable if it is “the only possible way of effectively defending human lives.” In recent years, however, both the U.S. Conference of Catholic Bishops and Pope Francis have spoken firmly against capital punishment.
They are not the only religious leaders to take this position; when it comes to the official teachings of large U.S. religious groups, opposition to the death penalty is more common than support for capital punishment. This is in contrast with public opinion: A majority of U.S. adults (56%) still favor the death penalty, although support has been dropping in recent years.
There also is a disparity between religious groups’ positions and the views of their adherents, particularly among mainline Protestants. Two-thirds of white mainline Protestants (66%) favor the death penalty, but several of the biggest mainline churches are against it. This includes the United Methodist Church, the Evangelical Lutheran Church in America, the American Baptist Churches USA, the Presbyterian Church (U.S.A.) and many others. Roughly half of U.S. Catholics (53%) – including a majority of white Catholics (63%) – also favor the death penalty, in contrast with church leaders’ stance.
Seven-in-ten white evangelical Protestants in the U.S. (71%) support the death penalty, a position held by many of their churches. Two of the largest U.S. evangelical denominations – the Southern Baptist Convention and the Lutheran Church-Missouri Synod – teach that the death penalty is acceptable. The Assemblies of God, a major Pentecostal denomination, does not have an official stance on the issue, although the church’s website cites a “common interpretation that the Old Testament sanctions capital punishment.”
The Church of Jesus Christ of Latter-day Saints (Mormon church) also does not take an official position on the death penalty. Neither does the National Baptist Convention, the largest historically black Protestant denomination, although most black Protestants (58%) oppose the death penalty (in contrast with the U.S. public overall)....
Among non-Christian faiths, teachings on the death penalty vary. The Reform and Conservative Jewish movements have advocated against the death penalty, while the Orthodox Union has called for a moratorium. Similarly, Buddhism is generally against capital punishment, although there is no official policy.
Hinduism also does not have a clear stance on the issue. In Islam, the death penalty is widely seen as acceptable (based on the Quran), and Islamic courts in countries such as Saudi Arabia and Iran routinely hand down death sentences. Some U.S. Muslim groups, however, have spoken out against the death penalty; for example, the Council on American-Islamic Relations has called for a moratorium.
Religiously unaffiliated Americans – atheists, agnostics and those who say their religion is “nothing in particular” – are split on the death penalty, with 48% in favor and 45% opposed.
Saturday, July 11, 2015
Would a Prez Hillary Clinton lead to the judicial abolition of the death penalty in the US?
The question in the title of this post is prompted by this notable new opinion piece by Scott Lemieux headlined "How a President Hillary Clinton could help end the death penalty." The whole piece is worth a full read, and here are excerpts:
Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, in a separate dissent [in the Supreme Court's recent Glossip ruling] concluded: "I believe it highly likely that the death penalty violates the Eighth Amendment." Breyer's dissent is important, leading some to even conclude that the Supreme Court might actually rule that way in the near future. But this probably won't happen unless a Democratic president replaces one of the Republican-appointed justices on the court, which is another reason the Supreme Court will be a top issue in the 2016 presidential race.
A majority of the Supreme Court has never held that the death penalty is categorically unconstitutional — indeed, there have never been more than two justices at any one time who supported this view. In the 1972 case Furman v. Georgia, the Supreme Court suspended executions, but three of the five justices in the majority held that the death penalty would be constitutional if applied fairly. Only two justices — William Brennan and Thurgood Marshall — held that the death penalty was always unconstitutional, a position they held for the rest of their tenures.
Two other justices, Harry Blackmun and John Paul Stevens, wrote opinions shortly before their retirement suggesting that the death penalty might be unconstitutional. But otherwise every justice has supported the compromise the court reached in 1976: The death penalty is constitutional if applied in a more fair and rational manner. It is possible that Breyer's opinion will be seen as a fraying of this compromise and a crucial step towards a ruling that the death penalty is unconstitutional. But if so, it is likely to be a process that plays out over a fairly long period.
At Slate, Robert J. Smith gives the most optimistic reading of Breyer's dissent from the perspective of death penalty opponents, suggesting that there might be five votes on the current court to abolish the death penalty. His argument is superficially persuasive ...[but] fails to withstand scrutiny.... Glossip itself provides powerful evidence against this possibility. Among other things, Justice Samuel Alito's majority opinion represents a sort of obscene gesture to death penalty opponents: "If you use legal methods to prevent states from carrying out a particular form of execution, it therefore has the right to carry out less humane ones." This is nothing less than a justification for torture. It is very hard to imagine someone who opposes the death penalty in principle joining this opinion, which is exactly what Kennedy did.
It is thus vanishingly unlikely that this court will hold the death penalty unconstitutional. The interesting question is what might happen should a justice nominated by a Democrat become the median vote of the court. In a recent paper, the University of Maryland legal scholar Mark Graber suggests that we are about to see a much more polarized Supreme Court that, rather than hewing towards centrist opinions, swings well to the left or right depending on who has the fifth vote.
The death penalty is one area where this may be most evident. Unless popular opinion shifts strongly in favor of the death penalty, Breyer's opinion may very well reflect the default position of Democratic nominees, even the most conservative ones. If President Hillary Clinton can replace one of the Republican nominees on the court, we could ultimately see a decision declaring that the death penalty violates the Eight Amendment's ban on cruel and unusual punishments.
But there's a dark side to the polarized court from the perspective of death penalty opponents. If President Scott Walker or Marco Rubio replaces Justice Ginsburg and/or Breyer, states might aggressively expand the death penalty to encompass homicides committed by minors or the sexual assault of children — and these laws would likely be upheld.
Breyer's dissent does not reflect a court that is going to rule the death penalty unconstitutional in the short term. But it does suggest that it is a medium-term possibility — and that the stakes of future presidential elections are about to get even higher, with control of the median vote of the Supreme Court accruing a greater policy impact than it's ever had.
Prior related post:
Friday, July 10, 2015
Pennsylvania Attorney General calls Governor's execution moratorium an "egregious violation" of the state constitution
As reported in this local article, headlined "Kane asks court to end Wolf's death-penalty ban," the top lawyer and prosecutor in Pennsylvania does not think much of her Governor's decision earlier this year to declare a moratorium on executions. Here are the details on the latest chapter concerning the continuing constitutional commotion over capital punishment in the Keystone state:
Calling Gov. Wolf's moratorium on the death penalty "an egregious violation" of the state constitution, Pennsylvania's top prosecutor is asking its Supreme Court to clear the path for the state's first execution in more than a decade.
In a filing Wednesday, Pennsylvania Attorney General Kathleen G. Kane asked the court to allow the execution of Hubert L. Michael Jr., who confessed to murdering a York County teenager two decades ago. Kane argued that it is "blatantly unconstitutional" for Wolf to stay all death sentences, and that allowing Wolf's moratorium to stand would effectively grant him the authority to ignore any laws with which he does not agree.
"In this case, it would allow him to negate a death sentence authorized by the General Assembly, imposed by a jury, and subjected to exhaustive judicial review . . . based on nothing more than personal disapproval and personal public policy beliefs," said the 25-page brief, filed by the attorney general and two of her top deputies. It added: "The governor must execute laws, not sabotage them."...
Wolf spokesman Jeff Sheridan said the governor had no immediate comment but would soon be "responding to the filing." Wolf in February imposed a moratorium on executions until he receives the report of a task force studying the future of capital punishment, unleashing a new round of praise and criticism. At the time, 183 men and women were on death row, confined to their cells 23 hours a day. Michael, of Lemoyne, Cumberland County, was awaiting execution for the 1993 kidnapping of Krista Eng, 16. His death warrant has been signed four times. Another convict spared by Wolf's moratorium is Terrance Williams, 48, a former star quarterback at Germantown High School sentenced to death for the 1984 murder of Amos Norwood, a 56-year-old Germantown church volunteer. He was to be executed in March.
Kane's brief asked the high court for "extraordinary relief," arguing Wolf only has constitutional power to issue reprieves of specific sentences - not an entire class of sentences - and under certain circumstances can grant a commutation or pardon. Reprieves, she argued, are meant to be temporary - usually to allow inmates to pursue legal remedies. When Wolf announced his moratorium, he wrote that he would lift it after seeing the report's recommendations and after "all concerns are addressed satisfactorily."
"What constitutes the point at which 'all concerns are addressed satisfactorily?' What are the concerns? Who is going to determine whether and when they are satisfactorily addressed?" said the filing, signed by Lawrence M. Cherba, who heads the office's criminal division, and Amy Zapp, who oversees the appeals section. "In law and in reality, the governor . . . seeks to replace judicial review of capital sentencing with his own review based on his own personal standard of satisfaction, namely an infallible judicial process that can never be attained," it argued. "Such a roadblock to death-sentence executions is impermissible."
Some prior related posts:
- Pennsylvania Gov declares moratorium on state death penalty
- Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"
- Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium
- Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania
- Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dsyfunctional death penalty
Thursday, July 09, 2015
Richard Glossip and SCOTUS co-petitioners get new Oklahoma execution dates
As reported in this local piece, headlined "Oklahoma to execute 3 men in September, October," the condemned murderer whose surname will surely conctinue to play a lively role is constitutional capital punishment debates for many years is himself now scheduled to play a lively role on death row for only a few more months. Here are the details why:
Three Oklahoma inmates who lost a legal challenge over a drug used in lethal injections now know when they are to be executed. The state Oklahoma Court of Criminal Appeals on Wednesday ordered a Sept. 16 lethal injection for Richard Eugene Glossip, 52. Benjamin Robert Cole, 50, is to be put to death Oct. 7. John Marion Grant is to be executed Oct. 28.
“The families of the victims in these three heinous crimes have waited a combined 48 years for justice,” Attorney General Scott Pruitt said. “With the setting of execution dates, these families now have certainty that justice will finally be served for their loved ones.”
The U.S. Supreme Court ruled, 5-4, last month that the state’s planned use of the sedative midazolam would not violate the Eighth Amendment prohibition on cruel and unusual punishment. Another drug paralyzes the condemned man, and a third stops his heart.
“Despite what a thin majority of the Supreme Court said, midazolam cannot maintain anesthesia throughout the execution procedures,” said Dale Baich, an attorney for the men. “That’s clear from both the scientific information about the drug and the botched executions that have resulted from the use of midazolam. Because Oklahoma plans to use a paralytic as part of the drug formula, we will never know if prisoners will suffer during the execution process.”
Terri Watkins, a spokeswoman for the Oklahoma Department of Corrections, said the state has access to the drugs needed to carry out all three executions and will move forward with the dates set by the court....
Glossip was convicted of first-degree murder in the 1997 beating death of Barry Alan Van Treese at a west Oklahoma City motel. A co-defendant confessed to beating Van Treese, but said he did so at Glossip’s direction. Glossip has maintained his innocence.
Grant was sentenced to die for the 1998 stabbing death of Gay Carter, a prison worker at the Dick Connor Correctional Center in Hominy. Prosecutors say Grant dragged Carter into a mop closet and stabbed her 16 times. Cole was convicted of first-degree murder in Rogers County for the December 2002 beating death of his 9-month-old daughter, Brianna Cole.
Wednesday, July 08, 2015
"Retribution is a valid societal interest" says local DA in advocacy for death penalty
The quote in the title of this post is from Louisiana District Attorney Dale Cox, who is profiled in this interesting front-page New York Times article. The piece is headlined "The Prosecutor Who Says Louisiana Should ‘Kill More People’," and here are excerpts:
Within Louisiana, where capital punishment has declined steeply, Caddo [Parish] has become an outlier, accounting for fewer than 5 percent of the state’s death sentences in the early 1980s but nearly half over the past five years. Even on a national level Caddo stands apart. From 2010 to 2014, more people were sentenced to death per capita here than in any other county in the United States, among counties with four or more death sentences in that time period.
Caddo ... has bucked the national trend in large part because of one man: Dale Cox. Mr. Cox, 67, who is the acting district attorney and who secured more than a third of Louisiana’s death sentences over the last five years, has lately become one of the country’s bluntest spokesmen for the death penalty. He has readily accepted invitations from reporters to explain whether he really meant what he said to The Shreveport Times in March: that capital punishment is primarily and rightly about revenge and that the state needs to “kill more people.” Yes, he really meant it.
And he has been willing to recount his personal transformation from an opponent of capital punishment, a belief grounded in his Catholic faith, to one of the more prolific seekers of the death penalty in the nation. “Retribution is a valid societal interest,” Mr. Cox said on a recent afternoon, in a manner as calm and considered as the hypothetical he would propose was macabre. “What kind of society would say that it’s O.K. to kill babies and eat them, and in fact we can have parties where we kill them and eat them, and you’re not going to forfeit your life for that? If you’ve gotten to that point, you’re no longer a society.”
Mr. Cox later clarified that he had not seen any case involving cannibalism, though he described it as the next logical step given what he at several points called an “increase in savagery.”...
Mr. Cox’s personality has been under scrutiny here since he returned to being a prosecutor after two decades in insurance law. Lawyers who knew him as a congenial and adroit trial lawyer said that in recent years he had become sullen and solitary. They also have described him as becoming increasingly aggressive in the courtroom, in some cases even threatening defense lawyers with criminal contempt for filing opposing motions.
“It’s such a dramatic change,” said Ross Owen, a former Caddo prosecutor and assistant United States attorney who now practices defense law in Shreveport. “The behavior in and of itself might not be a big deal,” he said. But given Mr. Cox’s position, and the fact that the defendants in most of these capital cases are poor and black in a part of the state with a deep history of racism, Mr. Owen added, “He’s got a loaded gun and he’s pointing it at a lot of people.”
Several said this was not so much Mr. Cox as the culture of the office. They point to a historical racial disparity in the application of the death penalty in Caddo. Or they cite an incident in 2012, when two senior assistant district attorneys, both of whom continue to prosecute capital cases elsewhere in the state, were forced to resign from the office after they obtained machine guns from a military surplus program through what an inspector general found to be falsified applications. The men had belonged to a group of prosecutors who participated in firearms exercises as part of a unit known as the Caddo Parish Zombie Response Team, sporting arm patches around the office and specialty license plates on their trucks.
Mr. Cox, who rose from first assistant to acting district attorney after his boss died unexpectedly in April, was never part of that group and disapproved of it. But he did not dispute that the work he does had changed him and left him more withdrawn.
He describes this as a natural result of exposure to so many heinous crimes, saying that “the nature of the work is so serious that there’d be something wrong if it didn’t change you.” He went on to describe violent child abuse, murders and dismemberments in extended detail, pointing to a box on his desk that he said contained autopsy photographs of an infant who was beaten to death. He volunteered that he took medication for depression.
“The courts always say, ‘Evolving standards of decency tell us we can’t do this or that,’ ” he said in an interview at his office, where he had been considering whether to seek death in one case and preparing to seek it in two others. “My empirical experience tells me it’s not evolving decently. We’ve become a jungle.”
The number of murders in Shreveport has decreased by more than 67 percent since the early 1990s. But Mr. Cox insisted that if the numbers were down, the nature of crimes had become more depraved and that it demanded a different approach.
Defense lawyers conceded that the approach was different. Mr. Cox had refused even to entertain pleas of life without parole in homicide cases for which he deemed death the only fitting remedy. In other cases, the office has prosecuted people for ancillary crimes even after they had made plea agreements. After a man was convicted in 2014 of smothering his infant son, a case that hinged almost entirely on differing interpretations of complicated forensic evidence, Mr. Cox wrote that the man “deserves as much physical suffering as it is humanly possible to endure before he dies.”
Alluding to Rousseau and Shakespeare, Mr. Cox remained unapologetic, insisting that he believed what he was doing was right. But he was not entirely untroubled. “I am humble enough and fearful enough,” he said, considering the biblical commandment not to kill and his own place in the afterlife, “that my God may say to me, ‘I meant what I said, and you’re out.’ ”
Sixth Circuit holds Ohio condemned must have his Atkins claim properly considered
As reported in this local AP piece, headlined "Death row inmate wins appeal in Warren murder case," a Sixth Circuit panel yesterday issued a notable federal capital habeas rulin in Williams v. Mitchell, Nos. 03-3626/12-4269 (6th Cir. July 7, 2015) (available here). Here are the basics via the press report:
A Warren man on death row for the brutal beating of an elderly couple may get his chance to escape the death penalty. An appeals court ruled that Andre Williams can continue to appeal his sentence claiming he was mentally disabled at the time of the 1988 crime.
George Melnick was killed and his wife Katherine was blinded in the attack.
The U.S. 6th District Court of Appeals ruled Tuesday that state courts failed to properly apply federal law governing claims of mental disability in capital punishment cases. The federal court said a lower court ruled improperly when it refused to recognize evidence of the 48-year-old Williams’ disabilities dating to when he was a teenager.
Tuesday, July 07, 2015
Still more interesting discussion of Glossip a week later
I have previously highlighted here and here and elsewhere a lot of the notable commentary that the Supreme Court's big Glossip death penalty ruling quickly generated. I have now seen a few more pieces that seemed worth flagging here:
Sunday, July 05, 2015
"A Reassessment of Common Law Protections for 'Idiots'"
The title of this post is the title of this new piece by Michael Clemente recently posted to SSRN. Here is the abstract:
When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.” On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; however, the Court concluded that idiocy protections shielded only the “profoundly or severely mentally retarded.”
This Note argues that the Court’s historical analysis of idiocy protections was unduly narrow. It then proceeds to reassess common law insanity protections for idiots and finds strong evidence that these protections included people with a relatively wide range of intellectual disabilities. Based on this new historical account, this Note argues that there are people with intellectual disabilities on death row today who likely would have been protected from execution in 1791.
Friday, July 03, 2015
If you want to go on gorging on Glossip gossip...
here is still more of the copious commentary one can find as the work week closes on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline as with this prior review, sources and authors varied):
Wednesday, July 01, 2015
Despite Glossip, hope for judicial abolition of the death penalty endures
This new Slate commentary by Robert J. Smith highlights that, despite the Supreme Court's ruling in Glossip upholding Oklahoma's execution protocol, at least some still believe there could soon be five SCOTUS votes to do away with the death penalty altogether. The lengthy piece is headlined "The End of the Death Penalty?: Recent Supreme Court opinions suggest there are five votes to abolish capital punishment." And here is how it starts and ends:
On the surface, the Supreme Court’s opinion in Glossip v. Gross appears to give death penalty proponents something to celebrate. After all, the court allowed states to continue to use the sedative midazolam as part of a multidrug formula for lethal injections, despite Justice Sonia Sotomayor’s warning that such executions “may well be the chemical equivalent of being burned at the stake.” But the bitterly divided 5–4 opinion has implications that extend far beyond the narrow question. This case may become an example of winning a battle while losing the war.
In a dissent, Justices Stephen Breyer and Ruth Bader Ginsburg concluded that it is “highly likely” that the death penalty violates the Eighth Amendment’s prohibition on cruel and unusual punishments. While acknowledging that the Supreme Court settled the constitutionality of the death penalty 40 years ago, Breyer wrote that the “circumstances and the evidence of the death penalty’s application have changed radically since then.”
They are not the first sitting justices to call capital punishment’s constitutionality into question. Justices Thurgood Marshall and William Brennan routinely dissented from decisions upholding a death sentence on the grounds that capital punishment is always a cruel and unusual punishment. Shortly before his retirement, Justice Harry Blackmun famously wrote that he would “no longer tinker with the machinery of death.” Justice John Paul Stevens similarly concluded that the death penalty is an excessive punishment.
But Glossip feels different. Breyer’s dissent is more of an invitation than a manifesto. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” It also feels different because it is no longer unthinkable that there are five votes for ending the death penalty....
[Justice] Kennedy has embraced a view of societal norms that is much more holistic than a simple exercise that counts state legislative decisions. For instance, in Graham v. Florida, the case in which the Supreme Court barred sentences of life without parole for nonhomicide juvenile offenders, Kennedy looked beyond the law on the books to see how the law was used in practice. Even though most states allowed the sentence, Kennedy found that sheer infrequency reflected a consensus against its use, as did the fact that sentences were concentrated in a handful of states. Most recently, in Hall v. Florida, Kennedy counted Oregon, a state that formally retains capital punishment, “on the abolitionist side of the ledger” because it “suspended the death penalty and executed only two individuals in the past 40 years.”
In Glossip, Breyer fine-tuned Kennedy’s approach, looking not only at how infrequently states resort to the punishment but also at how “the number of active death penalty counties is small and getting smaller.” (It might be particular personalities within counties as much as it is particular counties responsible for most death penalty sentences.)...
After Kennedy’s opinion in Obergefell, the flashlight is shining brightly on Kennedy’s death penalty jurisprudence. His road map for considering the evolution of contemporary societal norms, coupled with Breyer’s invitation to challenge the death penalty in its entirety, plausibly heralds the twilight of the death penalty in America.
In a similar vein, Cassandra Stubbs, director of the ACLU Capital Punishment Project, has this new MSNBC commentary headlined "The death penalty has an innocence problem — and its days are numbered."
"Anti-Death Penalty Activists Are Winning The Fundraising Battle In Nebraska"
The title of this post is the headline of this intriguing new BuzzFeed piece providing a "follow-the-money" update on who is really concerned about reversing or preserving the repeal of the death penalty in Nebraska. Here are excerpts:
After the Nebraska legislature successfully abolished the death penalty in the state, an expensive battle has begun to bring it back. But so far, the side against the death penalty is winning the fundraising battle. The money is all about the potential for a statewide vote on the death penalty.
In May, the state’s conservative legislature narrowly overruled Republican Gov. Pete Rickett’s veto of the measure that abolished the death penalty. Ricketts vowed there would be a referendum to give voters the option to bring it back. Nebraskans for the Death Penalty will need to collect 57,000 signatures by August to get the vote on the ballot. If they can manage to collect 114,000 signatures, the death penalty will remain on the books until voters weigh in.
The group estimates that it would need to spend about $900,000 to do so.... [So far] Nebraskans for the Death Penalty raised $259,744 — and more than 75% of that came from the governor’s family. Ricketts and his father, the founder of TD Ameritrade, have given $200,000 to the group. Another $10,000 was given to the pro-death penalty organization by an Omaha police union.
Nebraskans for the Death Penalty has spent almost all of the money it has currently raised in starting the signature collecting process. The group has $26,000 in cash remaining, but has $25,000 in unpaid legal and consulting bills.
On the other side, Nebraskans for Public Safety (an anti-death penalty group) has not yet filed its full campaign finance report as of Tuesday evening. But the group has disclosed receiving a $400,000 contribution from a progressive organization called Proteus Action League. The group is a 501c(4), meaning it does not disclose its donors. This isn’t the first time Proteus Action League has spent money against the death penalty — the group spent more than $3.4 million on anti-death penalty efforts in 2012, according to an IRS filing.
The anti-death penalty group Nebraskans for Public Safety, which is affiliated with Nebraskans for Alternatives to the Death Penalty and the American Civil Liberties Union of Nebraska, has spent some of the money on television ads urging voters to not sign the petition.
Regardless of the outcome, Ricketts believes he will still be able to carry out the executions of the 10 men on death row. In pursuit of that, his Department of Correctional Services has spent more than $50,000 on execution drugs from a seller based in India.
Tuesday, June 30, 2015
If you are eager to gorge on Glossip gossip...
here is just a smidgen of some of the copious commentary one can find before the ink is really dry on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline, sources and authors varied):
- The Most Dangerous Precedent (or, A Silly Extravagance)
- The Wonderland rules for method-of-execution claims
Monday, June 29, 2015
Providing great reading (and little else of consequences), concurring and dissenting Justices use Glossip to debate death penalty's constitutionality
As noted in this prior post, states eager to move forward with challenged execution protocols got a big win on the merits from the Supreme Court this morning in Glossip v. Gross. And while the substantive ruling from the Court will be of considerable consequence for states eager to move forward with scheduled executions, commentators (and law professors and death-penalty advocates) will likely take more note of the back-and-forth between Justice Breyer and Justices Scalia and Thomas in their separate Glossip opinion.
Justice Breyer uses Glossip as an occassion to write a 40-page dissenting opinion (with Justice Ginsburg along for the ride) explaining why he now believes "it highly likely that the death penalty violates the Eighth Amendment" and that "the Court should call for full briefing on the basic question." Unsurprisingly, this disquisition prompts both Justice Scalia and Justice Thomas to author separate (and much shorter) concurring opinions seeking to explain why they think Justice Breyer's constitutional views are all washed up.
The work of these Justices debating the constitutionality of capital punishment as a categorical matter makes for great fun for those who enjoy constitutional debate as blood-sport (and for those eager to read the latest, strongests (policy) arguments against the modern death penalty). But the fact that seven current Justices apparently do not question the death penalty's essential constitutionality, including the five youngest Justices, suggests to me that abolitionists still have a lot more work to do before they can reasonable hope to see a majority of Justices find compelling a categorical constitutional ruling against capital punishment in all cases.
SCOTUS rules 5-4 against capital defendant's challenge to execution protocol in Glossip v. Gross
The Supreme Court handed down this morning the last big opinion of likely interest to sentencing fans via Glossip v. Gross, No. 14-7599 (S. Ct. June 29, 2015) (available here). Here is how Justice Alito's opinion for the Court gets started:
Based on a too-quick read, the majority opinion seems like a big win for states seeking to move forward even with new and questionable execution methods. I doubt Glossip will halt all the lower-court litigation on state execution protocols, but it certainly should provide lower court judges a much clearer standard and basis for rejecting Eighth Amendment claims in this setting.
Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. §1979, 42 U.S.C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain. They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain. After holding an evidentiary hearing, the District Court denied four prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective. The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy.
For two independent reasons, we also affirm. First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-ofexecution claims. See Baze v. Rees, 553 U.S. 35, 61 (2008) (plurality opinion). Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.
Two distinct SCOTUS dissents from the denial of cert in capital federal habeas cases
Though a forthcoming opinion from the Supreme Court in Glossip v. Gross concerning executions methods is likely to highlight the Justices' distinct views on capital punishment, another example of this reality appears in this morning's SCOTUS order list. At the end, one can find two lengthy dissents from the denial of cert: one, authored by Justice Thomas (and joined by Justice Alito), laments the Court's failure to take up a case from the Fourth Circuit that required further review of a North Carolina death sentence; the other, authored by Justice Sotomayor (and joined by Justices Ginsburg and Kagan), laments the Court's failure to take up a case from the Fifth Circuit that upheld a Mississippi death sentence.
Based on a quick read of both opinions, I must say I am generally content that the full Court did not bother to take up these cases as a prelude to seemingly inevitable 5-4 split capital decisions. More generally, with so many interesting and important non-capital criminal law and procedure issues churning in lower courts, I hope the majority of Justices persistently resist what I see as a too-common tendency to get too-deeply engaged in what too often ends up as one-case-only, deeply-divided capital case error-correction (as I think we saw this term in Brumfield v. Cain and Davis v. Ayala).
Sunday, June 28, 2015
Gearing up for the next SCOTUS death penalty case while awaiting Glossip ruling
Though the Supreme Court has saved for last its decision in the still-pending Glossip case concerning execution protocols, I still am not expecting that Glossip will prove to be a blockbuster ruling. I am guessing the decision will focus principally on Oklahoma's history with various execution drugs (and, if lower courts are lucky, will provide a clearer script for resolving Eighth Amendment challenges to execution protocols).
Consequently, an especially for those who are even more concerned about the imposition of death sentences than how they get carried out, it is perhaps not too soon to look ahead to future SCOTUS death penalty cases. One such case already on the near horizon comes from Florida, as this new local press article highlights. The article is headlined simply "Fla. death penalty faces scrutiny from Supreme Court," and here are excerpts:
Thirteen years after the U.S. Supreme Court ruled that juries, not judges, should decide death sentences, Florida stands alone in how its justice system imposes capital punishment.... Now the nation’s highest court is poised to consider in its next term whether Florida needs to change its system for deciding whom to execute. The issue concerns the role of juries in death penalty decisions. It’s an aspect of the state’s system of capital punishment that courts have struggled with for years.
In Florida, as in other states, when defendants are convicted of murder in a death penalty case, juries hear evidence regarding the existence of “aggravating factors,” or aspects of the case that weigh in favor of a death sentence, as well as “mitigating factors,” information that favors a sentence of life in prison without the possibility of parole. In recommending a sentence, a jury determines whether aggravating factors in a case outweigh the mitigating circumstances and justify the imposition of a death sentence.
But Florida juries, unlike most other states, are told their decisions are merely advisory, and that the judge will make the ultimate determination over whether to sentence a defendant to death. Trial judges in Florida are required to make their own, independent findings and are permitted to impose sentences different from jury recommendations. Juries in Florida also are not required to reach unanimous decisions on the existence of specific aggravating factors or on whether to recommend a death sentence.
No other state allows the imposition of a death sentence without jurors either finding unanimously that a specific aggravating factor has been established or unanimously finding that capital punishment is appropriate. The American Bar Association, which takes no position on the overall constitutionality of the death penalty, is urging the U.S. Supreme Court to direct Florida to make changes and require jurors to specify which aggravating factors they have unanimously found to be present. The association wants the high court to require jurors to unanimously agree on the imposition of death sentences....
The U.S. Supreme Court in 2002 threw out Arizona’s system of capital punishment, ruling it was unconstitutional because judges, not juries, determined the existence of aggravating factors and sentenced defendants to death. Months later, the Florida Supreme Court left intact the state’s system of capital punishment, concluding that the U.S. Supreme Court had repeatedly reviewed it and found it constitutional. The state’s high court noted that the U.S. Supreme Court had refused to hear the appeal of one of the Florida defendants challenging the state system, even after it made the Arizona decision....
The state Supreme Court called in 2005 for the state Legislature to make changes to the state’s death penalty law to require unanimity in jury recommendations. But state lawmakers didn’t act. In the ensuing years, the state Supreme Court continued to hold that the state’s death penalty system is constitutional. One of those rulings came in the Escambia County case of Timothy Lee Hurst, convicted of murdering coworker Cynthia Harrison in a robbery at Popeye’s restaurant on May 2, 1998....
At the conclusion of the second sentencing hearing [in Hurst's case], jurors returned a verdict of 7-5 in favor of death. Hurst appealed again to the state Supreme Court, which upheld his death sentence, rejecting arguments that included assertions the jury should have been required to unanimously find a specific aggravating circumstance and unanimously decide his sentence.
The state Supreme Court noted in its Hurst ruling that it has previously concluded that the U.S. Supreme Court ruling in the Arizona case did not require juries to make specific findings of aggravating factors or to make unanimous decisions regarding death sentences. The Florida court refused to revisit its prior rulings.
Hurst also argued the jury should have been required to determine whether he was mentally disabled, a finding that would have barred the implementation of the death penalty. After hearing testimony from witnesses and experts, the trial judge ruled that Hurst was not mentally disabled. The state Supreme Court ruled that although some states require such findings be made by juries, Florida is not one of those states, and the U.S. Supreme Court has not mandated that procedure.
Hurst appealed to the U.S. Supreme Court, which agreed to hear the case in its next term, which begins in October.
Thursday, June 25, 2015
Examining federal death row as Dzhokhar Tsarnaev becomes its newest (and youngest) member
The new NBC News piece, headlined "Tsarnaev Joins A Death Row With Many Members, And Few Executions," reviews some realities of federal death row in the wake of yesterday's formal capital sentencing of the Boston Marathon bomber. Here are excerpts:
Now that he's been formally sentenced to death, Boston Marathon bomber Dzhokhar Tsarnaev will soon become a resident of federal death row, joining 61 other killers who've been condemned to die by lethal injection at the U.S. Penitentiary in Terra Haute, Indiana.
There he will wait — likely for a very long time. Just how long depends on a range of factors, mainly the strength of his legal appeals. But it's safe to assume that, provided the appeals fail, it will be several years before he is put to death.
Despite the name, there isn't much death on death row. Since the federal government reinstated the death penalty in 1988, 75 inmates have ended up on death row, according to the Death Penalty Information Center. Ten have been removed, and only three have been executed.
The last man to die there was Louis Jones Jr., in 2003, eight years after he was sentenced for murdering a U.S. soldier. The other two, marijuana kingpin Juan Raul Garza and Oklahoma City bomber Timothy McVeigh, waited eight years and four years, respectively, for their executions.
That leaves 61 men and 1 woman still on federal death row, including two people whose original conviction or sentence has been reversed but their legal fate has not yet been finalized. Tsarnaev, 21, is the youngest.
He'll join a cast of violent men at Terra Haute — the one woman on death row, Lisa Montgomery, who killed a pregnant woman and cut her unborn baby out of her womb, is serving her remaining days in the Federal Medical Center Carswell in Fort Worth, Texas....
The longest current residents of death row are Corey Johnson, James Roane Jr. and Richard Tipton, fellow gang members who were sentenced to execution in 1993 for nine murders committed to protect their crack dealing operation. The newest — before Tsarnaev — is Thomas Sanders, who was sentenced to death in September for kidnapping and killing a 12-year-old girl.
It is often said that justice delayed is justice denied. As this article highlights, if you embrace that aphorism, federal death row is locale which has been experiencing a whole lot of justice denied in recent times.
Wednesday, June 24, 2015
"A Shrinking Texas Death Row"
The title of this post is the headline of this intriguing new item from the Texas Tribune. The piece has a series of great interactive charts providing the details on this basic death-penalty data story:
The number of inmates on Texas’ death row is falling. At its peak in 1999, 460 men and women were living with a death sentence in Texas, according to the federal Bureau of Justice Statistics (BJS). Today, there are 260.
The reason for the decline isn't a rise in executions. In 2000, an all-time high of 40 inmates were executed in Texas, compared with 10 last year. So far this year, nine inmates have been executed.
The main reason is a drop in new death sentences. In 1999, 48 people were sentenced to Texas death row, according to BJS data. In 2008, that number was nine — and has stayed in that range ever since. This year, there have been no new death sentences so far, according to the Texas Department of Criminal Justice (TDCJ).
Kathryn Kase, executive director of the Texas Defender Service, a nonprofit organization of death penalty attorneys, said that zero is significant. “This is the longest we’ve gone in a calendar year in Texas without a new death sentence,” Kase said. “Before this year, the longest that we’ve gone is through the first quarter."
Experts suggest several factors could be contributing to the falling number of death sentences, from a national decline in support for the death penalty to shortages of the lethal drugs used in executions. In 2005, the U.S. Supreme Court ruled that juvenile offenders could not face execution, lessening future sentences as well as sparing 29 offenders who were already sitting on death row.
But consistently, they point to a 2005 law that offered Texas prosecutors the option to pursue life-without-parole sentences against capital murder defendants. Previously, capital murder offenders who did not receive the death penalty were eligible for parole after 40 years....
Since that law was enacted, the number of life-without-parole sentences has increased nearly every year, according to TDCJ. Between 2007 and 2014, the number of life-without-parole sentences jumped from 37 to 96.
Currently, 745 people are serving a life-without-parole sentence in Texas, nearly three times the number of death row inmates. So far this year, Kase said three death penalty cases have gone to trial. All have ended with life-without-parole sentences.
Many bombing victims scheduled to speak at formal sentencing of Dzhokhar Tsarnaev
This AP article, headlined "More than 30 victims to speak at Boston bomber's sentencing," provides a preview of a high-profile formal sentencing scheduled to take place today in Massachusetts federal court. Here are excerpts:
More than 30 victims of the Boston Marathon bombing and their family members are expected to describe the attack's impact on their lives before a judge formally sentences bomber Dzhokhar Tsarnaev to death.
In May, a federal jury condemned Tsarnaev to die for bombing the 2013 marathon with his brother. Three people were killed and more than 260 were injured when the brothers detonated two pressure-cooker bombs near the finish line. Under the federal death penalty law, Judge George O'Toole Jr. is required to impose the jury's sentence. Tsarnaev's sentencing hearing is scheduled for Wednesday morning in U.S. District Court.
Among those expected to speak are Rebekah Gregory, a Texas woman who lost a leg in the bombings, and Liz Norden, the mother of two Massachusetts men who each lost a leg. Tsarnaev, 21, also will be given a chance to speak if he chooses.
Monday, June 22, 2015
How much will get spent on (merely symbolic?) death penalty referendum efforts in Nebraska?
The question in the title of this post is prompted by this notable local article from Nebraska headlined "Group fighting death penalty retention gets $400,000 grant." Here are the interesting "follow-the-money" details:
Death penalty opponents got a cash injection Friday, and death penalty advocates accused them of using it to suppress voter rights.
ACLU of Nebraska will give the $400,000 grant from Massachusetts-based Proteus Action League to the Nebraskans for Public Safety coalition formed to fight the effort to retain capital punishment in the state. Proteus Action has given $21 million nationwide in the past five years toward repeal of the death penalty. "This support demonstrates the world is watching what is happening here this summer," Danielle Conrad, executive director of the ACLU of Nebraska. "This support will be like rocket fuel to the campaign."
ACLU of Nebraska is part of the coalition, as are Nebraskans for Alternatives to the Death Penalty, Nebraska Innocence Project, faith leaders, conservative leaders and the Nebraska Criminal Defense Attorneys Association.
Friday afternoon, Nebraskans for the Death Penalty called ACLU participation in the coalition shameful. “Nebraskans have a constitutional right to vote on whether they wish to restore the death penalty," founding member Bob Evnen said in a statement. "The ACLU has announced that it will spend hundreds of thousands of dollars to try to sabotage the right to vote on this very important issue. Few rights in a democracy are more fundamental than the right to vote. The ACLU’s effort to thwart that right is shameful.”
Replied Conrad: "I absolutely disagree with that. I don't understand that attack." Conrad said her group's work is the opposite of voter suppression. Declining to sign the pro-death-penalty petition is in fact exercising one's right to vote, she said.
Last month, Nebraska became the first red state since 1973 to abolish capital punishment. The Legislature voted for repeal May 20 and a week later overrode a veto by Gov. Pete Ricketts. The bill (LB268) goes into effect Aug. 31.
Almost immediately, Omaha Sen. Beau McCoy said he'd look at putting the issue to a vote, and Nebraskans for the Death Penalty opened offices in Omaha and Lincoln the first week of June.... Death penalty supporters have 72 more days to gather 115,000 verified signatures -- 10 percent of registered voters -- to suspend the law and put it to a vote in November 2016. They need about half that number to put the issue to a vote after the law takes effect.
"I think both are hard," Conrad said of the two thresholds. "I can tell you from working both sides of campaigns in direct democracy, it's not easy to be out in the heat and the rain in a multitude of counties. ... I don't think that they or we can take anything for granted."
Conrad said Nebraskans for Public Safety will use the $400,000 to make sure the petition drive is conducted properly and to work statewide to educate people on the issue. And if the move to stop the law from taking effect is successful, she said, her group will have a good start at working to defeat a vote next year.
Peterson said he expects Nebraskans for the Death Penalty will raise and spend about $900,000 and will file required paperwork June 30 saying how much it has raised so far.
This story suggests that at least a few million dollars are likely to be spent on just the initiative run-up effort in Nebraska, and I have to assume many millions more will get spent on the campaign if (when?) the issue gets on the ballot. And yet, even if Nebraska voters were to bring the death penalty back after the legislature's recent repeal, it seems highly unlikely the vote will significantly increase the chances any formerly condemned murderer gets executed or that any future murderers get sent to death row.
Even if the death penalty is brought back by voter initiative, defense attorneys are sure to continue pursuing extensive (and expensive) litigation in state and federal courts asserting that the eleven folks already on Nebraska's death row cannot now be executed. And even if the death penalty is brought back by voter initiative, prosecutors are sure to continue to struggle to convince Nebraska juries to condemn murderers to death in future cases.
Notably, given that Nebraska has not executed anyone in nearly two decades, and has averaged less than a single death sentence per year over its modern history, symbolism plainly matters a lot more than substantive outcomes as money is raised to fight over the death penalty's future in the Cornhusker State. Whatever position one takes on the death penalty, it is hard not to wonder if the monies to be spent on the developing symbolic capital policy fight could go to much uses for violent crime victims and the state's judicial system.
Notable new study on 56 failed capital cases in North Carolina over past 25 years
As detailed in this local article, headlined "Report: NC prosecutors sometimes push for death penalty in flimsy cases," a notable new report about capital prosecutions in the Tar Heel State was released this morning. Here are the basics:
Fending off a capital murder charge can cost falsely accused defendants money, jobs, homes and their health, according to a report released by the Durham-based Center for Death Penalty Litigation.
The center studied 56 cases from 1989 to 2015 in which the death penalty was threatened as a potential punishment, but the charges were either dropped or the person charged was acquitted at trial. The results suggest that prosecutors sometimes use the threat of the state's most severe penalty when their evidence is the weakest, said Gerda Stein, a spokeswoman for the center. "They believe they have the right person," Stein said. "The problem is, they don't have enough evidence."
The center's report suggests the death penalty is used to bully defendants into accepting plea deals or to extract confessions from witnesses.
North Carolina has not executed a criminal defendant since 2006 as lawsuits over the method of execution and the now-repealed Racial Justice Act have kept the state from moving forward. During that time, there have been high-profile exonerations of death row inmates, including the recently pardoned Leon Brown and his half-brother, Henry McCollum.
Less well known are cases like that of Leslie Lincoln, who was accused of her mother's 2002 murder. She was implicated in part by faulty DNA evidence. Ultimately, she was found not guilty at trial, but she struggled with the aftermath of spending three years in jail and another two years on house arrest. She lost her job, savings and home and suffered from anxiety and depression after the acquittal, according to the report....
The center distributed embargoed copies of its report last week. One of those who reviewed a copy was former Supreme Court Justice Bob Orr, who says he does not oppose the death penalty but is troubled by its uneven application. "I think one of the points the report stresses is the leverage that comes with trying somebody and potentially pursuing the death penalty," Orr said. "It is sometimes the weakest cases, the ones where you don't have the strong evidence, that there seems to be an inclination to try to move forward with the death penalty."
The report doesn't suggest specific fixes to the issue. The center is one of a number of groups that has argued for the elimination of the death penalty altogether.
Orr said that, if the state is going to continue having capital punishment, it needs to do more to ensure a fair system. Both prosecutors and the defense attorneys for indigent defendants need better funding, he said, and he suggested the state ought to somehow centralize the decision on whether the death penalty is pursued, taking it out of the hands of prosecutors who might use the threat of capital punishment as tactical leverage. "That would make for a fairer, more even-handed, dispassionate decision-making process," he said.
The title of this new report is "On Trial for their Lives: The Hidden Costs of Wrongful Capital Prosecutions in North Carolina," and it can be accessed via this link. That link also provides this summary of report's main findings about the 56 North Carolina cases it studied:
• The state spent nearly $2.4 million in defense costs alone to pursue these failed cases capitally. Had the defendants been charged non-capitally, all that money could have been saved. (This conservative figure does not take into account the additional prosecution and incarceration costs in capital cases.)
• Defendants who were wrongfully prosecuted spent an average of two years in jail before they were acquitted by juries or had their charges dismissed by prosecutors.
• The 56 defendants in the study spent a total of 112 years in jail, despite never being convicted of a crime.
• By the time they were cleared of wrongdoing, many defendants lost their homes, jobs, businesses, and savings accounts, and saw personal relationships destroyed. They received no compensation after they were cleared of charges.
• Serious errors or misconduct played a role in many cases. The 56 cases involved instances of witness coercion, hidden evidence, bungled investigations, the use of improper forensic evidence, and highly unreliable witnesses.
Saturday, June 20, 2015
Despite statutory repeal, capital defenders say they need to keep representing Nebraska condemned
Some of the challenging issues facing Nebraska lawyers in the aftermath of the state's legislative repeal of the death penalty are on display in this notable local article headlined "John Lotter's lawyers argue they must stay on case because death penalty issue isn't settled." Here are the details:
Legal arguments over Nebraska’s death penalty repeal have quickly emerged in a federal court case involving one of the state’s death row inmates. Two Kansas City attorneys argued this week that John Lotter’s death sentence was negated by the Nebraska Legislature’s May 27 repeal of capital punishment.
But lawyers Rebecca Woodman and Carol Camp said their client remains under threat of execution while a referendum petition drive attempts to overturn the repeal law and Gov. Pete Ricketts pushes for the lethal injections of Lotter and the nine other men on death row. For that reason, the attorneys asked to remain assigned to Lotter’s case.
“Although Mr. Lotter asserts that the U.S. and Nebraska Constitutions would bar his execution even if the governor and his group were able to repeal the repeal, it is clear the governor will keep attempting to execute him until the courts definitively say he may not. That moment has not yet arrived,” the attorneys stated in a court brief filed in U.S. District Court in Lincoln.
In response, Assistant Nebraska Attorney General James Smith argued that only the Nebraska Board of Pardons has the authority to commute a death sentence under the state’s Constitution. Smith contended lawmakers passed flawed legislation by including intent language that says the repeal should apply to the existing death row inmates. “If the act was an unconstitutional power grab by the Nebraska Legislature, Lotter’s final death sentence remains in effect,” Smith said in his brief....
Lotter, 44, has spent 19 years on death row for a New Year’s Eve 1993 triple homicide near Humboldt. One of the victims was targeted for being transgender, which inspired the film “Boys Don’t Cry.” Lotter lost his previous appeals before state and federal courts. That makes him and Carey Dean Moore — convicted of killing two Omaha cab drivers in 1979 — the top candidates for execution depending on what happens with the repeal law.
As of now, however, Nebraska lacks the means to carry out an execution. Two of the three drugs required in the state’s lethal injection protocol have expired, and federal officials have said they will block the state’s attempt to import at least one of the drugs.
Woodman and Camp, who work with the Death Penalty Litigation Clinic, pointed out that no other state has executed an inmate after repealing the death penalty. To do so “would represent the sort of random, arbitrary, purposeless extinction of human life that the Eighth Amendment forbids,” they said in their brief. The two have asked U.S. District Senior Judge Richard Kopf to allow them to continue to represent Lotter while the status of the death penalty remains uncertain. They indicated Lotter has been pursuing constitutional claims never before litigated that would invalidate his death sentence.
Friday, June 19, 2015
Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
The question in the title of this post is a question I have raised with some folks over at Crime and Consequences, and this new New York Times article reports that it is one that the Governor of South Carolina might now be thinking a lot about. The NYTimes article is headlined "Governor Calls for Charleston Shooting Suspect to Face Death Penalty," and here are excerpts:
South Carolina’s governor on Friday called for the 21 yearold man who is suspected of killing nine people in one of the South’s most historic black churches to face the death penalty.
“This is a state that is hurt by the fact that nine people innocently were killed,” Gov. Nikki R. Haley said, adding that the state “absolutely will want him to have the death penalty.” The governor, who spoke on NBC’s “Today” show, described Wednesday’s shooting rampage as “an absolute hate crime.”
“This is the worst hate that I’ve seen — and that the country has seen — in a long time,” she said. “We will fight this, and we will fight this as hard as we can.”
Her comments came hours before the suspect, Dylann Storm Roof, a white man who returned to Charleston under heavy guard on Thursday night after his arrest in North Carolina, was expected to go before a judge on Friday afternoon for a bond hearing, where he will hear the charges against him. Mr. Roof, who friends said had a recent history of expressing racist opinions, is widely expected to be prosecuted for murder, an offense that can carry the death penalty in this state. Greg Mullen, the chief of police in Charleston, has called the shooting a hate crime, and Attorney General Loretta E. Lynch said the Justice Department was investigating that possibility....
On Thursday, President Obama spoke of the shooting and lamented what he called the easy access to guns, an issue he has tried and failed to address with legislation. “At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries,” Mr. Obama said. He added: “It is in our power to do something about it. I say that recognizing the politics in this town foreclose a lot of the avenues right now. But it would be wrong for us not to acknowledge it. And at some point it’s going to be important for the American people to come to grips with it.”
In the interview on Friday, Ms. Haley, a strong proponent of gun rights, deflected a question about whether the shooting would change her position on the issue. “Anytime there is traumatic situation, people want something to blame. They always want something to go after,” she said. “There is one person to blame here. We are going to focus on that one person,” she added, referring to Mr. Roof....
In downtown Charleston, there was already talk of the longterm anxiety the shooting might stir. “The question that I have is, is it going to happen again?” said Jeremy Dye, a 35-year-old taxi driver and security guard from North Charleston who said he knew three people who were killed. “It’s always going to be fear. People in Charleston are going to have that fear now forever. It’s not going to wash away. They’re going to be worried about, ‘O.K., when’s the next church going to get hit?’ ”
Because I share Gov Haley's view that this is the worst hate crime that the country has seen in a long time, and because I am especially eager to figure out how best to recognize and respect the real fear that this incident produces "forever" for so many folks, I think I would answer the question in the title of this post with the answer BOTH.
For many reasons, I think it would send an especially potent and powerful message of condemnation for both South Carolina and the Federal Government to bring capital charges against Dylann Storm Roof. Though I am not sure at this early stage of the investigation if I would want both SC and the feds moving forward with a capital prosecution all the way through a trial at the same time, I am sure that this is a kind of crime comparable in various ways to the Oklahoma bombing that prompted various dual state and federal prosecutions of the perpetrators. For me, the symbolic value and statement of having capital charges brought against Roof in both state and federal courts is worth seriously considering.
Thursday, June 18, 2015
SCOTUS rules 5-4 for state capital defendant in Brumfield v. Cain, and 5-4 against state capital defendant in Davis v. Ayala
The US Supreme Court has just handed down its opinion in the state capital case of Brumfield v. Cain, No. 13-1433 (S. Ct. June 18, 2015) (available here). Justice Sotomayor wrote the opinion for the Court, which divided 5-4 on the case. The Court's opinion begins this way:
In Atkins v. Virginia, 536 U.S. 304 (2002), this Court recognized that the execution of the intellectually disabled contravenes the Eighth Amendment’s prohibition on cruel and unusual punishment. After Atkins was decided, petitioner, a Louisiana death-row inmate, requested an opportunity to prove he was intellectually disabled in state court. Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court rejected petitioner’s claim. That decision, we hold, was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d)(2). Petitioner was therefore entitled to have his Atkins claim considered on the merits in federal court.
Justice Thomas authored a lengthy dissent which ends with a picture and starts this way:
Federal collateral review of state convictions interrupts the enforcement of state criminal laws and undermines the finality of state-court judgments. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) addresses that interference by constraining the ability of federal courts to grant relief to state prisoners. Today, the Court oversteps those limits in a decision that fails to respect the Louisiana state courts and our precedents. I respectfully dissent.
Just a few minutes later, the US Supreme Court handed down its opinion in the state capital case of Davis v. Ayala, No. 13-1428 (S. Ct. June 18, 2015) (available here). Justice Alito wrote the opinion for the Court, which divided 5-4 on the case. The Court's opinion begins this way:
A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala’s application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit’s decision was based on the procedure used by the trial judge in ruling on Ayala’s objections under Batson v. Kentucky, 476 U.S. 79 (1986), to some of the prosecution’s peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the defense so as not to disclose trial strategy. On direct appeal, the California Supreme Court found that if this procedure violated any federal constitutional right, the error was harmless beyond a reasonable doubt. The Ninth Circuit, however, held that the error was harmful.
The Ninth Circuit’s decision was based on the misapplication of basic rules regarding harmless error. Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d).
Justices Kennedy and Thomas wrote interesting off-topic concurrences, which I will discuss in a separate post. More on point is the chief dissent in Ayala authored by Justice Sotomayor, which starts this way:
At Hector Ayala’s trial, the prosecution exercised its peremptory strikes to dismiss all seven of the potential black and Hispanic jurors. In his federal habeas petition, Ayala challenged the state trial court’s failure to permit his attorneys to participate in hearings regarding the legitimacy of the prosecution’s alleged race-neutral reasons for its strikes. See Batson v. Kentucky, 476 U.S. 79, 97–98 (1986). The Court assumes that defense counsel’s exclusion from these proceedings violated Ayala’s constitutional rights, but concludes that the Ninth Circuit erred in granting habeas relief because there is insufficient reason to believe that counsel could have convinced the trial court to reject the prosecution’s proffered reasons. I respectfully dissent. Given the strength of Ayala’s prima facie case and the comparative juror analysis his attorneys could have developed if given the opportunity to do so, little doubt exists that counsel’s exclusion from Ayala’s Batson hearings substantially influenced the outcome.
Tuesday, June 16, 2015
"The Death Penalty Is Cruel. But So Is Life Without Parole."
The title of this post is the headline of this notable new New Republic commentary by Stephen Lurie. Here are excerpts of a piece that echoes my oft-stated and enduring concern that LWOP punishments should garner a lot more attention from the anti-death penalty crowd:
Prison cells don’t attract many spectators, but executions have always drawn crowds. Paradoxically, the names and identities of death row inmates only come to matter when their execution had been scheduled: from impending death we take a sudden interest in life.
Despite the incongruity, this isn’t all that surprising. Twenty-first century America is still susceptible to the time-honored spectacle of state-sanctioned death, even if much of the attention now scrutinizes, rather than cheers, the practice. Recently, there have been many stories typical of the current fascination with American capital punishment, most notably Ben Crair’s piece in this magazine and Jeffrey Stern’s in The Atlantic. Like other recent examinations of the death penalty, both accounts focus specifically on the act of execution by lethal injection; each covers botched executions and the question of cruel and unusual punishment in the death chamber itself....
For Stern and Crair, as well as many human rights-minded activists and advocates, the death chamber is a potent and useful example of inhumanity. Other, newer abolitionists—like the legislators in Nebraska that voted to abolish the death penalty there last month—focus on the act of execution as well. While the death chamber is itself horrific, abolitionists would be remiss to ignore the more common punishment: the immense cruelty of a prisoner’s long wait for execution. The “death row phenomenon” and associated prison conditions cause significant psychological and physical harm; a so-called “death before dying” is both internationally condemned and domestically pervasive. If the end to capital punishment in the U.S. is based on concern for human beings — whether in a religious or moral sense — the reform movement must be concerned with the prison conditions left when death is not on the table.
Executions of any kind are exceedingly rare, so much so that death row itself appears to be the real punishment for the vast majority of inmates. There are just over 3,000 people awaiting execution in United States prisons. In 2013, the latest year for which the Bureau of Justice Statistics has data, there were 39 executions. That is just more than the 31 inmates who died before their scheduled executions; it is just less than the 44 death row convictions or sentences overturned that year....
Because solitary confinement is the de facto housing for American death row convicts, and because excruciating delays are par for the course, international observers have considered U.S. capital punishment inhumane enough to delegitimize its practice entirely. In his report to the UN General Assembly in 2012, Juan Méndez (the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or Punishment) suggested that the realities of imperfect executions and death row conditions almost unavoidably run afoul of the international prohibition against human mistreatment. “Solitary confinement, in combination with the foreknowledge of death and the uncertainty of whether or when an execution is to take place, contributes to the risk of serious and irreparable mental and physical harm and suffering to the inmate,” Méndez writes. “Solitary confinement used on death row is by definition prolonged and indefinite and thus constitutes cruel, inhuman or degrading treatment or punishment or even torture.”...
Nearly every prisoner faces an abrogation of his or her 8th Amendment protections against cruel and unusual punishment; only a small few face the added cruelty and indignity of a botched execution. What about the pain of a cramped concrete cell, of shackling and restraints, attempts at self-harm, inedible food, existential fear, depression, and deprivation of any human contact? If there is concern is over fair treatment of human beings sentenced to death, it’s unwise, from a strategic standpoint, to continue ignoring the majority of their lives. Campaigns based on claims of cruel and unusual treatment would not rely on staying the execution of a single individual, but rest on the indefinite torture of thousands. That would be powerful.
Moreover, the instances of death penalty abolition that do not consider the background conditions for capital punishment invariably leave immense cruelty in its place. Nebraska’s legislation is typical in this regard: All death sentences become sentences of life imprisonment without the possibility of parole (LWOP). The de facto alternative for states that abolish the death penalty, LWOP actually retains many of the worst conditions of confinement described above, as well as still effectively sentencing the prisoner to death. It is in almost every way a death row, and as such is also an internationally condemned practice.
It’s for this reason that some, like Andrew Dilts, an assistant professor of political theory at Loyola Marymount University, refer to current forms of death penalty abolition as “death penalty replacement,” the same result but with the added effect that prisoners lose even more legal protections. As Dilts writes in the new volume Death and Other Penalties: Philosophy in a Time of Mass Incarceration, these alternative sentences appease the “almost fetishistic levels” of concern over execution while it “effectively deflects attention away from the moment of death, even though death is necessarily a part of the sentence.” In addition, whereas “the Court requires strict review of offender qualifications, strict procedural guidelines, extended appeals processes, and additional standards of heightened scrutiny…the same procedural and substantive protections are simply not applied” to life sentences. The result, ultimately, is simply a “dramatic reduction of appellate rights” for inmates that are still condemned to die; it’s a slower death with even less of a chance for redemption. While the conversion of these sentences might lessen some of the specific psychological traumas related to the death row phenomenon, it does not address the expected use of solitary confinement or other inhumane treatment. There is nothing in an execution-focused narrative that would lead to the transformation of these conditions: It might, rather, cement them as appropriate penal policy.
Monday, June 15, 2015
Ron Paul at Townhall: "Death Penalty is Big Government at Its Worst"
Former Texas congressman Ron Paul has this notable new anti-death penalty commentary now up at Townhall. Here are excerpts:
Nebraska's legislature recently made headlines when it ended the state's death penalty. Many found it odd that a conservatives-dominated legislature would support ending capital punishment, since conservative politicians have traditionally supported the death penalty. However, an increasing number of conservatives are realizing that the death penalty is inconsistent with both fiscal and social conservatism. These conservatives are joining with libertarians and liberals in a growing anti-death penalty coalition.
It is hard to find a more wasteful and inefficient government program than the death penalty. New Hampshire recently spent over $4 million dollars prosecuting just two death penalty cases, while Jasper County in Texas raised property taxes by seven percent in order to pay for one death penalty case! A Duke University study found that replacing North Carolina's death penalty would save taxpayers approximately $22 million dollars in just two years....
Despite all the time and money spent to ensure that no one is wrongly executed, the system is hardly foolproof. Since 1973, one out of every ten individuals sentenced to death has been released from death row because of evidence discovered after conviction. The increased use of DNA evidence has made it easier to clear the innocent and identify the guilty. However, DNA evidence is not a 100 percent guarantee of an accurate verdict. DNA evidence is often mishandled or even falsified. Furthermore, DNA evidence is available in only five to 10 percent of criminal cases.
It is not surprising that the government wastes so much time and money on such a flawed system. After all, corruption, waste, and incompetence are common features of government programs ranging from Obamacare to the TSA to public schools to the post office. Given the long history of government failures, why should anyone, especially conservatives who claim to be the biggest skeptics of government, think it is a good idea to entrust government with the power over life and death?...
As strong as the practical arguments against the death penalty are, the moral case is much stronger. Since it is impossible to develop an error-free death penalty system, those who support the death penalty are embracing the idea that the government should be able to execute innocent people for the "greater good." The idea that the government should be able to force individuals to sacrifice their right to life for imaginary gains in personal safety is even more dangerous to liberty than the idea that the government should be able to force individuals to sacrifice their property rights for imaginary gains in economic security.
Opposition to allowing the government to take life is also part of a consistent pro-life position. Thus, those of any ideology who oppose abortion or preemptive war should also oppose the death penalty. Until the death penalty is abolished, we will have neither a free nor a moral society.
I cannot help but wonder if Ron Paul's son, Senator and GOP Prez-candidate Rand Paul, shares these (conservative?) perspectives on the death penalty and might even espouse some anti-death-penalty sentiments on the campaign trail in the future.
Sunday, June 14, 2015
"Will Nebraska’s Death Penalty Come Back?"
The title of this post is the headline of this new New York Times editorial. The substance of the editorial makes clear that the NYTimes' answer to the question is "We sure hope not!". Here are excerpts:
In a sensible, humane move last month, Nebraska lawmakers abolished the state’s death penalty by a 30to19 vote that crossed party lines and overrode a veto by Gov. Pete Ricketts. These lawmakers aren’t renegades; an April poll by the American Civil Liberties Union of Nebraska found that 58 percent of Nebraskans supported alternatives to the death penalty, like life without parole.
Now comes the counterattack. A new group called Nebraskans for the Death Penalty has started a petition drive, supported by Mr. Ricketts, to put the issue directly before voters in 2016. Last week, they got the support of the Nebraska Sheriffs’ Association, which claimed, as Mr. Ricketts has, that public safety depends on the state’s ability to kill certain inmates.
To put the proposed referendum on the ballot, death penalty supporters have about three months to get signatures from 5 percent of registered voters, or about 58,000 Nebraskans. If they can get 10 percent, state law will put the ban on hold until the voters have a chance to weigh in. Whether the effort succeeds will depend in large part on how much money death penalty supporters can muster; paying people to go door to door asking tens of thousands of voters for their signatures doesn’t come cheap. In addition to supporting the referendum, Mr. Ricketts is insisting that he still has the legal authority to execute the 10 people remaining on Nebraska’s death row, on the grounds that the Legislature cannot alter an existing sentence. Lawmakers, however, say they have eliminated all executions. Whatever the courts may decide on this question, it remains unclear whether the state even has the means to carry out these killings....
[T]he votes of the Nebraska Legislature show that when lawmakers across the political spectrum can have an open, honest and informed debate on the issue, capital punishment is quickly exposed for the immoral, ineffective, arbitrary and costly practice that it is.
Prior related posts:
- Nebraska legislature votes by large margin to repeal state's death penalty
- Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State
- Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
- Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
Friday, June 12, 2015
Canvassing the "most likely outcomes" of the SCOTUS case on death penalty drugs
Though I think we are still a few weeks away from getting a ruling (and multiple?) opinions in the SCOTUS case (Glossip v. Gross) considering Oklahoma's lethal injection history and plans, it is certainly not too early to begin speculating about what that Court might end up doing in the case. Helpfully, this extended new Vox article, headlined "The most likely outcomes of the Supreme Court's death penalty ruling," provides a great overview of what we might expect from the ruling. Here are excerpts, along with six possibilities for Glossip's outcome:
The Supreme Court is considering a legal challenge to Oklahoma's use of lethal injection this month — but chances are the effects of a ruling will be quite limited.
The case follows several botched executions in the past couple of years, particularly that of Clayton Lockett in April 2014. Lockett's execution, in which experimental drugs were used because of a nationwide shortage of lethal injection drugs, took an excruciating 43 minutes. It led Oklahoma inmates to file a lawsuit challenging the state's lethal injection protocol, eventually putting all executions in the state on hold once the Supreme Court accepted the challenge.
Specifically, the inmates are contesting the state's use of midazolam, a sedative used as part of a three-drug protocol to execute death row inmates. Midazolam is supposed to put someone to sleep, allowing the painless application of other drugs that actually kill the inmate. But Lockett appeared to groan and violently struggle during his execution, suggesting the first drug wasn't adequate — and may violate constitutional protections against cruel and unusual punishment.
Several death penalty experts and court watchers told Vox what they think the most likely outcomes of a Supreme Court ruling are. They largely rejected the possibility that the Court would make a sweeping decision against lethal injections or the death penalty in general, since most justices consider the death penalty constitutional. They instead outlined six possibilities — most of which would have a very narrow effect, and would likely allow lethal injections to continue in the US. Of course, it's entirely possible that the Court, which tends to be full of surprises, takes another approach, but these are the outcomes that seem most likely.
1) Oklahoma messed up, but midazolam isn't necessarily a problem....
2) Midazolam is constitutional....
3) Midazolam is unconstitutional....
4) Midazolam is unconstitutional as part of a three-drug protocol....
5) Inmates have not proven midazolam leads to cruel and unusual punishment....
6) Send the case back to a lower court
Thursday, June 11, 2015
Nebraska sheriffs vote unanimously to support effort to resuscitate state's death penalty
As reported in this local article, headlined "Nebraska sheriffs group backs petition efforts to reinstate death penalty," a notable group of law enforcement officials have made a notable statement about death penalty reforms in Nebraska. Here are the details:
The Nebraska Sheriffs’ Association has voted unanimously to back a petition aimed at restoring the death penalty. The group met on Wednesday morning in Grand Island at the Nebraska Law Enforcement Training Center.
“It’s important because of the public safety issue,” said Grant County Sheriff Shawn Hebbert, who is president of the sheriffs’ association. “The death penalty works as a deterrent to protect our guards and our people who work in corrections, as well as our deputies,” he said.
More than 30 sheriffs from across Nebraska attended the association meeting on Wednesday. They were strongly against the Legislature’s 32-15 vote on LB268, which repealed the death penalty. Gov. Pete Ricketts vetoed LB268, but the Legislature countered with a 30-19 vote to override the veto.
That action is contrary to the beliefs of the majority of Nebraskans, the sheriffs said. “It’s been unanimous across the state ... that we need to keep the death penalty, and I think that shows the strength of our organization and the backing and support we have in the organization that we have to protect the public,” Hebbert said on Wednesday.
Not only did the association members support backing the petition drive led by Nebraskans for the Death Penalty, but Hebbert said many of the sheriffs in attendance will be carrying the petitions in their home counties. Pierce County Sheriff Rick Eberhardt said a lot of people outside the state lobbied to “impose their will on the state of Nebraska.” The petition is Nebraskans’ opportunity to take that back.
“What’s really sad is that most people are working, taking care of their kids, and they don’t want to have to pay $50,000 a year per head for ... guys on death row for 30 to 40 years,” he said. “That’s a lot of money, a lot of college educations, a lot of trips to the hospital, pay off a mortgage.” The death penalty repeal lets criminals sit around watching TV, getting “three hots and a cot,” Eberhardt said. “Guys in Afghanistan don’t have it that good.
“They get free legal, free medical and free room and board for the rest of their lives,” he said. “Is it really free? Absolutely not — I’m paying for it. My kids are going to be paying for it. My grandkids are going to be paying for those guys.”...
The petition drive would need about 58,000 valid signatures to place the death penalty on the November 2016 general election ballot. It needs about 115,000 signatures by August to keep the Legislature’s repeal of the death penalty from going into effect.
“The initial goal is to get enough signatures to keep the law, the repeal, from going into effect, and the secondary goal is to turn it over to a vote of the people,” Hebbert said.
Although not all 93 Nebraska counties were represented at the sheriffs’ association meeting, Hebbert said the vote itself by the association’s executive board was representative. “As president of the sheriffs’ association, I’ve been in contact with most of the sheriffs across the state, and I haven’t heard anybody who is not for this petition drive and turning this over to a vote of the people,” Hebbert said. “I have not talked to any sheriff who is not for the death penalty.”
In part because I am a very big fan of direct democracy and in part because I think political campaigns focused on the death penalty often do a pretty good job of informing the citizenry about all the complicated and controversial realities that surround death penalty administration, I am strongly rooting for the folks in Nebraska troubled by the recent legislative repeal of capital punishment to succeed in bringing this issue before the voters. Indeed, the mere fact that a serious effort is being made to get this issue before the voters has already helped make Nebraska a much more interesting and important death penalty state than it has ever been in the past, and these Cornhusker stories should be especially interesting to watch for both pro- and anti-death penalty advocates in the months ahead.
Recent related posts:
- Nebraska legislature votes by large margin to repeal state's death penalty
- Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State
- Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
- Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
Tuesday, June 09, 2015
"Support for the Death Penalty May Be Linked to Belief in Pure Evil"
The title of this post is the headline of this interesting new Smithsonian article, and here are excerpts:
The reasons behind someone's sense of a just punishment are varied and murky, with a swell of psychological research pointing toward responses to race, sexuality and other hot-button issues. But according to recent research, another fundamental factor may be at play: whether someone believes in the existence of pure evil. A new study by psychologists Russell Webster and Donald Saucier confirms a rising correlation between an individual’s belief in pure evil and their support for harsher punishments, no matter the lifestyle or outward characteristics of the confessed criminal.
“At the extreme levels of criminal perpetration, people who believe in pure evil might not be looking for a situational factor that may have been at play there,” says Saucier, associate professor of psychological sciences at Kansas State University. “They’ll just say, ‘You know what? That person did something horrible, which makes that person evil. They are a demon, and we need to get rid of them.’”
Previous studies showed that stereotypically evil traits increase a perpetrator’s demonization in the eyes of their peers. Recently published in the journal Psychology and Individual Differences, the latest work also assesses specific recommendations for punishing a criminal, “given that the public often has a crucial role in recommending punishment via conventional criminal justice systems,” write authors Webster and Saucier in their paper.
“We were interested in how people thinking about the nature of humanity would impact how they treat them, to boil it down to a nutshell,” Saucier says. “So if you thought that there was a possibility for pure good in other people, what would that look like? And if there was a possibility for pure evil in people, what would that look like?”
The study’s 212 participants — all of them general psychology students at Kansas State University — were first asked to complete a survey determining the extent to which, on a continuum, they believed pure evil already existed in the world. The authors differentiated “pure evil” from behavioral scientists’ typical definition of evil, which centers on unprovoked and intentional harm, Webster says, by adding an emphasis on the sadistic motivations of the wrongdoer. The influence of religion on belief in pure evil wasn’t explored in this study.
Participants were then asked to read a supposedly real newspaper article printed in the Kansas City Star detailing a local murder. In one version of the article, the criminal was assigned stereotypically evil traits, such as an interest in the occult, donning all-black attire and taunting children. In the other version, the criminal was assigned milder traits, like an interest in camping and a focus on family life. In both versions, the criminal confessed to the murder.
The authors assessed the participants’ reaction to the crime using a common tool for measuring attitudes called the Likert-type scale, focusing specifically on how much they demonized the wrongdoer and their feelings of retribution. Finally, the authors questioned participants on their support for jail time, eligibility for parole and the death penalty. To control for the variability in participants’ knowledge of the criminal justice system, all pertinent terms were defined.
“What we basically found is that as they believe more in pure evil, they’re more likely to support things like the death penalty, but it went through mechanisms like thinking the person was a demon and feeling the need to have retribution on them,” Saucier says. “So we were kind of looking at what connects the belief to the outcome.”
But while participants generally recommended tougher sentences for the stereotypically evil perpetrator, greater belief in pure evil alone predicted whether someone demonized the criminal and called for harsher punishment, regardless of the murderer's character traits. “If they believed in pure evil, it didn't matter the characteristics. They were more likely to support the death penalty or life in prison," says Saucier. "The belief in pure evil overrode our stereotypically evil person."
Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dsyfunctional death penalty
This local article, headlined "House panel voices disapproval of Wolf's death penalty stance," reports that some Pennsylania legislators are finally motivated to do something about the state's dysfunctional capital punishment system. Unfortunately, they only seem motivated so far to make an inconsequential political statement rather than actual try to fix the state's broken system. Here are the basics:
The House Judiciary Committee overwhelmingly approved a resolution that is intended to send a message to Gov. Tom Wolf that it strongly disapproves of the reprieves he has granted that delayed the execution of two convicted murderers. The resolution, approved by a bi-partisan 19-8 vote on Monday, now goes to the full House for consideration, which could occur as soon as Wednesday.
Wolf in February signed an executive order imposing a moratorium on carrying out the death penalty until he has had time to study a Senate-commissioned Pennsylvania Task Force and Advisory Committee on Capital Punishment and its recommendations are satisfactorily addressed. That study is due out later this year.
The executive order so far has resulted in reprieves being granted to Terrence Williams, who was convicted of two murders as a teen-ager in 1984, and Hubert Michael, who was convicted of killing 16-year-old Trista Eng in 1993. Both death row inmates have exhausted their appeals.
The resolution, if approved by the House, would do nothing to change those reprieves, but rather states that the House believes those actions by Wolf are unconstitutional.
"This is about whether or not the laws of Pennsylvania will be carried out. The governor has said he wants to study capital punishment. It does not give him the right to ignore existing laws," said Rep. Mike Vereb, R-Montgomery, a death penalty proponent who sponsored the resolution. Following the House Judiciary Committee's approval of a resolution condemning Gov. Tom Wolf's temporary moratorium on executions, Vereb explains he and the governor are of different minds on the subject of the death penalty. Vereb said justice delayed is justice denied to victims....
Rep. Brandon Neuman, D-Washington, ... said Vereb's concerns would be more appropriately expressed in an amicus brief to the pending lawsuit filed by Philadelphia District Attorney Seth Williams that is before the state Supreme Court over this issue. "This is a matter that I believe needs to be handled and is being handled in the judiciary branch," Neuman said....
Committee Chairman Ron Marsico, R-Lower Paxton Twp., read a letter from Eng's family sent to the governor last week. In it, the family of the York County murder victim stated, "You stand in the way of thousands of victims who seek justice." Marsico added, "We owe it to the victims to pass this resolution."
I generally agree with the basic sentiment that justice delayed is justice denied, but that very sentiment makes me wish that the Pennsylvania legislature would do more to addresss death penalty administration than just pass resolutions. As noted here, even before Gov Wolf's moratorium, the Keystone State had not carried out an execution in more than 15 years and "according to Bureau of Justice Statistics, Pennsylvania is less likely to execute a death row inmate than any other state that has carried out any executions."
In light of this ugly legal history, nearly all of which pre-dates Gov Wolf's election, I think the Pennslyvania House owes a lot more to victims than just passing a seemingly inconsequential resolution. Any and all serious proponents of the death penalty in the Pennsylvania legislature should feel duty-bound to conduct the hard work involved in fixing and making operational a broken capital system. But, because politic rhetoric so often matters more than policy fixes, I fear justice delayed and justice denied will remain the Keystone capital characteristic.
Monday, June 08, 2015
"Does failed execution attempt mean Ohio prisoner can avoid death penalty?"
The question in the title of this post is both the headline of this Columbus Dispatch article and the notable novel constitutional question facing the Ohio Supreme Court this week. Here is the backstory:
Ohio’s unusual pending death-penalty case, involving an inmate the state already tried but failed to execute, will be argued on Tuesday before the Ohio Supreme Court. Attorneys for Romell Broom contend that the state would be guilty of unconstitutional double jeopardy if it tries to execute him a second time. They said in a court filing that the state’s contention that their client didn’t suffer physically during a botched execution on Sept. 15, 2009, “ignores the unnecessary psychological suffering Broom endured during two hours of lawless chaos."
Representatives for Attorney General Mike DeWine counter that what happened on Sept. 15, 2009, wasn’t a failed execution but a breakdown in the lethal-injection process, and a new execution should proceed. They argue that the U.S. Constitution doesn’t promise that executions will be pain-free and that what happened to Broom wasn’t unconstitutional “cruel and usual punishment.”
The attempted execution of Broom, 59, on Sept. 15, 2009, was called off by Gov. Ted Strickland after a prison medical team spent two tense hours unsuccessfully trying to attach IV lines for lethal injection. The execution was rescheduled but never took place because Broom’s public defender attorneys filed numerous appeals.
Broom was convicted and sentenced to death for abducting, raping and stabbing to death 14-year-old Tryna Middleton of Cleveland as she walked home from a football game on Sept. 21, 1984. All evidence in the case, including DNA test results, showed Broom was the girl’s killer.
Thus, the failed execution, and not Broom’s guilt or innocence, will be the focus of oral arguments at 9 a.m. on Tuesday before the Ohio Supreme Court. Broom’s case is unique in Ohio’s modern capital-punishment history, being one of only two known cases nationally in which an execution was halted after it began. The other one was Willie Francis, a 17-year-old killer who died on the second try in Louisiana’s electric chair on May 9, 1947, having survived a botched execution a year earlier.
Friday, June 05, 2015
Is Missouri becoming the "new Texas" when it comes to death penalty administration?
The question in the title of this post is prompted by two notable new stories showing some notable new details about how the Show Me state (1) has recently become a new national leader in actually carrying out death sentences, and (2) now seems well positioned to complete more executions in the near future than any other state. This lengthy Mashall Project piece focused on capital defense in Mizzou provides this background:
[Jennifer Herdon's] condemned clients were convicted of monstrous crimes, but at least a few presented powerful issues for appeal. Among them were a man diagnosed as schizophrenic who hallucinated clouds of flies and insisted on never speaking aloud the number “between 31 and 33”; a man so intellectually impaired that, as a child, he couldn’t understand hide-and-seek and who, at age 16, functioned like someone age 4-to-7; and a man whose claim of innocence was sufficiently compelling to convince a journalism class to dive into the case.
In the past two years, while much of the country has retreated from the death penalty, Missouri has gone the opposite direction. It has accelerated executions – last year, tying Texas for most in the country, with 10 – to such an extent that the “capital defense bar is in crisis,” according to a letter written to the Missouri Supreme Court by four members of an American Bar Association death-penalty assessment team.
Those four members – two law professors, a retired state appellate judge, and the chairman of the Missouri State Public Defender Commission – wrote in March that a mere “handful” of attorneys have represented most of the state’s executed inmates, despite the “notoriously lengthy and complex” nature of capital appellate work, coupled with “the emotional toll of losing client after client.” The team recommended that for attorneys handling capital appeals to be able to do their jobs adequately, the execution dates for clients should be staggered by at least six months.
Herndon, starting in November 2013, had five clients executed in just 15 months. In all, she’s had seven clients executed since 2003. And she has another execution scheduled next week. Herndon may be the most extreme example of how Missouri’s quickened pace of executions is swamping the defense bar, but she is not alone. Last year, six attorneys in addition to Herndon had multiple clients executed.
That list would have been longer if not for a stay granted by the U.S. Supreme Court before Mark Christeson’s scheduled execution in October. Christeson’s two attorneys, who had represented another inmate executed earlier in the year, missed a crucial filing deadline, not even meeting with their client until six weeks after it had passed. “Cases, including this one, are falling through the cracks of the system,” more than a dozen former state and federal judges wrote in a brief.
Paul Litton, a University of Missouri law professor and one of the four signatories on the letter from the ABA’s death-penalty assessment team, says: “With the executions happening month after month after month, and with so few attorneys handling these cases, the workload is just overwhelming.”
On Tuesday, Herndon and her co-counsel filed a request for a stay of execution for Richard Strong, scheduled to be executed June 9. The motion’s basis was their workloads, in particular Herndon’s. The motion says that when Herndon’s last client was executed in February, she put in more than 225 hours, “knowing that much more should have been done …” For the pending execution, she has 20 banker’s boxes of materials to review. Herndon “is struggling to fulfill her duties,” the motion says.
“Mr. Strong is at least entitled to a ‘fair fight.’ Such is impossible when defense counsel come in bloody and bruised, while the government has a seemingly endless supply of fresh reinforcements …,” the motion says.
Meanwhile, as now highlighted by this notable new Buzzfeed article (from which I got the graphic here), it would appear that Missouri has figured out some way to get all the execution drugs they could possibly need even as other states struggle mightily in this arena. The Buzzfied piece carries this full headline: "Missouri Is Mysteriously Building A Massive Stockpile Of Execution Drugs: Missouri now has enough drugs for 16 lethal injections. But how? The drugs often used in executions generally have a short expiration date." Here is an excerpt:
State officials changed drug suppliers in February 2014, after their previous supplier, the Apothecary Shoppe, was sued for, among other things, selling execution drugs when it wasn’t licensed to do so in Missouri. Until February 2014, Missouri’s drug stockpile hovered around zero, presumably because the compounded drugs expired so quickly. Since changing drug suppliers, however, the state’s drug supply has exploded, according to records obtained by BuzzFeed News.
With FDA-approved suppliers either discontinuing the manufacture of pentobarbital or enacting stringent guidelines to prevent states from getting ahold of their drugs, it led some capital attorneys to believe the state is resorting to veterinary pentobarbital — something that would be much easier to find, but illegal to use on humans.
When two attorneys, Cheryl Pilate and Lindsay Runnels, approached the Department of Corrections, officials refused to say whether the drug is veterinary. “The response has been very evasive,” Pilate said. “We made several requests about the use of veterinary drugs, and instead of getting the response of “Of course we would never use a veterinary drugs,” they [were] refusing to say.”
When BuzzFeed News asked the state’s corrections department whether the state is using veterinary drugs in executions, spokesperson David Owen said, “No.” Owen would not answer any questions about how the state could be holding onto drugs for so long, given the short shelf life of compounded drugs. Gov. Jay Nixon’s Office would not answer questions, either, and a spokesperson with Attorney General Chris Koster’s office declined to comment.
“It’s the ease with which they’re getting it,” Pilate said. “Other states are having serious problems getting ahold of their drugs. Why not Missouri?”
Thursday, June 04, 2015
Latest polling data shows diminished death penalty support
This new ABC News article, headlined "New Low in Preference for the Death Penalty," reports on the lastest interesting poll data concerning death penalty views. Here are the details:
A majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls. Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty - the fewest in polls dating back 15 years....
Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That's down sharply from 80 percent in 1994. Clearly there's remaining ambivalence; when offered the option of life imprisonment with no chance of parole, 29 percent of death penalty supporters prefer the alternative....
Support for the death penalty is higher in the 32 states that have it, 64 percent, vs. 54 percent elsewhere. In a wider gap, people in death-penalty states divide about evenly in their preference for capital punishment vs. life without parole, while in other states life imprisonment is preferred by a 20-point margin....
Views on capital punishment range among groups. Fifty-six percent of women support the death penalty, rising to 66 percent of men. And women prefer life in prison to the death penalty by 57-37 percent, while men are evenly divided.
There's also a vast gap by race; whites are more likely than nonwhites to support the death penalty, and to prefer it over life in prison, by 23- and 22-point margins. The gaps are widest comparing whites to blacks, a group that's generally skeptical of the criminal justice system. Their support for the death penalty is lower than that of any other group.
Among other groups, support for the death penalty peaks among evangelical white Protestants and Republicans, at eight in 10 each, dropping to 47 percent among Democrats. It's 20 points higher among conservatives than liberals. Preference for capital punishment over life in prison follows similar patterns, peaking at 65 percent among evangelical white Protestants (vs. 36 percent of their non-evangelical counterparts). It's 30 points higher among Republicans than Democrats, and 25 points higher among conservatives than liberals.
Tuesday, June 02, 2015
California agrees to model new lethal injection protocol on whatever SCOTUS says is good enough
As reported in this local piece, headlined "California death penalty: state agrees to propose execution method," a state with a remarkable inability (and disinclination?) to get its machinery of death operational has now agreed that the Supreme Court's latest review of lethal injection will provide a script for its next efforts. Here are the details:
California's death penalty system, dormant for nine years, might soon move slowly toward resuming executions. As part of a court settlement reached on Tuesday, the state's corrections department agreed to unveil a new execution method by the fall that will be tied to the outcome of a U.S. Supreme Court ruling expected sometime this month in a challenge to Oklahoma's lethal injection protocol.
While California is still far from executing one of the 750 condemned killers on death row, the development marks movement on the issue for the first time in years. There are at least 17 inmates on death row who have exhausted their legal appeals and would be eligible for execution dates.
State prison officials resolved a lawsuit filed last year by the families of victims of condemned killers who argued the state has a legal obligation to implement an execution method. A Sacramento judge earlier this year found the state should be required to move forward in a case brought by two families, including former UCLA and NFL star Kermit Alexander, whose mother, sister and nephews were murdered 31 years ago by a man now on death row. Death penalty supporters have accused state leaders such as Gov. Jerry Brown and Attorney General Kamala Harris of dragging their feet in getting executions back on track. The state has not had an execution since 2006 as a result of legal challenges to its lethal injection method.
Several years ago, the courts invalidated one state effort to revise its three-drug execution method, prompting California to explore switching to a single lethal drug as other states have done. But the state had not made progress until Tuesday's settlement.
The Supreme Court is expected to clarify the legality of lethal injection methods in the case out of Oklahoma, which still has a three-drug procedure. Deborah Hoffman, spokeswoman for the California corrections department, confirmed that the prison system, which has been developing its regulations, will submit its new execution method within 120 days of the Supreme Court's ruling.
Lawyers for the families said it "made sense" for California to await that ruling. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he expects the state to adopt a single drug method using a sedative he maintains can be obtained. However, states around the country, including California, have encountered problems securing supplies of execution drugs because drug manufacturers have refused to sell the drugs to prisons.
Monday, June 01, 2015
Seriously exploring — finally! — execution alternatives to lethal injection
The Supreme Court is expected to declare any day whether the injection of a drug called Midazolam violates the Eighth-Amendment protection against cruel and unusual punishment. Given the difficulty of procuring other suitable drugs, states devoted to the death penalty are lining up alternative ways to efficiently end human life. In Oklahoma (48 prisoners on death row), the answer seems to be nitrogen gas, a method favored by some proponents of assisted suicide but not something that has been employed in an execution chamber. Utah (nine on death row) proposes to revive the firing squad. Tennessee (67 on death row) is preparing to fire up its electric chair. Decisions, decisions. The Marshall Project took a closer look at the thinking that goes into the logistics of execution....
The [Oklahoma] bill’s sponsor, Rep. Mike Christian, told a German online newspaper that nitrogen inhalation “is the most humane way to die. You just sit there and a few minutes later, you’re dead.” Whatever the method, he added, “We will put these beasts to death.” Christian first conceived of using nitrogen for execution after watching a BBC documentary called “How to Kill a Human Being,” in which a retired member of the British parliament sampled various execution protocols (obviously stopping short of death) before deciding that nitrogen was “a perfect killing device.”...
It’s been a year and a week since Tennessee became the first state in the nation to require the use of the electric chair for executions should the primary means of capital punishment, lethal injection, become unavailable for one reason or another. And it has been about eight months since that new law was challenged in court by ten death row inmates who argue that the mandated use of “Old Sparky” would constitute cruel and unusual punishment. Going from lethal drugs back to electrical currents as a means of killing, the condemned contend, is legally inconsistent with the “evolving standards of decency” that the U.S. Supreme Court employs in Eighth Amendment cases....
In March, Utah governor Gary Herbert signed a law to reinstate the firing squad as a legal method of execution in his state. Utah had abandoned the method in 2004 only to be swayed back by a shortage of lethal injection drugs. Herbert called the punishment “a little bit gruesome,” but the practical concerns were overwhelming; even if the state can find lethal injection drugs, defending them in court would be expensive, and Utah already has in place a formal protocol for death by firing squad. It involves a blindfold, sandbags, four loaded rifles, and one with a non-lethal wax bullet so executioners will never know who fired the fatal shots.
Lawmakers have publicly considered the firing squad as a backup plan for lethal injections in Arkansas, Missouri, South Carolina, and Wyoming. Idaho maintained the method as an option until 2009. It is on the books in Oklahoma, as a fourth option after lethal injection, nitrogen gas, and the electric chair. The firing squad has consistently been found to be more reliable than many of the alternatives. Botches — in the form of bullets that miss the heart — have been rare. In 1938, a Utah murderer named John Deering allowed doctors to hook him up to an electrocardiogram as he faced the guns. His heart stopped 15.6 seconds after the bullets hit. Lethal injection, at its fastest, takes minutes.
Long-time readers know that I have been talking for a long time about the need for states (and Congress) to get serious about alternatives to lethal injection for carrying out death sentences. But now, nearly a decade after lethal injection protocols were starting to be subject to serious legal scrutiny, it has taken a drug shortage and still more SCOTUS litigation to get serious consideration of execution alternatives. But I fear, based in part on the oral argument in Glossip, that the latest round of Supreme Court litigation is not likely to require many more states to get much more serious about finding other viable methods of state killing.
Sunday, May 31, 2015
Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
This Fox News piece, headlined "Nebraska AG fighting to block death penalty repeal from reversing death row sentences," highlights the fascinating fight now developing in the Cornhusker state following its formal repeal of its death penalty statutes:
Nebraska's top lawyer is headed to court to prevent the state's sweeping death penalty repeal from reversing sentences of those already on death row -- in the latest flare-up between the legislature and Republican Gov. Pete Ricketts' administration.
The legislature delivered a blow to the governor Wednesday when it voted 30-19 to override Ricketts' veto of legislation that would put an end to capital punishment in Nebraska. With the power play by the state's Republican-dominated legislature, Nebraska becomes the first conservative state in decades to end the death penalty.
But Ricketts' administration is not giving up the fight. While not contesting the ban's impact on future prosecutions, the administration is battling to prevent it from undoing prior death penalty sentences for the 10 inmates currently on death row.
In a written statement, state Attorney General Doug Peterson challenged part of the bill that says the "intent" of the legislature is that any death penalty "imposed but not carried out prior to the effective date of this act" be changed to "life imprisonment." Peterson said: "We believe this stated intent is unconstitutional."
He said that Nebraska's Board of Pardons has exclusive power to change final sentences imposed by courts. "Thus, the Attorney General intends to seek a court decision, at the appropriate time, to definitively resolve the issue of the State's authority to carry out the death sentences previously ordered by Nebraska's courts for the 10 inmates now on death row."
A Ricketts spokesman told FoxNews.com Friday that the governor agrees with the AG's assessment and will pursue the court's legal opinion on the matter as soon as possible....
"My words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families," Ricketts said in a statement after Wednesday's vote, which broke across party lines and captured the votes necessary to override Ricketts' veto. The legislature had passed the anti-death penalty bill last week, 32-15.
Immediately after the vote, Republican Sen. Beau McCoy, who was against the ban, announced the formation of Nebraskans for Justice to start a petition drive to get reinstatement on the ballot in November.
But this was the third time the legislature voted to repeal capital punishment, which Republicans against it said no longer held to the values of their party, be it morally or fiscally. "The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years," said Sen. Colby Coash, a Republican and death penalty opponent. "This program is broken. How many years will people stand up and say we need this?"
Other senators said they philosophically support the death penalty, but were convinced legal obstacles would prevent the state from carrying out another execution ever again. The last one in Nebraska was a 1997 electrocution. The state lost its practical ability to execute inmates in December 2013, when one of the three lethal injection drugs required by state law expired. Opponents charged that it was a poorly managed and inefficient government program.
Thursday, May 28, 2015
Time magazine devotes cover story to "Why the End of Capital Punishment Is Near"
I am intrigued to see that the new issue of Time magazine has a cover picture of an empty electric chair and this text: "The Last Execution: Why the Era of Capital Punishment is ending." Here are excerpts from the magazine's lead article:
Despite extraordinary efforts by the courts and enormous expense to taxpayers, the modern death penalty remains slow, costly and uncertain. For the overwhelming majority of condemned prisoners, the final step—that last short march with the strap-down team—will never be taken. The relative few who are killed continue to be selected by a mostly random cull. Tsarnaev aside, the tide is turning on capital punishment in the U.S., as previously supportive judges, lawmakers and politicians come out against it.
Change is not coming quickly or easily. Americans have stuck with grim determination to the idea of the ultimate penalty even as other Western democracies have turned against it. On this issue, our peer group is not Britain and France; it’s Iran and China. Most U.S. states authorize the death penalty, although few of them actually use it. We value tolerance and diversity — but certain outrages we will not put up with. Maybe it’s the teenage terrorist who plants a bomb near an 8-year-old boy. Maybe it’s a failed neuroscientist who turns a Colorado movie theater into an abattoir. We like to think we know them when we see them. Half a century of inconclusive legal wrangling over the process for choosing the worst of the worst says otherwise....
Even in Texas, which leads the nation in executions since 1976 (when the U.S. Supreme Court approved the practice after a brief moratorium), the wheels are coming off the bandwagon. From a peak of 40 executions in 2000, the Lone Star State put 10 prisoners to death last year and seven so far in 2015. According to the state’s Department of Corrections, the number of new death sentences imposed by Texas courts this year is precisely zero. There, as elsewhere, prosecutors, judges and jurors are concluding that the modern death penalty is a failed experiment.
The shift is more pragmatic than moral, as Americans realize that our balky system of state-sanctioned killing simply isn’t fixable. As a leader of the Georgia Republican Party, attorney David J. Burge, recently put it, “Capital punishment runs counter to core conservative principles of life, fiscal responsibility and limited government. The reality is that capital punishment is nothing more than an expensive, wasteful and risky government program.”
This unmistakable trend dates back to the turn of the century. The number of inmates put to death in 2014 was the fewest in 20 years, while the number of new death sentences imposed by U.S. courts — 72 — was the fewest in modern American history, according to data collected by the Death Penalty Information Center. Only one state, Missouri, has accelerated its rate of executions during that period, but even in the Show Me State, the number of new sentences has plunged.
Thirty-two states allow capital punishment for the most heinous crimes. And yet in most of the country, the penalty is now hollow. Since the start of 2014, all but two of the nation’s 49 executions have been carried out by just five states: Texas, Missouri, Florida, Oklahoma and Georgia.
Accompanying this coverr story are these two commentaries for and against capital punishment:
Wednesday, May 27, 2015
Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
As reported in this local article, the "death penalty has been repealed in Nebraska." Here is how:
In a historic vote Wednesday, senators voted 30-19 to override a veto from Gov. Pete Ricketts. The bill (LB268) had passed a week ago on a 32-15 vote.
Ricketts had worked hard in the last week to get senators to flip their votes. He needed three to change their minds, but only two -- Sens. Jerry Johnson of Wahoo and John Murante of Gretna -- changed their votes to sustain the veto.
"This is it," said Sen. Ernie Chambers of Omaha as he entered the legislative chamber to begin the debate on a motion to override the veto. Chambers has offered a bill to repeal the death penalty 40 times in his tenure of the Legislature. In 1979, Chambers won legislative approval of death penalty repeal, but the bill fell victim to a veto by Gov. Charles Thone.
Nebraska lawmakers debated more than two hours Wednesday on a motion to override Gov. Pete Ricketts' veto of a death penalty repeal bill. "Once we take this step, there is not going to be a falling apart of this state," Omaha Sen. Ernie Chambers said at the start of discussion on the floor of the Legislature. "This building will not implode."
The historic significance of the event attracted a large group of onlookers, legislative staffers and media watched as debate began at 1:30 p.m.... Miriam Thimm Kelle, sister of Rulo murder victim James Thimm, was among onlookers in the legislative chamber Wednesday. Thimm's murderer, Michael Ryan, died this week on death row. Kelle has lobbied in support of abolishing the death penalty.
On Tuesday, Vivian Tuttle, whose daughter Evonne Tuttle was killed in the Norfolk bank robbery, joined the governor at a press conference to ask senators to sustain the veto. "I want justice for my grandchildren," she said. "I want justice for all the other families."
Tuesday, May 26, 2015
Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State
As reported in this local article, "Gov. Pete Ricketts delivered Tuesday on his promise to veto legislation that would repeal the death penalty for murderers in Nebraska." Here is more on the decision and what is likely to follow it:
"This is a matter of public safety," Ricketts said. "We need to have strong sentencing. We need to be sure our prosecutors have the tools to put these hardened criminals behind bars."
"I urge our senators to stand with Nebraskans and law enforcement," Ricketts said.
The governor was joined by Attorney General Doug Peterson and family members of Evonne Tuttle, who was one of five people killed in the 2002 Norfolk bank robbery. Three of the killers involved in the robbery are on death row. Evonne's mother, Vivian Tuttle, said she sat through the trials. In each one, she watched the surveillance video that showed Jose Sandoval put a gun to her daughter Evonne's head as she knelt on the floor and was shot to death. "I want justice for my grandchildren. I want justice for the other families," she said.
The Legislature passed the death penalty bill (LB268) on Wednesday on a 32-15 vote. Thirty votes would be required to override the governor's veto. The governor said Friday that senators who voted to repeal the death penalty weren't in touch with their constituents. But a number of those senators said Tuesday at least half of their constituent contacts are telling them to stick to their votes in favor of repeal.
Supporters have lost at least one override vote -- Sen. Jerry Johnson of Wahoo. Johnson said he was shaky on his repeal vote last week. Then, most of his emails urging him to vote for repeal were from the faith community. What he has learned since last week's vote is that people in the pews aren't necessarily on the same page as church leadership, he said....
Another senator who voted for repeal -- Sen. John Murante of Gretna -- also is reconsidering his vote, he said. He is discussing it with many constituents who have called him over the past few days, he said. "I've always been torn on the issue of the death penalty," he said, "and I'm gathering as many opinions as I can before rendering a vote on the veto override."
Sounds like every single vote is going to matter now in Nebraska's unicameral legislature. Stay tuned.
SCOTUS grants cert on a federal sentencing case and state capital case
This morning's Supreme Court order list, available here, includes two grants of certiorari. Both cases are criminal cases, Lockhart v. US and Foster v. Humphrey, and here are the links to casepages and the issues via SCOTUSblog:
Lockhart v. US: Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.
Foster v. Humphrey: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.
Monday, May 25, 2015
Swish or brick as basketball great calls upon US to "Abolish the Death Penalty"?
The question in the title of this post is prompted by this notable recent Time commentary authored by Kareem Abdul-Jabbar. (We learned in the classic movie Airplane! that Abdul-Jabbar could fly a commercial jet, so I suppose I am not too surprised he also is an effective sentencing advocate.) Here are excerpts from a commentary which suggests to me that Abdul-Jabbar could take over my professional responsibilities much better than I could ever have done his professional work:
The death penalty is suddenly trending again. On Wednesday, Nebraska lawmakers voted to repeal the state’s death penalty. Last week, the jury in the Boston Marathon bombing case decided that Dzhokhar Tsarnaev should be executed. The U.S. Supreme Court is currently reviewing the constitutionality of lethal injection in the death-penalty case Glossip v. Gross. Last month, the Federal Bureau of Investigations and the Justice Department admitted that almost every examiner in the FBI microscopic hair forensic unit overstated matches in favor of the prosecution in 95% of the cases in which they testified over the past 20 years. (This included 32 defendants sentenced to death, 14 of which have been executed or died in prison.) Norman Fletcher, the former chief justice of the Georgia Supreme Court who during his tenure upheld numerous death sentences, announced last week that the death penalty is “morally indefensible,” makes no business sense, and is inconsistent and applied unfairly....
Traditional reasons to support the death penalty are going the same way as conventional wisdom for denying same-sex marriage and gender equality. Some will talk about how justice demands the death penalty, and some will say that the only way to enforce the sanctity of human life is by executing those who recklessly and arrogantly take it away. Some will argue that it protects innocent lives, others that it brings closure to victims’ families. Some will offer personal tales of loss. These are all heartfelt points, but ultimately they are simply wrong in terms of doing what is best for society.
The primary purpose of the death penalty is to protect the innocent. Theoretically, if someone deliberately murders someone else, executing that person protects the rest of us by removing him from society, never again to be a threat. But, as always, there’s a big difference between theory and practice. While it’s true that the death penalty may protect us from the few individuals it does execute, it does not come without a significant financial and social price tag that may put us all at an even greater risk....
In the states that have abolished the death penalty in the last decade, politicians from both parties have cited cost as the main reason. This isn’t a matter of morality versus dollars. It’s about the morality of saving the most lives with what we have to spend. Money instead could be going to trauma centers, hospital personnel, police, and firefighters, and education.
Some will ask, “How can you put a price on justice?” and “What if it were your mother or son who’d been murdered?” Fair enough. But given the current cost of the death penalty, my family is much more at risk from not having enough police on the street, firefighters in their stations, and staff in hospitals. The question every concerned taxpayer needs to ask is whether or not we should be spending hundreds of millions of dollars on executing prisoners when life without parole keeps the public just as safe but at a fraction of the cost. The money saved won’t solve all our financial woes, but it will solve some — and could save lives doing so....
The second major problem with the death penalty is that there’s a high probability that we execute innocent people. The traditional test of a person’s philosophy about justice is a simple question: If you had 10 people sentenced to death but you knew one was innocent, would you keep them all in prison for life with the hopes that the innocent person will be discovered and released? Or would you execute all of them with the idea that the occasional innocent person is an acceptable loss for a greater good? If you answer that you’d keep them in prison, you’re against the death penalty....
The third problem with the death penalty is that the system is biased based on race and economic standing. Minorities have Favorite Son status when it comes to being executed. According to a study by law professor David Baldus and statistician George Woodworth, a black defendant is four times more likely to receive a death sentence than a white defendant for a similar crime. Part of the reason for this may be that those most responsible for determining which cases to pursue are white. Nearly 98% of chief district attorneys in counties using the death penalty are white; about 1% are African American....
Another unfair application is the lack of adequate representation received by poor defendants. U.S. Supreme Court Justice Ruth Bader Ginsberg addressed this issue: “People who are well represented at trial do not get the death penalty.” Although poor defendants are guaranteed representation, they aren’t guaranteed the best representation. This is evident when we examine the records of some these court-appointed attorneys: Nearly 1 in 4 death row inmates were represented by court-appointed attorneys who were disciplined for professional misconduct during their careers. A report by the Texas Defender Service concluded that death row inmates have a 1 in 3 chance of being executed “without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.” The attorneys for one-fifth of the death row inmates in Washington state over the last 20 years were disbarred, suspended, or arrested. This list of incompetent representation goes on....
Supporters of the death penalty may say it deters other would-be murderers, but 2009 study in the Journal of Criminal Law & Criminology states that “the consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.” Some argue that it brings closure for families of victims. In some cases it does; in others it doesn’t. That’s why there are various organizations—California Crime Victims for Alternatives to the Death Penalty, Murder Victims’ Families for Reconciliation, Murder Victims’ Families for Human Rights—made up of family members of murder victims who oppose the death penalty....
Some people deserve to die. They commit acts so brutal that they cannot ever be a part of society. But we can’t let our passion for revenge override our communities’ best interest. The death penalty is an elaborate Rube Goldberg device with a thousand moving parts, each one expensive and in serious disrepair, to achieve a dubious end. With something as irrevocable as death, we can’t have one system of justice for the privileged few and another for the rest of the country. That, more than anything, diminishes the sanctity of human life.
Yes, there are many ways the death penalty system might someday be improved so that it will cost less, not risk innocent lives, and be fairly applied to all. Until that day, life without parole will bring us justice and allow us the opportunity to correct our mistakes before it’s too late.
Thursday, May 21, 2015
After Boston bomber's condemnation in liberal Massachusetts, is the death penalty really "withering away"?
The question in the title of this post is prompted by this lengthy new commentary by George Will carrying the headline "Capital punishment’s slow death." Here is the full commentary, which claims to be making a "conservative case against capital punishment":
Without a definitive judicial ruling or other galvanizing event, a perennial American argument is ending. Capital punishment is withering away.
It is difficult to imagine moral reasoning that would support the conclusion that an injustice will be done when, years hence, the death penalty finally is administered to Dzhokhar Tsarnaev, the Boston Marathon terrorist who placed a bomb in a crowd and then strolled to safety. Sentencing to death those who commit heinous crimes satisfies a sense of moral proportionality. This is, however, purchased with disproportionate social costs, as Nebraska seems to be concluding.
Nebraska is not a nest of liberals. Yet on Wednesday its 49-member unicameral legislature passed a bill abolishing the death penalty 32 to 15. Gov. Pete Ricketts, a Republican, vows to veto it.
This comes at a time when, nationwide, exonerations of condemned prisoners and botched executions are dismayingly frequent. Nebraska’s death penalty opponents, including a majority of Nebraskans, say it is expensive without demonstrably enhancing public safety or being a solace to families of murder victims. Some Nebraska families have testified that the extended legal processes surrounding the death penalty prolong their suffering. That sentiment is shared by Bill and Denise Richard, whose 8-year-old son was killed by Tsarnaev.
Last month, the U.S. Supreme Court heard oral arguments about whether one component of a three-drug mixture used in lethal injection executions — and recently used in some grotesquely protracted ones — is unreliable in preventing suffering that violates the Eighth Amendment proscription of “cruel and unusual punishments.” States use the drug in question because more effective drugs are hard to acquire, partly because death penalty opponents are pressuring drug companies not to supply them.
For this, Justice Antonin Scalia blamed a death penalty “abolitionist movement.” Justice Samuel A. Alito Jr. asked, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Justice Anthony M. Kennedy wondered, “What bearing, if any, should be put on the fact that there is a method, but that it’s not available because of opposition to the death penalty? What relevance does that have?”
The answers are: Public agitation against capital punishment is not relevant to judicial reasoning. And it is not the judiciary’s business to worry that a ruling might seem to “countenance” this or that social advocacy.
The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence. For an unsparing immersion in the workings of the governmental machinery of death, read “Just Mercy” by Bryan Stevenson, executive director and founder of the Equal Justice Initiative.
Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay. Granted, capital punishment could deter: If overdue library books were punishable by death, none would be overdue. But many crimes for which death is reserved, including Tsarnaev’s crime of ideological premeditation, are especially difficult to deter.
Those who favor capital punishment because of its supposed deterrent effect do not favor strengthening that effect by restoring the practice of public executions. There has not been one in America since 1937 (a hanging in Galena, Mo.) because society has decided that state-inflicted deaths, far from being wholesomely didactic spectacles, are coarsening and revolting.
Revulsion is not an argument, but it is evidence of what former chief justice Earl Warren called society’s “evolving standards of decency.” In the essay “Reflections on the Guillotine,” Albert Camus wrote, “The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail.” Capital punishment, say proponents, serves social catharsis. But administering it behind prison walls indicates a healthy squeamishness that should herald abolition.