Thursday, March 13, 2014
Capital murder charges in mix for SXSW killer drunk driver
Regular readers know that I am eager for persons involved in dangerous drunk driving incidents to be subject to significant punishment. Consequently, I was pleased to see this new report emerging from Austin suggesting Texas justice may be severe for a deadly drunk driving incident. The piece is headlined "Killeen man facing capital murder charges in fatal SXSW crash," and here are excerpts:
A suspect who police say killed two people when he mowed down a festival crowd at Thursday's South by Southwest festival has been identified as a 21-year-old Killeen man. Rashad Charjuan Owens is expected to be charged with two counts of capital murder and 23 counts of aggravated assault with a vehicle, according to a police source.
Owens is suspected of driving drunk and has been booked but not yet formally charged. He remained in police custody while being treated at a local hospital and was released to officers, officials said. Two festival-goers, including a woman from Austin and a man from The Netherlands, were killed and 23 more were injured early Thursday after the suspected drunken driver rammed through a police barricade in downtown Austin.
According to reports, Owens fled from police after an attempted traffic stop at a gas station about three blocks from where the crowd was standing outside a music venue....
Austin Police Chief Art Acevedo described a large crowd on the street, in line for a concert at The Mohawk on 10th and Red River Street. Many festival attendees also had just left another show at nearby Stubb's minutes before. Hundreds of pedestrians were still on the street at the time, as rapper Tyler the Creator was due to perform....
The incident, which lasted for just a minute, began at 12:30 a.m. when an APD officer attempted to pull over a suspected drunken driver into a downtown gas station, just off Interstate 35, Acevedo said. The suspect fled, weaving through traffic at the gas station, then drove the wrong way down a one-way street, Ninth Street, before turning onto a crowded Red River Street. An officer at the Red River barricade had to jump out of the way. The suspect continued north, through two blocks of pedestrian traffic, before hitting the moped, a taxi, a parked van, and running into a curb, according to Acevedo. The driver attempted to run away when a police officer shocked him with a stun gun.
The Austin Police Department reported 966 DWI incidents citywide this year through February, down 10 percent from the same time period last year. Police reported 585 DWI incidents citywide during March 2013, up 3 percent from March 2012....
According to the Austin Police Department's last annual report, dated 2012, the city had 22 fatal crashes that year involving an alcohol-impaired driver, up from 10 the year before. That amounts to 29 percent of all fatal crashes, up from 21 percent the year before. By contrast, the San Antonio Police Department reported a total of 60 alcohol-related traffic fatalities last year and 48 in 2012.
Wednesday, March 12, 2014
New Hampshire House votes to repeal state's (dormant) death penalty
As reported in this local piece, the "New Hampshire House has approved a measure to repeal the state's death penalty after rejecting an amendment that would have spared the life of the only convict on death row in the state." Here is more:
The House voted 225-104 in favor of repeal....
The Legislature voted to repeal capital punishment in 2000, but then-Gov. Jeanne Shaheen vetoed the bill. Democratic Gov. Maggie Hassan has said she supports repeal as long as it is not applied retroactively to Addison's case.
The measure next goes to the Republican-controlled Senate, where it faces an uncertain future.
I call New Hampshire's death penalty dormant largely because it has only one person on death row and has not executed anyone in three-quarters of a century.
Making a case for "capital punishment [as] one of law enforcement’s most valuable tools"
U.S. Rep. Dave Reichert, who previously served as the lead detective of the Green River Task Force, has this new commentary about the death penalty running under the headline "The death penalty is an important tool of law enforcement." Here are excerpts:
The Green River Task Force ... collected far too many bodies — all young women full of potential who became ensnared in a sordid way of life through a variety of circumstances. Victims of their situations, they also became victims of the Green River killer.
These memories came rushing back to me because of Gov. Jay Inslee’s recent decision to unilaterally stop enforcing the death penalty while he is in office. He says he wants to start a “conversation” about capital punishment, so let’s start with some facts.
In Washington state, the death penalty is reserved for a select group of people. In legal terms, these criminals have committed murder in the first degree under aggravating circumstances. Simply put, these people are the worst of the worst. Currently there are nine men on Washington’s death row who have committed such atrocities. Even the governor has admitted he believes all nine are guilty of their crimes.
Gary Ridgway is the monster we arrested as the Green River killer in 2001. He would eventually plead guilty to 49 counts of murder although he has claimed that he raped and murdered 20 to 30 more young women.
There was only one way Ridgway would plead guilty: if the threat of capital punishment, one of law enforcement’s most valuable tools, were taken off the table. Ridgway is a coward. To him the victims’ lives meant nothing, but his own life was far too precious to him to consider losing, so he sent his lawyers to bargain for his life.
In 2003, we convinced Ridgway not only to plead guilty but to spend six months shedding light on the fate and whereabouts of other young women he killed. We were able to find answers for families who had agonized for years over the whereabouts of their loved ones. I witnessed how those answers could allow families to grieve, say goodbye and begin to rebuild their lives, always remembering their lost loved one.
Every tool in the arsenal of a law-enforcement officer is important — from the sidearms we carry to the law itself. Without these tools, we cannot keep our communities safe or ensure justice is carried out. That is why I believe the death penalty is critical to public safety.
When Gov. Inslee announced his moratorium on capital punishment, he reduced the effectiveness of law enforcement in Washington state. The moratorium’s tangible effects are minimal, considering its infrequent use. Since the voters reinstated capital punishment here in 1975, five men have been put to death. But for every cop and prosecutor who needs to put away a violent murderer, there is one fewer weapon with which to fight for justice. More cases will go to trial and monsters like Ridgway could hold on to their secrets forever or even walk free.
If the governor wants to start a conversation on the death penalty, the people of Washington state must be included. He took an oath to uphold our law, and he should not violate that oath because he disagrees with the law. If he wishes to overturn it, then he should propose legislation and take the case to the voters.
The people of Washington put capital punishment on the books and they should be the ones to take it away if they choose. In the meantime, the governor should be engaging law enforcement and other groups about this issue. If he doesn’t, it will be the people of Washington State who pay.
Recent related posts:
- Washington Gov declares moratorium on executions during his term
- Victims' families laments Gov's execution moratorium in Washington
Monday, March 10, 2014
Should death penalty abolitionists or proponents be more troubled by "Wild West" response to troubles with execution drugs?
The question in the title of this post is the prompted by this lengthy new USA Today article headlined "Death penalty in U.S. spurs Wild West scramble for drugs; Capital punishment in the USA is in decline as states wrestle to find drugs for lethal injections." Here is how the piece starts:
Prison guards meet in the desert to hand off chemicals for executions. A corrections boss loaded with cash travels to a pharmacy in another state to buy lethal sedatives. States across the country refuse to identify the drugs they use to put the condemned to death.
This is the curious state of capital punishment in America today. Manufacturers are cutting off supplies of lethal injection drugs because of opposition to the death penalty, and prison officials are scrambling to make up the deficit — sharing drugs, buying them from under-regulated pharmacies or using drug combinations never employed before in putting someone to death.
At the same time, growing numbers of states are ending capital punishment altogether. Others are delaying executions until they have a better understanding of what chemicals work best. And the media report blow-by-blow details of prisoners gasping, snorting or crying out during improvised lethal injection, taking seemingly forever to die.
Legal challenges across this new capital punishment landscape are flooding courts, further complicating efforts by states that want to keep putting people to death. "I've done everything I can do to carry out the executions that have been ordered in my state, and if somebody has an idea of how we can do that, I'd like to hear it," says Arkansas Attorney General Dustin McDaniel.
The state has 33 people on death row, no executions since 2005 and a death penalty sidelined last month by a state judge complaining that the Arkansas law for lethal injection isn't clear about what drugs should be used. "I don't know where it will all end up," says an exasperated McDaniel. "I know that in the near future we will see more litigation. We will see fewer executions. We will see states scrambling to come up with alternative methods. And there will be a lot of finger-pointing."
Regular readers know that the difficulties states have had securing execution drugs, combined with the consistent efforts of capital defense lawyers to legally challenge the ways states plan to kill their clients, has produced a remarkable legal and practical hash of the application of the death penalty in nearly all states with death row defendants who have exhausted all other means of appeals. This lethal injection protocol capital hash has been going strong for nearly a decade now, and I do not see any end in sight.
I am inclined to guess that death penalty proponents are most troubled by all the new litigation and practical barriers in the way of carrying out death sentences. But I suspect lots of death penalty abolitionists are likewise troubled by how hard (and with questionable means) some states are trying to go forward with untried methods for ending like. So, I suppose this post is meant to suggest both a descriptive and normative question: who is most troubled with what is going on, and should be?
Sunday, March 09, 2014
LDF releases latest, greatest accounting of death row populations
As reported here by the Death Penalty Information Center, the NAACP Legal Defense Fund has just released its latest version of its periodic accounting of capital punishment developments in the United States. This document, available here, is titled simply "Death Row, USA," and reports on data though July 1, 2013. Here is how DPIC summarizes some of its key findings:
The latest edition of the NAACP Legal Defense Fund's Death Row, USA shows the total death row population continuing to decline in size. The U.S. death-row population decreased from 3,108 on April 1, 2013, to 3,095 on July 1, 2013. The new total represented a 12% decrease from 10 years earlier, when the death row population was 3,517. The states with the largest death rows were California (733), Florida (412), Texas (292), Pennsylvania (197), and Alabama (197). In the past 10 years, the size of Texas's death row has shrunk 36%; Pennsylvania's death row has declined 18%; on the other hand, California's death row has increased 17% in that time.
The report also contains racial breakdowns on death row. The states with the highest percentage of minorities on death row were Delaware (78%) and Texas (71%), among those states with at least 10 inmates. The total death row population was 43% white, 42% black, 13% Latino, and 2% other races.
Saturday, March 08, 2014
Notable federal capital case about to begin in the Aloha State
As reported in this AP article, a "Honolulu courtroom is set to become the scene of a death penalty trial even though Hawaii abolished capital punishment in 1957." Here is more about how and why:
Opening statements are scheduled for Tuesday in the trial of a former Hawaii-based Army soldier accused of beating his 5-year-old daughter to death in 2005. But because the crime allegedly took place on military property, Naeem Williams is being tried in federal court — a system that does have the death penalty.
It's rare for the government to seek the death penalty in a state that doesn't allow it. Only seven of 59 inmates currently on federal death row are from states that didn't have the death penalty at the time the sentence was imposed, according to the Death Penalty Information Center in Washington, D.C.
While the Williams case hasn't received much publicity, the death penalty circumstance gives it something in common with a more high profile case for federal prosecutors: the Boston Marathon bombing. "You have a population in Massachusetts and in the city where they're not used to having the death penalty," said Richard Dieter, the Death Penalty Information Center's executive director. "It just makes it a little harder to get these kinds of death sentences."...
Talia Emoni Williams died in July 2005 after she was brought to a hospital unresponsive, vomiting and covered in bruises. A criminal complaint by federal investigators accuses her then-25-year-old father of beating the child to discipline her for urinating on herself. Federal investigators wrote that military law enforcement agents found blood splatters in the walls of the family's home at Wheeler Army Airfield from Talia being whipped with Williams' belt.
Delilah Williams, Talia's stepmother, was also charged with murder but pleaded guilty in a deal with prosecutors. She's expected to be sentenced to 20 years in prison after she testifies against Williams at his trial, said her federal public defender, Alexander Silvert. The Army agreed the case should be prosecuted in the civilian justice system so that the father and stepmother could appear in the same court....
Talia's biological mother, Tarshia Williams, is expected to testify for the prosecution, her attorneys said. She filed a civil lawsuit against the government over Talia's death. It has been put on hold until after the criminal trial. The mother's lawsuit claims the military didn't report to the proper authorities that Talia's father and stepmother "abused and tortured" her throughout the seven months she lived in Hawaii before she died.
Alberto Gonzales, the U.S. attorney general during President George W. Bush's administration, made the decision to seek the death penalty against Naeem Williams. "Under Bush's administration, the philosophy was the federal death penalty should be spread out among all the states," Dieter said....
The last time the federal death penalty was approved for a Hawaii case was against Richard "China" Chong. But before he went to trial in 2000, he agreed to plead guilty to a 1997 drug-related murder and was sentenced to life in prison without the possibility of parole. He died of an apparent suicide about three months later.
Hawaii's history with capital punishment goes back long before statehood. There were 49 executions dating in Hawaii dating to 1856, with the last one recorded in 1944, according to the Death Penalty Information Center. The final execution of Ardiano Domingo — a Filipino who was hanged for killing a woman with scissors in a Kauai pineapple field — helped prompt Hawaii's territorial lawmakers to abolish the death penalty in the state, said Williamson Chang, a University of Hawaii law school professor who teaches a course on the history of law in Hawaii.
Chang said before the law changed, Hawaii disproportionally executed people of color, mostly Filipinos, Japanese and Native Hawaiians. Because of that history, Chang said he believes Hawaii jurors will struggle with the Williams case. "We're used to a society which does not put people to death," he said. "It's a slap in the face to the values of Hawaii."
Wednesday, March 05, 2014
Kentucky GOP representative sets out "conservative arguments in favor of repeal" of the death penalty
I just cam across this recent op-ed by David Floyd, a Republican member of Kentucky's General Assembly, explaining why he has introduced a bill to repeal his state's death penalty. Here are some excerpts from the op-ed:
My initial opposition formed through a spiritual lens, so in 2007 I joined others in cosponsoring legislation to repeal the death penalty. But I was the only conservative legislator in a group of liberals. Over these last few years, “liberal” and spiritual arguments have failed to persuade other legislators to take up these bills.
How, then, might we bring other conservatives with us, and at last vote to abolish our death penalty? This can be done by exploring together conservative arguments in favor of repeal.
• Conservatives value innocent life and should not support a state government program that can kill innocent people....
• Conservatives are mindful of the potential to abuse power that has been granted by the people, and should not trust the government with the power to execute a person who is safely behind bars....
• Conservatives are the first to call out government programs that fail to meet intended goals and cost exorbitant amounts of money....
• Conservatives want a government that will balance budgets, cut waste and eliminate programs that do not make fiscal sense.
Kentucky’s death penalty is a program that costs a lot while accomplishing little. We’ve spent well more than $100 million on the death penalty since 1976 — and executed three people. Having a death penalty is clearly wasting taxpayer dollars, while a penalty of life without the possibility of parole makes much better economic sense....
Capital punishment in Kentucky is a broken government program that risks killing the wrongly convicted, risks abuse of power, wastes resources, is arbitrary and unjust. We’ve tried to make the death penalty work, but we have been unable to fix its many problems and reconcile it with our conservative principles. We should repeal the death penalty and replace it with life without parole. It’s the only way to ensure that no innocent people are killed by the Commonwealth of Kentucky, and that those impacted by the process get finality much sooner.
Tuesday, March 04, 2014
Why the #@$%! are IQ tests, but not burdens of proof, the key issue in Hall?
The question in the title of this post is my basic reaction to what struck me as a very annoying SCOTUS oral argument yesterday in Hall v. Florida concerning how states must deal with the Atkins categroical Eighth Amendment constitutional bar on executing defendants who are mentlly retarded. The transcript of the argument is available at this link, and Lyle Denniston has this SCOTUSblog summary of what transpired. Here is the start of Lyle's recap:
If a state, trying to make it simple to decide who can be given a death sentence, opts for a choice that looks arbitrary, it is likely to have a difficult time in a Supreme Court that worries about the chances of error. That was demonstrated anew on Monday, when Florida found itself in deep Eighth Amendment trouble with a rule that anyone with an IQ above 70 can be executed if convicted of murder.
A quite definite majority of the Justices — perhaps, notably, including Justice Anthony M. Kennedy — left little doubt that Florida and six other states will not be allowed to maintain an automatic test-score-based cutoff for those who could qualify as mentally retarded and thus can escape the death penalty.
Kennedy’s role is central because he has most often led the Court in narrowing the category of those eligible to be executed, to take account of reduced capacity to be held responsible for their criminal behavior. He was among the most active in questioning Florida’s approach to mental retardation among those on death row. And, on Monday, he added in some strongly implied criticism of a system that allows some inmates to remain on death row for decades — an issue that is not directly involved in the new case of Hall v. Florida.
Justice Antonin Scalia expended considerable effort to buttress Florida’s basic argument that the scientific community cannot be trusted to make the rules for eligibility for capital punishment, but except for some supportive hints from Justice Samuel A. Alito, Jr., this seemed to be a largely forlorn endeavor.
Most of the other Justices joined in the pursuit of an Eighth Amendment rule that would assure that the mental retardation inquiry was sophisticated and nuanced, so that the risk of error was taken fully into account. While such a rule might not definitely hand over the details to the judgment of scientists and doctors, it apparently would not tolerate an approach designed simply to assure that fewer death-row inmates get off with a claim of mental disability. That appeared to be Florida’s main objective.
This account of the tenor of the Hall oral argument seems right, and yesterday's SCOTUS discussion reinforces the all-too-usual modern death penalty dynamic of Justice Kennedy seemingly being the swing vote so that whatever he may think about hard capital issues becomes Eighth Amendment jurisprudence. But beyond my standard annoyance with modern constitutional death penalty law now being all about what Justice Kennedy thinks, the Hall oral argument has me extra annoyed because the Court seems intent on focusing application of Atkins on the narrow medical issue of how exactly IQ tests can be used when assessing mental disability rather than on the critical legal/constitutional issue of how burdens of proof can be allocated when deciding who is exempt from the death penalty.
I suppose I should not be too surprised, based both on the cert grant and the approach taken by the advocates in Hall, that Florida's IQ line-drawing approach to Atkins took center stage during yesterday's SCOTUS argument. But as Kent highlights in this effective post at Crime & Consequences, the discussion of statistics and IQ measurement error among the Justices was garbled at best, and really more an example of junk science on display rather than a serious exploration of whether and when an inexact measurement device (an IQ test) can itself establish at the margins placement of a defendant in an inexact medical category (mentally retarded/disabled) which SCOTUS has given legal significance via its Eighth Amendment jurisprudence.
That IQ is, at best, an inexact measurement device is amply proved by the Brief of petitioner Freddie Lee Hall: that brief indicates that IQ measurements for Hall have ranged from 60 to 80 and that various doctors at various times have scored his IQ at 71, 72, 73, 74, 76, and 79. This reality suggests that IQ tests can only provide a general fuzzy picture of a person's mental abilities and that it would be foolish and misguided for anyone to use IQ scores alone as dispostive "scientific" or "objective" evidence of whether a murderer is or is not mentally retarded/disabled. In this sense, I suppose, Florida does look bad having a bright-line IQ line for administering Atkins. But given that IQ tests will always scatter in these kinds of cases, I think the legal issue of who bears the burden of proof and at what level as to Atkins claims is what ultimately determines the reach of Atkins in any state.
If SCOTUS strikes down the current Florida approach to Atkins without speaking to burdens of proof, Florida could then just employ Gerogia's approach to "assure that fewer death-row inmates get off with a claim of mental disability" by requiring defendants to prove they have MR beyond a reasonable doubt (or perhaps even say beyond all doubt). Already, Florida requires a defendant to prove his disability by clear and convincing evidence, and that standard (with or without an IQ requirement) necessarily entails that Florida will be able to execute murderers whom judges reasonably think, but are not clearly convinced, are mentally retarded/disabled. The experience in since Atkins makes clear that states eager to limit who gets off death row can do so using legal standards like proof burdens rather than relying just on IQ numbers. Thus if (and when?) SCOTUS only addresses how IQ tests are used in Hall and dodges any discussion of burdens of proof, Atkins application issues (and interstate Atkins disparity) will persist.
I suppose I am frustrated here in large part because SCOTUS has long been eager to avoid, in all sorts of settings, establishing any clear and predicatble constitutional rules for burdens of proof concerning facts or factors that impact only sentencing determinations and not guilt. These burden-of-proof issues, which may be viewed as a Fifth Amendment due process concern and/or an Eighth Amendment concern depending on the setting, can be found lurking in the Apprendi-Blakely Sixth Amendment line of cases, but they have never gotten the independent treatment that I think they merit and needs I have long been hoping Hall might finally lead to some useful burden-of-proof constitutional jurisprudence, but after the oral argument I am no longer hopeful on this front.
Monday, March 03, 2014
SCOTUS finally to grapple with how states are applying Atkins
I helped represent a Texas death-row defendant with a very low IQ in habeas appeals years before the 2002 SCOTUS ruling in Atkins v. Virginia decided the Eighth Amendment precludes execution of murderers who are mental retarded. As a result of that work two decades ago, I have long been interested in the question the Supreme Court will this morning finally confront at oral argument in Hall v. Florida: how can (or must) states define and apply mental retardation for purposes of determining who is excluded from execution due to Atkins.
For a variety of reasons, Hall could end up being a huge case about constitutionally required sentencing procedures that could impact lots of cases outside the context of the death penalty. I suspect, however, that some Justices will be eager to ensure the Court's work in Hall ends up modest and limited. For this reason, I think today's oral argument may provide an interesting window into how certain Justices are approaching Hall and this broader issues of procedure and federalism that it raises.
I expect to post on the substance of the Hall oral argument later this week. But for more pre-game analysis, here are a few media reports and commentaries on Hall:
From the ABA Journal here, "Chemerinsky: Who is mentally disabled when it comes to the death penalty?"
From NPR here, "With Death Penalty, How Should States Define Mental Disability?"
- From SCOTUSblog here, "Argument preview: Measuring mental handicap"
Saturday, March 01, 2014
"Death Penalty Jurisprudence by Tallying State Legislative Enactments: Harmonizing the Eighth and Tenth Amendments"
The title of this post is the title of this notable new paper by Charles MacLean and Akram Faizer now available via SSRN. Both the title and the contents struck me as especially timely with the Supreme Court finally set to hear arguments on Monday about how states can (and cannot) implement its 2002 Eighth Amendment ruling in Atkins. Here is the abstract:
Whenever most legislatures in death penalty states have rejected a particular application of capital punishment, the Supreme Court has held that no state may retain that application, reasoning that any death penalty approach rejected by the majority of states is, perforce, unconstitutionally “cruel and unusual” under the Eighth Amendment. Although some laud these decisions, they ignore the States’ Tenth Amendment rights to govern themselves within broad constitutional parameters. Rather than defer to opinion polls or tallying state legislative enactments, the Court should engage in true constitutional analysis, forbidding cruel and unusual punishments, but simultaneously honoring states’ rights to govern themselves.
Thursday, February 27, 2014
Victims' families laments Gov's execution moratorium in Washington
As reported in this local article, headlined "Families urge Inslee to reconsider death penalty moratorium," not everyone is content with Washington Gov. Jay Inslee's decision earlier this month to impose a moratorium on executions while he is governor (basics here):
Families of murder victims are urging Governor Inslee to reconsider his moratorium on the death penalty. They traveled to Olympia Wednesday to ask why the governor never consulted with them before making his decision. State lawmakers are considering a bill to make sure the families' voices are heard.
"I am here Governor Inslee and I've got to say I'm very surprised that you're not here looking at all these victims," said Sherry Shaver, whose daughter Talisha was killed by Dewayne Woods in 1996. "We're here to speak about this. Where are you Gov. Inslee?" Woods was sentenced to death. But that sentence is on hold with the governor's stunning statement that he would not sign a death warrant as long as he's in office.
"I never talked to the governor about this," said Jessie Ripley. Her mother Jane Hungerford-Trapp was killed in Tacoma by Cecil Davis. "The governor needs to look at each and every situation as if it was his family. As if he was a victim himself."...
[A] bill (SB 6566) by State Sen. Steve O'Ban ... would enforce the idea that families of the victims need to be heard before any decision is made on whether to go ahead with an execution. He said, "There can be no justice if the voices of the victims are not heard."
Lewis County prosecutor Jonathan Meyers said," (Inslee) disrespected the victims. They deserve closure. They deserve their voice to be heard and the decision he leveled silenced all of them."
The bill got its first public hearing Wednesday. Even if it were to pass, the sponsor admits it wouldn't negate the governor's decision. However, it would be a mandate for future governor's to listen to families first and then make a decision.
Related prior post:
Wednesday, February 26, 2014
Mizzou completes fourth execution in last four months
While multiple states continue to have multiple problems securing the drugs needed for execution or deflecting litigation over execution protocols, Missouri has now succeeded in completing four executions in as many months. Here are the details of the latest one, via this AP story headlined "Missouri Executions Man in '89 Rape, Killing of Teen":
A Missouri inmate was executed early Wednesday for abducting, raping and killing a Kansas City teenager as she waited for her school bus in 1989, marking the state's fourth lethal injection in as many months.
Michael Taylor, 47, was pronounced dead at 12:10 a.m. at the state prison in Bonne Terre. Federal courts and the governor had refused last-minute appeals from his attorneys, who argued that the execution drug purchased from a compounding pharmacy could have caused Taylor inhuman pain and suffering.
Taylor offered no final statement, although he mouthed silent words to his parents, clergymen and other relatives who witnessed his death. As the process began, he took two deep breaths before closing his eyes for the last time. There were no obvious signs of distress.
His victim, 15-year-old Ann Harrison, was in her driveway, carrying her school books, flute and purse, when Taylor and Roderick Nunley abducted her. The men pulled her into their stolen car and drove her to a home, where they raped and fatally stabbed her as she pleaded for her life. Nunley was also sentenced to death. Ann's father and two of her uncles witnessed Taylor's execution. They declined to make a public statement.
In their appeals, Taylor's attorneys questioned Missouri's use of an unnamed compounding pharmacy to provide the execution drug, pentobarbital. They also cited concerns about the state executing inmates before appeals were complete and argued that Taylor's original trial attorney was so overworked that she encouraged him to plead guilty.
After using a three-drug execution method for years, Missouri switched late last year to pentobarbital. The same drug had been used in three earlier Missouri executions, and state officials said none of those inmates showed outward signs of distress. Still, attorneys for Taylor said using a drug from a compounding pharmacy, which unlike large pharmaceutical companies are not regulated by the U.S. Food and Drug Administration, runs the risk of causing pain and suffering during the execution.
The Oklahoma-based compounding pharmacy Apothecary Shoppe agreed last week that it wouldn't supply the pentobarbital for Taylor's execution, forcing Missouri to find a new supplier. Attorney General Chris Koster's office said a new provider had been found, but Koster refused to name the pharmacy, citing the state's execution protocol that allows the manufacturer anonymity. Taylor's attorneys said use of the drug without naming the compounding pharmacy could cause the inmate pain and suffering because no one could check if the operation was legitimate and had not been accused of any violations.
Pete Edlund doesn't want to hear it. The retired Kansas City police detective led the investigation into the teenager's death. "Cruel and unusual punishment would be if we killed them the same way they killed Annie Harrison," Edlund said. "Get a damn rope, string them up, put them in the gas chamber. Whatever it takes."
Tuesday, February 25, 2014
"Compound Sentence: States keep mum on where lethal injection drugs are made"
The title of this post is the headline of this article in the March 2014 issue of the ABA Journal. Here are excerpts:
Tony Rothert, legal director of the ACLU-Missouri ... says the group is troubled by the secrecy surrounding compounded drugs [to be used in executions]. “Our concern here is about transparency and the government not hiding what it’s doing, especially when it comes to compounded drugs,” he says. “There are serious questions about whether using compounded drugs is going to be cruel and unusual punishment.”
Hours before [convicted serial killer Joseph Paul] Franklin’s Nov. 21 execution, U.S. District Judge Nanette Laughrey in Jefferson City ordered a stay, ruling that the state’s protocol “presents a substantial risk of inflicting unnecessary pain.” The 8th U.S. Circuit Court of Appeals at St. Louis vacated that order, and the Supreme Court refused to reinstate it. Other prisoners in Missouri, meanwhile, are continuing to challenge the state’s lethal injection methods.
The same issues are playing out throughout the country. Six states — Georgia, Missouri, Ohio, Pennsylvania, South Dakota and Texas — have either used pentobarbital from a compounding pharmacy or announced plans to do so, according to the Washington, D.C.-based Death Penalty Information Center. Of those, Missouri and South Dakota have carried out executions with compounded drugs. Colorado also made inquiries about compounded drugs, but executions in that state are on hold as long as the current governor remains in office.
Other states have revised their protocols and are no longer using pentobarbital. Florida incorporated the drug midazolam into its lethal injection cocktail in an execution carried out in October, and Ohio has said it plans to do the same.
At the same time, state officials often refuse to provide information about lethal injections. In Georgia, where 95 prisoners sit on death row, lawmakers recently passed the Lethal Injection Secrecy Act, which makes the identities of compounding pharmacies a state secret. Arkansas, South Dakota and Tennessee also recently passed bills aimed at prohibiting disclosure of execution procedures and the identity of people as well as companies involved in executions.
Those changes to the lethal injection protocols, combined with new confidentiality laws, have spurred a wave of litigation, with defendants and their lawyers arguing that the new methods of execution could result in a painful death. “Any death penalty lawyer worth their salt would be challenging the method of execution in their particular state,” says Fordham University law professor Deborah Denno, who studies capital punishment.
But groups that support the death penalty say many of these challenges are meritless. “If you have pentobarbital, and if the supply you have has been tested and found to be in the right concentration, the challenges being raised should be dismissed,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, based in Sacramento, Calif. “There isn’t a good argument that the use of that method is in any way cruel.”
Scheidegger adds that state officials have good reason to keep the names of compounding centers a secret. “It is regrettably necessary to provide confidentiality for the sources, because of a conspiracy to try to choke off the supply by putting pressure on the suppliers,” he says. “Whatever it takes to defeat that conspiracy needs to be done.”
"The Banality of Wrongful Executions"
The title of this post is the title of this new piece authored by Brandon Garrett reviewing a number of recent new criminal justice books. Available via SSRN, here is the abstract:
What is so haunting about the known wrongful convictions is that they are the tip of the iceberg. Untold numbers of mundane errors may escape notice while sending the innocent to prison and even to the death chamber. That is why I recommended to readers a trilogy of fascinating new books that look into the larger but murkier problem of error. In this article for Michigan Law Review's annual book issue, I review three books: Los Tocayos Carlos, by James Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky; Anatomy of Injustice: A Murder Case Gone Wrong, by Raymond Bonner; and In Doubt: The Psychology of the Criminal Justice Process, by Dan Simon. Each of these books brings important new perspective and understanding to the reasons why our criminal justice system can make terrible mistakes.
Monday, February 24, 2014
Via summary reversal, SCOTUS decides Alabama courts wrongfully rejected Sixth Amendment claim of death row defendant
Though not yet garnering much attention, I think SCOTUS-watchers and especially capital punishment followers should take not of a summary reversal by the Supreme Court this morning in Hinton v. Alabama, No. 13-644 (S. Ct. Feb 24, 2014) (available here). Here is how the opinion starts and a key section from the meat of the ruling:
In Strickland v. Washington, 466 U. S. 668 (1984), we held that a criminal defendant’s Sixth Amendment right to counsel is violated if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission. Id., at 687–688, 694. Anthony Ray Hinton, an inmate on Alabama’s death row, asks us to decide whether the Alabama courts correctly applied Strickland to his case. We conclude that they did not and hold that Hinton’s trial attorney rendered constitutionally deficient performance. We vacate the lower court’s judgment and remand the case for reconsideration of whether the attorney’s deficient performance was prejudicial....
“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, supra, at 688. Under that standard, it was unreasonable for Hinton’s lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000....
The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance..... Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.” An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland....
We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland, 466 U. S., at 690. We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law — the unreasonable failure to understand the resources that state law made available to him — that caused counsel to employ an expert that he himself deemed inadequate.
Though I am disinclined to make too big a deal out of this (little?) summary reversal, I am quite intrigued by the Court's ready conclusion (without any dissent) that inadequate research into what state law provided as available defense resources in this case made out deficient performance here. And though the Court says it does not want to now see "federal courts [launching] into examination of the relative qualifications of experts hired and experts that might have been hired," I suspect every capital habeas attorney worth his salt will be now eager to stress Hinton v. Alabama while encouraging just such an examination as part of any Sixth Amendment ineffective assistance claim.
Saturday, February 22, 2014
"The State’s Victim: Should the State Grant Rights and Privileges to the Families of Death Row Defendants?"
The title of this post is the title of this notable student note by Michelle Tomes now available via SSRN. Here is the abstract:
This Article argues that the friends and family of the person condemned to death are victims of the state, which chooses to charge the defendant with a capital crime. Due to the trauma, stress, and the need of support services, the state should define the families of the defendants as victims. Additionally, Part I of this article outlines the victim’s rights movement and the problems that come from society not considering the families of defendants as victims. Part II of this article defines why the state should consider the family of the defendants as victims.
Part III of this Article will argue that the state should allow contact visits with the inmate as a recognized right to the defendant and the defendant’s family. Additionally, Part III will argue that the new category of victims deserve equal access to support as the victims of crime, and will supply evidence that supports the introduction of execution impact evidence on behalf of the defendant.
Friday, February 21, 2014
Is an executed murderer now haunting Missouri's efforts to carry out death sentences?
The somewhat tongue-in-cheek question in the title of this post is prompted by this notable new commentary by Andrew Cohen at The Atlantic. Here is the headline and subheadline of the article: "The Ghost of Herbert Smulls Haunts Missouri's Death Penalty Plans; It's been just three weeks since Missouri executed Herbert Smulls before his appeals were exhausted. And virtually nothing has gone right for the state in its efforts to implement the death penalty since." And here is how the lengthy piece gets started:
It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for stay. And it is fair to say that the past three weeks in the state's history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls' death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.
Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.
Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.
Thursday, February 20, 2014
"Institutionalizing Bias: The Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment
The title of this post is the title of this notable new paper by Mona Lynch now available via SSRN. Here is the abstract:
The empirical study of capital punishment in the “modern” era has been largely decoupled from scholarship addressing the corollary late-20th century noncapital punitive developments, such as the rise of mass incarceration. Consequently, research that has examined the problem of racial disparities in the administration of the death penalty and research on the proportional growth of minorities in American correctional populations have advanced on parallel tracks, rarely intersecting.
In light of this symposium’s effort to strengthen the linkages between the death penalty and mass incarceration, this article examines two seemingly distinct cases of racially disparate criminal justice practices — the trial courts’ processing of contemporary capital cases and federal drug trafficking cases — to illustrate the institutionalized mechanisms that produce racial inequalities in both mass incarceration and capital punishment. I advance a meso-level, social-psychological theory on the production of institutional racism that also aims to integrate contested lines of thought about the mechanisms of bias and discrimination.
To accomplish these ends, I specifically focus on three problem areas in the structure and operation of contemporary American criminal justice: 1) the codification of inequality in how crimes and criminal culpability are defined and how sentencing rules are structured; 2) the distribution, by both stage and actor, of discretionary decision-making power; and 3) the mechanisms for relief from the harshest potential punishments.
Tuesday, February 18, 2014
Execution news in many states thanks to drug shortages and lethal injection litigation
I have gotten more than a little fatigued trying to keep track of all the legal and political developments in states trying to get access to the drugs they need to carry out planned executions. Nevertheless, a new round of headlines about this topic filled up my news feeds this morning, so I could not resist reporting some of the news through a these stories and links:
Friday, February 14, 2014
"The Marriage of State Law and Individual Rights and a New Limit on the Federal Death Penalty"
The title of this post is the title of this notable new article by Jonathan Ross now available on SSRN. This piece seems especially timely not only in light of lower federal courts extending recent SCOTUS marriage precedents, but also with the Boston Bomber federal capital case taking place in a state without the death penalty. Here is the abstract:
Since the 1990s, federal prosecutors have, with increasing frequency, sought the death penalty for federal offenses committed in and also punishable under the laws of non-death penalty states. This phenomenon has troubled federalism proponents, who have pointed out that federal prosecutors can use the federal death penalty to circumvent a state's decision to abolish capital punishment. Drawing on these scholars' works, defendants have argued that state law shields them from federal punishment. Courts have almost unanimously rejected such arguments, holding that state law cannot preclude the administration of federal punishment for federal offenses.
This article proposes a novel basis for a challenge to the federal death penalty's use in a non-death penalty state - the Supreme Court's reasoning in United States v. Windsor. In Windsor, the Court held that federal interference with a state law right arising in an area traditionally regulated by states is subject to heightened scrutiny under the Due Process Clause. This article argues that, in some instances, Windsor precludes federal capital prosecutions.
This article considers a Windsor-based motion to dismiss a notice of intent to seek the federal death penalty. The federal capital prosecution in a non-death penalty state interferes with a state law right to not be executed. As states have traditionally prosecuted violent murders, this right arises in an area traditionally regulated by states. Applying due process scrutiny, a court should ask whether a prosecutor's animus towards the state's lack of capital punishment motivated the prosecution in the first place, or whether there is an independent federal interest. If animus alone motivated the prosecution, then Windsor demands that the court reject the attempt to seek capital punishment.