Monday, January 25, 2016
Do SCOTUS watchers really expect the Justices to take up the basic constitutionality of the death penalty soon?
The question in the title of this post is prompted by this new article from The Hill reporting on the Supreme Court's denial of cert in a Pennsylvania case involving a blanket Eighth Amendment attack on the death penalty. Here is the article's discussion of the matter:
The Supreme Court announced [today] that it would not hear a case challenging the constitutionality of the death penalty. The appeal was filed on behalf of Shonda Walters, who was sentenced to death in May 2006 for murdering her next door neighbor with a hatchet and stealing his car.
The U.S. Supreme Court of Pennsylvania for the Eastern District upheld the lower court’s death sentence, saying the court found the evidence sufficient to support her conviction for first-degree murder. In appealing the decision to the Supreme Court, Walters asked the justices to weigh in on whether the imposition of the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The court did not give any statement supporting or dissenting from its decision to reject the case.
Court watchers have been expecting the justices to take up the constitutionality of the death penalty in light of a dissent by Justice Stephen Breyer last year. Experts said Breyer’s dissent provided a blueprint for a broad challenge to capital punishment.... The court appears to be waiting for the right case to weigh in. The case that was declined on Monday is Walter v. Pennsylvania.
I know that a lot of folks eager to have the death penalty completely abolished in the United States are ever hopeful, especially in the wake of Justice Breyer's Glossip dissent, that the Supreme Court will consider anew a wholesale Eighth Amendment challenge to any and every death sentence. But I have always considered quite significant the fact that Justice Breyer's dissent in Glossip was joined by only one other Justice; moreover, just last week every member of the Court except Justice Sotomayor voted to reinstate a number of Kansas death sentences as consistent with the Eighth Amendment (as blogged here).
I fully understand why Justice Breyer's dissent in Glossip is now prompting many capital defense attorneys to raise and seek to preserve an Eighth Amendment broadside attack on the death sentence given to his or her client. But, especially after the Supreme Court's most recent capital case work from Kansas and elsewhere, I am one "court watcher" who does not expect this kind of claim to be taken up by the Justices anytime soon.
Friday, January 22, 2016
Over dissent of Justice Breyer, Alabama goes forward with its first execution in years
As reported in this lengthy local article, headlined "Alabama executes Christopher Eugene Brooks for 1992 murder of Jo Deann Campbell," Alabama got its capital punishment tide rolling again last night. Here are some of the details:
Alabama death row inmate Christopher Eugene Brooks was executed Thursday night for the 1992 slaying of a Homewood woman after the U.S. Supreme Court denied his request for a stay of execution.
Brooks was pronounced dead at 6:38 p.m. in the execution chamber at the Holman Correctional Facility in Atmore. He was the 57th death row inmate executed in Alabama since executions resumed in 1983 after an unofficial more than decade-long nationwide moratorium ended. He was the first person executed in Alabama since 2013....
After the execution Alabama Prison Commissioner Jeff Dunn said the execution with the controversial sedative drug midazolam "went exactly as planned." Brooks did not appear to struggle during the administration of the drugs. His attorneys and other inmates had claimed the first drug in the cocktail does not put the condemned inmate in deep enough sleep to prevent pain when the other two drugs are administered. Dunn said that there are no other executions currently planned, but the prison system does have the drugs available to conduct more. He said the same drug combination has been used in other states.
Dunn also read letters from victim Jo Deann Campbell's two sisters and mother, all of whom witnessed the execution. Mona Campbell, her mother, said the execution does not give her closure and will not bring back her youngest daughter. She said she hoped Brooks had "made peace with God." Jo Deann's sister, Fran Romano and Corinne Campbell also issued statements. "Just as God forgives me for my sins I pray for mercy for this man's soul," Corinne wrote....
Minutes before he was to die, word spread that the U.S. Supreme Court had denied Brook's request to stay the execution. Justice Stephen Breyer dissented from the ruling. Dunn said prison officials were notified of the justices' decision at 5:55 p.m., five minutes before the execution was scheduled to begin.... The request for the stay was made to Justice Clarence Thomas. Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred with Thomas' decision to deny the stay.
Brooks, 43, was convicted in the December 1992 rape and murder of 23-year-old Jo Deann Campbell. Investigators linked Brooks to the crime through DNA, fingerprints, and Campbell's car and other items taken from her Homewood apartment, including a credit card he had used. Her partially clothed body had been found under her bed and she had been beaten with a barbell.
Brooks was one of 187 inmates on Alabama Death Row. Twenty-two have served longer than Brooks on death row. Alabama changed its drug combination for executions in 2014 after it and other states reported they could no longer find supplies of the drugs it had used in the past, mainly because manufacturers did not want their drugs used in executions.
The SCOTUS order denying a stay in this case is available at this link, and here is the text of the concurrence and dissent:
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in the denial of certiorari.
This Court’s opinion upholding Alabama’s capital sentencing scheme was based on Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U. S. 447 (1984), two decisions we recently overruled in Hurst v. Florida, 577 U. S. ___ (2016). See Harris v. Alabama, 513 U. S. 504 (1995). I nonetheless vote to deny certiorari in this particular case because I believe procedural obstacles would have prevented us from granting relief.
JUSTICE BREYER, dissenting from denial of application for stay of execution and petition for certiorari.
Christopher Eugene Brooks was sentenced to death in accordance with Alabama’s procedures, which allow a jury to render an “advisory verdict” that “is not binding on the court.” Ala. Code §13A–5–47(e) (2006). For the reasons explained in my opinions concurring in the judgment in Hurst v. Florida, ante, at 1, and Ring v. Arizona, 536 U. S. 584, 613–619 (2002), and my dissenting opinion in Schriro v. Summerlin, 542 U. S. 348, 358–366 (2004), I dissent from the order of the Court to deny the application for stay of execution and the petition for a writ of certiorari. Moreover, we have recognized that Alabama’s sentencing scheme is “much like” and “based on Florida’s sentencing scheme.” Harris v. Alabama, 513 U. S. 504, 508 (1995). Florida’s scheme is unconstitutional. See Hurst, ante, at 1 (BREYER, J., concurring in judgment). The unfairness inherent in treating this case differently from others which used similarly unconstitutional procedures only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 1–2). I respectfully dissent.
Thursday, January 21, 2016
"Pulling Leviathan's Teeth – The Political Economy of Death Penalty Abolition"
The title of this post is the title of this provocative new article available via SSRN authored by Jerg Gutmann. Here is the abstract:
It is not immediately apparent why a state would willingly abolish the death penalty and thereby lose a powerful political instrument. The fact that some states abolish capital punishment while others retain it has thus far been explained by systematic differences in the values of politicians or citizens. An explanation of different behavior based on different preferences for such behavior is, however, largely tautological and not of much use to social science.
This article proposes and empirically tests a political economy model in which rational politicians are more likely to abolish the death penalty when it is of no political use to them and if the process of abolition serves as a self-commitment in periods of transition. The results of estimating stratified Cox regression models show that the death penalty tends to be abolished particularly during periods of democratization and transitions to peace, but also that independence of the judiciary can encourage abolition. In contrast, military dictatorships are significantly more likely to retain capital punishment, as are countries with a common law legal system and those that are strongly politically influenced by Islam. These findings support the view that the abolition of capital punishment is at least partly motivated by rational political considerations.
Wednesday, January 20, 2016
Supreme Court, reversing Kansas Supreme Court, finds no Eighth Amendment problems with Kansas capital procedures
Continuing to do significant capital sentencing procedure work at the start of 2016, the Supreme Court this morning handed down an opinion rejecting Eighth Amendment concerns with the way Kansas has imposed some capital sentences. The opinion of the Court in Kansas v. Carr, No. 14-449 (S. Ct. Jan. 20, 2016) (available here), authored by Justice Scalia and joined by every Justice except Justice Sotomayor, is at times quite nuanced in its analysis and at times quite crisp. Here are excerpts from the start and body of the opinion highlighting these realities:
The Supreme Court of Kansas vacated the death sentences of Sidney Gleason and brothers Reginald and Jonathan Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man. The Carrs’ notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable doubt.” And second, whether the Constitution required severance of the Carrs’ joint sentencing proceedings....
As an initial matter, the defendants’ argument rests on the assumption that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt. Assuming without deciding that that is the case, the record belies the defendants’ contention that the instructions caused jurors to apply that standard of proof....
Not once do the instructions say that defense counsel bears the burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt — nor would that make much sense, since one of the mitigating circumstances is (curiously) “mercy,” which simply is not a factual determination.....
The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’ background or the circumstances of their offense. Jurors would not have misunderstood these instructions to prevent their consideration of constitutionally relevant evidence....
Whatever the merits of defendants’ procedural objections [about a joint sentencing], we will not shoehorn them into the Eighth Amendment’s prohibition of “cruel and unusual punishments.” As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like “mercy.” Brief for United States 24, n. 8. As we held in Romano v. Oklahoma, 512 U. S. 1 (1994), it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing proceedings.” Id., at 11–12. Rather, it is the Due Process Clause that wards off the introduction of “unduly prejudicial” evidence that would “rende[r] the trial fundamentally unfair.” Payne v. Tennessee, 501 U. S. 808, 825 (1991); see also Brown v. Sanders, 546 U. S. 212, 220–221 (2006).
The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” 512 U. S., at 12. The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vacatur of a death sentence.
In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale.
Tuesday, January 19, 2016
Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida
In this post last week not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various Florida courts as both state and federal judges try to make sense of just what Hurst must mean for past, present and future capital cases.
Not surprisingly, as reported in these two new local articles, courts, lawyers and experts are already puzzled by the situation that SCOTUS has now handed them:
From the Orando Sentinel here, "Florida death penalty experts disagree on who will be spared execution"
From the Florida Times-Union here, "Courts face dilemma with Donald Smith and other death-penalty cases coming up after Supreme Court ruling"
As these capital cases are sure to unfold in hard-to-predict ways in the weeks and months ahead, I cannot help but be especially sympathetic to the difficult position in which Florida's prosecutors and the families of victims of capital murderers now find themselves in. Until the Florida legislature enacts a Hurst fix, and likely long thereafter, so many of the worst-of-the-worst murder cases are going to be in a legal limbo that will make hard cases for prosecutors and hard times for families only that much harder.
Prior related posts:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure out impact of Hurst
Saturday, January 16, 2016
"The End of the Death Penalty Isn't Near"
The title of this post is the title of this recent column by Noah Feldman for Bloomberg View, which is actually mostly focused on various votes by various Justices in this past week's ruling in Hurst v. Florida. Here are excerpts:
The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again. The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter. The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific. The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.
This arrangement violated a principle that Scalia and Thomas adopted in 2000 as part of their goal to strike down federal sentencing guidelines. According to that principle, any fact that’s necessary to increase a defendant’s punishment must be submitted to the jury for proof beyond a reasonable doubt. The Florida structure didn’t satisfy that requirement, the court held. So Scalia and Thomas had no choice but to join the opinion....
In case you’re wondering if Scalia and Thomas are somehow softening, proof to the contrary may be gleaned from the fact that last week, the court refused to stay the execution of a Florida death row inmate. Ordinarily, if the court knew that a forthcoming opinion would save a defendant’s life, it would issue a stay — a decision that requires five justices.
The court didn’t give a reason for refusing the stay. But the defendant, Oscar Ray Bolin Jr., had waived the jury’s part of the process at his 2001 trial and chosen to go straight to the judge for sentencing. Thus, the court could’ve concluded that he wouldn’t have benefited from the constitutional rule requiring submission of facts to the jury. You’re entitled to waive your constitutional rights, and five of the justices must’ve thought that Bolin would’ve done so even if he’d known he had the right to demand a jury finding.
And what about Breyer? He still hasn’t given up on the constitutionality of the sentencing guidelines. He concurred separately in the Florida case to explain that he still doesn’t think that facts enhancing punishment must be submitted to a jury. He gave a different reason for striking down the sentence, namely that the death penalty in particular must be decided by a jury, not a judge.
The upshot is that the Florida case wasn’t about the death penalty for Scalia and Thomas — it was about the old fight over the sentencing guidelines, which Breyer hasn’t forgotten either.
Prior related postson Hurst:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure impact of Hurst
Friday, January 15, 2016
Intriguing new poll on 2016 Californian perspectives on the death penalty
This local article, headlined "Poll: California death penalty is toss-up for voters," reports on a notable new poll of a notable group of state voters on an issue that often garners national attention. Here are the basics:
Opposition to capital punishment continues to rise in California, a new Field Poll released Friday shows, with state voters now equally divided between scrapping the death penalty altogether and speeding up the path to executing inmates on the nation's largest death row.
The poll found that 47 percent of voters favor replacing the death penalty with life in prison without the possibility of parole in California, up from 40 percent in 2014. But at the same time, the poll shows that 48 percent of registered voters would support proposals to accelerate the state's notoriously slow system of resolving death penalty appeals to pick up the pace of executions.
California voters are likely to be confronted with those two issues on the November ballot. Death penalty opponents are preparing a measure that would abolish California executions, while advocates of capital punishment are proposing a conflicting measure to reform and speed up the death penalty system....
Voters in 2012 rejected the last effort to abolish California's death penalty by a 52 to 48 percent margin. If voters were to approve both measures in November, the one with the most votes would settle the death penalty question in California for now, according to both campaigns.
"I think the public really wants some action," said San Bernardino County District Attorney Michael Ramos, among the leaders of the measure to speed up the process. "We are either going to fix the death penalty or it's going away in California."
Support for such a measure, which includes shortening the timetable for the California Supreme Court to resolve death penalty appeals, has dropped since 2014, according to the Field Poll. At that time, 52 percent of state voters backed efforts to accelerate death penalty cases, four percent above the most recent poll.
California has not executed an inmate in nearly ten years as a result of legal challenges to the state's lethal injection method, leaving 750 inmates on death row whose state and federal appeals now take decades to resolve. National polls have also shown dropping support for the death penalty, which remains on the books in 30 other states.
Thursday, January 14, 2016
Is there any chance any domestic criminal justice issue gets any attention during tonight's GOP debate?
The first big Prez debate of this big Prez election year takes place in South Carolina, and I am already assuming that any number of notable and important domestic criminal justice issues will be largely forgotten as GOP candidates spar again over the now-standard debate topics of immigration, ISIS and terrorism, and economic development. Still, as this new Marshall Project piece highlights, the location of the GOP debate tonight was the site of a high-profile mass shooting, and that reality might perhaps enhance the (slim) odds we get a question or two about the death penalty or gun violence or the racial dynamics of crime, policing and punishment. The MP piece is titled "Republican Candidates on Criminal Justice: A Primer," and here is how it sets up a review of what the GOP candidates in the prime-time debate have said so far on the campaign trail about these issues:
Race. Guns. The Death Penalty.
If these issues resounded anywhere in the past year, it was in Charleston, S.C., where Dylann Roof shot and killed nine parishioners in a Bible study class in one of the oldest black churches in the South. The June massacre, apparently propelled by the gunman’s white supremacist views and coming amid a spate of killings of blacks by the police around the country, underscored a plaintive question being asked more and more: Do black lives matter?
Thursday night, Republicans seeking the party’s nomination for president gather in Charleston for their sixth televised debate, less than three weeks before their first big contest, the Iowa caucuses. In the weeks after the killings at Emanuel A.M.E. Church, the South Carolina Legislature finally confronted the racially divisive symbol of secession, the Confederate battle flag, and ordered it removed from the state house grounds. But questions of race, guns and the death penalty have only intensified nationally since then. Here’s how the candidates (listed in alphabetical order) stand on some of those issues, as reviewed by The Marshall Project.
Florida Supreme Court wasting no time trying to figure impact of Hurst
This new article by Chris Geidner for BuzzFeed News reports that the top court in the Sunshine State is asking lawyers to sort out ASAP the dark death penalty clouds that the Supreme Court created with its ruling earlier this week in Hurst finding unconstitutional the process Florida uses for imposing death sentences. The article is headlined "Florida Supreme Court Orders State To Address Death Sentencing Ruling’s Effect By Friday," and here are excerpts:
The Florida Supreme Court on Wednesday ordered state officials there to address questions by Friday about the effect of the U.S. Supreme Court’s decision striking down the state’s death sentencing law on a man due to be executed in less than a month. The brief order from the Florida high court came in the case of Cary Michael Lambrix, who currently is scheduled to be executed on Feb. 11. On Jan. 11, his lawyers had filed a petition for relief based on a similar argument to that made by Timothy Hurst at the U.S. Supreme Court.
After the U.S. Supreme Court ruled on Jan. 12 in Hurst’s case that Florida’s death sentencing law was unconstitutional under the Sixth Amendment because it violated the right to a jury by making the imposition of a death sentence the responsibility of a judge and not a jury, the Florida Supreme Court amended its order in Lambrix’s case. Lambrix was convicted and sentenced to death in 1984 for the murders of Clarence Moore and Aleisha Bryant....
Specifically, the state is ordered to address whether the U.S. Supreme Court’s decision should apply retroactively to past death sentences in Florida, how Hurst applies given the specific facts of Lambrix’s sentencing, and whether any error in Lambrix’s case should be viewed as harmless.
Tuesday, January 12, 2016
A few (too) quick thoughts on the post-Hurst hydra
As reported in this post, the Supreme Court via Hurst finally clarified today what most sensible folks long argued, namely that Florida's death penalty procedures have Sixth Amendment problems in light of the Supreme Court's 2002 ruling striking down Arizona's similar judge-dependent system in Ring v. Arizona. Kent Schneidegger in this post at Crime & Consequences highlights why this was not really a surprise and why what's next is the interesting issue now to follow:
Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.
The Florida Legislature foolishly stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring. I tried to tell them that was insane. They didn't listen. Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.
How many of the existing judgments can be salvaged? The Supreme Court said it left harmless error analysis to the state courts. In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance. Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.
The first thing the Florida Legislature needs to do is fix its system. And do it right this time.
Before turning to what Hurst may mean for the roughly 400 persons now on death row in Florida, I must first note that the two Floridians currently running to be US Prez should both be held responsible for the capital mess Florida now finds itself in. Jeb Bush was Gov of Florida when Ring was decided, and Marco Rubio was in the state legislature (and was not long thereafter to become Speaker of the Florida House). I hope that anyone troubled by the mess that Hurst creates for Florida's criminal justice system will direct some of their frustration to (and ask some hard questions of) this Sunshine State pair.
As for the mess that Hurst will create, I am coining the term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will grow and grow again in Florida's courts (both state and federal). Whether the Sixth Amendment can be deemed harmless in some cases on direct appeal and whether/how Hurst will be applied retroactively in collateral cases — e.g., is Hurst a new rule or just an application of Ring? — is sure to engender some interesting mythology-like discussions in state and federal courts in the months ahead.
Also, not to be overlooked as we take stock of the post-Hurst world, is whether any other states' capital systems might be subject to another round of procedural attack now. Alabama comes to mind because some of its nearly 200 death sentences were imposed via jury override by sentencing judges, though I am not sure if any of these are formally based on the judicial fact-finding found unconstitutional in Ring and Hurst. Similarly, it seems likely that creative capital defense lawyers will find creative ways to attack other death sentences in other jurisdictions based on something in Hurst.
Prior related post:
SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
The big news from SCOTUS this morning was a big (and notably short) ruling declaring unconstitutionally Florida's death penalty procedure via Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2015) (available here). Here is how the opinion of Justice Sotomayor for the Court gets started and ends:
A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determinewhether sufficient aggravating circumstances existed tojustify imposing the death penalty. The judge so found and sentenced Hurst to death.
We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough....
The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s fact-finding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.
Six Justices joined in Justice Sotomayor's opinion, and SCOTUS-watchers ought to have little trouble figuring out which justice concurred only in the result and which Justice dissented.
"Could One of These Cases Spell the End of the Death Penalty?"
The question in the title of this post is the headline of this new Marshall Project piece. Here is how it starts, with links from the original:
Last June, Supreme Court Justice Stephen Breyer suggested that the death penalty might be close to its ultimate demise. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote in a dissent toGlossip v. Gross, to which Justice Ruth Bader Ginsburg added her name, “I would ask for a full briefing on a more basic question: whether the death penalty violates the Constitution.”
Attorneys for death-row inmates, generally a tight-knit group, immediately started talking about what to do next. While some urged caution — arguing that if the court upholds capital punishment it could set their cause back indefinitely — others sensed a rare opportunity. The most outspoken advocates for a more aggressive strategy have been the 8th Amendment Project, a group of lawyers who oppose the death penalty and are tracking cases that might allow the court to strike it down for good.
On Friday, the high court will discuss whether to hear a challenge to the death sentence of a Pennsylvania woman named Shonda Walter. Her case is one of several posed as direct responses to Breyer’s invitation to attack the death penalty head-on.
There is no way to know whether the justices will take any of these cases; for the court to take a case, four justices must agree, and aside from Breyer and Ginsburg, no other justices have indicated their views on whether to take such a challenge. If they do take a case, there is also no way of knowing which one they will position as the next potential landmark, the next Brownor Miranda or Roe. But each of those historic cases was preceded by numerous appeals of the sort that are now reaching the court. Death penalty abolitionists are braiding the details of these cases to the legal arguments they believe have the best shot at swaying the court.
Wednesday, January 06, 2016
Two new Slate commentaries assailing the modern death penalty and modern prisons
The on-line magazine Slate has these two notable new commentaries on two topics that are often the focal point of this blog:
Tuesday, January 05, 2016
Interesting international death penalty data via Amnesty International
Amnesty International (AI) is a human rights organization that has long called for abolition of the death penalty worldwide. Via this New York Times article, headlined "Death Sentences Surge, Even as More Countries Drop Capital Punishment," I see that AI has released its latest accounting on global capital punishment practives in this lengthy report titled "Death Sentences and Executions in 2014." Here is the report's executive summary:
Amnesty International recorded executions in 22 countries in 2014, the same number as in 2013. At least 607 executions were carried out worldwide, a decrease of almost 22% compared with 2013. As in previous years, this figure does not include the number of people executed in China, where data on the death penalty is treated as a state secret. At least 2,466 people are known to have been sentenced to death in 2014, an increase of 28% compared with 2013. This increase was largely due to sharp spikes in death sentences in Egypt and Nigeria, where courts imposed mass sentences against scores of people in some cases.
An alarming number of countries that used the death penalty in 2014 did so in response to real or perceived threats to state security and public safety posed by terrorism, crime or internal instability. For example, Pakistan lifted a six-year-long moratorium on the execution of civilians in the wake of the horrific Peshawar school attack. The government also pledged to execute hundreds of people on death row who had been convicted on terrorism-related charges. China made use of the death penalty as a tool in the “Strike Hard” campaign, which the authorities characterized as a response to terrorism and violent crime in the Xinjiang Uighur Autonomous Region.
There is no evidence that the death penalty has a greater deterrent effect on crime than terms of imprisonment. Where governments present the death penalty as a solution to crime or insecurity they are not only misleading the public but — in many cases — failing to take steps to realize the goal of abolition recognized in international law.
Many of those states that retain the death penalty continued to use it in contravention of international law and standards. Unfair trials, “confessions” extracted through torture or other ill-treatment, the use of the death penalty against juveniles and people with mental or intellectual disabilities, and for crimes other than “intentional killing” continued to be concerning features of the use of the death penalty in 2014.
Despite these concerns, the world continues to make progress towards abolition.
With the exception of Europe and Central Asia region, where Belarus — the only country in the region that executes — resumed executions after a 24-month hiatus, Amnesty International documented positive developments in all regions of the world. The Sub-Saharan Africa region saw particular progress, with 46 executions recorded in three countries, compared to 64 executions in five countries in 2013 — a 28% reduction. The number of executions recorded in the Middle East and North Africa region decreased by approximately 23% — from 638 in 2013 to 491 in 2014. In the Americas, the USA is the only country that executes, but executions dropped from 39 in 2013 to 35 in 2014, reflecting a steady decline in executions over recent years. The state of Washington imposed a moratorium on executions.
Fewer executions were recorded in the Asia-Pacific region, excluding China, and debates on abolition began in Fiji, South Korea and Thailand.
Monday, January 04, 2016
Noting Alabama's notable struggles to secure various execution drugs
This lengthy local article, headlined "Court records show pharmacists refused death penalty drugs," reports on the various difficulties experienced by the Cotton State in an effort to get the chemical tools it needs to get its machinery of death running again. Here are some details:
At the height of Alabama’s search for lethal injection drugs, state officials were turned down by every pharmacy they contacted for help, according to court records filed Wednesday. State officials asked every licensed compounding pharmacist in Alabama to make batches of pentobarbital — once the primary drug used to kill inmates — and all refused. Attempts to buy the drug from four other states also failed, court documents state.
Those refusals could point to a rough road ahead for the death penalty, despite a U.S. Supreme Court ruling last year that cleared another drug, midazolam, for use in executions.... Alabama officials are trying to resume executions by lethal injection after a two-year hiatus caused by legal challenges and shortages of key execution drugs.
Tommy Arthur, condemned to death for the 1980s murder-for-hire of Muscle Shoals resident Troy Wicker, is one of several inmates who have challenged the state’s current approach to execution: injecting an inmate with midazolam to deaden pain, rocuronium to still the muscles and potassium chloride to stop the heart.
Midazolam has been used in botched executions in other states, including an Oklahoma execution in 2014 in which it took an inmate more than 30 minutes to die after the drugs were injected. Inmates say the use of midazolam is cruel and unusual, but the U.S. Supreme Court approved its use in an Oklahoma case last summer, seemingly clearing the way for executions in Alabama as well.
Lawyers for the state on Wednesday asked a federal court for a summary judgment that would end Arthur’s appeals and send him to the execution chamber. But Arthur’s lawyers are trying to flip the script in the case. Before the state adopted midazolam as a death penalty drug, Arthur filed a similar challenge against the use of pentobarbital, Alabama’s main execution drug before 2014. Now that he’s faced with execution by a new drug, Arthur wants to switch back to pentobarbital, a drug he claims is less cruel than midazolam.
Lawyers for the Alabama attorney general’s office say they can’t return to pentobarbital, because no one will sell the drug to the Department of Corrections. “These sources have either indicated they cannot obtain the ingredients for compounded pentobarbital, were not capable of compounding pentobarbital, or refused to be a supplier for the ADOC” lawyers for the attorney general’s office wrote in a court document.
The court documents, among hundreds of pages filed in Arthur’s case last week, shed light on Alabama’s often secretive attempts to obtain drugs for use in lethal injection. Several states have struggled to get their hands on drugs because a growing number of drug suppliers refuse to sell them, citing ethical objections or opposition to capital punishment.... [I]n the Arthur case ... new court documents show ... the state simply couldn’t find a supplier, despite contacting “nearly thirty” sources....
Arthur’s lawyers supplied the state with a list of 19 Alabama pharmacies they said were potential sources of pentobarbital. (All 19 names are blacked out in court documents.) But the state’s lawyers argue they’ve contacted all 19, plus others, and been turned down. “While Arthur alleged that as many as 10 states intend to use compounded pentobarbital for executions, the process of obtaining compounded pentobarbital is difficult to impossible for most,” the state’s lawyers wrote.
That might not matter now, given that Alabama has switched to midazolam, a drug that’s more readily available on the market. But pharmacists’ resistance to compounding execution drugs may soon turn out to be important in the search for midazolam as well...
Two major suppliers of midazolam — Illinois-based Akorn and New Jersey-based Becton-Dickinson — have declared in the past year that they’re opposed to selling the drug to Alabama for executions. While the state hasn’t identified its midazolam supplier, the state’s lawyers used “package inserts,” essentially instructions for use of a midazolam, from Akorn and Becton Dickinson in court filings this year. Both companies have denied selling the drug directly to Alabama prisons, and Akorn even asked the state to return any Akorn-made midazolam it had on hand for executions.
Individual pharmacists are also backing out of the lethal injection business. Last year, the International Academy of Compounding Pharmacists and the American Pharmacists Association both voted to discourage their members from supplying drugs for executions.
Saturday, January 02, 2016
Local prosecutor urges Wyoming legislature to "fish or cut bait" with capital punishment
As reported in this local AP piece, headlined "Casper prosecutor says Wyoming needs to reconsider death penalty," a district attorney in the Equality State is complaining that his state legislature seems unwilling to back the state's capital laws with sufficient capital. Here is the story:
A prosecutor who secured a death sentence against Dale Wayne Eaton for the murder of a woman nearly 30 years ago says the lingering appeal in the case shows the Wyoming Legislature must decide if it's willing to provide the resources necessary to handle capital punishment.
The call came from Natrona County District Attorney Mike Blonigen, who prosecuted Eaton in 2004 for the 1988 killing of Lisa Kimmell of Billings, Montana. For years, Eaton was the only man on death row in Wyoming. His death sentence was overturned in November 2014. "You keep going, and you tell yourself that this is about what the man actually did," Blonigen said.
"But it seems the further we get removed from what he actually did, and out from his trial, the less and less that seems to matter," Blonigen said of Eaton. "Instead, we're tied up in all this other stuff that has nothing to do with the truth or untruth of any of the allegations made, but have everything to do with the procedure."
Kimmell disappeared while driving across Wyoming and fishermen later found her body in the North Platte River. In 2002, DNA evidence linked Eaton to the case while he was in prison on unrelated charges.
The Wyoming Supreme Court upheld Eaton's death sentence, but U.S. District Judge Alan B. Johnson of Cheyenne overturned it last year, ruling that ruled that Eaton hadn't received an adequate defense. Johnson said the Wyoming Public Defender's Office had tried to scrimp on expenses and failed to follow American Bar Association staffing recommendations on providing qualified lawyers, an investigator and a mitigation expert.
Johnson gave the state the choice of allowing Eaton to serve life in prison or seeking the death penalty against him at a new sentencing hearing with the requirement that the state appoint lawyers for him not associated with the Wyoming Public Defender's Office. Blonigen began pressing in state court to hold a new death penalty hearing for Eaton.
But Johnson ruled this summer that the state had failed to follow his order by not appointing new lawyers for Eaton fast enough. In his order last week, Johnson prohibited the state from holding a new death penalty hearing while Eaton appeals aspects of the order Johnson issued last year. Eaton's current legal team is asking a federal appeals court in Denver to rule that too much time has passed for Eaton to get a fair death penalty hearing.
Gov. Matt Mead's budget recommendations, released before Johnson's order, called for the Legislature to appropriate over $1 million for the coming two-year state funding cycle to pay for Eaton's defense in state court. Mead also is calling for $25,000 to study whether prosecutors and the Public Defender's Office are receiving adequate funding.
Wyoming last carried out the death penalty in 1992, when it executed convicted murderer Mark Hopkinson. Several other death sentences have been overturned on appeal since then on the grounds of ineffective legal representation from the Public Defender's Office....
Blonigen said Eaton's case underscores the need for the state to provide adequate support if it wants to keep the death penalty on the books. "You've got to have the resources and have the commitment to it to carry through with it," Blonigen said. "I think the Legislature has to decide do we really want this or not. If we really want it, then we have to change some things."
Monday, December 28, 2015
Defense argues veteran's mental problems should make him ineligible for Oregon death penalty
This interesting local article from Oregon reports on a notable and novel argument being made by defense attorneys for a defendant accused in a brutal group murder. The story is headlined "Lawyers cite client’s military service in arguing that death penalty should not be sentencing option if found guilty," and here are the interesting details:
Army veteran A.J. Nelson stands accused of playing a central role in a brutal Eugene murder that happened three years after his squad’s armored vehicle was destroyed by a roadside bomb during a combat tour in Afghanistan.
Nelson was badly hurt in the blast, and his attorneys say there’s a link between the mild traumatic brain injury he suffered and his alleged crimes. They are asking a judge to exclude the death penalty as a potential sentencing option in their client’s case due to his service-related injury. One of Nelson’s court-appointed lawyers, Laurie Bender of Portland, said in a telephone interview that she does not know of any prior capital case in which a judge has been asked to rule on a death penalty exclusion request made on behalf of a former soldier.
Nelson, now 25, is scheduled to go to trial in March. If he is convicted of aggravated murder in the slaying of Celestino Gutierrez Jr., prosecutors could ask a jury to sentence Nelson to death. Nelson was one of three people arrested and charged with kidnapping and killing Gutierrez, and then using his car to carry out an armed, takeover-style bank robbery in Mapleton in August 2012.
The plot’s mastermind, David Ray Taylor of Eugene, is now on Oregon’s death row after a jury convicted him in May 2014. The third defendant in the case, Mercedes Crabtree, is serving life in prison with the possibility of parole after 30 years. She pleaded guilty to the murder in 2013 and agreed to testify against both Nelson and Taylor.
Nelson’s lawyers said in a recent court filing that they intend to present evidence at trial of a mental disease or defect that interfered with their client’s ability to form the intent to commit the alleged crimes. In addition to the brain injury, the attorneys also assert Nelson has been diagnosed with post-traumatic stress disorder.
Those two issues change the way people see and react to the environment, can lead to other psychological problems and produce “a greater propensity for aberrant and criminal behavior,” Bender wrote in a Dec. 15 motion to exclude the death penalty in Nelson’s case. “Nelson’s service-related injuries and illness do not exonerate him of the charged offenses but mitigate his culpability and the state’s standing to execute him,” Bender wrote...
The Dec. 15 filing includes copies of awards and commendations Nelson received as a result of his military service. They include the Purple Heart, given to soldiers who are injured or killed while serving.... Nelson’s lawyers say sentencing a war veteran with PTSD to death is unconstitutional, and amounts to cruel and unusual punishment under the Eighth Amendment. Veterans, the attorneys argue, deserve categorical death-penalty exclusions similar to those given to juvenile offenders and people with intellectual disabilities....
According to evidence presented at Taylor’s trial, Taylor came up with a plan to kill a stranger and take that person’s vehicle for use in a bank robbery.... Crabtree then obtained a ride from Gutierrez to Taylor’s nearby home. Gutierrez was slain at the house, where Taylor, now 60, and Nelson are said to have dismembered his body. Crabtree, who was 18 at the time of the incident, testified during Taylor’s trial that Nelson — at Taylor’s direction — bound Gutierrez with electrical wire and a belt, pushed a crossbow bolt through one of the victim’s ears and choked him.
After mocking Nelson for failing to kill Gutierrez swiftly, Taylor wrapped a metal chain around Gutierrez’s neck and pulled on it until the victim stopped breathing, Crabtree told the jury. Crabtree said Nelson went into a brief seizure as he and Taylor dismembered the body, and came out of it confused about what he had done.
It is well-established constitutional law that defendants can present mitigating evidence of all sorts, including evidence of mental battle scars of war, to argue to a jury not to impose a death sentence. But here it seems defense attorneys are pressing for a new categorical ban on the death penaty for veterans whose service-related injuries may have played a role in their capital crimes.
Some (of many) prior related posts:
- Should prior military service reduce a sentence?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- "Should Veterans With PTSD Be Exempt From the Death Penalty?"
- "Neuroscience, PTSD, and Sentencing Mitigation"
- Should there be a death penalty exemption for combat veterans with PTSD?
- "Military Veterans, Culpability, and Blame"
- Should honoring vets and PTSD call for commuting a death sentence?
- "Battle Scars: Military Veterans and the Death Penalty"
Saturday, December 26, 2015
Hoping Californians get crisp "mend it or end it" capital initiative votes in 2016
This local article, headlined "Death penalty supporters seek to speed up executions," reports on efforts in California to give voters a chance to mend the state's broken capital punishment system by initiative. Here are the basics:
Death penalty supporters got the state’s go-ahead Thursday to collect signatures for a November 2016 ballot measure aimed at speeding up executions, raising the prospect that voters will be asked to choose between toughening California’s death penalty law and repealing it.
The new initiative would require the state Supreme Court to rule on capital cases within five years. It would also limit death penalty appeals, set strict deadlines for filing appeals and seek to expand the pool of death penalty lawyers. Any attorney who now accepts court appointments to represent impoverished defendants in criminal cases would also have to take on capital cases, regardless of experience.
Another provision would eliminate the currently required public comment period before the state can approve a new single-drug execution method, which officials have proposed to replace the current three-drug executions. Supporters of the measure say it would reduce by at least half the period, typically 25 years or more, needed to resolve death penalty appeals in California. Opponents disagree, noting that the initiative would not add funding for death penalty lawyers or court staff.
A rival initiative to repeal the death penalty and replace it with life imprisonment without parole was cleared for circulation last month. A similar repeal measure was defeated by four percentage points in November 2012. Both initiatives need 365,880 signatures of registered voters in 180 days to qualify for the ballot. Sponsors of the new initiative have raised more than $1 million so far and expect to collect the needed signatures, said Charles Bell, a lawyer for the campaign.
This article also notes that California has not carried out an execution in a decade thanks to lethal injection litigation, while still having the nation's largest death row with nearly 750 condemned murderers waiting to receive their jury-imposed death sentence. As readers may recall, the remarkable size and delay that has come to define California's dysfunctional capital system itself led to a (temporary) ruling of unconstitutionality in federal courts in recent years.
As the title of this post highlights, I am hopeful that both proposals to deal with California's capital system come before voters in 2016. If both do, voters will likely have a crisp "mend it or end it" set of policy choices, and there will also likely be considerable funding (both local and national) devoted to informing voters about what votes on these proposals would mean in an election year likely to be marked by high turnout. Through such a process, we should get some really good insights concerning what voters in a huge (left-leaning) state really want to do about the death penalty circa 2016.
Prior related post:
Wednesday, December 23, 2015
"IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins"
The title of this post is the title of this article by Robert Sanger recently posted on SSRN. Here is the abstract:
In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty. Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled. Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.
Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty. This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race. The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores.
Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.
Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors — such as childhood abuse, poverty, stress, and trauma — can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.
Monday, December 21, 2015
Pennsylvania Supreme Court upholds Gov Wolf's execution moratorium
As reported in this local press article, Pennsylvania's "Gov. Wolf acted within his constitutional authority to temporarily halt the execution of a convicted murderer from Philadelphia, the state Supreme Court ruled on Monday." Here is more from the article about this notable ruling from the top court in the Keystone State:
In a unanimous decision, the high court said Wolf had the power to delay the death sentence for Terrance Williams until a legislative task force issued its final report on the future of capital punishment in Pennsylvania. The ruling doesn't apply to Wolf's broader moratorium on the death penalty, but represented a victory for the governor in the broader and contentious battle over the future of executions in the commonwealth.
Wolf announced the reprieve for Williams in February, saying he would shelve all executions until after the report was issued. That decision that was challenged by Philadelphia District Attorney Seth Williams and prosecutors from other counties, who argued, among other things, that the governor's position unlawfully meddled with the jury's decision in the case.
But in a 33-page decision written by Justice Max Baer, the court said, "we disagree with the Commonwealth's suggestion that the reprieve unconstitutionally altered a final judgment of this Court; rather, the execution of the judgment is merely delayed."
The court was careful to say it was not considering whether Wolf's overall moratorium was legal; instead, it said, it was weighing specifically whether the governor could delay the execution of Williams, a former quarterback at Germantown High School who was convicted for the 1984 killing of Amos Norwood, a 56-year-old church volunteer. "Future challenges to reprieves granted by Governor Wolf will have to await independent examination based upon our holdings herein," the court wrote....
Wolf issued a brief statement saying he was pleased by the court's ruling. When he announced the decision earlier this year, he called the death penalty "ineffective, unjust, and expensive." A report from the task force studying if the death penalty can be legally and effectively administered in Pennsylvania was initially due two years ago. But its deadline has been extended.
Shawn Nolan, Terrance Williams' attorney, said Monday that he had not yet shared the news with his client but was pleased with the decision. "We have been saying all along that it was constitutional what the governor did," he said. "We're gratified that the Supreme Court made a unanimous decision."
Williams' case is also scheduled to go before the U.S. Supreme Court in February. In that appeal, Nolan is arguing that former Pennsylvania Supreme Court Justice Ronald D. Castille should have recused himself from hearing appeal in the case because he was Philadelphia's district attorney when Williams was sentenced to death.
Cameron Kline, spokesman for the Philadelphia District Attorney's Office, said that prosecutors respected the decision even though they had argued for another outcome.
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 dysfunctional death penalty
- Pennsylvania Attorney General calls Governor's execution moratorium an "egregious violation" of the state constitution
Astute review of factors killing the death penalty ... with a questionable final assessment
The Economist has this lengthy new piece (as well as this intriguing graphic) about the modern administration of capital punishment in the United States headlined "Who killed the death penalty?: Many suspects are implicated in capital punishment’s ongoing demise. But one stands out." I recommend the full piece; but, as explained below, I am put off a bit by its concluding statement. First, here are extended excerpts along with the closing paragraph:
Exhibit A is the corpses. Or rather, the curious paucity of them: like the dog that didn’t bark in Sherlock Holmes, the bodies are increasingly failing to materialise. Only 28 prisoners have been executed in America in 2015, the lowest number since 1991. Next, consider the dwindling rate of death sentences — most striking in Texas, which accounts for more than a third of all executions since (after a hiatus) the Supreme Court reinstated the practice in 1976. A ghoulish web page lists the inmates admitted to Texas’s death row. Only two arrived in 2015, down from 11 the previous year.
There is circumstantial evidence, too: the political kind. Jeb Bush, a Republican presidential candidate — who, as governor of Florida, oversaw 21 executions — has acknowledged feeling “conflicted” about capital punishment. Hillary Clinton, the Democratic frontrunner, said she “would breathe a sigh of relief” if it were scrapped. Contrast that stance with her husband’s return to Arkansas, during his own campaign in 1992, for the controversial execution of a mentally impaired murderer. Bernie Sanders, Mrs Clinton’s main rival, is a confirmed abolitionist.
The proof is overwhelming: capital punishment is dying. Statistically and politically, it is already mortally wounded, even as it staggers through an indeterminate — but probably brief — swansong. Fairly soon, someone will be the last person to be executed in America. The reasons for this decline themselves form a suspenseful tale of locked-room intrigue, unexpected twists and unusual suspects. So, whodunnit? Who killed the death penalty?
Where politicians follow, voters often lead. Capital punishment is no longer a litmus test of political machismo because public enthusiasm for it is waning. Most Americans still favour retaining it, but that majority is narrowing. And one critical constituency — the mystery’s first prime suspect — is especially sceptical: juries....
The widely available alternative of life without parole — which offers the certainty that a defendant can never be released — helps to explain that trend [of fewer jury-imposed death sentences]. So does the growing willingness of jurors, in their private deliberations, to weigh murderers’ backgrounds and mental illnesses; ditto the greater skill with which defence lawyers, generally better resourced and trained than in the past, muster that mitigating evidence. But the biggest reason, says Richard Dieter of the DPIC, is juries’ nervousness about imposing an irrevocable punishment. Behind that anxiety stands another, unwilling participant in the death-penalty story: the swelling, well-publicised cadre of death-row exonerees....
Those mistakes implicate another suspect in the death penalty’s demise: prosecutors. The renegades who have botched capital cases — by suppressing evidence, rigging juries or concentrating on black defendants — have dragged it into disrepute. But some responsible prosecutors have also contributed, by declining to seek death in the first place. They have been abetted by another unlikely group: victims’ relatives....
To avoid that protracted agony [of repeated capital appeals], says James Farren, district attorney of Randall County in Texas, “a healthy percentage” of families now ask prosecutors to eschew capital punishment. Mr Farren also fingers another key player in the death-penalty drama: the American taxpayer. Capital cases are “a huge drain on resources”, spiralling costs that — especially given juries’ growing reluctance to pass a death sentence anyway — have helped to change the calculus about when to pursue one, Mr Farren says....
Even when the appeals are exhausted, enacting a death sentence has become almost insuperably difficult — because of an outlandish cameo by the pharmaceutical industry. Obtaining small quantities of drugs for lethal injection, long the standard method, might seem an easy task in the world’s richest country; but export bans in Europe, American import rules and the decision by domestic firms to discontinue what were less-than-lucrative sales lines has strangled the supply....
Lethal injection was intended to be reassuringly bloodless, almost medicinal (as, once, was electrocution). Should it become impractical, it is unclear whether Americans will stomach a reversion to gorier methods such as gassing and shooting: they are much less popular, according to polls. The death penalty’s coup de grace may come in the form of an empty vial.
Or it may be judicial rather than pharmaceutical: performed in the Supreme Court, the most obvious suspect of all. In an opinion issued in June, one of the left-leaning justices, Stephen Breyer, voiced his hunch that the death penalty’s time was up. He cited many longstanding failings: arbitrariness (its use varying widely by geography and defendants’ profiles); the delays; the questionable deterrent and retributive value; all those exonerations (Mr Breyer speculated that wrongful convictions were especially likely in capital cases, because of the pressure to solve them). He concluded that the system could be fair or purposeful, but not both. Meanwhile Antonin Scalia, a conservative justice, recently said he would not be surprised to see the court strike capital punishment down.
Cue much lawyerly soothsaying about that prospect. Yet the legal denouement is already in train: a joint enterprise between state courts, legislatures and governors. Of the 19 states to have repealed the death penalty, seven have done so in the past nine years. Others have imposed moratoriums, formal or de facto, including, in 2015, Arkansas, Ohio, Oklahoma, Montana and Pennsylvania. The number that execute people — six in 2015 — is small, and shrinking. (After their legislature repealed the death penalty in May, Nebraskans will vote in 2016 on reinstating it; but their state hasn’t executed anyone since 1997.) These machinations may help to provoke a mortal blow from the Supreme Court. After all, the fewer states that apply the punishment, the more “unusual”, and therefore unconstitutional, it becomes.
Juries; exonerees; prosecutors, both incompetent and pragmatic; improving defence lawyers; stingy taxpayers; exhausted victims; media-savvy drugmakers: in the strange case of the death penalty, there is a superabundance of suspects. And, rather as in “Murder on the Orient Express”, in a way, they all did it. But in a deeper sense, all these are merely accomplices. In truth capital punishment is expiring because of its own contradictions. As decades of litigation attest — and as the rest of the Western world has resolved — killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society. In the final verdict, America’s death penalty has killed itself.
This article does an effective job summarizing how and why the death penalty in the US continues to be subject to attacks that could lead to its eventual demise. But, even using just 2015 evidence, one could still build an argument that capital punishment has steady heartbeat in the United States. Prez Obama's Justice Department sought and secured a federal death sentence against the Boston bomber in deep blue Massachusetts, while Gov Brown's Attorney General appealed and got reversed a judicial ruling threatening the largest state capital punishment system in deep blue California. Meanwhile, officials in swing state Pennsylvania and activists in heartland Nebraska still (reasonably) think advocating for the death penalty makes for good politics.
Ultimately, I see 2016 as a make-or-break year for the future of the death penalty in the US. If voters in Nebraska (and perhaps also California) vote for the death penalty's repeal, or if US voters elect a new Prez likely to appoint abolitionsit-minded judges and Justices, I will jump on the "death penalty is dying" bandwagon. But, because actual voters rather than just elites still shape the direction of significant legal reforms in our democracy, I do not expect the death penalty to be truly dying until a significant majority of Americans share the legal elite's belief that "killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society."
It is these words at the end of this article that put me off because I continue to struggle with the notion that giving tens of thousands of lesser offenders life-without-parole prison sentences is somehow more "civilized" than giving a few of the very worst murderers a death sentence. Though I respect and understand why abolitionists feel strongly that the death penalty is inconsistent with many American values they cherish, I find it problematic and troubling that so many abolitionists seem to have little respect and understanding for those who believe the death penalty vindicates legitimate values. And, I think that the reduced use of the death penalty well-chronicled in this Economist article suggest reasons why, over time, it could become easier for supporters of the death penalty to show to voters that capital punishment will in the future only be used in the very worst cases involving no doubt about the guilt and the horrors of the murders committed.
Wednesday, December 16, 2015
DPIC releases year-end report highlighting death penalty use "declines sharply" in 2015
This press release from the Death Penalty Information Center, titled "Death Penalty Use in 2015 Declines Sharply: Fewest Executions, Fewest Death Sentences, and Fewest States Employing the Death Penalty in Decades," provides a summary of the DPIC's 2015 year-end report on the administration of the death penalty in the United States. Here are excerpts from the press report:
The use of the death penalty in the U.S. declined by virtually every measure in 2015. The 28 executions this year marked the lowest number since 1991, according to a report released today by the Death Penalty Information Center (DPIC). As of December 15, fourteen states and the federal government have imposed 49 new death sentences this year, a 33% decline over last year’s total and the lowest number since the early 1970s when the death penalty was halted by the U.S. Supreme Court.
Only six states conducted executions this year, the fewest number of states in 27 years. Eighty-six percent of executions this year were concentrated in just three states: Texas (13), Missouri (6), and Georgia (5). Executions in 2015 declined 20 percent from 2014, when there were 35. This year was the first time in 24 years that the number of executions was below 30.
Death sentences have been steadily declining in the U.S. over the past 15 years. The country has now imposed fewer death sentences in the past ten years than in the decade just before the U.S. Supreme Court declared the death penalty unconstitutional in 1972. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC’s Executive Director and the author of the report....
Relatively few jurisdictions handed down death sentences in 2015. A single county — Riverside, California — imposed 16% of all death sentences in the U.S., and accounted for more death verdicts than any state, except for Florida. More than a quarter of the death sentences were imposed by Florida and Alabama after non-unanimous jury recommendations of death — a practice barred in all but three states. Texas, by contrast, imposed only two new death sentences in 2015. Nearly two-thirds of all new death sentences this year came from the same two percent of U.S. counties that are responsible for more than half of all death-sentenced inmates nationwide.
Even as the use of the death penalty declined, its most dangerous flaw remained apparent. Six death row prisoners were exonerated of all charges this year, one each in Alabama, Arizona, Florida, Georgia, Mississippi, and Texas. Since 1973, a total of 156 inmates have been exonerated and freed from death row. The number of people on death row dropped below 3,000 for the first time since 1995, according to the latest survey by the NAACP Legal Defense Fund.
At least 70 death row prisoners with execution dates in 2015 received stays, reprieves, or commutations, 2.5 times the number who were executed.
I have reprinted above the DPIC graphic emphasizing the continued decline in the number of death sentences imposed each year because I view that metric as the most significant and consequential in any serious discussion of the present status and future prospects of capital punishment throughout the US.
Monday, December 14, 2015
SCOTUS yet again summarily reverses circuit reversal of state death sentence
The Supreme Court this morning issued what has become a notably common type of summary reversal: in White v. Wheeler, No. 14-1372 (S. Ct. Dec. 14, 2015) (available here), the Justices via a per curiam opinion determined the Sixth Circuit was wrong to overturn a death sentence based on the exclusion of a juror. Here is part of how the opinion starts and ends:
A death sentence imposed by a Kentucky trial court and affirmed by the Kentucky Supreme Court has been overturned, on habeas corpus review, by the Court of Appeals for the Sixth Circuit. During the jury selection process, the state trial court excused a juror after concluding he could not give sufficient assurance of neutrality or impartiality in considering whether the death penalty should be imposed. The Court of Appeals, despite the substantial deference it must accord to state-court rulings in federal habeas proceedings, determined that excusing the juror in the circumstances of this case violated the Sixth and Fourteenth Amendments. That ruling contravenes controlling precedents from this Court, and it is now necessary to reverse the Court of Appeals by this summary disposition....
The two federal judges in the majority below might have reached a different conclusion had they been presiding over this voir dire. But simple disagreement does not overcome the two layers of deference owed by a federal habeas court in this context.
The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment. Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis....
As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. See, e.g., Parker v. Matthews, 567 U.S. ___ (2012) (per curiam); Bobby v. Dixon, 565 U.S. ___ (2011) (per curiam); Bobby v. Mitts, 563 U.S. 395 (2011) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam).
Kent Scheidegger at Crime & Consequences has this interesting closing thought in this post about this latest SCOTUS summary reversal:
The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary. Judges who cannot or will not decide capital cases fairly should not sit on them. They should be excludable just like the jurors. If they will not recuse themselves, perhaps it is time to establish a challenge for cause. How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?
Friday, December 11, 2015
Prez candidate Donald Trump pledges (seemingly unconstitutional) death penalty mandate for cop killers
As reported in this article from The Hill, "Republican presidential front-runner Donald Trump on Thursday vowed to issue an executive order to mandate the death penalty for anyone who kills a police officer." Here is more:
“One of the first things I’d do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen,” he said.
“We can’t let this go,” he added, speaking to a New Hampshire crowd alongside the New England Police Benevolent Association, shortly after the group voted to endorse Trump.
The outspoken businessman referenced the 2014 shooting of two New York City police officers in their squad car, which prompted significant outcry from some conservatives accusing President Obama of fostering resentment against police officers. “I want to let you know, the police and law enforcement in this country, I will never ever let them down,” he said. “The job they do and the job all you in this room do is second to none, and everyone in our country knows that.”
As most informed readers likely know, the Supreme Court back in 1976 first declared that a system of mandatory death sentencing was unconstitutional, and the Justices reaffirmed this "individualization" constitutional requirement in a number of subsequent ruling. But Justice Scalia has long complained about the Supreme Court finding such a limit in the Constitution, and it is certainly possible that a President Trump might be inclined to seek to live up to this campaign pledge by seeking to overturn prior SCOTUS precedent precluding any capital punishment mandates.
Wednesday, December 09, 2015
Georgia struggles a bit while completing final scheduled US execution of 2015
As reported in this local article, headlined "Georgia executes Brian Keith Terrell after struggling to find vein," the Peach State had a not-so-peachy time completing an execution yesterday. Here are the details:
Brian Keith Terrell was put to death at 12:52 a.m. Wednesday for the 1992 murder of 70-year-old John Watson of Covington.
The U.S. Supreme Court denied Terrell’s final appeal shortly after 11 p.m. Tuesday, clearing the way for the death to proceed. But it took an hour for the nurse assigned to the execution to get IVs inserted into both of the condemned man’s arms. She eventually had to put one into Terrell’s right hand.
Terrell winced several times, apparently in pain. After all the witnesses were seated and a prayer was offered, Terrell raised his head and mouthed, “Didn’t do it,” to Newton County Sheriff Ezell Brown, who was sitting at the center of the front row.
Terrell’s execution marks the fifth lethal injection the state has carried out this year, more than any other year since the state first used lethal injection in 2001....
In 1992, Terrell stole John Watson’s checkbook and withdrew a total of $8,700 from the victim’s bank account. Watson, a friend of Terrell’s mother, Barbara, told her he would not press charges against her son if a substantial amount of the stolen money was returned within two days. Instead, Terrell ambushed Watson as he left his Covington house for a dialysis appointment.
Terrell’s lawyers had pleaded for clemency because of their concerns about the pharmacist who made the lethal injection drug. According to court filings, that pharmacist has a 50 percent error rate.
The pharmacist — whose identity is secret under state law — compounded the drugs used in six previous executions, including the pentobarbital that turned cloudy in early March, forcing the state to postpone scheduled executions. The Department of Corrections said it has addressed the problem. Kelly Gissendaner, who was the lone woman on Georgia’s death row, and another man have since been put to death. Terrell’s lawyers argued in court filings that at the very least Georgia should use another pharmacist to make the drug.
Tuesday, December 08, 2015
"Why Has The Death Penalty Grown Increasingly Rare?"
The title of this post is the headline of this extended NPR piece reported by Nina Totenberg. (She also has this companion shorter piece headlined "As Supreme Court Upholds Death Penalty, Number Of Executions Plummets.") Here is how the big segment gets started:
The last execution scheduled in the U.S. for the year is set for Tuesday in Georgia. But capital punishment has gown rare in America, to the point of near extinction.
Even though polls show that 60 percent of the public still supports the death penalty, and even though the Supreme Court has repeatedly upheld it as constitutional, the number of executions this year so far is almost the same as the number of fatalities from lightning strikes — 27 executions versus 26 deaths by lightning.
It's an ironic statistic. When the Supreme Court briefly banned the death penalty in 1972, it did so, in part, because, as Justice Potter Stewart put it, capital punishment was being imposed so randomly and "freakishly" that it was like being "struck by lightning." Four years later, the court would revive the death penalty, but with new limitations aimed at reserving it for the so-called worst of the worst.
Few could have imagined the trajectory the death penalty would follow in the years after. The number of executions soared in the 1990s — hitting a high of 98 in 1999 and ultimately totaling more than 1,400 — but tailed off dramatically after 2000. With just one more execution set for this year, the current year's total will be the smallest number in almost 25 years.
While the death penalty remains the law in 31 states, that figure is misleading. In many of the 31, capital punishment has largely fallen into disuse. In four states, the governor has put a moratorium on the death penalty, and in 17 there's an executive or judicial hold on executions because of botched procedures or problems in obtaining drugs that courts and legislatures have approved for lethal injection.
Saturday, December 05, 2015
Have conservatives been "manipulated" and "duped" by abolitionists to oppose the death penalty?
The question in the title of this post is prompted by statements in the final paragraph of this lengthy American Thinker commentary authored Aaron J. Veselenak and headlined "Some Reading for Conservatives Who Oppose the Death Penalty." I recommend the full piece, and here is how it starts and ends:
In recent years, opponents of capital punishment have leveled key criticisms against conservatives, claiming major hypocrisy in their continued approval of society's most serious criminal sanction. One claim is that conservative support for the death penalty violates the most central tenet of conservatism — that of limited government. How can conservatives, they ask, in their suspicion of and disdain for large, powerful government, advocate use of the greatest governmental power of all, the taking of life? Contradiction — indeed, hypocrisy — is said to exist.
This charge is faulty, even bogus. Unfortunately, this and other equally faulty charges have resonated with certain members of the conservative movement, among them state and federal lawmakers.
Why is the above claim so faulty, in fact lacking of substance? The answer lies in the fact that conservatives are not anarchists. Yes, conservatives do believe in very limited size and power of government. However, that does not mean they abandon the most basic functions of government, chief among them protection of the people through military and police powers. Or a court and penal system to further provide safety and administer justice....
Conservatives jumping on the anti-death penalty bandwagon in recent years need to rethink their position. They have been manipulated — duped by the seemingly sound and logical statements of death penalty opponents. Deeper reflection demonstrates these claims to be very shallow and without merit.
Perhaps because I hang out and interact with a number of pretty bright people with an array of views on an array of criminal justice topics, I am disinclined to believe that conservatives who oppose the death penalty are being convinced by "very shallow" claims or are subject to being manipulated or duped by death penalty opponents. Nor do I think one need to be drawn in by appeals to anarchy or libertarianism to have conservative-based concerns about the operation of modern death penalty in the United States.
Rather, I think one readily can embrace a strong belief/commitment to a government focused on the "protection of the people through military and police powers [and] a court and penal system to further provide safety and administer justice" while still voicing considerable disaffinity for the modern death penalty. This disaffinity would be based on the (seemingly conservative) perspective that the governments often, even when trying really hard to be effective in its core functions, far too often end up doing more harm than good (and at an excessive cost to taxpayers). Even apart from concerns about government dysfunction showcases by wrongful convictions (which I assume trouble conservatives as much if not more than liberals), the governmental mess we have recently seen in Oklahoma with the mixing up of execution drugs or states previously relying on unqualified executioners or even evidence of racial disparities in capitl application could all seemingly provide a principled basis for principled conservatives to conclude the government (especially state governments) ought not still be in the business of killing its killers.
Friday, December 04, 2015
Arkansas state judge strikes down portion of state execution law aimed at keep drug suppliers secret
As reported in this AP article, an "Arkansas judge struck down a portion of the state's execution law that keeps secret the source of drugs it uses, saying Thursday that drug suppliers do not have a constitutional right to be free from criticism." Here is more about the ruling and its context:
Pulaski County Circuit Judge Wendell Griffen sided with death row inmates who challenged a law passed by lawmakers this year that prevents disclosure about the drugs that are used in executions. The judge also ordered the state to disclose drug details, including the makers and suppliers, by noon Friday. "It is common knowledge that capital punishment is not universally popular," Griffen wrote. "That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge."
Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said late Thursday that the office had filed notice of appeal with the state Supreme Court. Rutledge also asked for an immediate stay of Griffen's order. "Attorney General Rutledge has a duty to defend the State's lethal injection statute and disagrees with Judge Griffen's order," Deere wrote in an emailed statement.
In the filing for an immediate stay, attorneys for the office noted that states with secrecy laws regarding executions have generally won challenges to those laws. They believe Arkansas' law is less stringent than many of those.
In his ruling, Griffen noted that a federal judge in Ohio last month granted a protective order to allow that state to maintain secrecy about the drugs, but he said that court erred because it accepted "what it acknowledged as no proof of 'a single known threat'" as an indicator that disclosing a state's source for drugs would pose an undue burden on that state....
The Arkansas Supreme Court put on hold executions for eight inmates until the inmates' lawsuit challenging the state's execution protocol and secrecy law could be heard.
Under the execution secrecy law, the Department of Correction has withheld the manufacturer and distributor of midazolam, vecuronium bromide and potassium chloride obtained last year, as well as other information. Midazolam, a sedative, gained notoriety after being used during executions that took longer than expected last year in Arizona, Ohio and Oklahoma. The U.S. Supreme Court upheld the drug's use in executions in June. Earlier this year, The Associated Press identified three pharmaceutical companies that likely made Arkansas' execution drugs; each company said it objects to its drugs being used that way.
The inmates argued that the secrecy law is unconstitutional. They want information on the drugs' makers and suppliers to determine whether they could lead to cruel and unusual punishment. They also argued the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said the agreement is not a binding contract.
Griffen noted in his ruling that an attorney for the state said Arkansas' suppliers "covertly sold" the drugs to the state despite directives from the pharmaceutical companies that they should not be sold for use in executions. He said the admission, "whether inadvertent of not," was important because it shows the state could abide by the contract and still obtain drugs....
Griffen noted that Arkansas has a law outlining humane euthanization practices for animals. "The court rejects the notion that domestic pets and livestock in Arkansas have the right to die free of unjustifiable or prolonged pain, but that the constitutional guarantee against 'cruel or unusual punishment' found in the Arkansas Constitution allows people who commit murders to be put to death as if they have no entitlement to such right," he wrote.
Arkansas last executed an inmate in 2005.
Spotlighting a correlation (and a connection) between police shootings and capital punishment
The always interesting Radley Balko has this especially interesting opinion piece headlined "America’s killingest counties." Here are excerpts:
Throughout the 1980s and 1990s, Kern County, Calif., had a reputation for being one of the most law-and-order jurisdictions in the United States. Led by longtime tough-guy prosecutor Ed Jagels, the county earned the unofficial motto “Come for vacation, leave on probation.” In 2009, Jagels’s county Web page boasted that Kern had “the highest per capita prison commitment rate of any major California County.” Jagels would retire to great acclaim and praise, despite the fact that at least two dozen of the people his office convicted during the ritual sex-abuse panic of the 1980s and 1990s have since been exonerated. Kern County has also sent 26 people to death row since 1976, putting it among the top 25 in the country, and among the 2 percent of U.S. counties that account for more than half of America’s death row population.
Given all of that, it probably isn’t terribly surprising that Kern County is also home to the deadliest cops in the United States.... Kern County, in fact, has seen 79 police killings since 2005, or about 8 per year. That’s 0.9 police killings per 100,000 residents. By comparison, the city’s overall murder rate is 4.6 per 100,000, a figure right at about the national average.
There is, in fact, a pretty remarkable correlation between counties that produce a lot of death sentences and counties where cops kill a lot of people. Oklahoma County, Okla., for example, is second in the nation in both death sentences and per capita killings by police officers. San Bernardino County, Calif., is 11th in death sentences, and third in per capita killings by police. Clark County, Nev., is fourth in police killings, and among the top 50 in death sentences. Santa Clara County, Calif., is fifth in police killings, 19th in death sentences. It goes on like that....
There are more than 3,000 counties in the United States. But the 13 with the highest rates of police killings are not only all in death penalty states; they also all rank among the top 30 in death sentences meted out over the past 40 years. These 13 cities are wide-ranging in size (from Kern’s 875,000 people to Los Angeles’ 10 million), murder rate (from 9.1 in Dallas to 2.3 in San Diego) and demographics.
What does this mean? I pointed out in a post a couple of years ago that the counties that send the most people to death row also tend to be counties with histories of prosecutorial abuse and misconduct. (Jagels’s office in particular was regularly berated by appeals courts for bending — or outright ignoring — the rules.) District attorneys are the chief law enforcement officers within their judicial districts. They set the tone for the entire area. They’re also typically in charge of investigating officer-involved shootings and other allegations of excessive force. It isn’t difficult to see how when a DA takes a “win at all costs” approach to fighting crime, that philosophy would permeate an entire county’s law enforcement apparatus, from the beat cop to the DA herself or himself.
Thursday, December 03, 2015
Interesting accounting of capital defense costs in Colorado
The Denver Post has this interesting new piece on capital defense costs headlined "Colorado public defenders spent $6.3 million on death penalty cases: Colorado Public Defender's office spent $6.3 million on 10 cases in which prosecutors filed a notice to see the death penalty since 2002." Here is an excerpt:
The Colorado Public Defender's office has spent a combined $6.3 million on death penalty cases during the past 13 years. In response to a request from The Denver Post, the office on Tuesday released its aggregate cost of handling death penalty cases between July 12, 2002 and Oct. 31, 2015. During that time period, public defenders handled a total of 10 cases in which prosecutors filed a notice of intent to seek the death penalty.
Most recently, public defenders represented Aurora theater shooter James Holmes and Dexter Lewis, who stabbed five people to death in a Denver bar. Prosecutors sought the death penalty in both cases. Both men were sentenced to life in prison after lengthy trials this summer....
The $6.3 million total includes expenses the office incurred in handling the cases and the "best estimate of the portion of" salaries that can be attributed to death penalty cases. The office said it did not hire additional staff specifically for death penalty cases. During the 13-year period, the office spent $1,989,453 on expenses incurred on death penalty cases. For that same period, the office paid $4,343,484 in salaries related to handling death penalty cases.
Tuesday, December 01, 2015
Using SCOTUS Johnson ruling, Boston Bomber argues for vacating some convictions and death sentence
Regular readers know that I have given considerable attention to the import and potential impact of the Supreme Court's summer ruling that a key clause of the federal Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015). But even from my ivory tower perch, I had not considered that the Johnson ruling might provide a basis for a high-profile federal capital defendant to seek to undo his death sentence. But, as this FoxNews article details, just such an argument was made today in Boston:
Lawyers representing Boston Marathon bomber Dzhokhar Tsarnaev sought Tuesday to spare him from the death penalty, citing a Supreme Court ruling they say taints half of the charges of which he was convicted.
Tsarnaev, now 22, was sentenced to death in June after being convicted of working with his brother to plant pressure cooker bombs at the 2013 race's finish line in an attack that killed three and injured hundreds. But his attorneys say prosecutors were able to pile on more severe charges using a 1984 federal law that was partly invalidated by the high court this summer, and that without those enhanced charges, Tsarnaev may have gotten a more lenient sentence. They are pushing for a new penalty phase trial, and want it held outside of Boston. "The loss of those convictions would mean that a penalty trial should be held as to all counts," attorney William Fick argued.
Tsarnaev's attorneys argued some 15 of the 30 charges came under an enhanced sentencing policy they say was invalidated by a U.S. Supreme Court decision from earlier this year. In that case, Johnson vs. United States, the court ruled 8-1 held that the term "violent felony" as it applies to a 1984 law allowing for harsher prison terms in certain cases is unconstitutionally vague. The defense argued that the number and nature of those charges likely influenced jurors when they decided Tsarnaev deserved the death penalty....
Former Assistant U.S. Attorney Andrew McCarthy, who prosecuted the terrorists who bombed the World Trade Center in 1993, said the Tsarnaev team is off-base in trying to apply the Johnson case. In that case, the Supreme Court had ruled "violent felony" was a vague term in certain instances, such as extortion, where violence may or may not be involved. Tsarnaev's use of a bomb left no gray area, he said. "It is a frivolous argument," McCarthy told Fox News. "There is no such thing as "passive" deployment of a bomb, which is innately a destructive device."
Split Ohio Supreme Court reverses death sentence based on statutory "independent evaluation"
As reported in this Reuters piece, a "man who beat a female neighbor to death with a baseball bat when he was a teenager had a troubled family background and childhood of drug and alcohol abuse and should not have been sentenced to death, the Ohio Supreme Court ruled on Tuesday.' Here is more about the notable capital ruling and some reactions thereto:
The court in a 4-3 decision vacated the death sentence of Rayshawn Johnson, who was 19 years old when he killed Shanon Marks in 1997 in a Cincinnati neighborhood.... "The sentence of death imposed by the trial court is not appropriate in this case," Justice Paul Pfeifer wrote for the majority.
Johnson had been sentenced to death twice in the killing, most recently in 2012 after a federal court set aside the initial sentence, ruling that jurors should have been allowed to consider his difficult childhood at a sentencing hearing.
“I think the message is that courts need to give meaningful consideration to the mitigation that is presented on behalf of clients. His life story, all of those things, the negative influences… the significant trauma … comes back later in life in unfortunate ways,” said Ohio Public Defender Timothy Young, whose office represents Johnson....
"What's kind of mindboggling about this decision is that -- I have to be careful because we have rules not to criticize judges so I'm not going to do that. But what is frustrating, and this poor family, my god, we went through basically two trials already," Hamilton County Prosecuting Attorney Joseph Deters told reporters.
The lengthy ruling in Ohio v. Johnson, No. 2015-Ohio-4903 (Ohio Dec. 1, 2015), is available at this link, and here is a key pargraph from the start of the majority opinion:
In 2011, the state conducted a new mitigation hearing. A new judge presided over the hearing, and 12 new jurors recommended a sentence of death. The trial court again imposed a death sentence, and we now review Johnson’s direct appeal as of right from that sentence. We find that there were no significant procedural defects in the new mitigation hearing, but, pursuant to our independent evaluation of the sentence under R.C. 2929.05(A), we determine that the aggravating circumstances in this case do not outweigh beyond a reasonable doubt the mitigating factors. We accordingly vacate the sentence of death and remand the cause to the trial court for resentencing consistent with R.C. 2929.06.
Monday, November 30, 2015
Detailing how Ohio prosecutors, armed with LWOP options, are migrating away from capital charges
This recent local article, headlined "Eluding death: Ohio prosecutors charge far fewer capital murder cases," spotlights the role that local prosecutors are playing in changing the death penalty landscape in the Buckeye State. Here are excerpts:
Prosecutors across Ohio are changing the way they charge suspected killers. They are indicting far fewer with the death penalty and pushing more sentences of life in prison without parole.
The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year. During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.
The Ohio numbers mirror a national trend involving the death penalty. Legal experts cited the high costs of taking a capital case to trial. They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families....
As the death penalty in Ohio sits stalled in a moratorium over the drugs used in executions, the emerging trends of how prosecutors handle aggravated murder cases offer insight into the way justice is meted out in Ohio courtrooms. "We simply are not charging people with the death penalty like we once did," said Michael Benza, a senior instructor of law at the Case Western Reserve University School of Law....
Since late 2012, when Prosecutor Timothy J. McGinty took office, five men have been indicted on death-penalty charges. But there were 75 cases that met the criteria for the penalty, according to prosecutors' records. That means McGinty's office pushed the death penalty in less than 7 percent of the possible cases.... Compare McGinty's record to his predecessor, Bill Mason: From 2009 through much of 2012, Mason's office indicted 89 death-penalty cases out of a possible 114 that met the requirements for the charge, or 78 percent, according to prosecutors' records.
McGinty told The Plain Dealer that he believes in the death penalty when going after the worst of the worst. "The death penalty used in the correct case — a case that leaves no doubt — is, I believe, a strong deterrent to crime," McGinty said. "But the endless appeals process has undermined the death penalty. In every case, I have to ask, 'Are we going to survive this?' We have to take a case to a judge and jury and then face 25 years of appeals. Is it fair to families of victims? Is it fair putting them through a quarter century of appeals?'
Since taking office, McGinty has used an internal office review committee to examine whether the death penalty is justified in each case brought to his office. Specifically, the panel looks at whether the crime fits the letter and spirit of the law, whether a reasonable jury would return a guilty verdict and whether it would be worth the resources to spend decades fighting the appeals. Based on the panel's recommendation and the family's wishes, McGinty makes the decision.
Life in prison without parole became an option to jurors in death-penalty cases in 1995. Ten years later, state lawmakers made it possible for prosecutors to seek the life-without-parole sentence in other murder cases. Years later, the trends have become quite clear.
* Death-penalty indictments dropped 77 percent, going from 81 in 2010 to 19 this year, according to records from the Ohio Public Defender's Office.
* The number of felons convicted of murder and sentenced to life in prison without parole has jumped 92 percent, going from 283 in January 2010 to 544 in October, according to state prison records. The inmates make up about 1 percent of the 50,370 inmates in the system.
* It costs $22,836 a year to house an inmate in Ohio. Since there are 544 serving sentences of life without parole, that means the total dollar amount for the group is $12.4 million a year. Because many are under the age of 35, the costs will grow for years to come.
But counties and the state also bear major costs in death-penalty trials. The trials can cost hundreds of thousands of dollars prosecuting and defending complex cases at trial — and much more during the appeals process. Ohioans to Stop Executions cited a study by WHIO-TV in Dayton that found it costs $3 million to execute a person in Ohio — from arrest to death. By comparison, the television station found, it costs $1 million to keep an inmate in prison for the rest of his or her life....
For years, Ohio Public Defender Tim Young has pushed the sentence of life without parole. "It is a good thing as an alternative to the death penalty for a myriad of reasons," Young said. "There's closure for the family, and it is cheaper to put a person in prison for life than litigating the case for 15 to 20 years. At the end of the day, it's a good thing for our society."
Others disagree. "Yes, life without parole is the lesser of two evils, but we have to be careful of applauding these sentences," said Ashley Nellis, the senior researcher at the Sentencing Project, a Washington, D.C., group that seeks criminal justice reform. "It would be wrong to simply toss them away and forget about them."
Nellis said she is not opposed to sending the most violent convicts to prison for life. But she believes that their cases should be reviewed. "These people should not be kicked to the curb," she said. "Life in prison is a death sentence, without the execution." If there is enough evidence that shows the inmates have grown and matured behind bars, Nellis said, then they should receive consideration before the parole board or judge.
Friday, November 27, 2015
Might Prez Obama seek to do something bold on the death penalty in his final year?
The question in the title of this post is prompted by this new AP article, headlined "Obama Still Pondering Death Penalty's Role in Justice System." Here are excerpts:
Even as President Barack Obama tries to make a hard case for overhauling sentences, rehabilitating prisoners and confronting racial bias in policing, he has been less clear about the death penalty. Obama has hinted that his support for capital punishment is eroding, but he has refused to discuss what he might call for.
A Justice Department review has dragged on for 18 months with little mention or momentum. The president recently repeated he is "deeply concerned" about the death penalty's implementation, though he also acknowledges the issue has not been a top priority. "I have not traditionally been opposed to the death penalty in theory, but in practice it's deeply troubling," Obama told the Marshall Project, a nonprofit journalism group, citing racial bias, wrongful convictions and questions about "gruesome and clumsy" executions. His delay in proposing solutions, he said, was because "I got a whole lot of other things to do as well."
Obama said he plans to weigh in, and considers the issue part of his larger, legacy-minded push for an overhaul of the criminal justice system. White House officials say the president is looking for an appropriate response and wading through the legal ramifications.
Capital prosecutions are down across the United States. A shortage of lethal injection drugs has meant de facto freezes in several states and at the federal level. Spurred in part by encouragement from Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg, advocates are debating whether the time is right to push the court to take a fresh look at whether the death penalty is constitutional....
Obama isn't alone in struggling with the issue. "We have a lot of evidence now that the death penalty has been too frequently applied and, very unfortunately, often times in a discriminatory way," Democratic presidential candidate Hillary Rodham Clinton said. "So I think we have to take a hard look at it." She also said she does "not favor abolishing" it in all cases.
For Clinton's Democratic presidential rival, Vermont Sen. Bernie Sanders, the issue is settled. "I just don't think the state itself, whether it's the state government or federal government, should be in the business of killing people," he said. On the Republican side, candidate Jeb Bush says he's swayed by his Catholic faith and is "conflicted."...
In September, Pope Francis stood before Congress and urged that the death penalty be abolished. Obama specifically noted the comment when talking about the speech to aides. White House spokesman Josh Earnest said Obama was "influenced" by what the pope said. Such hints have death penalty opponents likening Obama's deliberations to his gradual shift toward supporting gay marriage.
Charles Ogletree, a Harvard law professor who taught the president, said: "Though not definitive, the idea that the president's views are evolving gives me hope that he — like an increasing number of prosecutors, jurors, judges, governors and state legislators — recognizes that the death penalty in America is too broken to fix."
White House officials caution that any presidential statement disputing the effectiveness or constitutionality of the death penalty would have legal consequences. For example, would the administration then commute the sentences of the 62 people currently on federal death row to life in prison?
I suspect hard-core capital abolitionists are growing ever more eager to hear Prez Obama say ASAP that he has evolved now to believe, in the words of Prof Ogletree, that "the death penalty in America is too broken to fix." But any statement by Prez Obama to that effect would likely trigger a significant backlash among an array of GOP leaders (including most running to be Prez), and could refocus death penalty debate away from persistently problematic state capital cases to higher-profile (and less problematic) federal capital cases like the Boston Marathon bomber. With another White House occupant coming soon, I am not sure such a change in focus would enhance the success of the broader abolitionist effort in the long run.
This all said, I could still imagine Prez Obama and his Justice Department moving ahead on a number of lower-profile efforts that would continue to advance an abolitionist agenda. DOJ could file SCOTUS amicus briefs in support of state capital defendants or provide additional funding for research on some of the issues Justice Breyer flagged as the basis for a broadsided constitutional attack on the death penalty. And I would not be at all surprised if Prez Obama around this time next year, when he is a true lame duck and we all know who will be following him into the Oval Office, does something genuinely bold in this arena.
Speaking of doing something genuinely bold, the headline of this San Francisco Chronicle piece provides one possibility: "Obama considers clemency for 62 federal Death Row prisoners." Here is an excerpt from the extended piece:
The bulk of the more than 3,000 Death Row inmates nationwide, including nearly 750 in California, were sentenced under state law. They are beyond the president’s authority. But, by commuting federal prisoners’ sentences to life without the possibility of parole, Obama would stamp the issue as part of his legacy and take a bold action that no successor could overturn.
It is “a quantitatively small gesture that could make the point he’d want to make,” said Stanford Law Professor Robert Weisberg, co-director of the law school’s Criminal Justice Center and a veteran death penalty lawyer. Like other commentators, he offered no prediction of what action Obama would take, but said the president would probably wait until after the November 2016 election, to avoid voter reaction against whoever the Democratic candidate is.
Wednesday, November 25, 2015
Intriguing findings on race and criminal justice issues from 2015 American Values Survey
I just came across this recently released publication by the Public Religion Research Institute, which "conducted the 2015 American Values Survey among 2,695 Americans between September 11 and October 4, 2015." The lengthy survey report, titled "Anxiety, Nostalgia, and Mistrust: Findings from the 2015 American Values Survey," covers lots of ground on lots of issues, and the last four pages discuss findings under the heading "Race and the Criminal Justice System." Here are just a few highlights from this discussion:
Most Americans do not believe that police officers treat blacks and other minorities the same as whites. Only about four in ten (41%) Americans say that the police generally treat racial and ethnic groups equally, while nearly six in ten (57%) disagree....
White Americans are divided in their views about police treatment of racial minorities. Half (50%) say police officers generally treat blacks and other minorities the same as whites, while 48% disagree. In contrast, more than eight in ten (84%) black Americans and nearly three-quarters (73%) of Hispanic Americans say police officers do not generally treat non-whites the same as whites....
Additionally, more than six in ten Republicans (67%) and Tea Party members (63%) say police treat blacks and other minorities the same as whites, while only about one-quarter (23%) of Democrats agree. Three-quarters (75%) of Democrats — including two-thirds (67%) of white Democrats — say that police do not treat blacks and whites the same. The views of political independents closely mirror the general public....
Americans’ views on racial disparities in the criminal justice system largely mirror views on racial disparities in treatment by police. Nearly six in ten (58%) Americans do not believe blacks and other minorities receive equal treatment as whites in the criminal justice system, while four in ten (40%) believe they are treated equally. In 2013, Americans were evenly divided on whether nonwhites receive the same treatment as whites in the criminal justice system (47% agreed, 47% disagreed).
There are stark racial and ethnic divisions in views about the fairness of the criminal justice system. White Americans are closely divided: slightly less than half (47%) say blacks and other minorities receive equal treatment as whites in the criminal justice system, while a slim majority (52%) disagree. In contrast, more than eight in ten (85%) black Americans and two-thirds (67%) of Hispanic Americans disagree that minorities receive equal treatment in the criminal justice system.
White Americans’ attitudes on racial disparities in the criminal justice system differ substantially by class. White working-class Americans are divided: 52% say blacks and other minorities receive equal treatment as whites in the criminal justice system, while 47% disagree. In contrast, just 36% of white college-educated Americans say whites and non-whites are treated equally in the criminal justice system, while nearly two-thirds (64%) disagree.
Partisan divisions on this issue closely mirror divisions on the question of police treatment of whites versus non-whites. More than six in ten Republicans (64%) and Tea Party members (65%) say blacks and other minorities are treated the same as whites in the criminal justice system, while about three-quarters (74%) of Democrats disagree. The views of independents are identical to the views of Americans overall....
When asked which punishment they prefer for people convicted of murder, a majority (52%) of Americans say they prefer life in prison with no chance of parole, compared to 47% who say they prefer the death penalty. Views about the death penalty have held roughly steady since 2012 when the public was closely divided.
Partisan attitudes on this question are mirror opposites. Two-thirds (67%) of Republicans prefer the death penalty over life in prison with no chance of parole for convicted murderers, while nearly two-thirds (65%) of Democrats prefer the opposite. The attitudes of independents mirror the general population.
Americans are also closely divided over whether there are racial disparities in death penalty sentencing. A majority (53%) of Americans agree that a black person is more likely than a white person to receive the death penalty for the same crime, while 45% of Americans disagree. American attitudes about the way that the death penalty is applied are virtually unchanged from 1999, when half (50%) of Americans said a black person is more likely than a white one to be sentenced to the death penalty for an identical crime, and 46% disagreed.
American attitudes about the fairness of death penalty sentences continue to be sharply divided along racial and ethnic lines. More than eight in ten (82%) black Americans and roughly six in ten (59%) Hispanic Americans, compared to fewer than half (45%) of white Americans, report that a black person is more likely than a white person to receive a death penalty sentence for the same crime. A majority (53%) of white Americans disagree. White Americans’ views on this question differ significantly by social class. A majority (54%) of white college-educated Americans say a black person is more likely than a white person convicted of the same crime to receive the death penalty, compared to four in ten (40%) white working-class Americans. A majority (58%) of white working-class Americans say that this is not the case.
Consistent with previous patterns, there are stark partisan divisions in views about the administration of the death penalty. Roughly six in ten (64%) Republicans and Tea Party members (58%) do not believe a black person is more likely than a white one to be sentenced to the death penalty for the same crime, while fewer than three in ten (28%) Democrats agree. Seven in ten (70%) Democrats say that a black person is more likely than a white person to receive the death penalty. Independents are evenly divided over whether a black person convicted of the same crime as a white person is more likely to receive the death penalty (49% agree, 49% disagree).
There is a strong correlation in views about how fairly the death penalty is applied and support for it as punishment for people convicted of murder. A majority (59%) of those who say that there is no racial disparity in death penalty sentencing support capital punishment, compared to 37% who say there are racial disparities.
Monday, November 23, 2015
Would dueling initiatives in California bring capital clarity or continued confusion?
The question in the title of this post is prompted by this Orange County Register editorial, which is headlined "Cloudy prospects for death penalty in California." Here are excerpts:
Is the death penalty viable in California? Until recently, opposing it usually meant political suicide at the state level. In 1986, Rose Bird, chief justice of the California Supreme Court and Gov. Jerry Brown’s appointee, was booted from office by voters after she overturned 64 straight death-penalty convictions. So were two like-minded associate justices.
After that, even Democrats promised to execute the worst criminals. Democratic Gov. Gray Davis executed five men. His successor, Arnold Schwarzenegger, terminated three, the last being Clarence Ray Allen, convicted of organizing three murders.... In 2012, voters defeated Proposition 34, which would have repealed capital punishment in California....
In recent years, the death penalty has been suspended because of accusations the “drug cocktail” used in executions violated the Eighth Amendment’s guarantee against “cruel and unusual punishments.” However, as the Register’s Martin Wisckol reported last week, “Death penalty advocates cheered two incremental steps this month: The Department of Corrections will proceed with the review process toward replacing the three-drug cocktail with a single drug, and an appeals court made a narrow technical ruling that favors the death penalty.”
Voters again could get a say. One initiative advanced for the November 2016 ballot by actor Mike Farrell would repeal the death penalty. Given that Prop. 34 lost, 52 percent to 48 percent, it has a chance. The other proposed initiative is backed by county district attorneys across the state, including Orange County’s Tony Rackauckas. In Mr. Wisckol’s summary, the measure would streamline “the process for approving a single-drug injection” and the appeals process, and expand “the pool of defense attorneys available to represent death row inmates.” Under state law, if two similar initiatives pass, the one with the most votes becomes law.
However, California elects a new governor in 2018. Lt. Gov. Gavin Newsom, who already has announced his candidacy, in 2013 came out strongly against the death penalty. Other Democratic candidates likely will take the same stance. Republicans now are so weak a statewide electoral force, supporting the death penalty won’t help much. Which means a death penalty opponent almost certainly will move into the Governor’s Office in 2019.
As a big supporter of direct democracy, I generally favor any and all efforts to put issues before voters. In addition, given the persistent mess that California's capital punishment system has been, I think it would be very valuable to give voters clear choices to either end or to mend the death penalty in the state. For various legal and political reasons, even a landslide vote on death penalty reform likely would not resolve all capital issues in California. But I think it could help bring a lot more capital clarity.
Thursday, November 19, 2015
Capital defense lawyers in Utah seek to depose all county prosecutors to make constitutional case against death penalty
This local story from Utah, headlined "Murder defense to depose all of state's top prosecutors," reports on the latest defense approach to putting a bee in the state's capital punishment bonnet in the Beehive State. Here are the interesting details:
The defense in a 2010 murder case plans to schedule depositions with all of Utah’s 29 county prosecutors and other state law enforcement representatives possibly including Utah Attorney General Sean Reyes as part of its bid to overturn a death penalty ruling in the case. Attorneys Gary Pendleton and Mary Corporan announced their plans on Wednesday to seek testimonies from anyone in the state who decides whether the death penalty should be applied in a criminal case. The issue forms part of their arguments that the death penalty is unconstitutional and applied inequitably.
The pair represent Bloomington Hills resident Brandon Perry Smith, 34, who is accused of killing 20-year-old Jerrica Christensen two weeks before Christmas 2010 in a brutal downtown incident. Pendleton told 5th District Judge G. Michael Westfall that he and Corporan have investigated how many death penalty-eligible cases since 1992 have actually ended up with a suspect being referred to death row. They determined that the prosecution seeks the death penalty in fewer than 3 percent of eligible cases, with most cases leading to a life in prison sentence instead, Pendleton said.
“Why is the death penalty not being sought in those cases but it is being sought in this case?” he asked. “I think we have to call as witnesses the charging authorities who were in positions of authority to make the charging decisions at the time the (state’s other) cases were filed either as capital cases — aggravated murder cases — or not,” Corporan said.... Pendleton’s question amounts to a challenge about whether anyone should be sentenced to death unless everyone who could legally be sentenced to death receives that ultimate penalty....
The death penalty has since been allowed on a state-by-state basis, and Utah established eight aggravating circumstances to define death penalty cases. “Over the years, we have now come to 22 or 23 aggravators,” Pendleton said, adding that at one time Utah had more than any other state. “Even though we supposedly have a statute that narrows the class, … (in) only 3 percent of (those cases) is the state seeking the death penalty and they’re not seeking the death penalty based upon any articulable standard,” Pendleton said. “It’s completely arbitrary. … The state can’t articulate and won’t articulate on what basis they are making that selection and deciding that this is a death-worthy case. They’re not doing it based on the statute.”...
Pendleton and Corporan initially asked Westfall to schedule a three-day hearing in Smith’s case that would require the presence of all the affected prosecutors from across the state, but Westfall said he feared such a hearing would create a devastating delay for the case because of the difficulty of coordinating everyone’s schedules as well as problems for the other attorneys’ caseloads. “We’re talking about a real domino effect,” he said.
Shaum suggested deposing each affected prosecutor individually would be more practical, even though Corporan and Westfall conceded that to do so will still likely create significant delays in trial scheduling, especially with the holiday season approaching. With the attorneys’ agreement, Westfall scheduled a review hearing for Feb. 3 to check the progress of the depositions.
Christensen’s mother, Ellen Hensley, has previously expressed concerns about the length of the court process and held a candlelight vigil at the courthouse on the last anniversary of her daughter’s death to call for swifter justice for the victims of crimes. Westfall expressed apparent awareness of her concerns, reminding the attorneys that “I also think that we need to keep in mind that we’ve got some victims’ family members in this case that I think are also entitled to try to see if we can get this case resolved. … I am still concerned about moving this case along and making sure that we get a decision as soon as possible.”
“I’m concerned about providing adequate representation on all the legal issues,” Pendleton replied, adding that the depositions will be “only the tip of the iceberg” in his motion to have the death penalty declared unconstitutional, but that they will be the only real evidence issue before moving to legal arguments.
Vermont killer makes broadside constitutional attack on federal death penalty prior to capital retrial
As reported in this local AP article, headlined "Fell’s lawyers challenge death penalty law," a notable killer is now making a notable argument to preclude capital punishment's application at his retrial. Here are the details:
A Vermont man facing the federal death penalty for the 2000 killing of a woman abducted from outside a Rutland supermarket is asking a judge to declare the death penalty law unconstitutional, court documents say. In documents filed in federal court Monday, attorneys for Donald Fell argue the federal death penalty is unreliable, arbitrary and adds “unconscionably long” delays in cases. “Most places within the United States have abandoned its use under evolving standards of decency,” the attorneys say.
They contend that U.S. Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg earlier this year “issued a clarion call for reconsideration of the constitutionality of the death penalty.” It also noted that the Connecticut Supreme Court, relying largely on Breyer and Ginsburg’s arguments, found that state’s death penalty unconstitutional. “Mr. Fell asks this Court to (rule)... that the federal death penalty, in and of itself, constitutes a legally prohibited cruel and unusual punishment prohibited by both the Fifth and Eighth Amendments,” his filing said.
Fell, 35, was convicted and sentenced to death in 2005 for the 2000 killing of Terry King, a 53-year-old North Clarendon grandmother who was abducted in Rutland and later killed. A judge last year ordered a new trial for Fell because of juror misconduct during the original trial. The trial is scheduled for next fall.
U.S. Attorney Eric Miller said his office would respond to the defense filings at the appropriate time. Vermont has no state death penalty; Fell was sentenced to death under federal law. In 2002, the judge then hearing the case declared the federal death penalty unconstitutional. But two years later, an appeals court overturned that ruling, allowing the trial to go forward.
Robert Dunham, executive director of the Death Penalty Information Center, said a decade’s worth of data has accumulated showing the legal problems with the federal death penalty since the ruling allowing Fell’s case to go forward.... “You can expect going forward that there will be constitutional challenges of this type filed in most, if not all, federal capital prosecutions,” Dunham said.
I share the view that defendants will be making this kind of categorical constitutional argument against the death penalty this will be made in most federal capital prosecutions, and I would go even further to assert that it may now be pretty close to obligatory for defense attorneys to make some form of this argument in any and every capital case. In light of the comments by Justices Breyer and Ginsburg in Glossip, and the risk of having an argument considered waived if not brought as soon as possible, I would think most capital defense attorneys would feel duty-bound to at least raise this kind of argument in order at leas to preserve it for future high court consideration.
Wednesday, November 18, 2015
Texas completes execution as Georgia soberly prepares for another
Two capital news stories from two states caught my eye this evening as we approach the final planned executions of the year. From Texas comes this news: "Texas on Wednesday executed a 36-year-old man convicted of killing his daughter and two stepdaughters in a mobile home blaze in 2000." Here is more:
Raphael Holiday was put to death by lethal injection at the state's death chamber in Huntsville and pronounced dead at 8:30 p.m., a prisons official said. He became the 531st inmate executed by Texas since the U.S. Supreme Court reinstated the death penalty in 1976, the most of any state....
Holiday was convicted of killing Tierra Lynch, 7; Jasmine DuPaul, 5; and Justice Holiday, 1, in a rural community about 100 miles (160 km) northwest of Houston.
He had been living with Tami Wilkerson, his common law wife at the time, until she secured a restraining order against him for sexually assaulting Tierra, according to the Texas attorney general's office. About six months later, Holiday, who had attempted to reconcile with Wilkerson, returned to the house and forced the girls' grandmother at gunpoint to douse the home with gasoline, which ignited, it said. The grandmother survived....
The U.S. Supreme Court denied a request filed by a new lawyer for Holiday, who argued his federally appointed counsel had acted against his wishes and abandoned further rounds of court filings to spare his life.
From Georgia comes this news: "A death row inmate set to be executed Thursday in Georgia cannot have a six pack of beer for his final meal, the department of corrections announced." Here is more:
Marcus Ray Johnson is scheduled to die by lethal injection at 7 p.m. on Thursday. "Johnson requested a last meal consisting of a six pack of beer. His request was declined as alcohol is a contraband item, and he will be receiving the institutional tray consisting of baked fish portions, cheese grits, dry mixed beans, cole slaw, cornbread, crisp drop cookies and fruit punch," a press release stated.
Johnson was convicted of the 1994 slaying of Angela Sizemore in Albany, Ga.... Johnson's attorney, Brian Kammer, is adamant his client did not kill Sizemore. "The lack of physical evidence is extremely troubling," Kammer told AJC.com.
However, Former Daugherty County District Attorney Ken Hodges, said claims of Johnson's innocence are "little more than hogwash, unsupported lies just to save his soul."
Is it appropriate for condemned's lawyers to give up capital fight at 11th hour?
The question in the title of this post is prompted by this extended Dallas Morning News article headlined "Condemned man’s lawyers stop helping, cite ‘false hope’." Here is the start and end of the story involving a murderer scheduled to be executed today in Texas:
From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.
Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.
Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying. But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.
Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.
Lawyers James “Wes” Volberding and Seth Kretzer said they worked diligently to find new evidence on which to base additional appeals for Holiday, but that none exists. Seeking clemency from Abbott, a staunch death penalty supporter, would be pointless, they say. The two contend they are exercising professional judgment and doing what’s best for their client.
“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.
But others say the law under which death row lawyers are appointed doesn’t allow that kind of discretion. It requires attorneys to make every possible effort to save a client’s life, if that’s what the inmate wants. “This seems unconscionable,” said Stephen Bright, president and senior counsel of the Southern Center for Human Rights and a teacher at Yale Law School. “Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can.”
So far, appeals courts have sided with Volberding and Kretzer. Last Thursday, the 5th U.S. Circuit Court of Appeals denied a motion to have them replaced. On Monday, Sween appealed to the Supreme Court.
Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.... In decades of practicing, Bright said he had never seen a case like Holiday’s in which appointed lawyers so vociferously fought to keep a death row inmate from retaining a different attorney. In some cases, he said, new lawyers have discovered evidence others overlooked pointing to an inmate’s innocence or showing people’s intellectual disabilities made them incompetent for execution. “Most people don’t get executed for crimes they committed,” Bright said. “They get executed for mistakes their lawyers made.”
Friday, November 13, 2015
Washington state prosecutors (wisely?) hoping for direction from a death-penalty referendum
This local AP article, headlined "Washington prosecutors want death-penalty referendum," reports that a number of notable executive branch officials are hoping a referendum vote might provide some clarity on how to approach the ultimate punishment. Here are the details:
The Washington Association of Prosecuting Attorneys issued a statement Thursday saying prosecutors “overwhelmingly believe that the people of the state should vote on the question of whether the state should retain the death penalty as an option in cases of aggravated murder.”
The death penalty has been on hold in Washington state since last year, when Gov. Jay Inslee issued a moratorium for as long as he’s in office. Nine men are now on death row in Washington state.
King County Prosecutor Dan Satterberg said a public vote would tell prosecutors “one way or the other” how Washingtonians feel about the death penalty. The impetus for the prosecutors’ action, according to an email from Tom McBride, executive secretary of the association, were the jury decisions in the murder cases involving the killings of a Carnation family in 2007 and a Seattle police officer in 2009.
In the Carnation case, Michele Anderson is accused of joining her then-boyfriend Joseph McEnroe in killing six members of her family. McEnroe was convicted of participating in the killings and sentenced in May to life in prison after the jury could not agree on the death penalty. In July, Satterberg said his office would not seek the death penalty against Anderson, an announcement made after Christopher Monfort was sentenced to life in prison for killing Officer Timothy Brenton.
The lack of pending death-penalty cases provides “a window where we don’t have to think through” immediate impacts, McBride said in his email, noting that the group’s Thursday statement had almost “unanimous support from elected prosecuting attorneys who both support and oppose the death penalty.”
Rep. Reuven Carlyle, D-Seattle, said the prosecutors’ statement is a “really important and momentous step forward” in public conversation over the law. But Carlyle, who has sponsored bills to ban the death penalty, said he believes any change should come from the Legislature. There’s a lot of complexity surrounding a change in the law, he said, and a public referendum would spur an expensive and difficult campaign....
Death-penalty cases in Washington are still being tried and continue to work through the system. Inslee’s moratorium means that if a death-penalty case comes to his desk, he will issue a reprieve, which means the inmate would stay in prison rather than face execution. In response to the prosecutors’ Thursday statement, Jaime Smith, spokeswoman for Inslee, called the death-penalty debate an important one. She added that “The governor made clear his reasons for enacting a moratorium and his support for a discussion among legislators and the people.”
Since 1981, most death-penalty sentences in Washington have been overturned and executions rare, according to the prepared remarks of Inslee’s 2014 moratorium announcement. “When the majority of death-penalty sentences lead to reversal,” Inslee said in the remarks, “the entire system itself must be called into question.”
Thursday, November 12, 2015
Ninth Circuit panel reverses, on procedural grounds, district court ruling declaring California's capital system unconstitutional
Today via a procedural ruling in Jones v. Davis, No. 14-56373 (9th Cir. Nov. 12, 2015) (available here), a panel of the Ninth Circuit has reversed this ground-breaking ruling by US District Judge Cormac Carney that California's system of reviewing capital convictions and sentences " violates the Eighth Amendment’s prohibition against cruel and unusual punishment." The circuit panel's majority opinon in Jones, authored Judge Graber, gets started this way:
The State of California authorizes the execution of a capital prisoner only after affording a full opportunity to seek review in state and federal courts. Judicial review ensures that executions meet constitutional requirements, but it also takes time — too much time, in Petitioner Ernest DeWayne Jones’ view. He argues that California’s post-conviction system of judicial review creates such a long period of delay between sentencing and execution that only an “arbitrary” few prisoners actually are executed, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Under Teague v. Lane, 489 U.S. 288 (1989), federal courts may not consider novel constitutional theories on habeas review. That principle “serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227, 234 (1990). Because we conclude that Petitioner’s claim asks us to apply a novel constitutional rule, we must deny the claim as barred by Teague. Accordingly, we reverse the district court’s judgment granting relief.
A concurrence by Judge Watford in Jones gets started this way:
My colleagues conclude that relief is precluded by Teague v. Lane, 489 U.S. 288 (1989), which bars federal courts from applying “new rules of constitutional criminal procedure” to cases on collateral review. Beard v. Banks, 542 U.S. 406, 416 (2004) (emphasis added). The Teague bar does not apply to new rules of substantive law. Schriro v. Summerlin, 542 U.S. 348, 352 n.4 (2004).
The rule announced by the district court, while undoubtedly “new” for Teague purposes, is substantive rather than procedural. The court held that the death penalty as administered in California constitutes cruel and unusual punishment and therefore violates the Eighth Amendment. In particular, the court concluded that the long delays between imposition of sentence and execution, resulting from systemic dysfunction in the post-conviction review process, combined with the low probability that an inmate sentenced to death will actually be executed, preclude the death penalty from serving any deterrent or retributive purpose. Jones v. Chappell, 31 F. Supp. 3d 1050, 1053, 1062–65 (C.D. Cal. 2014); see Glossip v. Gross, 135 S. Ct. 2726, 2767–70 (2015) (Breyer, J., dissenting). The Supreme Court has held that capital punishment violates the Eighth Amendment if it does not fulfill those two penological purposes. Kennedy v. Louisiana, 554 U.S. 407, 441 (2008). Thus, the effect of the district court’s ruling is to categorically forbid death as a punishment for anyone convicted of a capital offense in California. A rule “placing a certain class of individuals beyond the State’s power to punish by death” is as substantive as rules come. Penry v. Lynaugh, 492 U.S. 302, 330 (1989).
I would reverse the district court’s judgment on a different ground. A federal court may not grant habeas relief unless the petitioner has first exhausted the remedies available in state court. 28 U.S.C. § 2254(b)(1)(A). Jones concedes he has not done that. He never presented the claim at issue here to the California Supreme Court to give that court an opportunity to rule on the claim in the first instance. Jones did present a so-called Lackey claim to the California Supreme Court, which asserted that the long post-conviction delay in Jones’ own case has rendered his death sentence cruel and unusual punishment. See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari). But the claim on which the district court granted relief rests on a different set of factual allegations and a different legal theory. Presenting the Lackey claim to the California Supreme Court therefore did not satisfy the exhaustion requirement. See Gray v. Netherland, 518 U.S. 152, 162–63 (1996).
Jones contends that exhaustion should be excused here. The federal habeas statute provides just two scenarios in which a petitioner’s failure to satisfy the exhaustion requirement may be excused: (1) when “there is an absence of available State corrective process,” or (2) when “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Jones’ case does not fit within either of these exceptions. He does not dispute that he can file another habeas petition in the California Supreme Court to exhaust the claim at issue here, so the first exception doesn’t apply. And the second exception does not apply because Jones can’t show that filing a new habeas petition with the California Supreme Court would be ineffective to protect his rights.
I will have some commentary on this significant and interesting circuit court ruling later today in a follow-up post after I find some time to read the opinions here closely. But even without a full read, I can predict with certainty that the defense team (and their amici) are all-but-certain to seek en banc review before the full Ninth Circuit and/or certiorari review in the Supreme Court. In all likelihood, those further appeals will keep this case going (and provide an excuse for California to not set any execution dates) throughout the rest of 2015 and probably all of 2016.
Tuesday, November 10, 2015
"Battle Scars: Military Veterans and the Death Penalty"
The title of this post is the title of this notable new report from the Death Penalty Information Center. Here are excerpts from its Executive Summary:
In many respects, veterans in the United States are again receiving the respect and gratitude they deserve for having risked their lives and served their country. Wounded soldiers are welcomed home, and their courage in starting a new and difficult journey in civilian life is rightly applauded. But some veterans with debilitating scars from their time in combat have received a very different reception. They have been judged to be the "worst of the worst" criminals, deprived of mercy, sentenced to death, and executed by the government they served.
Veterans with Post-Traumatic Stress Disorder (PTSD) who have committed heinous crimes present hard cases for our system of justice. The violence that occasionally erupts into murder can easily overcome the special respect that is afforded most veterans. However, looking away and ignoring this issue serves neither veterans nor victims....
PTSD is now formally recognized in the medical community as a serious illness. But for those who have crossed an indefinable line and have been charged with capital murder, compassion and understanding seem to disappear. Although a definitive count has yet to be made, approximately 300 veterans are on death row today, and many others have already been executed.
Perhaps even more surprising, when many of these veterans faced death penalty trials, their service and related illnesses were barely touched on as their lives were being weighed by judges and juries. Defense attorneys failed to investigate this critical area of mitigation; prosecutors dismissed, or even belittled, their claims of mental trauma from the war; judges discounted such evidence on appeal; and governors passed on their opportunity to bestow the country's mercy. In older cases, some of that dismissiveness might be attributed to ignorance about PTSD and related problems. But many of those death sentences still stand today when the country knows better.
Unfortunately, the plight of veterans facing execution is not of another era. The first person executed in 2015, Andrew Brannan, was a decorated Vietnam veteran with a diagnosis of PTSD and other forms of mental illness. Despite being given 100% mental disability by the Veterans Administration after returning from the war, Georgia sought and won a death sentence because he bizarrely killed a police officer after a traffic stop. The Pardons Board refused him clemency. Others, like Courtney Lockhart in Alabama, returned more recently with PTSD from service in Iraq. He was sentenced to death by a judge, even though the jury recommended life. The U.S. Supreme Court turned down a request to review his case this year.
This report is not a definitive study of all the veterans who have been sentenced to death in the modern era of capital punishment. Rather, it is a wake-up call to the justice system and the public at large: As the death penalty is being questioned in many areas, it should certainly be more closely scrutinized when used against veterans with PTSD and other mental disabilities stemming from their service. Recognizing the difficult challenges many veterans face after their service should warrant a close examination of the punishment of death for those wounded warriors who have committed capital crimes. Moreover, a better understanding of the disabilities some veterans face could lead to a broader conversation about the wide use of the death penalty for others suffering from severe mental illness.
Monday, November 09, 2015
"The Most Ambitious Effort Yet To Abolish The Death Penalty Is Already Happening"
The title of this post is the headline of this extraordinary new BuzzFeed News piece about the significant on-going effort to build a case for the Supreme Court to abolish the death penalty through a major constitutional ruling. The very lengthy article by Chris Geidner covers lots of ground, making the full piece a must-read for any and everyone who follows any aspect of the debate over the modern death penalty. Here is how the piece gets started:
Henderson Hill and Rob Smith are the odd couple shepherding a collaborative effort to end the death penalty in America at the most significant moment for that movement in decades.
As talk of mass incarceration, racial disparities, and criminal justice legislation has permeated the public debate on both sides of the political spectrum, another effort has taken shape under the radar: the laying of the groundwork for a Supreme Court ruling that the death penalty is unconstitutional, a violation of the Eighth Amendment’s ban on cruel and unusual punishments.
When Supreme Court Justice Stephen Breyer, along with Justice Ruth Bader Ginsburg, raised the prospect this June of the Supreme Court revisiting the constitutionality of the death penalty — using a key part of Smith’s work as evidence — the ground shifted overnight, and discussions went from hypothetical to hyperdrive.
In the wake of that change, two of the death penalty’s most strident abolitionists sat down with BuzzFeed News to make their case not only for ending the death penalty in the United States — but for doing so in the next few years. The effort, as with so many focused on the Supreme Court, ultimately comes down to Justice Anthony Kennedy.
The 8th Amendment Project, which Hill and Smith run, is a centralized effort to advance death penalty abolition research, raise issues of legal system accountability, and help capital defense efforts — all with the Supreme Court in mind. It has a $1 million budget and six full-time staff members this year. It is part of a national effort backed by the Themis Fund, a donor collaborative dedicated to ending the death penalty in America, the fund’s director told BuzzFeed News. The Themis Fund was launched as an initiative of the progressive Proteus Fund in 2007, when a broad array of opponents of capital punishment — from litigators to funders — came together to figure out a way to end capital punishment in the country.
As death sentences and executions slowed down across the country — and some states got rid of it altogether — the Themis Fund donors decided to ramp up their efforts. In 2014, Hill, a 59-year-old black lawyer who began his career decades ago as a public defender, was made the head of the project, giving it its current name. He has since brought on Smith, a 34-year-old white law professor who graduated from law school in 2007, to serve as the project’s litigation director.
Sunday, November 08, 2015
California (finally!) officially announces switch to one-drug lethal injection protocol
California, the state with the largest death row and the seemingly most-dysfunctional and expensive capital punishment system, late last week announced that it is finally going to try to modernize its long-dormant execution protocol. This extended Los Angeles Times piece provides the details and the back-story:
California unveiled a new method for executing prisoners Friday, proposing a “humane and dignified” single-drug injection protocol that could restart capital punishment after a nearly 10-year hiatus. The regimen would replace a three-chemical method the state used in the past. That mixture was struck down in 2006 by a judge who said it could cause inhumane suffering if one of the drugs failed to work.
The new proposal stems from a lawsuit filed against the state by crime victims' families who favored the death penalty and wished to see it enforced. A settlement of the suit, brought by the Criminal Justice Legal Foundation, required the state to devise a new lethal injection method by this month.
Executions are not likely to resume immediately, however. Public vetting of the proposal could take a year, and court challenges may follow. In addition, voters may see one or more ballot measures on the death penalty next year....
The new California protocol would allow a choice of four barbiturates for lethal injection: amobarbital, pentobarbital, secobarbital and thiopental. The selection would be made on a “case-by-case basis, taking into account changing factors such as the availability of a supply of chemical,” according to the proposal, published online Friday by the California Department of Corrections and Rehabilitation.
The single-drug protocol creates “a better flexibility, a better system of options,” said Michael Rushford, who heads the foundation that filed the suit. Rushford expressed chagrin over the state's decision to use the regulatory process, which allows two months for public comment and will delay the resumption of executions.
He said officials had dragged their feet in crafting a new policy. He attributed that to Gov. Jerry Brown and Atty. Gen. Kamala D. Harris, who oppose the death penalty although they have said they would enforce it. “If we had a different governor and a different attorney general, these wouldn't be problems,” Rushford said.
Harris' office did not immediately respond to requests for comment. Corrections spokeswoman Terry Thornton, speaking for the Brown administration, ascribed the delay to the developing national debate over execution methods, not resolved until a U.S. Supreme Court ruling in June.
At least 16 death row inmates in California have exhausted their appeals and could be executed if the protocol is adopted. The inmates range in age from 49 to 78. One was condemned for crimes that took place 36 years ago.
Some condemned prisoners were stoic when told about the impending arrival of a new execution protocol. “In the meantime, I have my life,” Clifton Perry, 46, said in a recent interview, noting that legal challenges could drag on for years. He was sentenced to death for the 1995 killing of a convenience store owner during a robbery.
California has 749 inmates on death row, the most in the country. Since 1978, the state has executed 13 prisoners, 68 condemned offenders have died from natural causes and 24 have committed suicide....
California voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000. Death penalty opponents have proposed an initiative for the November 2016 ballot that would replace capital punishment with life without the possibility of parole. Legislative analysts this week said such a move would save California some $150 million a year, by reducing the costs of capital punishment trials and subsequent penalty appeals.
A competing measure, sponsored by law enforcement and victim groups, also has been submitted for state review. That measure would propose changes to speed up executions.
Saturday, November 07, 2015
A citizen's notable (and radical?) suggestions for improving the Ohio execution process
Yesterday I received an interesting e-mail from an Ohioan styled as a "letter to the editor" and which I received permission to reprint here:
Dear Mr. Berman,
In reference to the PD article "Ohio in quandary over how to resume executions " (Oct 24) about lethal-injection drugs, I would like to comment.
Since I live in Ohio, I would like to address our execution dilemma. Allow me to suggest an alternative to lethal injection.
I am disappointed to see the failure of execution cocktails that have taken an half an hour or more to end a prisoners life. Although the suffering of these dying criminals does not seem unfair.
But I would like to solve -- once and for all -- the problems with inefficient lethal drugs. Let's make execution less painful for us all. As an alternative to drugs, we simply use the Red Cross method of donating a pint of blood, but using a 20 ounce bag to hold all of a person's blood, resulting in a complete draining of all blood for a quick and painless eternal sleep.
I call this the 'Total Blood Withdrawl' execution. I wrote the protocol for this method. Maybe Red Cross can use the blood.
Let's use this transition method to a day when there will be no more executions.
I have no idea if this plan for "Total Blood Withdrawal" would actually produce a "quick and painless eternal sleep." But given that officials in Ohio and elsehwere seem unwilling and/or unable to come up with viable alternatives to problematic lethal injection protocols, I am pleased to highlight here that even average citizens are eager to offer alternative execution methods for consideration.
Friday, November 06, 2015
Reflecting on 2015's historically low number of executions (and on death penalty dogs not barking)
This DPIC yearly execution page highlights that we have had only 25 executions so far throughout the United States in 2015, and this page listing scheduled executions suggests it is very unlikely we will have more than a couple more executions before the end of the year. Statistically and historically speaking, then, 2015 will be a year with a remarkably low number of executions in the US: in every single year since 1992,there have been 30 or more executions and there were 98 executions nationwide in 1999; throughout both the 1990s and 2000s, the US averaged nearly 60 executions per year.
Lots of factors have contributed to the significant recent decline in yearly executions now resulting in 2015 becoming a record-low execution year: abolition of the death penalty in a few states, moratoria on executions in a few others, persistently effective litigation challenging state lethal injection protocols, persistently ineffective efforts by states to improve lethal injection protocols and obtain needed execution drugs, and continued judicial and public scrutiny long-ago-imposed death sentences even after standard appeals have concluded. For what it is worth, I am highly disinclined to attribute a decline in US executions to diminished public support for the death penalty: both national polls and surveys in the states that have historically carried out the most death sentences indicate that, at least among the general public, support for a functioning death penalty system remains strong and deep.
Though I encourage comments about what most accounts for 2015's historically low number of executions, I was moved to write this post by the realization that I have not seen or heard a single traditional death penalty advocate or "tough-and-tougher-on-crime" proponent claim that the widely-discussed uptick in homicides in some US cities might be attributable to the US now being softer on murderers. Not long ago, when the US was averaging five or six executions every month and murder rates were in decline, there was considerable complex empirical research contending that every execution might save a dozen or more innocent lives. But I noticed less and less of this kind research in the years before 2015, perhaps because we were still generally exeperiencing declining murder rates even as the number of yearly executions have started to decline.
Given how much talk and concern there is concerning an uptick in homicides in a number of cities, and especially given that there is much discussion and debate over whether and how criticisms of the police or recent drug epidemics or recent sentencing reforms might be playing a role, I am now struck and intrigued by the realization that traditional death penalty advocates and "tough-and-tougher-on-crime" proponents have not yet suggested there could be a link between fewer executions and more homicides in 2015. Critically, I am not trying to make any accusations about research agendas nor to suggest that there readily could or should be significant research efforts seeking to link modern execution trends and homicide rates. I am just observing that, despite what seems like a tendency for the "tough-and-tougher" crowd to attribute any crime spike to the nation "going soft" in some way, I have seen no effort to link the remarkably low number of executions in the US in 2015 to any crime patterns.
Wednesday, November 04, 2015
"Death sentences are down across the country — except for where one of these guys is the defense attorney."
The title of this post is the subheadline of this notable new Slate commentary authored by Robert Smith. The piece merits a full read, and here are some excerpts:
“He looks like a killer, not a retard,” Nathaniel Carr, a lawyer in Maricopa County, Arizona, wrote about his client, Israel Naranjo, who is now on death row. Naranjo has a standardized IQ score of 72, but Carr badly botched the introduction of this evidence at trial. The trial judge found that Carr “violated the rules of criminal procedure” and admonished him for both lacking candor and filing “offensive” and “incomprehensible” motions. The Arizona Supreme Court said Carr’s behavior could be described as “willful misconduct.” Carr has represented four of the men who currently occupy Arizona’s death row....
Carr might not visit his capital clients very often, but he does seem to be dedicated to his job — his other job as a high school football coach. People who knew Carr at the county courthouse told Paul Rubin of the Phoenix New Times that “coaching seems Carr’s true passion.” Indeed, Carr “often was unavailable to clients and co-counsel on most weekday afternoons during football season—and always on game days.” This dual career did not stop Carr from billing the county an average of $370,000 per year for his services — even though some the hours he billed were for team meetings and prison visits that appear to be fictitious. (Carr did not respond to requests for comment.)
Last year marked the lowest number of new death sentences in modern American history. Nationwide, in the five-year period from 2010 through 2014, only 13 counties imposed five or more death sentences. Maricopa County is one of those 13. With 24 new death sentences between 2010 and 2014, Maricopa is the nation’s second highest producer of death sentences, after Los Angeles County, which is twice as populous.
One explanation for why counties like Maricopa hang on to capital punishment is that the prosecutors in these places are outliers who continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned. But prisoners sentenced to death in these counties often suffer a double whammy — they get both the deadliest prosecutors in America and some of the country’s worst capital defense lawyers. Nathanial Carr makes that list of awful lawyers, but he is not the only one from Maricopa who deserves to be included.
Herman Alcantar has been called, by a lawyer intervening on behalf of one of his former clients, “arguably the busiest capital defense attorney in the entire United States.” That’s not a compliment. Capital cases are notoriously complex and time-consuming. One trial-level capital case can be a full caseload for a defense attorney, and almost no one considers it a good idea to handle more than two active death penalty cases at a time. During the winter of 2009, Alcantar represented five pretrial capital defendants at once. He was so busy, in fact, that one month before the trial of Fabio Gomez was set to begin, Alcantar had neither filed a single substantive motion nor visited his client in more than a year. Six of Alcantar’s former clients are on death row....
Like Maricopa, Duval County, Florida, is among the few counties in America that continue to regularly impose death sentences. Since 2010, it is the second highest producer of death sentences per capita, after Caddo Parish, Louisiana. MO When Shirk took over, he fired 10 lawyers, including senior capital litigators Ann Finnell and Pat McGuinness, whose stellar representation of a wrongfully arrested 15-year-old, Brenton Butler, was the subject of an Oscar-winning documentary film, Murder on a Sunday Morning. With his experienced capital litigators gone, Shirk hired Refik Eler to be his deputy chief and the head of homicide prosecutions. Since 2008, Eler has been a defense lawyer on at least eight cases that resulted in a death sentence. That’s more than any other lawyer in Florida. (Eler declined to comment.)...
The quality of defense representation in capital cases has substantially improved in many places. But not in Caddo Parish. Like Maricopa and Duval counties, Caddo Parish, Louisiana, is one of the few districts that continue to regularly impose the death penalty. Indeed, Caddo has become the leading per capita death-sentencing machine in America. Of the death sentences imposed in Caddo Parish since 2005, 75 percent of the cases involved at least one defense lawyer who, under the new case representation standards, is no longer certified to try capital cases in Louisiana....
In the counties with the most death sentences, prosecutors and defense lawyers, often abetted by judges and other local officials, fight to maintain the status quo that Stephen Bright wrote about 20 years ago. In these places, the death penalty is still a punishment reserved mostly for the people with the worst lawyers. Disproportionate numbers of death sentences in these few counties do not result from a high number of murders, or even the unique fervor of the residents who reside there, but instead from the operation of death’s double whammy—bloodthirsty, overreaching prosecutors and woefully inadequate defense lawyers.
Tuesday, November 03, 2015
Supreme Court stays Missouri execution to allow consideration of medical claim concerning execution
As reported in this AP article, the "U.S. Supreme Court on Tuesday put on hold the execution of a Missouri man convicted beating three people to death with a claw hammer while a lower court considers an appeal." Here is more about the stay:
Ernest Lee Johnson claims the execution drug could cause painful seizures because he still has part of a benign tumor in his brain, and surgery to remove the rest of the tumor in 2008 forced removal of up to 20 percent of his brain tissue.
The Supreme Court granted a stay while the 8th U.S. Circuit Court of Appeals considers whether his complaint was properly dismissed. It wasn't immediately clear how quickly the appeals court might rule....
Johnson was convicted of three counts of first-degree murder for killing 46-year-old Mary Bratcher, 57-year-old Mable Scruggs and 58-year-old Fred Jones during a closing-time robbery of a Casey's General Store in Columbia on Feb. 12, 1994. Johnson wanted money to buy drugs, authorities said. All three workers were beaten to death with a claw hammer, but Bratcher was also stabbed at least 10 times with a screwdriver and Jones was shot in the face....
Johnson grew up in a troubled home and his attorney, Jeremy Weis, said his IQ was measured at 63 while still in elementary school. Testing after his conviction measured the IQ at 67, still a level considered mentally disabled.
He was already on death row in 2001 when the U.S. Supreme Court ruled that executing the mentally disabled was unconstitutionally cruel and a new sentencing hearing was ordered. Johnson was again sentenced to death in 2003. The Missouri Supreme Court tossed that sentence, too, forcing another sentencing hearing. In 2006, Johnson was sentenced to death for a third time.
The brain tumor was removed in an operation in 2008. While benign, doctors could not remove the entire tumor. Weis said the combination of the remaining tumor and the fact that Johnson lost about one-fifth of his brain has left him prone to seizures and with difficulty walking.
Missouri's execution drug is a form of pentobarbital believed to be manufactured by a compounding pharmacy — the state won't say where it gets it. Weis cites a medical review by Dr. Joel Zivot, who examined MRI images of Johnson's brain and found "significant brain damage and defects that resulted from the tumor and the surgical procedure," according to court filings. "Mr. Johnson faces a significant medical risk for a serious seizure as the direct result of the combination of the Missouri lethal injection protocol and Mr. Johnson's permanent and disabling neurologic disease," Zivot wrote.
Court filings by the Attorney General's office note that Missouri has carried out 18 "rapid and painless" executions since it went to the one-drug method in November 2013.
"Death Penalty Opponents Split Over Taking Issue to Supreme Court"
The title of this post is the headline of this interesting new New York Times article by Adam Liptak. Here is how the piece gets started:
In the long legal struggle against the death penalty, the future has in some ways never looked brighter. In a passionate dissent in June, Justice Stephen G. Breyer invited a major challenge to the constitutionality of capital punishment. This fall, Justice Antonin Scalia all but predicted that the court’s more liberal justices would strike down the death penalty.
But lawyers and activists opposed to the death penalty, acutely conscious of what is at stake, are bitterly divided about how to proceed. Some say it is imperative to bring a major case to the court as soon as practicable. Others worry that haste may result in a losing decision that could entrench capital punishment for years.
“If you don’t go now, there’s a real possibility you have blood on your hands,” said Robert J. Smith, a fellow at Harvard Law School’s Charles Hamilton Houston Institute. His scholarship was cited in Justice Breyer’s dissent from a decision upholding the use of an execution drug that three death row inmates argued risked causing excruciating pain.
But others are wary. “There are reasons to be cautious about pushing the court to a decision too early,” said Jordan M. Steiker, a law professor at the University of Texas.
The divide is partly generational. Many veteran litigators have suffered stinging setbacks in the Supreme Court, and they favor an incremental strategy. They would continue to chip away at the death penalty in the courts, seek state-by-state abolition and try to move public opinion. Some younger lawyers and activists urge a bolder course: to ask the Supreme Court to end capital punishment nationwide right away.