Wednesday, July 23, 2014
After stays vacated, Arizona needs two hours to complete another ugly execution
As reported in this AP piece, "Arizona executed Joseph R. Wood on Wednesday afternoon, but the execution lasted for nearly two hours as Wood struggled to breathe, according to his attorneys." Here are more of still-developing details of the latest in a series of ugly executions in 2014:
During his execution, Wood’s attorneys filed a request to halt the lethal injection because he was still awake more than an hour after the process began. Wood was “gasping and snorting for more than an hour,” they wrote in their filing.
The execution continued and Wood was pronounced dead at 3:49 p.m. (local time), the office of Arizona Attorney General Tom Horne said. This was nearly two hours after the execution began at 1:52 p.m.
Wood was the third inmate executed in Arizona since last October and the first put to death using a combination of the drugs midazolam and hydromorphone. “The experiment using midazolam combined with hydromorphone to carry out an execution failed today in Arizona,” Dale Baich, an attorney for Wood, said in a statement. “It took Joseph Wood two hours to die, and he gasped and struggled to breath for about an hour and forty minutes.”
Baich said he and others would continue seeking information about the drugs used. “Arizona appears to have joined several other states who have been responsible for an entirely preventable horror — a bungled execution,” Baich said. “The public should hold its officials responsible and demand to make this process more transparent.”
Recent related posts:
- Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns
- After Kozinski's candor, what will SCOTUS due about First Amendment stay in Arizona capital case?
- After SCOTUS vacates First Amendment stay, Arizona Supreme Court delays execution
After SCOTUS vacates First Amendment stay, Arizona Supreme Court delays execution
As reported in this new AP story, after the US Supreme Court late yesterday vacated the novel stay imposed by the Ninth Circuit based on lethal injection drug secrecy concern, "Arizona's highest court on Wednesday temporarily halted the execution of a condemned inmate so it could consider a last-minute appeal." Here is more:
Joseph Rudolph Wood, 55, was scheduled to be put to death Wednesday morning at the state prison in Florence, but that was delayed when the Arizona Supreme Court said it would consider whether he received inadequate legal representation at his sentencing. The appeal also challenges the secrecy of the lethal injection process and the drugs that are used.
The state Supreme Court could still allow the execution to move forward later Wednesday once it considers the arguments.
The U.S. Supreme Court on Tuesday cleared the way for Arizona to carry out its third execution in the last year following a closely watched First Amendment fight over the secrecy issue. Wood's lawyers used a new legal tactic in which defense attorneys claim their clients' First Amendment rights are being violated by the government's refusal to reveal details about lethal injection drugs. Wood's lawyers were seeking information about the two-drug combination that will be used to kill him, including the makers of the drugs.
A federal appeals court ruled in Wood's favor before the U.S. Supreme Court put the execution back on track. The 9th U.S. Circuit Court of Appeals decision marked the first time an appeals court has acted to delay an execution based on the issue of drug secrecy....
Wood was sentenced to death for killing Debra Dietz and her father, Eugene Dietz, in 1989 at the family's automotive shop in Tucson.... On the day of the shooting, Wood went to the auto shop and waited for Dietz's father, who disapproved of his daughter's relationship with Wood, to get off the phone. Once the father hung up, Wood pulled out a revolver, shot him in the chest and then smiled. Wood then turned his attention toward Debra Dietz, who was trying to telephone for help. Wood grabbed her by the neck and put his gun to her chest. She pleaded with him to spare her life. An employee heard Wood say, "I told you I was going to do it, I have to kill you." He then called her an expletive and fired two shots in her chest....
Arizona has executed 36 inmates since 1992. The two most recent executions occurred in October.... The fight over the Arizona execution has also attracted attention because of a dissenting judge's comments that made a case for a firing squad as a more humane method of execution.
Recent related posts:
- Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns
- After Kozinski's candor, what will SCOTUS due about First Amendment stay in Arizona capital case?
Tuesday, July 22, 2014
After Kozinski's candor, what will SCOTUS due about First Amendment stay in Arizona capital case?
The question in the title of this post follows up the news, reported here by the AP, that the full Ninth Circuit yesterday denied Arizona officials en banc review of the remarkable panel ruling putting in place an execution stay on First Amendment grounds (basics here). The AP reports that Arizona is, unsurprisingly, planning to ask SCOTUS to vacate the stay, and I suspect First Amendment challenges to executions protocols will become commonplace nationwide if SCOTUS leaves the stay in place.
Chief Judge Alex Kozinski make extra sure his dissent — which is available here along with another dissent authored by Judge Callahan for 11 other members of the Ninth Circuit — garnered extra attention by providing these candid comments at the close of his operion about the fundamental problems with lethal injection as an execution method:
Whatever happens to Wood, the attacks [on lethal injection execution procedures] will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. See Callins v. Collins, 510 U.S. 1141, 1143 (1994) (Scalia, J., concurring in denial of certiorari) (“How enviable a quiet death by lethal injection . . . .”). But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive — and foolproof — methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.
While I believe the state should and will prevail in this case, I don’t understand why the game is worth the candle. A tremendous number of taxpayer dollars have gone into defending a procedure that is inherently flawed and ultimately doomed to failure. If the state wishes to continue carrying out executions, it would be better to own up that using drugs is a mistake and come up with something that will work, instead.
Monday, July 21, 2014
Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell
Among a large number of major sentencing developments last week, the biggest in the capital punishment arena was clearly, as discussed here and here, U.S. District Judge Cormac Carney ruling that all of California's death penalty system is unconstitutional. The ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), has already generated lots of thoughtful discussion (as reflected in posts here and here), and I am now pleased to reprint another insightful bit of analysis sent my way over the weekend. Specifically, Professor Richard Broughton sent me an e-mail with his reaction ot the Jones ruling and kindly permitted me to reprint this excerpt:
It looks to me as if the case should (or at least could) have been disposed of on Teague v. Lane grounds.
I was troubled that California didn't raise Teague, and was glad that Judge Carney addressed it sua sponte. But his analysis was entirely perfunctory and merely glossed over, or simply failed to cite, a number of important Supreme Court precedents on Teague and "new rules." (Chaidez, Summerlin, Lambrix, etc.). I suppose one could argue that Jones was asking for a substantive rule rather than a procedural one, and could therefore avoid the Teague bar. That strikes me as a stronger way to avoid Teague in this case. But Judge Carney didn't articulate his ruling this way. Instead, Judge Carney simply said the rule was not "new," thus alleviating any need to categorize it as a substantive or procedural rule. In light of the Supreme Court's (and other courts') consistent rejection of delay-as-cruel-and-unusual-punishment claims, it would seem to me that a reasonable jurist would not have felt compelled by precedent to conclude that Jones was entitled to relief. Hence, the rule here was "new."
Judge Carney's effort to avoid the "new" rule bar by claiming that this ruling fits within the dictates of Furman and its progeny with respect to the wanton and freakish imposition of the death penalty strikes me as entirely wrong (and barred, if we are talking about a procedural rule). Jones wasn't merely trying to have Furman apply to a new set of facts -- it was an effort to extend Eighth Amendment doctrine to situations where there are long delays, an extension that was not dictated by Furman and that courts have routinely rejected (indeed, if the rule was dictated by precedent, why has it been so often rejected?). I would think the State could plausibly argue that, despite Furman and its progeny, the precise rule that Jones was seeking -- that delays in his execution render his sentence unconstitutional because California's death penalty system has not followed procedures that would expedite capital cases -- was not dictated by precedent when his conviction became final. Therefore, there would have been a need to decide whether it was substantive or procedural, and if procedural, it would be barred. There is, in fact, Ninth Circuit precedent on this very matter, applying the Teague bar to a Lackey claim.
I read Bill Otis's post at C&C on Jones as essentially requiring a Miranda-type prophylaxis. I agree substantially with that view (though I think few other federal courts would come out and say this is what they are requiring), and I think California and others may start thinking about some legislative reforms to address the problem that Judge Carney identifies. I think even those of us who support the death penalty acknowledge that delays are a problem, though for different reasons than the capital defense bar thinks. But if Otis's view is accurate, doesn't that simply serve to reinforce the reality that Teague bars the rule that Judge Carney set forth?
Of course, I am troubled by many aspects of the case, not just the Teague analysis. That's just the tip of the iceberg for me. But I didn't see anyone else talking about Teague. Maybe there's a good reason for that; maybe my view of the Teague issue is premature and I'm ultimately wrong. My mind is open. But I am concerned that this view could take hold not just in more California cases on habeas review, but in other jurisdictions, as well. And I think California and the others should be prepared to assert the Teague bar (if my instincts are right). At a minimum, I think Teague is a plausible basis for rejecting these kinds of claims, and that the case should have at least dealt more extensively with that doctrine.
Recent related posts:
- Federal district judge declares California's death penalty unconstitutional under Eighth Amendment
- Lots of notable discussion of yesterday's notable decision striking down California's death penalty
- Furman and randomness (not just delay) at heart of California capital ruling
Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns
As reported in this new New York Times piece, a "federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team." Here is more about a ruling sure to garner more attention (and litigation) in the week ahead:
The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret. “This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law.
The appeals court ruling came four days before the scheduled execution of Joseph Wood, who was convicted of the killings of two people and sentenced to death....
Arizona officials ... Sunday ... appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary.
Federal or state courts in places including Georgia, Louisiana, Missouri, Oklahoma and Texas have permitted executions to take place despite similar challenges to secrecy about drug manufacturers. So far, the Supreme Court has refused to intervene. The Arizona case reflects the growing turmoil in the administration of capital punishment as the supply of traditionally used drugs has dried up, mainly because companies are unwilling to sell them for executions. States are trying out new drug combinations and scrambling for secret sources, while lawyers for the condemned have argued that they have a right to know precise details about drug origins and quality....
Mr. Wood was sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father. He was scheduled to be executed on Wednesday. Lacking its two preferred execution drugs, Arizona officials said they would use a combination of the drugs midazolam and hydromorphone, which has been used by Ohio.
The state said it obtained drugs approved by the Food and Drug Administration with expiration dates in the fall of 2015, but refused to reveal the manufacturers and batch numbers. It also refused to provide details about the qualifications of those who would administer the drugs, saying this could lead to disclosure of their identities.
Lawyers for Mr. Wood, led by Dale Baich, a federal public defender in Phoenix, challenged the secrecy, arguing that it violated their client’s First Amendment rights of access to public proceedings. A Federal District Court sided with the state, but on Saturday, the appeals panel ruled that Mr. Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas. Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.”
In a dissent, Judge Jay S. Bybee said the court had drastically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”
The majority Ninth Circuit panel opinion runs 28 pages, is available at this link, and concludes this way:
Because we conclude that Wood has raised serious questions as to the merits of his First Amendment claim; that the balance of equities tips sharply in his favor; that he will face irreparable harm if the injunction is not granted; and that the injunction is in the public interest; we conclude that the district court abused its discretion in denying Wood’s preliminary injunction request. We do not decide with certainty that a First Amendment right exists to the information Wood seeks, nor do we resolve the merits of the Plaintiffs’ underlying § 1983 claim. We do, however, reverse the district court’s denial of Wood’s preliminary injunction motion. We grant a conditional preliminary injunction, staying Wood’s execution until the State of Arizona has provided him with (a) the name and provenance of the drugs to be used in the execution and (b) the qualifications of the medical personnel, subject to the restriction that the information provided will not give the means by which the specific individuals can be identified. Once he has received that information, the injunction shall be discharged without more and the execution may proceed.
The dissenting opinion by Judge Bybee runs 35 pages, is available at this link, and makes these concluding points:
The decision to inflict the death penalty is a grave and solemn one that deserves the most careful consideration of the public, the elected branches of government, and the courts. We must be cognizant that a life is at stake. But we cannot conflate the invocation of a constitutional right belonging to the public at-large — such as the First Amendment right of public access to certain proceedings and documents — with a policy judgment about if and when the death penalty ought to be imposed. In so doing, we usurp the authority of the Arizona legislature and disregard the instructions of the Supreme Court.
Friday, July 18, 2014
Furman and randomness (not just delay) at heart of California capital ruling
As discussed here and here, U.S. District Judge Cormac Carney earlier this week declared all of California's death penalty system unconstitutional in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here). Because much of the opinion documents how "California’s death penalty system [has become] so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," much criticism of the opinion questions how a very long delay between a death sentence and an execution could alone render a sentence unconstitutional. As noted before, Kent Scheidegger here at Crime & Consequesnces has stressed that few Justices have taken "seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it." And now Orin Kerr here at The Volokh Conspiracy explains why he "found the [Jones] opinion unusually weak" given all the "obvious puzzles raised by delay-based Eighth Amendment claims."
Though decades of delay between a death sentence and possible execution is part of the equation of the Judge Carney's ruling in Jones v. Chappell, I see the concept of randonmess to be more fundamental and more fundamentally important to Judge Carney's constitutional conclusion. Judge Carney cites repeatedly the various opinions in the Supreme Court's 1972 landmark ruling in Furman v. Georgia which found an Eighth Amendment violation based ina state's sentencing process making it essentially random (or "arbitrary") who ultimately gets sentenced to die among a large pool of eligible capital defendants. I read Judge Carney's opinion as extending Furman by concluding that the Eighth Amendment is also violated if and when a state's appeals process makes it essentially random (or "arbitrary") who ultimately gets executed among among a large pool of condemned defendants sentenced to die.
Because Furman remains good law (and obviously has nothing to do with execution delay), I think there is a little more "juice" to the ruling in Jones v. Chappell than suggested by those whose criticisms are focused only on execution delay aspects of the ruling. Indeed, in order to keep the focus on Furman and randomness, consider a variation on a hypothetical statute present to students when discussing Furman. Consider, dear readers, if you think a state would be constitutionally allowed to pass a capital law along these lines:
Because of the huge costs associated with adequate appellate review of death sentences, state appeals courts should randomly select (via a fair lottery process) only 1 out of every 50 death sentences to be subject to full and fair appellate review each year. All death sentences shall be indefinitely stayed (and no execution date imposed) unless and until a death sentence has been is randomly selected for, and properly subject to, full and fair appellate review.
Of course, California has not formally passed such a law. But Judge Carney's ruling (rightly) finds that California functionally operates its capital punishment system this way AND then (questionably) concludes such a capital punishment system violates the Eighth Amendment based on Furman.
Recent related posts:
- Federal district judge declares California's death penalty unconstitutional under Eighth Amendment
- Lots of notable discussion of yesterday's notable decision striking down California's death penalty
Thursday, July 17, 2014
Lots of notable discussion of yesterday's notable decision striking down California's death penalty
As reported in this prior post, yesterday in a significant ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), U.S. District Judge Cormac Carney declared all of California's death penalty system unconstitutional. Not surprisingly, this important ruling has already generated considerable traditional media attention, and How Appealing collects some of the major stories here and here.
The heart of the remarkable ruling in Jones v. Chappell turns on (1) the (not disputable) fact that "California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," and (2) the (very disputable) conclusion that allowing any one murderer to "executed in such a system, where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections — that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death." I have lots of thoughts about both fact (1) and conclusion (2) that I hope to find time to share in future posts (or future amicus briefs), but for now I figured I would link to some of the early analysis of the opinion I have so far seen elsewhere in the blogosphere:
From Dan Markel here at PrawfBlawg, "What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision"
From Bill Otis here at Crime & Consequesnces, "A Miranda-type Prophylaxis for the Death Penalty"
From Ruthann Robson here at Constitutional Law Prof Blog, "California Federal Judge Declares Death Penalty Violates Eighth Amendment"
From Kent Scheidegger here at Crime & Consequesnces, "The Lackey Claim" Again
Wednesday, July 16, 2014
Federal district judge declares California's death penalty unconstitutional under Eighth Amendment
An notable new opinion by a (Republican-appointed) federal district judge in California is sure to be the talk of the death penalty community for the forseeable future and is also sure to be the basis for a intriguing coming appeal to the Ninth Circuit (and perhaps the Supreme Court). The opinion in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available for download below), is authored by a GWB-appointee Cormac Carney, and it is described by the judge as an "ORDER DECLARING CALIFORNIA’S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER’S DEATH SENTENCE." Here is how the 29-page opinion start and ends:
On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.
That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment....
When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it will actually be carried out. That promise is made to the citizens of the State, who are investing significant resources in furtherance of a punishment that they believe is necessary to achieving justice. It is made to jurors who, in exercise of their civic responsibility, are asked to hear about and see evidence of undeniably horrific crimes, and then participate in the agonizing deliberations over whether the perpetrators of those horrific crimes should be put to death. It is made to victims and their loved ones, for whom just punishment might provide some semblance of moral and emotional closure from an otherwise unimaginable loss. And it is made to the hundreds of individuals on Death Row, as a statement their crimes are so heinous they have forfeited their right to life.
But for too long now, the promise has been an empty one. Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional. Accordingly, the Court hereby VACATES Mr. Jones’s death sentence.
Full opinion: Download Jones Cal DP opinion
"Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures"
The title of this post is the title of this notable paper I just came across via SSRN authored by Meredith Martin Rountree. Here is the abstract:
About 11% of those executed in the United States are death-sentenced prisoners who sought their own execution. These prisoners are commonly called “volunteers,” and they succeed in hastening execution by waiving their right to appeal their conviction and sentence. Certain interpretations dominate. Those who oppose a condemned prisoner’s request for execution often cite the prisoner’s history of mental instability and frame the prisoner’s decision as a product of suicidal depression. Related to this narrative is one that links death row conditions to the prisoner’s decision to hasten death. Conditions, in this account, contribute to the decision to abandon appeals by wearing the prisoner down to the point that he loses the will to live, or by contributing to “death row syndrome,” an evolving (and controversial) psychiatric diagnosis describing a mental condition that some prisoners develop as a result of living under a death sentence in highly socially isolating and stark conditions of confinement. Other narratives focus on ideas of rational choice and personal autonomy. This account emphasizes prisoners’ desire to control their own destiny and the civic virtue of respecting autonomy and choice, even for the least among us.
The empirical support for these explanations is sparse, and this article emerges from a larger effort to test the hypothesis that prisoners who seek execution resemble those who take their own lives in prison. The prison suicide literature has identified certain characteristics — such as race, sex, age, mental illness, and prison conditions — as increasing the risk of suicide behind bars. My research on Texas volunteers generally suggests many, but not all, of those traits characterize that volunteer population as well. This article focuses on findings that point to areas for future research not only on volunteers but also on larger questions of processes of hopelessness and culpability among criminal offenders, and how the criminal justice system may influence life-ending decisions.
Saturday, July 12, 2014
"An NTSB for Capital Punishment"
The title of this post is the title of this notable new essay by Adam Gershowitz now available via SSRN. Here is the abstract:
When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When a fatal airplane crash occurs however, we turn instead to the National Transportation Safety Board. The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes.
It is easy to point to a similar series of mistakes by local prosecutors and defense attorneys in many death-penalty cases around the country. If we are to continue utilizing capital punishment in the United States, the death-penalty system should follow air crash model, not the car crash model. Capital cases should be handled by an elite nationwide unit of prosecutors and investigators who travel to capital murder sites the way the NTSB travels to airplane and other catastrophic crashes. As the number of death sentences dwindles each year, states have incentive to enter into an NTSB model that allows them to continue using capital punishment without having to handle the complicated cases themselves. This symposium essay argues that capital punishment as currently conducted at the local level is failure, but that the death penalty can be justified if carried out by an elite, national team of lawyers and investigators.
Thursday, July 10, 2014
Georgia Board of Pardons and Paroles grants execution eve clemency to witness killer
As reported in this Atlanta Journal-Constitution article, "hours before he was to be executed for a murder 23 years ago, Tommy Lee Waldrip was granted clemency." Here are the details:
The state Board of Pardons and Paroles made the rare decision to commute a condemned man’s sentence to life without parole Wednesday even as state and federal courts had turned down his appeals. Waldrip’s execution was set for 7 p.m. Thursday for the murder of Keith Evans, a college student who was about to testify against Waldrip’s son in a re-trial of an armed robbery case.
The board’s decision came several hours after members heard pleas for mercy from relatives, friends and Waldrip’s lawyers, and then from prosecutors and members of the Evans family who wanted the execution carried out.
The board does not give a reason for its decision. Members vote individually and only the chairman, who collects the ballots, knows how each one decided. The decision required a simple majority, three out of five members.
But one issue raised before the board was that the sentences for Waldrip, his son and Waldrip’s brother, all convicted of murdering Evans on April 13,1991, were not proportional. Prosecutors did not seek the death penalty against Howard Livingston, Waldrip’s brother, but they did in the cases against Tommy Lee Waldrip and his son John Mark Waldrip. The three men were tried separately. Only Tommy Lee Waldrip was sentenced to die. John Mark Waldrip and Livingston are serving life sentences....
This was the fifth time since 2002 that the board has commuted the sentence of a death row inmate. The most recent one was on April 12, 2012, when the board commuted the death sentence of Daniel Greene.
Notably, one of the recent cases in which the Georgia Board of Pardons and Paroles refused to grant clemency was the high-profile Troy Davis case. Notably, for those focused on racial dynamics in this context, it is perhaps notable that Tommy Lee Waldrip is white and that Daniel Greene is black. Ergo, since Troy Davis was denied clemency, the Georgia Board of Pardons and Paroles has granted clemency to one black and one white convicted murderer.
Tuesday, July 08, 2014
Making a spiritual case for abolishing the death penalty
Howard Falco, whose bio describes his as a "Self-Empowerment Expert" and "Spiritual Teacher," has this new commentary at The Huffington Post headlined "The Insanity of the Death Penalty." The piece is an interesting read, and here is an excerpt:
The single biggest reason to end the death penalty can be summed up in a quote by Albert Einstein, "No problem can be solved from the same consciousness that created it."
Simply killing under the rationalization of "justice" does not change the intended outcome of deterring anymore killing. It actually exacerbates the problem. What the death penalty in place says is that on some level of our nation's consciousness, killing is seen as "okay." This justification is the exact same justification used in the mind of a killer. They have convinced themselves in some way that it is ok in their mind to kill their intended victim.
In order to change the behavior that we admonish so greatly we must as a society rise above this way of thinking. As Gandhi famously said, "We must be the change we want to see in the world."
Every force we put out into the world, whether as an individual or a nation, has an equal and opposite force. We are learning this more than ever in the world of quantum physics and the understanding it reveals of how our thoughts and actions affect every aspect of our reality. These messages are not new however. They have been coming to us since biblical days.
Commandment number six, "Thou shalt not kill."
Luke 6:31 "As you wish other to do to you, do so to them."
Peter 3:8-10 "Finally, all of you, be like-minded, be sympathetic, love one another, be compassionate and humble. Do not repay evil with evil or insult with insult. On the contrary, repay evil with blessing, because to this you were called so that you may inherit a blessing."
Besides biblical messaging there have been all sorts of common sense and simple wisdom sayings that we have heard for years from our teachers and parents such as the profound and extremely appropriate saying, "Two wrongs do not make a right."
The energy we put out as a civilized nation has a direct effect on what we experience as a nation. We must become more conscious of where we have become hypocrites to our own causes.
Sunday, July 06, 2014
Robert Blecker suggests "5 ways to improve the U.S. death penalty"
New York Law School's Professor Robert Blecker is one of the most vocal academic defenders of capital punishment, but he is quick to acknowledge that application of the death penalty in the US could and should be improved. In this recent CNN commentary, Blecker sets out five suggested improvements, and here are excerpts from the piece:
1. Let's have better definitions for who should die.
I've spent decades visiting prisons and interviewing convicted killers and corrections officers. I'm convinced that states with the death penalty can and should morally refine their statutes. My crime and punishment memoir, "The Death of Punishment," details many changes and suggests a model death penalty statute, reserved for especially heinous, atrocious and cruel killers....
2. Let's be more certain that they are guilty.
Western culture has essentially committed us to a presumption of life, of innocence and we have long required special proof of guilt before we punish with death. "Super due process" requires vigorous defense counsel challenging the prosecution to prove guilt beyond a reasonable doubt to a unanimous jury. Death (or life without parole) as society's ultimate punishment demands even more, however. A jury should not only be convinced beyond a reasonable doubt that the condemned did it, but also that they deserve their punishment....
3. Let's choose a better execution method....
The execution scene I witnessed resembled final goodbyes at a hospital or hospice for the terminally ill. The dying person lies on a gurney, wrapped in white sheets, an IV attached, surrounded by medical technicians with loved ones in attendance. We should oppose lethal injection, not because it might cause pain, but because it certainly causes confusion, wantonly merging punishment and treatment. The firing squad seems to me the best of traditional methods, but a state might give a member of the victim's family a choice among available constitutional options.
4. Let's take a hard look at inmates' prison lifestyle.
Most vicious killers a jury condemns to die will never be executed. And even those we do kill, will live out much of their lives on death row. For the worst of the worst whom we have condemned, daily life on death row should be their punishment.... Specifically, within constitutional bounds, those we condemned to die or live a life in prison with no chance of parole -- the worst of the worst -- should be allowed only the minimum constitutionally mandated exercise, phone calls, or physical contact. They should not be permitted any communal form of recreation or play. For the rest of their lives, their food should be nutraloaf, nutritionally complete and tasteless. Photographs of their victims should be posted in their cells, out of reach, in visibly conspicuous places....
5. And when mistakes are made?...
In the unusual but real case where we later discover an innocent person has been condemned to die or imprisoned for life without parole, the state shall not only release that victim, but also pay substantial reparations to the wrongly condemned or surviving family, regardless of whether any public official intentionally or recklessly miscarried justice.
Saturday, July 05, 2014
High-profile ex-con (who is also an ex-Gov) eager to keep pushing for death penalty abolition
As reported in this AP article, headlined "Ex-Illinois governor Ryan wants to continue anti-death penalty work," the death penalty abolitionist community now has another high-profile advocate newly free to preach the gospel. Here are some excerpts from an interesting article:
George Ryan, an ex-Illinois governor and now an ex-convict, says he’d like to re-engage with the cause he left behind when he went to prison in 2007 — campaigning for the end of the death penalty in the U.S. “Americans should come to their senses,” Ryan said this week, in an hourlong interview at his kitchen table.
Newly free to speak after a year of federal supervision that followed his more than five years in prison for corruption, Ryan appeared to have recovered some of his old voice and feistiness, in contrast to the subdued figure that emerged a year ago from the federal penitentiary in Terre Haute, Ind., and ducked briefly into a Chicago halfway house.
At his home in Kankakee, south of Chicago, the Republican, 80, held forth on capital punishment, the state of American politics and the criminal justice system — though not the difficult details of his own corruption case.
He said he’d like to spend some time on the national circuit to encourage other states to follow Illinois’ lead in abolishing capital punishment. That move came in 2011 and stemmed from Ryan’s decision to clear death row in 2003. While he was treated as a champion by death penalty opponents at the time, he acknowledged some public figures now may have trouble openly associating with him. “I’m an ex-convict,” he said. “People tend to frown on that.”
Ryan, who was governor from 1999 to 2003, was indicted in 2003 and convicted in 2006 on multiple corruption counts, including racketeering and tax fraud. He said he does not plan to discuss the details of the criminal case — to which he always maintained his innocence — though he might in an autobiography he is writing....
He also lashed out at the U.S. justice system, calling it “corrupt” and bluntly contending that the fervor with which he was prosecuted was due in part to his nationally prominent campaign to end the death penalty. “It put a target on my back when I did what I did,” he said, adding that even prison guards derided and mocked him. “It certainly didn’t win me any favor with the federal authorities.”
It’s unclear whether Ryan’s re-emergence on the public scene will be welcomed. But at least one former federal prosecutor balked at Ryan’s contention that he may have been singled out because of his death penalty stance. “It’s absurd,” said Jeff Cramer, a former U.S. attorney in Chicago, noting that four of Illinois’ last seven governors have gone to prison. “It wasn’t his political stand that made him a target. It is what he did. ... He’s trying to rewrite history.”...
[Ryan] also expressed some sympathy for his Democratic successor, Rod Blagojevich, saying the 14-year prison sentence the former governor is serving in Colorado for trying to sell President Barack Obama’s old Senate seat and other pay-to-play schemes was excessive. The sentence is under appeal. “I wasn’t a fan” of Blagojevich, he said. “Irrespective, his sentence was out of line.”
But Ryan displayed the most passion while discussing capital punishment. Once a fervent advocate of the death penalty, he said he agonized about approving the last execution in Illinois before he issued a ban in 2000. “I killed the guy,” he said of the man who had raped, kidnapped and murdered a 21-year-old Elmhurst woman. “You can’t feel good about that.”
As he contemplated commuting all death sentences in 2003, he said he felt increasing pressure not to do it, including from one influential politician whom he remembers asking him directly not to spare one man convicted of murdering a friend’s daughter. After the commutations, Ryan said the politician never spoke to him again.
Tuesday, July 01, 2014
Detailing a notable capital punishment surge in the Sunshine State
This lengthy recent Gainesville Sun article, headlined "Gov. Scott stands strong on death penalty," provides a detailed report on the recent state of capital punishment in the state of Florida. Here are excerpts:
Gov. Rick Scott in 2010 ran on a platform of creating more jobs and reviving Florida's economy. How well he accomplished that will be at the center of the debate of his re-election this fall. But Scott has already cemented one legacy that won't be debated and he did not even contemplate in his initial bid for public office four years.
Scott has presided over 18 executions, including 13 in the last two years, the most executions carried out by any Florida governor in a single term since the death penalty was reinstated in the 1970s....
Shortly before the June 18 execution of John Henry, a Pasco County man who stabbed his wife and stepson to death in 1985, Scott described the death penalty as “a solemn duty of the governor.”
“It's not something I thought about when I was going to run,” Scott said. “But I uphold the laws of the land. When I think about the executions I think about the families, the stories of what happened to these individuals. I think about them.”...
Florida continues to outpace most other states in carrying out the death penalty and may even reach parity — if only briefly — with Texas, which has long been the national death penalty leader. On July 10, Florida is scheduled to execute Eddie Wayne Davis for the kidnapping, rape and murder of an 11-year-old girl in Polk County. It would be the seventh execution carried out this year and put Florida in the unusual position of having the same number of executions as Texas.
Texas is likely to exceed Florida by the year's end, with another five executions already scheduled. And last year, Texas executed 16 prisoners compared to Florida's seven. But Florida's relative parity with Texas signals that the state continues to embrace the death penalty despite a national trend away from its use. Florida and Texas are among only six states this year that have executed prisoners.
Other signs that Florida is aggressively using the death penalty include:
• Florida annually condemns more prisoners to Death Row than nearly every other state. In 2013, Florida sentenced 14 prisoners to death, exceeding Texas' nine death sentences. Only California, with 24 death sentences, had more, although California has not had an execution since 2006.
• In 2012, Florida sent 20 prisoners to Death Row, nearly reaching the combined total of 22 death sentences in Texas and California, two larger states.
• Florida has the second largest Death Row in the country, with 396 prisoners....
But don't expect capital punishment to become an issue in this year's governor's race. Scott's likely opponent, former Gov. Charlie Crist's tough-on-crime stance once earned him the nickname “Chain Gang Charlie.” The state's apparent tolerance to capital punishment is reflected in few protests and little media coverage surrounding executions.
In addition, Scott's actions are line with state lawmakers who overwhelmingly support the death penalty. “Gov. Scott has taken his responsibility to sign death warrants very seriously and I commend him for that,” said House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach.
Gaetz said Florida “is a death penalty state for a good reason," pointing to a 42-year low in the crime rate as well as one-third reduction in violent crimes in the last six years. “Something we're doing must be working and I don't think Floridians are too up for wholesale changes to a criminal justice system that has dramatically reduced the crime rate,” Gaetz said.
Gaetz and other lawmakers bolstered Florida's support for the death penalty last year when they passed the Timely Justice Act. Among other provisions it requires the Supreme Court to notify the governor when Death Row prisoners have exhausted their initial state and federal appeals.
Saturday, June 28, 2014
Despite ugly execution, Oklahomans still strongly support death penalty
The new article from the Tulsa World, headlined "Most Oklahomans strongly favor death penalty, poll shows," highlights that public opinion has not turned against the death penalty in Oklahoma in the wake of the state's recent struggles with lethal injection. Here are the details:
Most Oklahomans favor the death penalty and find it “morally acceptable,” although a smaller percentage think it deters crime, according to a new Oklahoma Poll. About 74 percent of those surveyed said they favored the death penalty for those convicted of murder. That figure includes about 23 percent of respondents who said they “somewhat favor” the death penalty.
Support for the death penalty is higher in Oklahoma than in the nation as a whole. A 2013 Gallup poll found that 60 percent of Americans favored the death penalty. The national number has declined from a peak of 80 percent support in 1994.
The state also has a higher proportion of conservatives, who tend to favor the death penalty in greater numbers than the nation as a whole. Nearly 83 percent of Oklahoma Poll respondents who identified themselves as conservative said they favored the death penalty. Only about 12 percent of respondents in the Sooner Poll said they “strongly oppose” the death penalty. However, that figure varied with respondents’ age. Almost 40 percent of people from 18 to 44 years old said they opposed the death penalty, while less than 18 percent of those 65 and older were opposed.
The botched April 29 execution of Clayton Lockett apparently did little to influence views on the death penalty, according to the poll results. Nearly 70 percent said the execution did not cause them to begin questioning their views on the death penalty. People younger than 45 were more likely to say Lockett’s execution has influenced their views....
Of those Oklahomans surveyed, only 37 percent said they strongly agreed that the death penalty serves as a deterrent to crime. Nearly 22 percent surveyed said they strongly disagreed with that statement, indicating that at least some respondents support the death penalty even if they don’t believe it deters crime....
Almost 70 percent of Oklahomans polled said they believed the death penalty was “morally acceptable” regardless of whether they thought it should be legal, according to the poll. About 20 percent said they viewed it as “morally wrong.”
A majority of those polled — 58 percent — said lethal injection was the most humane method of execution, compared to 10 percent who favored firing squad. About 9 percent favored the electric chair, and 5 percent advocated for hangings.
Friday, June 20, 2014
"Ignoring Issues of Morality or Convicting the Innocent, Is Capital Punishment a Good Idea or a Bad Idea?"
The question in the title of this post is the title of this intriguing little essay by Ron Allen now available via SSRN. Here is the abstract:
The conventional debate over the risk of executing an innocent person is examined and shown to be vacuous. More innocent lives, by orders of magnitude, are lost through incarceration (the alternative to a death penalty) than could possibly have result from executing innocent defendants. This is an instance of the deadly dilemma of governing, which inevitably involves tradeoffs of social goods and costs, often of precisely the same variable.
Thursday, June 19, 2014
Florida completes third uneventful US execution in less than one day
As reported in this CNN piece, a "double murderer was executed in Florida Wednesday night, becoming the third man put to death in an American prison during a 24-hour period." Here are the basics:
John Ruthell Henry, 63, was declared dead at 7:43 p.m. ET at the Florida State Prison in Starke, according to CNN affiliate WFLA, which had a media witness inside the prison. Henry fatally stabbed his wife and her 5-year-old son from a previous marriage in December 1985.
In Georgia, Marcus A. Wellons, 59, was declared dead at 11:56 p.m. ET Tuesday. Wellons was convicted in 1993 of raping and killing India Roberts, 15, in Cobb County, just outside Atlanta. In Missouri, John Winfield was declared dead at 12:01 a.m. CT Wednesday, the state Department of Public Safety said....
Those three executions were the first in the United States since the botched execution of an Oklahoma man in April. The Oklahoma execution raised questions about how prisons use drugs in lethal injections.
Wednesday, June 18, 2014
Should feds agree to moving capital trial of Boston Marathon bomber?
As discussed in this USA Today article, headlined "Lawyers for Boston bombing suspect want trial elsewhere," the most notorious federal capital defendant is likely to seek to be tried in a jurisdiction outside the community he helped terrorize. Here are the basic details, after which I explain why I think federal prosecutors might seriously consider agreeing to a change of venue:
Attorneys for Boston Marathon bombing suspect Dzhokhar Tsarnaev are due in federal court today in Boston, where they are expected to ask a judge to move their client's November trial.
Judge George A. O'Toole Jr. last week denied a motion that would have given attorneys Miriam Conrad and Judith Clarke until August to make their case for changing venues. At issue is whether Tsarnaev can receive a fair trial in the city where two bombs went off near the Marathon finish line on April 15, 2013, leaving three dead and more than 260 wounded....
Questions of venue came up last month in three related obstruction of justice cases. Judge Douglas Woodlock said at the time that media coverage in Boston hasn't made it impossible to impanel local juries that will be fair to three friends of Tsarnaev who allegedly interfered with bombing investigations. "I don't find it to be the kind of press coverage that on the whole creates presumptions," Woodlock said.
He added, however, that "the proof of the pudding is in the selection of the jury." If impartial jurors can't be found in Boston, then the upcoming trials of Azamat Tazhayakov, Dias Kadyrbayev and Robel Phillipos could be moved to Springfield, Mass. Tsarnaev's trial is scheduled to begin Nov. 3.
I wonder if the feds have thought about agreeing to a change of venue, and also urging the new venue to be a nearly jurisdiction with some history with the death penalty like Connecticut or New York. I fear that, absent a change of venue, Tsarnaev's defense team will have a potent appeal issue for challenging a death sentence for many years to come. A venue change seems the only way to avoid years of litigation on this front, and such a venue change might arguably make it easier for the feds to ultimately secure the conviction and death sentence prosecutors are seeking.
Notably, a change of venue was granted in the other historic and horrific federal capital bombing trial of recent vintage: US. District Judge Richard Paul Matsch ordered that the venue for the trial of the Oklahoma City bomber Tim McVeigh be moved to Denver based on concerns he would be unable to receive a fair trial in Oklahoma. Given that history and precedent, I think the feds would be wise to agree rather than oppose the defense effort to have the trial moved.
Georgia and Missouri complete uneventful executions, Florida up next
As reported in this AP article, "Within an hour, Georgia, then Missouri carried out the nation’s first executions since a botched lethal injection in Oklahoma in April raised new concerns about capital punishment." Here is more:
Neither execution had any noticeable complications. Another execution, the third in a 24-hour span, is scheduled Wednesday evening in Florida.
Georgia inmate Marcus Wellons, 59, who was convicted of the 1989 rape and murder of a 15-year-old girl, received a single-drug injection late Tuesday night after the U.S. Supreme Court denied his late appeals. His sentence was carried out about an hour before John Winfield, who was convicted of the 1996 killing two women, was executed early Wednesday in Bonne Terre, Missouri.
Looks like at least two states have their machineries of death up and running smoothly again.