Monday, June 22, 2015
How much will get spent on (merely symbolic?) death penalty referendum efforts in Nebraska?
The question in the title of this post is prompted by this notable local article from Nebraska headlined "Group fighting death penalty retention gets $400,000 grant." Here are the interesting "follow-the-money" details:
Death penalty opponents got a cash injection Friday, and death penalty advocates accused them of using it to suppress voter rights.
ACLU of Nebraska will give the $400,000 grant from Massachusetts-based Proteus Action League to the Nebraskans for Public Safety coalition formed to fight the effort to retain capital punishment in the state. Proteus Action has given $21 million nationwide in the past five years toward repeal of the death penalty. "This support demonstrates the world is watching what is happening here this summer," Danielle Conrad, executive director of the ACLU of Nebraska. "This support will be like rocket fuel to the campaign."
ACLU of Nebraska is part of the coalition, as are Nebraskans for Alternatives to the Death Penalty, Nebraska Innocence Project, faith leaders, conservative leaders and the Nebraska Criminal Defense Attorneys Association.
Friday afternoon, Nebraskans for the Death Penalty called ACLU participation in the coalition shameful. “Nebraskans have a constitutional right to vote on whether they wish to restore the death penalty," founding member Bob Evnen said in a statement. "The ACLU has announced that it will spend hundreds of thousands of dollars to try to sabotage the right to vote on this very important issue. Few rights in a democracy are more fundamental than the right to vote. The ACLU’s effort to thwart that right is shameful.”
Replied Conrad: "I absolutely disagree with that. I don't understand that attack." Conrad said her group's work is the opposite of voter suppression. Declining to sign the pro-death-penalty petition is in fact exercising one's right to vote, she said.
Last month, Nebraska became the first red state since 1973 to abolish capital punishment. The Legislature voted for repeal May 20 and a week later overrode a veto by Gov. Pete Ricketts. The bill (LB268) goes into effect Aug. 31.
Almost immediately, Omaha Sen. Beau McCoy said he'd look at putting the issue to a vote, and Nebraskans for the Death Penalty opened offices in Omaha and Lincoln the first week of June.... Death penalty supporters have 72 more days to gather 115,000 verified signatures -- 10 percent of registered voters -- to suspend the law and put it to a vote in November 2016. They need about half that number to put the issue to a vote after the law takes effect.
"I think both are hard," Conrad said of the two thresholds. "I can tell you from working both sides of campaigns in direct democracy, it's not easy to be out in the heat and the rain in a multitude of counties. ... I don't think that they or we can take anything for granted."
Conrad said Nebraskans for Public Safety will use the $400,000 to make sure the petition drive is conducted properly and to work statewide to educate people on the issue. And if the move to stop the law from taking effect is successful, she said, her group will have a good start at working to defeat a vote next year.
Peterson said he expects Nebraskans for the Death Penalty will raise and spend about $900,000 and will file required paperwork June 30 saying how much it has raised so far.
This story suggests that at least a few million dollars are likely to be spent on just the initiative run-up effort in Nebraska, and I have to assume many millions more will get spent on the campaign if (when?) the issue gets on the ballot. And yet, even if Nebraska voters were to bring the death penalty back after the legislature's recent repeal, it seems highly unlikely the vote will significantly increase the chances any formerly condemned murderer gets executed or that any future murderers get sent to death row.
Even if the death penalty is brought back by voter initiative, defense attorneys are sure to continue pursuing extensive (and expensive) litigation in state and federal courts asserting that the eleven folks already on Nebraska's death row cannot now be executed. And even if the death penalty is brought back by voter initiative, prosecutors are sure to continue to struggle to convince Nebraska juries to condemn murderers to death in future cases.
Notably, given that Nebraska has not executed anyone in nearly two decades, and has averaged less than a single death sentence per year over its modern history, symbolism plainly matters a lot more than substantive outcomes as money is raised to fight over the death penalty's future in the Cornhusker State. Whatever position one takes on the death penalty, it is hard not to wonder if the monies to be spent on the developing symbolic capital policy fight could go to much uses for violent crime victims and the state's judicial system.
Notable new study on 56 failed capital cases in North Carolina over past 25 years
As detailed in this local article, headlined "Report: NC prosecutors sometimes push for death penalty in flimsy cases," a notable new report about capital prosecutions in the Tar Heel State was released this morning. Here are the basics:
Fending off a capital murder charge can cost falsely accused defendants money, jobs, homes and their health, according to a report released by the Durham-based Center for Death Penalty Litigation.
The center studied 56 cases from 1989 to 2015 in which the death penalty was threatened as a potential punishment, but the charges were either dropped or the person charged was acquitted at trial. The results suggest that prosecutors sometimes use the threat of the state's most severe penalty when their evidence is the weakest, said Gerda Stein, a spokeswoman for the center. "They believe they have the right person," Stein said. "The problem is, they don't have enough evidence."
The center's report suggests the death penalty is used to bully defendants into accepting plea deals or to extract confessions from witnesses.
North Carolina has not executed a criminal defendant since 2006 as lawsuits over the method of execution and the now-repealed Racial Justice Act have kept the state from moving forward. During that time, there have been high-profile exonerations of death row inmates, including the recently pardoned Leon Brown and his half-brother, Henry McCollum.
Less well known are cases like that of Leslie Lincoln, who was accused of her mother's 2002 murder. She was implicated in part by faulty DNA evidence. Ultimately, she was found not guilty at trial, but she struggled with the aftermath of spending three years in jail and another two years on house arrest. She lost her job, savings and home and suffered from anxiety and depression after the acquittal, according to the report....
The center distributed embargoed copies of its report last week. One of those who reviewed a copy was former Supreme Court Justice Bob Orr, who says he does not oppose the death penalty but is troubled by its uneven application. "I think one of the points the report stresses is the leverage that comes with trying somebody and potentially pursuing the death penalty," Orr said. "It is sometimes the weakest cases, the ones where you don't have the strong evidence, that there seems to be an inclination to try to move forward with the death penalty."
The report doesn't suggest specific fixes to the issue. The center is one of a number of groups that has argued for the elimination of the death penalty altogether.
Orr said that, if the state is going to continue having capital punishment, it needs to do more to ensure a fair system. Both prosecutors and the defense attorneys for indigent defendants need better funding, he said, and he suggested the state ought to somehow centralize the decision on whether the death penalty is pursued, taking it out of the hands of prosecutors who might use the threat of capital punishment as tactical leverage. "That would make for a fairer, more even-handed, dispassionate decision-making process," he said.
The title of this new report is "On Trial for their Lives: The Hidden Costs of Wrongful Capital Prosecutions in North Carolina," and it can be accessed via this link. That link also provides this summary of report's main findings about the 56 North Carolina cases it studied:
• The state spent nearly $2.4 million in defense costs alone to pursue these failed cases capitally. Had the defendants been charged non-capitally, all that money could have been saved. (This conservative figure does not take into account the additional prosecution and incarceration costs in capital cases.)
• Defendants who were wrongfully prosecuted spent an average of two years in jail before they were acquitted by juries or had their charges dismissed by prosecutors.
• The 56 defendants in the study spent a total of 112 years in jail, despite never being convicted of a crime.
• By the time they were cleared of wrongdoing, many defendants lost their homes, jobs, businesses, and savings accounts, and saw personal relationships destroyed. They received no compensation after they were cleared of charges.
• Serious errors or misconduct played a role in many cases. The 56 cases involved instances of witness coercion, hidden evidence, bungled investigations, the use of improper forensic evidence, and highly unreliable witnesses.
Saturday, June 20, 2015
Despite statutory repeal, capital defenders say they need to keep representing Nebraska condemned
Some of the challenging issues facing Nebraska lawyers in the aftermath of the state's legislative repeal of the death penalty are on display in this notable local article headlined "John Lotter's lawyers argue they must stay on case because death penalty issue isn't settled." Here are the details:
Legal arguments over Nebraska’s death penalty repeal have quickly emerged in a federal court case involving one of the state’s death row inmates. Two Kansas City attorneys argued this week that John Lotter’s death sentence was negated by the Nebraska Legislature’s May 27 repeal of capital punishment.
But lawyers Rebecca Woodman and Carol Camp said their client remains under threat of execution while a referendum petition drive attempts to overturn the repeal law and Gov. Pete Ricketts pushes for the lethal injections of Lotter and the nine other men on death row. For that reason, the attorneys asked to remain assigned to Lotter’s case.
“Although Mr. Lotter asserts that the U.S. and Nebraska Constitutions would bar his execution even if the governor and his group were able to repeal the repeal, it is clear the governor will keep attempting to execute him until the courts definitively say he may not. That moment has not yet arrived,” the attorneys stated in a court brief filed in U.S. District Court in Lincoln.
In response, Assistant Nebraska Attorney General James Smith argued that only the Nebraska Board of Pardons has the authority to commute a death sentence under the state’s Constitution. Smith contended lawmakers passed flawed legislation by including intent language that says the repeal should apply to the existing death row inmates. “If the act was an unconstitutional power grab by the Nebraska Legislature, Lotter’s final death sentence remains in effect,” Smith said in his brief....
Lotter, 44, has spent 19 years on death row for a New Year’s Eve 1993 triple homicide near Humboldt. One of the victims was targeted for being transgender, which inspired the film “Boys Don’t Cry.” Lotter lost his previous appeals before state and federal courts. That makes him and Carey Dean Moore — convicted of killing two Omaha cab drivers in 1979 — the top candidates for execution depending on what happens with the repeal law.
As of now, however, Nebraska lacks the means to carry out an execution. Two of the three drugs required in the state’s lethal injection protocol have expired, and federal officials have said they will block the state’s attempt to import at least one of the drugs.
Woodman and Camp, who work with the Death Penalty Litigation Clinic, pointed out that no other state has executed an inmate after repealing the death penalty. To do so “would represent the sort of random, arbitrary, purposeless extinction of human life that the Eighth Amendment forbids,” they said in their brief. The two have asked U.S. District Senior Judge Richard Kopf to allow them to continue to represent Lotter while the status of the death penalty remains uncertain. They indicated Lotter has been pursuing constitutional claims never before litigated that would invalidate his death sentence.
Friday, June 19, 2015
Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
The question in the title of this post is a question I have raised with some folks over at Crime and Consequences, and this new New York Times article reports that it is one that the Governor of South Carolina might now be thinking a lot about. The NYTimes article is headlined "Governor Calls for Charleston Shooting Suspect to Face Death Penalty," and here are excerpts:
South Carolina’s governor on Friday called for the 21 yearold man who is suspected of killing nine people in one of the South’s most historic black churches to face the death penalty.
“This is a state that is hurt by the fact that nine people innocently were killed,” Gov. Nikki R. Haley said, adding that the state “absolutely will want him to have the death penalty.” The governor, who spoke on NBC’s “Today” show, described Wednesday’s shooting rampage as “an absolute hate crime.”
“This is the worst hate that I’ve seen — and that the country has seen — in a long time,” she said. “We will fight this, and we will fight this as hard as we can.”
Her comments came hours before the suspect, Dylann Storm Roof, a white man who returned to Charleston under heavy guard on Thursday night after his arrest in North Carolina, was expected to go before a judge on Friday afternoon for a bond hearing, where he will hear the charges against him. Mr. Roof, who friends said had a recent history of expressing racist opinions, is widely expected to be prosecuted for murder, an offense that can carry the death penalty in this state. Greg Mullen, the chief of police in Charleston, has called the shooting a hate crime, and Attorney General Loretta E. Lynch said the Justice Department was investigating that possibility....
On Thursday, President Obama spoke of the shooting and lamented what he called the easy access to guns, an issue he has tried and failed to address with legislation. “At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries,” Mr. Obama said. He added: “It is in our power to do something about it. I say that recognizing the politics in this town foreclose a lot of the avenues right now. But it would be wrong for us not to acknowledge it. And at some point it’s going to be important for the American people to come to grips with it.”
In the interview on Friday, Ms. Haley, a strong proponent of gun rights, deflected a question about whether the shooting would change her position on the issue. “Anytime there is traumatic situation, people want something to blame. They always want something to go after,” she said. “There is one person to blame here. We are going to focus on that one person,” she added, referring to Mr. Roof....
In downtown Charleston, there was already talk of the longterm anxiety the shooting might stir. “The question that I have is, is it going to happen again?” said Jeremy Dye, a 35-year-old taxi driver and security guard from North Charleston who said he knew three people who were killed. “It’s always going to be fear. People in Charleston are going to have that fear now forever. It’s not going to wash away. They’re going to be worried about, ‘O.K., when’s the next church going to get hit?’ ”
Because I share Gov Haley's view that this is the worst hate crime that the country has seen in a long time, and because I am especially eager to figure out how best to recognize and respect the real fear that this incident produces "forever" for so many folks, I think I would answer the question in the title of this post with the answer BOTH.
For many reasons, I think it would send an especially potent and powerful message of condemnation for both South Carolina and the Federal Government to bring capital charges against Dylann Storm Roof. Though I am not sure at this early stage of the investigation if I would want both SC and the feds moving forward with a capital prosecution all the way through a trial at the same time, I am sure that this is a kind of crime comparable in various ways to the Oklahoma bombing that prompted various dual state and federal prosecutions of the perpetrators. For me, the symbolic value and statement of having capital charges brought against Roof in both state and federal courts is worth seriously considering.
Thursday, June 18, 2015
SCOTUS rules 5-4 for state capital defendant in Brumfield v. Cain, and 5-4 against state capital defendant in Davis v. Ayala
The US Supreme Court has just handed down its opinion in the state capital case of Brumfield v. Cain, No. 13-1433 (S. Ct. June 18, 2015) (available here). Justice Sotomayor wrote the opinion for the Court, which divided 5-4 on the case. The Court's opinion begins this way:
In Atkins v. Virginia, 536 U.S. 304 (2002), this Court recognized that the execution of the intellectually disabled contravenes the Eighth Amendment’s prohibition on cruel and unusual punishment. After Atkins was decided, petitioner, a Louisiana death-row inmate, requested an opportunity to prove he was intellectually disabled in state court. Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court rejected petitioner’s claim. That decision, we hold, was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d)(2). Petitioner was therefore entitled to have his Atkins claim considered on the merits in federal court.
Justice Thomas authored a lengthy dissent which ends with a picture and starts this way:
Federal collateral review of state convictions interrupts the enforcement of state criminal laws and undermines the finality of state-court judgments. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) addresses that interference by constraining the ability of federal courts to grant relief to state prisoners. Today, the Court oversteps those limits in a decision that fails to respect the Louisiana state courts and our precedents. I respectfully dissent.
Just a few minutes later, the US Supreme Court handed down its opinion in the state capital case of Davis v. Ayala, No. 13-1428 (S. Ct. June 18, 2015) (available here). Justice Alito wrote the opinion for the Court, which divided 5-4 on the case. The Court's opinion begins this way:
A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala’s application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit’s decision was based on the procedure used by the trial judge in ruling on Ayala’s objections under Batson v. Kentucky, 476 U.S. 79 (1986), to some of the prosecution’s peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the defense so as not to disclose trial strategy. On direct appeal, the California Supreme Court found that if this procedure violated any federal constitutional right, the error was harmless beyond a reasonable doubt. The Ninth Circuit, however, held that the error was harmful.
The Ninth Circuit’s decision was based on the misapplication of basic rules regarding harmless error. Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d).
Justices Kennedy and Thomas wrote interesting off-topic concurrences, which I will discuss in a separate post. More on point is the chief dissent in Ayala authored by Justice Sotomayor, which starts this way:
At Hector Ayala’s trial, the prosecution exercised its peremptory strikes to dismiss all seven of the potential black and Hispanic jurors. In his federal habeas petition, Ayala challenged the state trial court’s failure to permit his attorneys to participate in hearings regarding the legitimacy of the prosecution’s alleged race-neutral reasons for its strikes. See Batson v. Kentucky, 476 U.S. 79, 97–98 (1986). The Court assumes that defense counsel’s exclusion from these proceedings violated Ayala’s constitutional rights, but concludes that the Ninth Circuit erred in granting habeas relief because there is insufficient reason to believe that counsel could have convinced the trial court to reject the prosecution’s proffered reasons. I respectfully dissent. Given the strength of Ayala’s prima facie case and the comparative juror analysis his attorneys could have developed if given the opportunity to do so, little doubt exists that counsel’s exclusion from Ayala’s Batson hearings substantially influenced the outcome.
Tuesday, June 16, 2015
"The Death Penalty Is Cruel. But So Is Life Without Parole."
The title of this post is the headline of this notable new New Republic commentary by Stephen Lurie. Here are excerpts of a piece that echoes my oft-stated and enduring concern that LWOP punishments should garner a lot more attention from the anti-death penalty crowd:
Prison cells don’t attract many spectators, but executions have always drawn crowds. Paradoxically, the names and identities of death row inmates only come to matter when their execution had been scheduled: from impending death we take a sudden interest in life.
Despite the incongruity, this isn’t all that surprising. Twenty-first century America is still susceptible to the time-honored spectacle of state-sanctioned death, even if much of the attention now scrutinizes, rather than cheers, the practice. Recently, there have been many stories typical of the current fascination with American capital punishment, most notably Ben Crair’s piece in this magazine and Jeffrey Stern’s in The Atlantic. Like other recent examinations of the death penalty, both accounts focus specifically on the act of execution by lethal injection; each covers botched executions and the question of cruel and unusual punishment in the death chamber itself....
For Stern and Crair, as well as many human rights-minded activists and advocates, the death chamber is a potent and useful example of inhumanity. Other, newer abolitionists—like the legislators in Nebraska that voted to abolish the death penalty there last month—focus on the act of execution as well. While the death chamber is itself horrific, abolitionists would be remiss to ignore the more common punishment: the immense cruelty of a prisoner’s long wait for execution. The “death row phenomenon” and associated prison conditions cause significant psychological and physical harm; a so-called “death before dying” is both internationally condemned and domestically pervasive. If the end to capital punishment in the U.S. is based on concern for human beings — whether in a religious or moral sense — the reform movement must be concerned with the prison conditions left when death is not on the table.
Executions of any kind are exceedingly rare, so much so that death row itself appears to be the real punishment for the vast majority of inmates. There are just over 3,000 people awaiting execution in United States prisons. In 2013, the latest year for which the Bureau of Justice Statistics has data, there were 39 executions. That is just more than the 31 inmates who died before their scheduled executions; it is just less than the 44 death row convictions or sentences overturned that year....
Because solitary confinement is the de facto housing for American death row convicts, and because excruciating delays are par for the course, international observers have considered U.S. capital punishment inhumane enough to delegitimize its practice entirely. In his report to the UN General Assembly in 2012, Juan Méndez (the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or Punishment) suggested that the realities of imperfect executions and death row conditions almost unavoidably run afoul of the international prohibition against human mistreatment. “Solitary confinement, in combination with the foreknowledge of death and the uncertainty of whether or when an execution is to take place, contributes to the risk of serious and irreparable mental and physical harm and suffering to the inmate,” Méndez writes. “Solitary confinement used on death row is by definition prolonged and indefinite and thus constitutes cruel, inhuman or degrading treatment or punishment or even torture.”...
Nearly every prisoner faces an abrogation of his or her 8th Amendment protections against cruel and unusual punishment; only a small few face the added cruelty and indignity of a botched execution. What about the pain of a cramped concrete cell, of shackling and restraints, attempts at self-harm, inedible food, existential fear, depression, and deprivation of any human contact? If there is concern is over fair treatment of human beings sentenced to death, it’s unwise, from a strategic standpoint, to continue ignoring the majority of their lives. Campaigns based on claims of cruel and unusual treatment would not rely on staying the execution of a single individual, but rest on the indefinite torture of thousands. That would be powerful.
Moreover, the instances of death penalty abolition that do not consider the background conditions for capital punishment invariably leave immense cruelty in its place. Nebraska’s legislation is typical in this regard: All death sentences become sentences of life imprisonment without the possibility of parole (LWOP). The de facto alternative for states that abolish the death penalty, LWOP actually retains many of the worst conditions of confinement described above, as well as still effectively sentencing the prisoner to death. It is in almost every way a death row, and as such is also an internationally condemned practice.
It’s for this reason that some, like Andrew Dilts, an assistant professor of political theory at Loyola Marymount University, refer to current forms of death penalty abolition as “death penalty replacement,” the same result but with the added effect that prisoners lose even more legal protections. As Dilts writes in the new volume Death and Other Penalties: Philosophy in a Time of Mass Incarceration, these alternative sentences appease the “almost fetishistic levels” of concern over execution while it “effectively deflects attention away from the moment of death, even though death is necessarily a part of the sentence.” In addition, whereas “the Court requires strict review of offender qualifications, strict procedural guidelines, extended appeals processes, and additional standards of heightened scrutiny…the same procedural and substantive protections are simply not applied” to life sentences. The result, ultimately, is simply a “dramatic reduction of appellate rights” for inmates that are still condemned to die; it’s a slower death with even less of a chance for redemption. While the conversion of these sentences might lessen some of the specific psychological traumas related to the death row phenomenon, it does not address the expected use of solitary confinement or other inhumane treatment. There is nothing in an execution-focused narrative that would lead to the transformation of these conditions: It might, rather, cement them as appropriate penal policy.
Monday, June 15, 2015
Ron Paul at Townhall: "Death Penalty is Big Government at Its Worst"
Former Texas congressman Ron Paul has this notable new anti-death penalty commentary now up at Townhall. Here are excerpts:
Nebraska's legislature recently made headlines when it ended the state's death penalty. Many found it odd that a conservatives-dominated legislature would support ending capital punishment, since conservative politicians have traditionally supported the death penalty. However, an increasing number of conservatives are realizing that the death penalty is inconsistent with both fiscal and social conservatism. These conservatives are joining with libertarians and liberals in a growing anti-death penalty coalition.
It is hard to find a more wasteful and inefficient government program than the death penalty. New Hampshire recently spent over $4 million dollars prosecuting just two death penalty cases, while Jasper County in Texas raised property taxes by seven percent in order to pay for one death penalty case! A Duke University study found that replacing North Carolina's death penalty would save taxpayers approximately $22 million dollars in just two years....
Despite all the time and money spent to ensure that no one is wrongly executed, the system is hardly foolproof. Since 1973, one out of every ten individuals sentenced to death has been released from death row because of evidence discovered after conviction. The increased use of DNA evidence has made it easier to clear the innocent and identify the guilty. However, DNA evidence is not a 100 percent guarantee of an accurate verdict. DNA evidence is often mishandled or even falsified. Furthermore, DNA evidence is available in only five to 10 percent of criminal cases.
It is not surprising that the government wastes so much time and money on such a flawed system. After all, corruption, waste, and incompetence are common features of government programs ranging from Obamacare to the TSA to public schools to the post office. Given the long history of government failures, why should anyone, especially conservatives who claim to be the biggest skeptics of government, think it is a good idea to entrust government with the power over life and death?...
As strong as the practical arguments against the death penalty are, the moral case is much stronger. Since it is impossible to develop an error-free death penalty system, those who support the death penalty are embracing the idea that the government should be able to execute innocent people for the "greater good." The idea that the government should be able to force individuals to sacrifice their right to life for imaginary gains in personal safety is even more dangerous to liberty than the idea that the government should be able to force individuals to sacrifice their property rights for imaginary gains in economic security.
Opposition to allowing the government to take life is also part of a consistent pro-life position. Thus, those of any ideology who oppose abortion or preemptive war should also oppose the death penalty. Until the death penalty is abolished, we will have neither a free nor a moral society.
I cannot help but wonder if Ron Paul's son, Senator and GOP Prez-candidate Rand Paul, shares these (conservative?) perspectives on the death penalty and might even espouse some anti-death-penalty sentiments on the campaign trail in the future.
Sunday, June 14, 2015
"Will Nebraska’s Death Penalty Come Back?"
The title of this post is the headline of this new New York Times editorial. The substance of the editorial makes clear that the NYTimes' answer to the question is "We sure hope not!". Here are excerpts:
In a sensible, humane move last month, Nebraska lawmakers abolished the state’s death penalty by a 30to19 vote that crossed party lines and overrode a veto by Gov. Pete Ricketts. These lawmakers aren’t renegades; an April poll by the American Civil Liberties Union of Nebraska found that 58 percent of Nebraskans supported alternatives to the death penalty, like life without parole.
Now comes the counterattack. A new group called Nebraskans for the Death Penalty has started a petition drive, supported by Mr. Ricketts, to put the issue directly before voters in 2016. Last week, they got the support of the Nebraska Sheriffs’ Association, which claimed, as Mr. Ricketts has, that public safety depends on the state’s ability to kill certain inmates.
To put the proposed referendum on the ballot, death penalty supporters have about three months to get signatures from 5 percent of registered voters, or about 58,000 Nebraskans. If they can get 10 percent, state law will put the ban on hold until the voters have a chance to weigh in. Whether the effort succeeds will depend in large part on how much money death penalty supporters can muster; paying people to go door to door asking tens of thousands of voters for their signatures doesn’t come cheap. In addition to supporting the referendum, Mr. Ricketts is insisting that he still has the legal authority to execute the 10 people remaining on Nebraska’s death row, on the grounds that the Legislature cannot alter an existing sentence. Lawmakers, however, say they have eliminated all executions. Whatever the courts may decide on this question, it remains unclear whether the state even has the means to carry out these killings....
[T]he votes of the Nebraska Legislature show that when lawmakers across the political spectrum can have an open, honest and informed debate on the issue, capital punishment is quickly exposed for the immoral, ineffective, arbitrary and costly practice that it is.
Prior related posts:
- Nebraska legislature votes by large margin to repeal state's death penalty
- Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State
- Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
- Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
Friday, June 12, 2015
Canvassing the "most likely outcomes" of the SCOTUS case on death penalty drugs
Though I think we are still a few weeks away from getting a ruling (and multiple?) opinions in the SCOTUS case (Glossip v. Gross) considering Oklahoma's lethal injection history and plans, it is certainly not too early to begin speculating about what that Court might end up doing in the case. Helpfully, this extended new Vox article, headlined "The most likely outcomes of the Supreme Court's death penalty ruling," provides a great overview of what we might expect from the ruling. Here are excerpts, along with six possibilities for Glossip's outcome:
The Supreme Court is considering a legal challenge to Oklahoma's use of lethal injection this month — but chances are the effects of a ruling will be quite limited.
The case follows several botched executions in the past couple of years, particularly that of Clayton Lockett in April 2014. Lockett's execution, in which experimental drugs were used because of a nationwide shortage of lethal injection drugs, took an excruciating 43 minutes. It led Oklahoma inmates to file a lawsuit challenging the state's lethal injection protocol, eventually putting all executions in the state on hold once the Supreme Court accepted the challenge.
Specifically, the inmates are contesting the state's use of midazolam, a sedative used as part of a three-drug protocol to execute death row inmates. Midazolam is supposed to put someone to sleep, allowing the painless application of other drugs that actually kill the inmate. But Lockett appeared to groan and violently struggle during his execution, suggesting the first drug wasn't adequate — and may violate constitutional protections against cruel and unusual punishment.
Several death penalty experts and court watchers told Vox what they think the most likely outcomes of a Supreme Court ruling are. They largely rejected the possibility that the Court would make a sweeping decision against lethal injections or the death penalty in general, since most justices consider the death penalty constitutional. They instead outlined six possibilities — most of which would have a very narrow effect, and would likely allow lethal injections to continue in the US. Of course, it's entirely possible that the Court, which tends to be full of surprises, takes another approach, but these are the outcomes that seem most likely.
1) Oklahoma messed up, but midazolam isn't necessarily a problem....
2) Midazolam is constitutional....
3) Midazolam is unconstitutional....
4) Midazolam is unconstitutional as part of a three-drug protocol....
5) Inmates have not proven midazolam leads to cruel and unusual punishment....
6) Send the case back to a lower court
Thursday, June 11, 2015
Nebraska sheriffs vote unanimously to support effort to resuscitate state's death penalty
As reported in this local article, headlined "Nebraska sheriffs group backs petition efforts to reinstate death penalty," a notable group of law enforcement officials have made a notable statement about death penalty reforms in Nebraska. Here are the details:
The Nebraska Sheriffs’ Association has voted unanimously to back a petition aimed at restoring the death penalty. The group met on Wednesday morning in Grand Island at the Nebraska Law Enforcement Training Center.
“It’s important because of the public safety issue,” said Grant County Sheriff Shawn Hebbert, who is president of the sheriffs’ association. “The death penalty works as a deterrent to protect our guards and our people who work in corrections, as well as our deputies,” he said.
More than 30 sheriffs from across Nebraska attended the association meeting on Wednesday. They were strongly against the Legislature’s 32-15 vote on LB268, which repealed the death penalty. Gov. Pete Ricketts vetoed LB268, but the Legislature countered with a 30-19 vote to override the veto.
That action is contrary to the beliefs of the majority of Nebraskans, the sheriffs said. “It’s been unanimous across the state ... that we need to keep the death penalty, and I think that shows the strength of our organization and the backing and support we have in the organization that we have to protect the public,” Hebbert said on Wednesday.
Not only did the association members support backing the petition drive led by Nebraskans for the Death Penalty, but Hebbert said many of the sheriffs in attendance will be carrying the petitions in their home counties. Pierce County Sheriff Rick Eberhardt said a lot of people outside the state lobbied to “impose their will on the state of Nebraska.” The petition is Nebraskans’ opportunity to take that back.
“What’s really sad is that most people are working, taking care of their kids, and they don’t want to have to pay $50,000 a year per head for ... guys on death row for 30 to 40 years,” he said. “That’s a lot of money, a lot of college educations, a lot of trips to the hospital, pay off a mortgage.” The death penalty repeal lets criminals sit around watching TV, getting “three hots and a cot,” Eberhardt said. “Guys in Afghanistan don’t have it that good.
“They get free legal, free medical and free room and board for the rest of their lives,” he said. “Is it really free? Absolutely not — I’m paying for it. My kids are going to be paying for it. My grandkids are going to be paying for those guys.”...
The petition drive would need about 58,000 valid signatures to place the death penalty on the November 2016 general election ballot. It needs about 115,000 signatures by August to keep the Legislature’s repeal of the death penalty from going into effect.
“The initial goal is to get enough signatures to keep the law, the repeal, from going into effect, and the secondary goal is to turn it over to a vote of the people,” Hebbert said.
Although not all 93 Nebraska counties were represented at the sheriffs’ association meeting, Hebbert said the vote itself by the association’s executive board was representative. “As president of the sheriffs’ association, I’ve been in contact with most of the sheriffs across the state, and I haven’t heard anybody who is not for this petition drive and turning this over to a vote of the people,” Hebbert said. “I have not talked to any sheriff who is not for the death penalty.”
In part because I am a very big fan of direct democracy and in part because I think political campaigns focused on the death penalty often do a pretty good job of informing the citizenry about all the complicated and controversial realities that surround death penalty administration, I am strongly rooting for the folks in Nebraska troubled by the recent legislative repeal of capital punishment to succeed in bringing this issue before the voters. Indeed, the mere fact that a serious effort is being made to get this issue before the voters has already helped make Nebraska a much more interesting and important death penalty state than it has ever been in the past, and these Cornhusker stories should be especially interesting to watch for both pro- and anti-death penalty advocates in the months ahead.
Recent related posts:
- Nebraska legislature votes by large margin to repeal state's death penalty
- Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State
- Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
- Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
Tuesday, June 09, 2015
"Support for the Death Penalty May Be Linked to Belief in Pure Evil"
The title of this post is the headline of this interesting new Smithsonian article, and here are excerpts:
The reasons behind someone's sense of a just punishment are varied and murky, with a swell of psychological research pointing toward responses to race, sexuality and other hot-button issues. But according to recent research, another fundamental factor may be at play: whether someone believes in the existence of pure evil. A new study by psychologists Russell Webster and Donald Saucier confirms a rising correlation between an individual’s belief in pure evil and their support for harsher punishments, no matter the lifestyle or outward characteristics of the confessed criminal.
“At the extreme levels of criminal perpetration, people who believe in pure evil might not be looking for a situational factor that may have been at play there,” says Saucier, associate professor of psychological sciences at Kansas State University. “They’ll just say, ‘You know what? That person did something horrible, which makes that person evil. They are a demon, and we need to get rid of them.’”
Previous studies showed that stereotypically evil traits increase a perpetrator’s demonization in the eyes of their peers. Recently published in the journal Psychology and Individual Differences, the latest work also assesses specific recommendations for punishing a criminal, “given that the public often has a crucial role in recommending punishment via conventional criminal justice systems,” write authors Webster and Saucier in their paper.
“We were interested in how people thinking about the nature of humanity would impact how they treat them, to boil it down to a nutshell,” Saucier says. “So if you thought that there was a possibility for pure good in other people, what would that look like? And if there was a possibility for pure evil in people, what would that look like?”
The study’s 212 participants — all of them general psychology students at Kansas State University — were first asked to complete a survey determining the extent to which, on a continuum, they believed pure evil already existed in the world. The authors differentiated “pure evil” from behavioral scientists’ typical definition of evil, which centers on unprovoked and intentional harm, Webster says, by adding an emphasis on the sadistic motivations of the wrongdoer. The influence of religion on belief in pure evil wasn’t explored in this study.
Participants were then asked to read a supposedly real newspaper article printed in the Kansas City Star detailing a local murder. In one version of the article, the criminal was assigned stereotypically evil traits, such as an interest in the occult, donning all-black attire and taunting children. In the other version, the criminal was assigned milder traits, like an interest in camping and a focus on family life. In both versions, the criminal confessed to the murder.
The authors assessed the participants’ reaction to the crime using a common tool for measuring attitudes called the Likert-type scale, focusing specifically on how much they demonized the wrongdoer and their feelings of retribution. Finally, the authors questioned participants on their support for jail time, eligibility for parole and the death penalty. To control for the variability in participants’ knowledge of the criminal justice system, all pertinent terms were defined.
“What we basically found is that as they believe more in pure evil, they’re more likely to support things like the death penalty, but it went through mechanisms like thinking the person was a demon and feeling the need to have retribution on them,” Saucier says. “So we were kind of looking at what connects the belief to the outcome.”
But while participants generally recommended tougher sentences for the stereotypically evil perpetrator, greater belief in pure evil alone predicted whether someone demonized the criminal and called for harsher punishment, regardless of the murderer's character traits. “If they believed in pure evil, it didn't matter the characteristics. They were more likely to support the death penalty or life in prison," says Saucier. "The belief in pure evil overrode our stereotypically evil person."
Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dsyfunctional death penalty
This local article, headlined "House panel voices disapproval of Wolf's death penalty stance," reports that some Pennsylania legislators are finally motivated to do something about the state's dysfunctional capital punishment system. Unfortunately, they only seem motivated so far to make an inconsequential political statement rather than actual try to fix the state's broken system. Here are the basics:
The House Judiciary Committee overwhelmingly approved a resolution that is intended to send a message to Gov. Tom Wolf that it strongly disapproves of the reprieves he has granted that delayed the execution of two convicted murderers. The resolution, approved by a bi-partisan 19-8 vote on Monday, now goes to the full House for consideration, which could occur as soon as Wednesday.
Wolf in February signed an executive order imposing a moratorium on carrying out the death penalty until he has had time to study a Senate-commissioned Pennsylvania Task Force and Advisory Committee on Capital Punishment and its recommendations are satisfactorily addressed. That study is due out later this year.
The executive order so far has resulted in reprieves being granted to Terrence Williams, who was convicted of two murders as a teen-ager in 1984, and Hubert Michael, who was convicted of killing 16-year-old Trista Eng in 1993. Both death row inmates have exhausted their appeals.
The resolution, if approved by the House, would do nothing to change those reprieves, but rather states that the House believes those actions by Wolf are unconstitutional.
"This is about whether or not the laws of Pennsylvania will be carried out. The governor has said he wants to study capital punishment. It does not give him the right to ignore existing laws," said Rep. Mike Vereb, R-Montgomery, a death penalty proponent who sponsored the resolution. Following the House Judiciary Committee's approval of a resolution condemning Gov. Tom Wolf's temporary moratorium on executions, Vereb explains he and the governor are of different minds on the subject of the death penalty. Vereb said justice delayed is justice denied to victims....
Rep. Brandon Neuman, D-Washington, ... said Vereb's concerns would be more appropriately expressed in an amicus brief to the pending lawsuit filed by Philadelphia District Attorney Seth Williams that is before the state Supreme Court over this issue. "This is a matter that I believe needs to be handled and is being handled in the judiciary branch," Neuman said....
Committee Chairman Ron Marsico, R-Lower Paxton Twp., read a letter from Eng's family sent to the governor last week. In it, the family of the York County murder victim stated, "You stand in the way of thousands of victims who seek justice." Marsico added, "We owe it to the victims to pass this resolution."
I generally agree with the basic sentiment that justice delayed is justice denied, but that very sentiment makes me wish that the Pennsylvania legislature would do more to addresss death penalty administration than just pass resolutions. As noted here, even before Gov Wolf's moratorium, the Keystone State had not carried out an execution in more than 15 years and "according to Bureau of Justice Statistics, Pennsylvania is less likely to execute a death row inmate than any other state that has carried out any executions."
In light of this ugly legal history, nearly all of which pre-dates Gov Wolf's election, I think the Pennslyvania House owes a lot more to victims than just passing a seemingly inconsequential resolution. Any and all serious proponents of the death penalty in the Pennsylvania legislature should feel duty-bound to conduct the hard work involved in fixing and making operational a broken capital system. But, because politic rhetoric so often matters more than policy fixes, I fear justice delayed and justice denied will remain the Keystone capital characteristic.
Monday, June 08, 2015
"Does failed execution attempt mean Ohio prisoner can avoid death penalty?"
The question in the title of this post is both the headline of this Columbus Dispatch article and the notable novel constitutional question facing the Ohio Supreme Court this week. Here is the backstory:
Ohio’s unusual pending death-penalty case, involving an inmate the state already tried but failed to execute, will be argued on Tuesday before the Ohio Supreme Court. Attorneys for Romell Broom contend that the state would be guilty of unconstitutional double jeopardy if it tries to execute him a second time. They said in a court filing that the state’s contention that their client didn’t suffer physically during a botched execution on Sept. 15, 2009, “ignores the unnecessary psychological suffering Broom endured during two hours of lawless chaos."
Representatives for Attorney General Mike DeWine counter that what happened on Sept. 15, 2009, wasn’t a failed execution but a breakdown in the lethal-injection process, and a new execution should proceed. They argue that the U.S. Constitution doesn’t promise that executions will be pain-free and that what happened to Broom wasn’t unconstitutional “cruel and usual punishment.”
The attempted execution of Broom, 59, on Sept. 15, 2009, was called off by Gov. Ted Strickland after a prison medical team spent two tense hours unsuccessfully trying to attach IV lines for lethal injection. The execution was rescheduled but never took place because Broom’s public defender attorneys filed numerous appeals.
Broom was convicted and sentenced to death for abducting, raping and stabbing to death 14-year-old Tryna Middleton of Cleveland as she walked home from a football game on Sept. 21, 1984. All evidence in the case, including DNA test results, showed Broom was the girl’s killer.
Thus, the failed execution, and not Broom’s guilt or innocence, will be the focus of oral arguments at 9 a.m. on Tuesday before the Ohio Supreme Court. Broom’s case is unique in Ohio’s modern capital-punishment history, being one of only two known cases nationally in which an execution was halted after it began. The other one was Willie Francis, a 17-year-old killer who died on the second try in Louisiana’s electric chair on May 9, 1947, having survived a botched execution a year earlier.
Friday, June 05, 2015
Is Missouri becoming the "new Texas" when it comes to death penalty administration?
The question in the title of this post is prompted by two notable new stories showing some notable new details about how the Show Me state (1) has recently become a new national leader in actually carrying out death sentences, and (2) now seems well positioned to complete more executions in the near future than any other state. This lengthy Mashall Project piece focused on capital defense in Mizzou provides this background:
[Jennifer Herdon's] condemned clients were convicted of monstrous crimes, but at least a few presented powerful issues for appeal. Among them were a man diagnosed as schizophrenic who hallucinated clouds of flies and insisted on never speaking aloud the number “between 31 and 33”; a man so intellectually impaired that, as a child, he couldn’t understand hide-and-seek and who, at age 16, functioned like someone age 4-to-7; and a man whose claim of innocence was sufficiently compelling to convince a journalism class to dive into the case.
In the past two years, while much of the country has retreated from the death penalty, Missouri has gone the opposite direction. It has accelerated executions – last year, tying Texas for most in the country, with 10 – to such an extent that the “capital defense bar is in crisis,” according to a letter written to the Missouri Supreme Court by four members of an American Bar Association death-penalty assessment team.
Those four members – two law professors, a retired state appellate judge, and the chairman of the Missouri State Public Defender Commission – wrote in March that a mere “handful” of attorneys have represented most of the state’s executed inmates, despite the “notoriously lengthy and complex” nature of capital appellate work, coupled with “the emotional toll of losing client after client.” The team recommended that for attorneys handling capital appeals to be able to do their jobs adequately, the execution dates for clients should be staggered by at least six months.
Herndon, starting in November 2013, had five clients executed in just 15 months. In all, she’s had seven clients executed since 2003. And she has another execution scheduled next week. Herndon may be the most extreme example of how Missouri’s quickened pace of executions is swamping the defense bar, but she is not alone. Last year, six attorneys in addition to Herndon had multiple clients executed.
That list would have been longer if not for a stay granted by the U.S. Supreme Court before Mark Christeson’s scheduled execution in October. Christeson’s two attorneys, who had represented another inmate executed earlier in the year, missed a crucial filing deadline, not even meeting with their client until six weeks after it had passed. “Cases, including this one, are falling through the cracks of the system,” more than a dozen former state and federal judges wrote in a brief.
Paul Litton, a University of Missouri law professor and one of the four signatories on the letter from the ABA’s death-penalty assessment team, says: “With the executions happening month after month after month, and with so few attorneys handling these cases, the workload is just overwhelming.”
On Tuesday, Herndon and her co-counsel filed a request for a stay of execution for Richard Strong, scheduled to be executed June 9. The motion’s basis was their workloads, in particular Herndon’s. The motion says that when Herndon’s last client was executed in February, she put in more than 225 hours, “knowing that much more should have been done …” For the pending execution, she has 20 banker’s boxes of materials to review. Herndon “is struggling to fulfill her duties,” the motion says.
“Mr. Strong is at least entitled to a ‘fair fight.’ Such is impossible when defense counsel come in bloody and bruised, while the government has a seemingly endless supply of fresh reinforcements …,” the motion says.
Meanwhile, as now highlighted by this notable new Buzzfeed article (from which I got the graphic here), it would appear that Missouri has figured out some way to get all the execution drugs they could possibly need even as other states struggle mightily in this arena. The Buzzfied piece carries this full headline: "Missouri Is Mysteriously Building A Massive Stockpile Of Execution Drugs: Missouri now has enough drugs for 16 lethal injections. But how? The drugs often used in executions generally have a short expiration date." Here is an excerpt:
State officials changed drug suppliers in February 2014, after their previous supplier, the Apothecary Shoppe, was sued for, among other things, selling execution drugs when it wasn’t licensed to do so in Missouri. Until February 2014, Missouri’s drug stockpile hovered around zero, presumably because the compounded drugs expired so quickly. Since changing drug suppliers, however, the state’s drug supply has exploded, according to records obtained by BuzzFeed News.
With FDA-approved suppliers either discontinuing the manufacture of pentobarbital or enacting stringent guidelines to prevent states from getting ahold of their drugs, it led some capital attorneys to believe the state is resorting to veterinary pentobarbital — something that would be much easier to find, but illegal to use on humans.
When two attorneys, Cheryl Pilate and Lindsay Runnels, approached the Department of Corrections, officials refused to say whether the drug is veterinary. “The response has been very evasive,” Pilate said. “We made several requests about the use of veterinary drugs, and instead of getting the response of “Of course we would never use a veterinary drugs,” they [were] refusing to say.”
When BuzzFeed News asked the state’s corrections department whether the state is using veterinary drugs in executions, spokesperson David Owen said, “No.” Owen would not answer any questions about how the state could be holding onto drugs for so long, given the short shelf life of compounded drugs. Gov. Jay Nixon’s Office would not answer questions, either, and a spokesperson with Attorney General Chris Koster’s office declined to comment.
“It’s the ease with which they’re getting it,” Pilate said. “Other states are having serious problems getting ahold of their drugs. Why not Missouri?”
Thursday, June 04, 2015
Latest polling data shows diminished death penalty support
This new ABC News article, headlined "New Low in Preference for the Death Penalty," reports on the lastest interesting poll data concerning death penalty views. Here are the details:
A majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls. Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty - the fewest in polls dating back 15 years....
Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That's down sharply from 80 percent in 1994. Clearly there's remaining ambivalence; when offered the option of life imprisonment with no chance of parole, 29 percent of death penalty supporters prefer the alternative....
Support for the death penalty is higher in the 32 states that have it, 64 percent, vs. 54 percent elsewhere. In a wider gap, people in death-penalty states divide about evenly in their preference for capital punishment vs. life without parole, while in other states life imprisonment is preferred by a 20-point margin....
Views on capital punishment range among groups. Fifty-six percent of women support the death penalty, rising to 66 percent of men. And women prefer life in prison to the death penalty by 57-37 percent, while men are evenly divided.
There's also a vast gap by race; whites are more likely than nonwhites to support the death penalty, and to prefer it over life in prison, by 23- and 22-point margins. The gaps are widest comparing whites to blacks, a group that's generally skeptical of the criminal justice system. Their support for the death penalty is lower than that of any other group.
Among other groups, support for the death penalty peaks among evangelical white Protestants and Republicans, at eight in 10 each, dropping to 47 percent among Democrats. It's 20 points higher among conservatives than liberals. Preference for capital punishment over life in prison follows similar patterns, peaking at 65 percent among evangelical white Protestants (vs. 36 percent of their non-evangelical counterparts). It's 30 points higher among Republicans than Democrats, and 25 points higher among conservatives than liberals.
Tuesday, June 02, 2015
California agrees to model new lethal injection protocol on whatever SCOTUS says is good enough
As reported in this local piece, headlined "California death penalty: state agrees to propose execution method," a state with a remarkable inability (and disinclination?) to get its machinery of death operational has now agreed that the Supreme Court's latest review of lethal injection will provide a script for its next efforts. Here are the details:
California's death penalty system, dormant for nine years, might soon move slowly toward resuming executions. As part of a court settlement reached on Tuesday, the state's corrections department agreed to unveil a new execution method by the fall that will be tied to the outcome of a U.S. Supreme Court ruling expected sometime this month in a challenge to Oklahoma's lethal injection protocol.
While California is still far from executing one of the 750 condemned killers on death row, the development marks movement on the issue for the first time in years. There are at least 17 inmates on death row who have exhausted their legal appeals and would be eligible for execution dates.
State prison officials resolved a lawsuit filed last year by the families of victims of condemned killers who argued the state has a legal obligation to implement an execution method. A Sacramento judge earlier this year found the state should be required to move forward in a case brought by two families, including former UCLA and NFL star Kermit Alexander, whose mother, sister and nephews were murdered 31 years ago by a man now on death row. Death penalty supporters have accused state leaders such as Gov. Jerry Brown and Attorney General Kamala Harris of dragging their feet in getting executions back on track. The state has not had an execution since 2006 as a result of legal challenges to its lethal injection method.
Several years ago, the courts invalidated one state effort to revise its three-drug execution method, prompting California to explore switching to a single lethal drug as other states have done. But the state had not made progress until Tuesday's settlement.
The Supreme Court is expected to clarify the legality of lethal injection methods in the case out of Oklahoma, which still has a three-drug procedure. Deborah Hoffman, spokeswoman for the California corrections department, confirmed that the prison system, which has been developing its regulations, will submit its new execution method within 120 days of the Supreme Court's ruling.
Lawyers for the families said it "made sense" for California to await that ruling. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he expects the state to adopt a single drug method using a sedative he maintains can be obtained. However, states around the country, including California, have encountered problems securing supplies of execution drugs because drug manufacturers have refused to sell the drugs to prisons.
Monday, June 01, 2015
Seriously exploring — finally! — execution alternatives to lethal injection
The Supreme Court is expected to declare any day whether the injection of a drug called Midazolam violates the Eighth-Amendment protection against cruel and unusual punishment. Given the difficulty of procuring other suitable drugs, states devoted to the death penalty are lining up alternative ways to efficiently end human life. In Oklahoma (48 prisoners on death row), the answer seems to be nitrogen gas, a method favored by some proponents of assisted suicide but not something that has been employed in an execution chamber. Utah (nine on death row) proposes to revive the firing squad. Tennessee (67 on death row) is preparing to fire up its electric chair. Decisions, decisions. The Marshall Project took a closer look at the thinking that goes into the logistics of execution....
The [Oklahoma] bill’s sponsor, Rep. Mike Christian, told a German online newspaper that nitrogen inhalation “is the most humane way to die. You just sit there and a few minutes later, you’re dead.” Whatever the method, he added, “We will put these beasts to death.” Christian first conceived of using nitrogen for execution after watching a BBC documentary called “How to Kill a Human Being,” in which a retired member of the British parliament sampled various execution protocols (obviously stopping short of death) before deciding that nitrogen was “a perfect killing device.”...
It’s been a year and a week since Tennessee became the first state in the nation to require the use of the electric chair for executions should the primary means of capital punishment, lethal injection, become unavailable for one reason or another. And it has been about eight months since that new law was challenged in court by ten death row inmates who argue that the mandated use of “Old Sparky” would constitute cruel and unusual punishment. Going from lethal drugs back to electrical currents as a means of killing, the condemned contend, is legally inconsistent with the “evolving standards of decency” that the U.S. Supreme Court employs in Eighth Amendment cases....
In March, Utah governor Gary Herbert signed a law to reinstate the firing squad as a legal method of execution in his state. Utah had abandoned the method in 2004 only to be swayed back by a shortage of lethal injection drugs. Herbert called the punishment “a little bit gruesome,” but the practical concerns were overwhelming; even if the state can find lethal injection drugs, defending them in court would be expensive, and Utah already has in place a formal protocol for death by firing squad. It involves a blindfold, sandbags, four loaded rifles, and one with a non-lethal wax bullet so executioners will never know who fired the fatal shots.
Lawmakers have publicly considered the firing squad as a backup plan for lethal injections in Arkansas, Missouri, South Carolina, and Wyoming. Idaho maintained the method as an option until 2009. It is on the books in Oklahoma, as a fourth option after lethal injection, nitrogen gas, and the electric chair. The firing squad has consistently been found to be more reliable than many of the alternatives. Botches — in the form of bullets that miss the heart — have been rare. In 1938, a Utah murderer named John Deering allowed doctors to hook him up to an electrocardiogram as he faced the guns. His heart stopped 15.6 seconds after the bullets hit. Lethal injection, at its fastest, takes minutes.
Long-time readers know that I have been talking for a long time about the need for states (and Congress) to get serious about alternatives to lethal injection for carrying out death sentences. But now, nearly a decade after lethal injection protocols were starting to be subject to serious legal scrutiny, it has taken a drug shortage and still more SCOTUS litigation to get serious consideration of execution alternatives. But I fear, based in part on the oral argument in Glossip, that the latest round of Supreme Court litigation is not likely to require many more states to get much more serious about finding other viable methods of state killing.
Sunday, May 31, 2015
Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
This Fox News piece, headlined "Nebraska AG fighting to block death penalty repeal from reversing death row sentences," highlights the fascinating fight now developing in the Cornhusker state following its formal repeal of its death penalty statutes:
Nebraska's top lawyer is headed to court to prevent the state's sweeping death penalty repeal from reversing sentences of those already on death row -- in the latest flare-up between the legislature and Republican Gov. Pete Ricketts' administration.
The legislature delivered a blow to the governor Wednesday when it voted 30-19 to override Ricketts' veto of legislation that would put an end to capital punishment in Nebraska. With the power play by the state's Republican-dominated legislature, Nebraska becomes the first conservative state in decades to end the death penalty.
But Ricketts' administration is not giving up the fight. While not contesting the ban's impact on future prosecutions, the administration is battling to prevent it from undoing prior death penalty sentences for the 10 inmates currently on death row.
In a written statement, state Attorney General Doug Peterson challenged part of the bill that says the "intent" of the legislature is that any death penalty "imposed but not carried out prior to the effective date of this act" be changed to "life imprisonment." Peterson said: "We believe this stated intent is unconstitutional."
He said that Nebraska's Board of Pardons has exclusive power to change final sentences imposed by courts. "Thus, the Attorney General intends to seek a court decision, at the appropriate time, to definitively resolve the issue of the State's authority to carry out the death sentences previously ordered by Nebraska's courts for the 10 inmates now on death row."
A Ricketts spokesman told FoxNews.com Friday that the governor agrees with the AG's assessment and will pursue the court's legal opinion on the matter as soon as possible....
"My words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families," Ricketts said in a statement after Wednesday's vote, which broke across party lines and captured the votes necessary to override Ricketts' veto. The legislature had passed the anti-death penalty bill last week, 32-15.
Immediately after the vote, Republican Sen. Beau McCoy, who was against the ban, announced the formation of Nebraskans for Justice to start a petition drive to get reinstatement on the ballot in November.
But this was the third time the legislature voted to repeal capital punishment, which Republicans against it said no longer held to the values of their party, be it morally or fiscally. "The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years," said Sen. Colby Coash, a Republican and death penalty opponent. "This program is broken. How many years will people stand up and say we need this?"
Other senators said they philosophically support the death penalty, but were convinced legal obstacles would prevent the state from carrying out another execution ever again. The last one in Nebraska was a 1997 electrocution. The state lost its practical ability to execute inmates in December 2013, when one of the three lethal injection drugs required by state law expired. Opponents charged that it was a poorly managed and inefficient government program.
Thursday, May 28, 2015
Time magazine devotes cover story to "Why the End of Capital Punishment Is Near"
I am intrigued to see that the new issue of Time magazine has a cover picture of an empty electric chair and this text: "The Last Execution: Why the Era of Capital Punishment is ending." Here are excerpts from the magazine's lead article:
Despite extraordinary efforts by the courts and enormous expense to taxpayers, the modern death penalty remains slow, costly and uncertain. For the overwhelming majority of condemned prisoners, the final step—that last short march with the strap-down team—will never be taken. The relative few who are killed continue to be selected by a mostly random cull. Tsarnaev aside, the tide is turning on capital punishment in the U.S., as previously supportive judges, lawmakers and politicians come out against it.
Change is not coming quickly or easily. Americans have stuck with grim determination to the idea of the ultimate penalty even as other Western democracies have turned against it. On this issue, our peer group is not Britain and France; it’s Iran and China. Most U.S. states authorize the death penalty, although few of them actually use it. We value tolerance and diversity — but certain outrages we will not put up with. Maybe it’s the teenage terrorist who plants a bomb near an 8-year-old boy. Maybe it’s a failed neuroscientist who turns a Colorado movie theater into an abattoir. We like to think we know them when we see them. Half a century of inconclusive legal wrangling over the process for choosing the worst of the worst says otherwise....
Even in Texas, which leads the nation in executions since 1976 (when the U.S. Supreme Court approved the practice after a brief moratorium), the wheels are coming off the bandwagon. From a peak of 40 executions in 2000, the Lone Star State put 10 prisoners to death last year and seven so far in 2015. According to the state’s Department of Corrections, the number of new death sentences imposed by Texas courts this year is precisely zero. There, as elsewhere, prosecutors, judges and jurors are concluding that the modern death penalty is a failed experiment.
The shift is more pragmatic than moral, as Americans realize that our balky system of state-sanctioned killing simply isn’t fixable. As a leader of the Georgia Republican Party, attorney David J. Burge, recently put it, “Capital punishment runs counter to core conservative principles of life, fiscal responsibility and limited government. The reality is that capital punishment is nothing more than an expensive, wasteful and risky government program.”
This unmistakable trend dates back to the turn of the century. The number of inmates put to death in 2014 was the fewest in 20 years, while the number of new death sentences imposed by U.S. courts — 72 — was the fewest in modern American history, according to data collected by the Death Penalty Information Center. Only one state, Missouri, has accelerated its rate of executions during that period, but even in the Show Me State, the number of new sentences has plunged.
Thirty-two states allow capital punishment for the most heinous crimes. And yet in most of the country, the penalty is now hollow. Since the start of 2014, all but two of the nation’s 49 executions have been carried out by just five states: Texas, Missouri, Florida, Oklahoma and Georgia.
Accompanying this coverr story are these two commentaries for and against capital punishment:
Wednesday, May 27, 2015
Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
As reported in this local article, the "death penalty has been repealed in Nebraska." Here is how:
In a historic vote Wednesday, senators voted 30-19 to override a veto from Gov. Pete Ricketts. The bill (LB268) had passed a week ago on a 32-15 vote.
Ricketts had worked hard in the last week to get senators to flip their votes. He needed three to change their minds, but only two -- Sens. Jerry Johnson of Wahoo and John Murante of Gretna -- changed their votes to sustain the veto.
"This is it," said Sen. Ernie Chambers of Omaha as he entered the legislative chamber to begin the debate on a motion to override the veto. Chambers has offered a bill to repeal the death penalty 40 times in his tenure of the Legislature. In 1979, Chambers won legislative approval of death penalty repeal, but the bill fell victim to a veto by Gov. Charles Thone.
Nebraska lawmakers debated more than two hours Wednesday on a motion to override Gov. Pete Ricketts' veto of a death penalty repeal bill. "Once we take this step, there is not going to be a falling apart of this state," Omaha Sen. Ernie Chambers said at the start of discussion on the floor of the Legislature. "This building will not implode."
The historic significance of the event attracted a large group of onlookers, legislative staffers and media watched as debate began at 1:30 p.m.... Miriam Thimm Kelle, sister of Rulo murder victim James Thimm, was among onlookers in the legislative chamber Wednesday. Thimm's murderer, Michael Ryan, died this week on death row. Kelle has lobbied in support of abolishing the death penalty.
On Tuesday, Vivian Tuttle, whose daughter Evonne Tuttle was killed in the Norfolk bank robbery, joined the governor at a press conference to ask senators to sustain the veto. "I want justice for my grandchildren," she said. "I want justice for all the other families."
Tuesday, May 26, 2015
Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State
As reported in this local article, "Gov. Pete Ricketts delivered Tuesday on his promise to veto legislation that would repeal the death penalty for murderers in Nebraska." Here is more on the decision and what is likely to follow it:
"This is a matter of public safety," Ricketts said. "We need to have strong sentencing. We need to be sure our prosecutors have the tools to put these hardened criminals behind bars."
"I urge our senators to stand with Nebraskans and law enforcement," Ricketts said.
The governor was joined by Attorney General Doug Peterson and family members of Evonne Tuttle, who was one of five people killed in the 2002 Norfolk bank robbery. Three of the killers involved in the robbery are on death row. Evonne's mother, Vivian Tuttle, said she sat through the trials. In each one, she watched the surveillance video that showed Jose Sandoval put a gun to her daughter Evonne's head as she knelt on the floor and was shot to death. "I want justice for my grandchildren. I want justice for the other families," she said.
The Legislature passed the death penalty bill (LB268) on Wednesday on a 32-15 vote. Thirty votes would be required to override the governor's veto. The governor said Friday that senators who voted to repeal the death penalty weren't in touch with their constituents. But a number of those senators said Tuesday at least half of their constituent contacts are telling them to stick to their votes in favor of repeal.
Supporters have lost at least one override vote -- Sen. Jerry Johnson of Wahoo. Johnson said he was shaky on his repeal vote last week. Then, most of his emails urging him to vote for repeal were from the faith community. What he has learned since last week's vote is that people in the pews aren't necessarily on the same page as church leadership, he said....
Another senator who voted for repeal -- Sen. John Murante of Gretna -- also is reconsidering his vote, he said. He is discussing it with many constituents who have called him over the past few days, he said. "I've always been torn on the issue of the death penalty," he said, "and I'm gathering as many opinions as I can before rendering a vote on the veto override."
Sounds like every single vote is going to matter now in Nebraska's unicameral legislature. Stay tuned.
SCOTUS grants cert on a federal sentencing case and state capital case
This morning's Supreme Court order list, available here, includes two grants of certiorari. Both cases are criminal cases, Lockhart v. US and Foster v. Humphrey, and here are the links to casepages and the issues via SCOTUSblog:
Lockhart v. US: Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.
Foster v. Humphrey: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.
Monday, May 25, 2015
Swish or brick as basketball great calls upon US to "Abolish the Death Penalty"?
The question in the title of this post is prompted by this notable recent Time commentary authored by Kareem Abdul-Jabbar. (We learned in the classic movie Airplane! that Abdul-Jabbar could fly a commercial jet, so I suppose I am not too surprised he also is an effective sentencing advocate.) Here are excerpts from a commentary which suggests to me that Abdul-Jabbar could take over my professional responsibilities much better than I could ever have done his professional work:
The death penalty is suddenly trending again. On Wednesday, Nebraska lawmakers voted to repeal the state’s death penalty. Last week, the jury in the Boston Marathon bombing case decided that Dzhokhar Tsarnaev should be executed. The U.S. Supreme Court is currently reviewing the constitutionality of lethal injection in the death-penalty case Glossip v. Gross. Last month, the Federal Bureau of Investigations and the Justice Department admitted that almost every examiner in the FBI microscopic hair forensic unit overstated matches in favor of the prosecution in 95% of the cases in which they testified over the past 20 years. (This included 32 defendants sentenced to death, 14 of which have been executed or died in prison.) Norman Fletcher, the former chief justice of the Georgia Supreme Court who during his tenure upheld numerous death sentences, announced last week that the death penalty is “morally indefensible,” makes no business sense, and is inconsistent and applied unfairly....
Traditional reasons to support the death penalty are going the same way as conventional wisdom for denying same-sex marriage and gender equality. Some will talk about how justice demands the death penalty, and some will say that the only way to enforce the sanctity of human life is by executing those who recklessly and arrogantly take it away. Some will argue that it protects innocent lives, others that it brings closure to victims’ families. Some will offer personal tales of loss. These are all heartfelt points, but ultimately they are simply wrong in terms of doing what is best for society.
The primary purpose of the death penalty is to protect the innocent. Theoretically, if someone deliberately murders someone else, executing that person protects the rest of us by removing him from society, never again to be a threat. But, as always, there’s a big difference between theory and practice. While it’s true that the death penalty may protect us from the few individuals it does execute, it does not come without a significant financial and social price tag that may put us all at an even greater risk....
In the states that have abolished the death penalty in the last decade, politicians from both parties have cited cost as the main reason. This isn’t a matter of morality versus dollars. It’s about the morality of saving the most lives with what we have to spend. Money instead could be going to trauma centers, hospital personnel, police, and firefighters, and education.
Some will ask, “How can you put a price on justice?” and “What if it were your mother or son who’d been murdered?” Fair enough. But given the current cost of the death penalty, my family is much more at risk from not having enough police on the street, firefighters in their stations, and staff in hospitals. The question every concerned taxpayer needs to ask is whether or not we should be spending hundreds of millions of dollars on executing prisoners when life without parole keeps the public just as safe but at a fraction of the cost. The money saved won’t solve all our financial woes, but it will solve some — and could save lives doing so....
The second major problem with the death penalty is that there’s a high probability that we execute innocent people. The traditional test of a person’s philosophy about justice is a simple question: If you had 10 people sentenced to death but you knew one was innocent, would you keep them all in prison for life with the hopes that the innocent person will be discovered and released? Or would you execute all of them with the idea that the occasional innocent person is an acceptable loss for a greater good? If you answer that you’d keep them in prison, you’re against the death penalty....
The third problem with the death penalty is that the system is biased based on race and economic standing. Minorities have Favorite Son status when it comes to being executed. According to a study by law professor David Baldus and statistician George Woodworth, a black defendant is four times more likely to receive a death sentence than a white defendant for a similar crime. Part of the reason for this may be that those most responsible for determining which cases to pursue are white. Nearly 98% of chief district attorneys in counties using the death penalty are white; about 1% are African American....
Another unfair application is the lack of adequate representation received by poor defendants. U.S. Supreme Court Justice Ruth Bader Ginsberg addressed this issue: “People who are well represented at trial do not get the death penalty.” Although poor defendants are guaranteed representation, they aren’t guaranteed the best representation. This is evident when we examine the records of some these court-appointed attorneys: Nearly 1 in 4 death row inmates were represented by court-appointed attorneys who were disciplined for professional misconduct during their careers. A report by the Texas Defender Service concluded that death row inmates have a 1 in 3 chance of being executed “without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.” The attorneys for one-fifth of the death row inmates in Washington state over the last 20 years were disbarred, suspended, or arrested. This list of incompetent representation goes on....
Supporters of the death penalty may say it deters other would-be murderers, but 2009 study in the Journal of Criminal Law & Criminology states that “the consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.” Some argue that it brings closure for families of victims. In some cases it does; in others it doesn’t. That’s why there are various organizations—California Crime Victims for Alternatives to the Death Penalty, Murder Victims’ Families for Reconciliation, Murder Victims’ Families for Human Rights—made up of family members of murder victims who oppose the death penalty....
Some people deserve to die. They commit acts so brutal that they cannot ever be a part of society. But we can’t let our passion for revenge override our communities’ best interest. The death penalty is an elaborate Rube Goldberg device with a thousand moving parts, each one expensive and in serious disrepair, to achieve a dubious end. With something as irrevocable as death, we can’t have one system of justice for the privileged few and another for the rest of the country. That, more than anything, diminishes the sanctity of human life.
Yes, there are many ways the death penalty system might someday be improved so that it will cost less, not risk innocent lives, and be fairly applied to all. Until that day, life without parole will bring us justice and allow us the opportunity to correct our mistakes before it’s too late.
Thursday, May 21, 2015
After Boston bomber's condemnation in liberal Massachusetts, is the death penalty really "withering away"?
The question in the title of this post is prompted by this lengthy new commentary by George Will carrying the headline "Capital punishment’s slow death." Here is the full commentary, which claims to be making a "conservative case against capital punishment":
Without a definitive judicial ruling or other galvanizing event, a perennial American argument is ending. Capital punishment is withering away.
It is difficult to imagine moral reasoning that would support the conclusion that an injustice will be done when, years hence, the death penalty finally is administered to Dzhokhar Tsarnaev, the Boston Marathon terrorist who placed a bomb in a crowd and then strolled to safety. Sentencing to death those who commit heinous crimes satisfies a sense of moral proportionality. This is, however, purchased with disproportionate social costs, as Nebraska seems to be concluding.
Nebraska is not a nest of liberals. Yet on Wednesday its 49-member unicameral legislature passed a bill abolishing the death penalty 32 to 15. Gov. Pete Ricketts, a Republican, vows to veto it.
This comes at a time when, nationwide, exonerations of condemned prisoners and botched executions are dismayingly frequent. Nebraska’s death penalty opponents, including a majority of Nebraskans, say it is expensive without demonstrably enhancing public safety or being a solace to families of murder victims. Some Nebraska families have testified that the extended legal processes surrounding the death penalty prolong their suffering. That sentiment is shared by Bill and Denise Richard, whose 8-year-old son was killed by Tsarnaev.
Last month, the U.S. Supreme Court heard oral arguments about whether one component of a three-drug mixture used in lethal injection executions — and recently used in some grotesquely protracted ones — is unreliable in preventing suffering that violates the Eighth Amendment proscription of “cruel and unusual punishments.” States use the drug in question because more effective drugs are hard to acquire, partly because death penalty opponents are pressuring drug companies not to supply them.
For this, Justice Antonin Scalia blamed a death penalty “abolitionist movement.” Justice Samuel A. Alito Jr. asked, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Justice Anthony M. Kennedy wondered, “What bearing, if any, should be put on the fact that there is a method, but that it’s not available because of opposition to the death penalty? What relevance does that have?”
The answers are: Public agitation against capital punishment is not relevant to judicial reasoning. And it is not the judiciary’s business to worry that a ruling might seem to “countenance” this or that social advocacy.
The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence. For an unsparing immersion in the workings of the governmental machinery of death, read “Just Mercy” by Bryan Stevenson, executive director and founder of the Equal Justice Initiative.
Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay. Granted, capital punishment could deter: If overdue library books were punishable by death, none would be overdue. But many crimes for which death is reserved, including Tsarnaev’s crime of ideological premeditation, are especially difficult to deter.
Those who favor capital punishment because of its supposed deterrent effect do not favor strengthening that effect by restoring the practice of public executions. There has not been one in America since 1937 (a hanging in Galena, Mo.) because society has decided that state-inflicted deaths, far from being wholesomely didactic spectacles, are coarsening and revolting.
Revulsion is not an argument, but it is evidence of what former chief justice Earl Warren called society’s “evolving standards of decency.” In the essay “Reflections on the Guillotine,” Albert Camus wrote, “The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail.” Capital punishment, say proponents, serves social catharsis. But administering it behind prison walls indicates a healthy squeamishness that should herald abolition.
Wednesday, May 20, 2015
Nebraska legislature votes by large margin to repeal state's death penalty
As reported in this new AP article, " Nebraska lawmakers gave final approval on Wednesday to a bill abolishing the death penalty with enough votes to override a promised veto from Republican Gov. Pete Ricketts." Here is more:
The vote was 32 to 15 in Nebraska's unicameral Legislature. If that vote holds in a veto override, Nebraska would become the first conservative state to repeal the death penalty since North Dakota in 1973. The Nebraska vote is notable in the national debate over capital punishment because it was bolstered by conservatives who oppose the death penalty for religious reasons and say it is a waste of taxpayer money.
Nebraska hasn't executed a prisoner since 1997, and some lawmakers have argued that constant legal challenges will prevent the state from doing so again.
Republican Gov. Pete Ricketts, a death penalty supporter, has vowed to veto the bill. Ricketts announced last week that the state has bought new lethal injection drugs to resume executions. Ricketts, who is serving his first year in office, argued in his weekly column Tuesday that the state's inability to carry out executions was a "management problem" that he is committed to fixing.
Maryland was the last state to end capital punishment, in 2013. Three other moderate to liberal states have done so in recent years: New Mexico in 2009, Illinois in 2011, Connecticut in 2012. The death penalty is legal in 32 states, including Nebraska.
Has death penalty administration now become a "testing ground for toxic drugs"?
The question in the title of this post is prompted by the subheadline of this lengthy new New Republic piece: "Lethal Entanglements: Lethal injection was supposed to be a cleaner, more humane version of capital punishement. Over the past five years, it has become a messy, largely unmonitored testing ground for toxic drugs." Here are is a passage from the center of the lengthy article:
Lethal injection was first adopted in Oklahoma in 1977 as a less violent alternative to the gas chamber and the electric chair. Over the next 25 years, almost every death-penalty state copied Oklahoma’s three-drug formula: first the barbiturate sodium thiopental to knock the prisoner out, then the paralytic pancuronium bromide to immobilize him, and finally potassium chloride to stop his heart. The second and third drugs would cause intense suffering on their own, but the Supreme Court ruled that the method was constitutional in Baze: As long as the thiopental rendered the prisoner unconscious, he would be insensate to the agonizing effects of the next two drugs. Just one year after the Baze decision, though, in late 2009, the pharmaceutical company that sold thiopental to every death-penalty state, Hospira, reported a shortage.
As a consequence, the death penalty has undergone in the past five years its biggest transformation since states began switching to lethal injection decades ago. As thiopental disappeared, states began executing prisoners with experimental one-, two-, or three-drug cocktails. States have essentially been improvising what is supposed to be one of their gravest and most deliberate duties, venturing deep into the shadows to carry out executions. They have turned to mail-order pharmaceutical suppliers and used untested drugs. They have sidestepped federal drug laws, minimized public disclosure, and, on multiple occasions, announced changes to execution protocols just hours before prisoners were set to die. The machinery of death in the United States has become a kluge.
In April, the Supreme Court acknowledged this when it heard oral arguments in Glossip v. Gross. A group of prisoners from Oklahoma — including Richard Glossip, a convicted murderer — challenged the state’s use of a drug called midazolam because they feared it would not anesthetize them. The court had hoped Baze would obviate future lethal injection lawsuits, but the thiopental shortage had stripped the decision of any practical relevance almost as soon as it was issued. Now, just seven years later, the justices were considering whether they should invalidate a specific method of execution for the first time in U.S. history. The court’s decision won’t overturn the death penalty, but it will define the way we practice it for years to come.
Though the challenge comes from Oklahoma, it is Arizona that provides the best case study of the rapid, slipshod evolution of lethal injection since Baze. The desert state hasn’t executed the most prisoners since the thiopental shortage began — that distinction belongs, as always, to Texas — but it has used more methods than any other state, killing prisoners with four different drug combinations. No other state has been quite so dogged in its determination to carry out executions. And no other state has left so detailed a paper trail. Judges, lawyers, and journalists (most notably Michael Kiefer at The Arizona Republic) have brought much of the abuses to light over the years, but the story has been told in disparate pieces: a deposition here, an uncovered email there. The complete narrative is more troubling than any one of its components.
Monday, May 18, 2015
Deterrence, jurisdiction and the death penalty after many murders in Waco bar brawl
The title of this post are the topics I am now thinking about inspired by this lengthy news article, headlined "Capital murder charges expected in Waco biker shootout," discussing possible charges in the aftermath of a bloody bar fight. Here are excerpts (with my emphasis added):
The unprecedented, deadly biker gang violence on display Sunday at the Twin Peaks restaurant in Waco, Texas, has led to mass arrests, massive bail figures, the specter of numerous death penalty cases, the likely shuttering of a business, and an irate police force who said they did everything they could to stop it.
About 170 motorcycle gang members charged with engaging in organized crime are each being held on a $1 million bond in the wake of the shootout in Waco that left at least nine dead and 18 injured, and authorities say capital murder charges are expected....
While they haven't been filed yet, capital murder charges open the possibility that prosecutors will seek the death penalty for some of the suspects, in a state that puts far more inmates to death annually than all others....
Waco Police Sgt. W. Patrick Swanton said while capital murder charges are likely, it's too early to determine how many motorcycle gang members will face the charge.
The head of the Texas Department of Public Safety says the violence that unfolded in Waco when rival motorcycle gangs opened fire on each other in a restaurant parking lot is unprecedented. The shootout erupted shortly after noon at a busy shopping center where members of at least five rival gangs had gathered for a meeting. DPS Director Steve McCraw, a former FBI agent, said Monday that the shootout Sunday was the first time "we've seen this type of violence in broad daylight."...
Police and the operators of Twin Peaks - a national chain that features waitresses in revealing uniforms - were aware of the meeting in advance and at least 12 Waco officers, in addition to state troopers, were outside the restaurant when the fight began, Swanton said. As a result, the whole incident, involving an estimated 100 guns in total, "happened very fast," Swanton said. "We were there within seconds, meaning within 35 to 40 seconds," Swanton said.
So far, officials have admitted that some of the bikers were shot by police, but have not said whether or not any of those killed died as a result of police gunfire....
The interior of the restaurant was littered with bullet casings, knives, bodies and pools of blood, he said. Authorities were processing the evidence at the scene, south of Dallas. About 150 to 200 bikers were inside during the shootout. "I was amazed that we didn't have innocent civilians killed or injured," Swanton said.
Parts of downtown Waco were locked down, and officials stopped and questioned motorcycle riders. Agents from the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives were assisting local and state authorities. McLennan County Sheriff Parnell McNamara, whose office is involved in the investigation, said all nine who were killed were members of the Bandidos or Cossacks gangs.
In a 2014 gang threat assessment, the Texas Department of Public Safety classified the Bandidos as a "Tier 2" threat, the second highest. Other groups in that tier included the Bloods, Crips and Aryan Brotherhood of Texas. The Bandidos, formed in the 1960s, are involved in trafficking cocaine, marijuana and methamphetamine, according to the U.S. Department of Justice....
Swanton said the local biker gangs have little regard for law enforcement, which is why they did not hesitate to start a shootout with uniformed officers in plain sight. "They could care less whether we were here or not," Swanton said. "That's the violence we were dealing with."
I think almost everyone knows or should know that Texas is the state most likely to impose and carry out a death sentence in the United States. Thus, it sure appears that Texas's notable death penalty track record had no deterrent effect on the folks with guns and knifes involved in this carnage.
Especially with the stories of drug trafficking and gang threats on local police, I also think this case seems almost to cry out for federal intervention. Thus, I think it will be interesting to watch just which jurisdiction (state or federal) takes the lead on charges (both capital and noncapital) in this stunning crime story.
Friday, May 15, 2015
Capital jury concludes character of crime matters most in death sentencing of Boston bomber
I was on the links on a lovely spring afternoon when this news broke (via CNN): "Boston Marathon bomber Dzhokhar Tsarnaev sentenced to death." As the title of this post highlights and as I suggested in some prior posts, I long thought the sentencing in this case came down to whether the jury was concerned more about the horrific crime that Tsarnaev committed or about the explanations of his background emphasized by the defense. In the end, it appears that the crime prevailed.
Lots of notable commentary about the notable sentencing verdict can already be found at Crime & Consequences:
- Tsarnaev Sentenced to Death
- Judy Clarke, Not Quite Invincible
- No Remorse, No Escape
- Loretta Lynch Applauds Tsarnaev Death Sentence
- Do Federal Capital Appeals Really Need to Take Decades?
UPDATE: Detailed post-verdict commentary keeps coming from Bill Otis at Crime & Consequences, who is obviously quite energized by the jury's condemnation of the Boston bomber:
- Mr. Tsarnaev, Tear Down These Appeals
- Abolitionism Runs Out of Steam
- Why Judy Clarke Did Not Call Tsarnaev's Family
"America’s Deadliest Prosecutors"
The title of this post is the main headline of this notable new Slate piece, which highlights the central role that different prosecutors can and do play in the administration of the death penalty. Here are excerpts:
“I think we need to kill more people,” Dale Cox, a prosecutor in Caddo Parish, Louisiana, said recently. He was responding to questions about the release of Glenn Ford, a man with Stage 4 lung cancer who spent nearly three decades on death row for a crime he did not commit. Cox acknowledged that the execution of an innocent person would be a “horrible injustice.” Still, he maintained of the death penalty: “We need it more now than ever.”
Cox means what he says. He has personally secured half of the death sentences in Louisiana since 2010. Cox recently secured a death sentence against a father convicted of killing his infant son, despite the medical examiner’s uncertainty that the death was a homicide. Rather than exercising caution in the face of doubt, Cox told the jury that, when it comes to a person who harms a child, Jesus demands his disciples kill the abuser by placing a millstone around his neck and throwing him into the sea.
The nation suffered more than 10,000 homicides last year, yet only 72 people received death sentences — the lowest number in the modern era of capital punishment. The numbers have been steadily declining for the better part of a decade. Most states are abandoning the practice in droves. Even in states that continue its use, capital prosecutions are being pursued in only a few isolated counties.
What distinguishes these counties from neighbors that have mostly abolished the death penalty, in fact if not in law? Perhaps the biggest factor is the presence of a handful of disproportionately deadly prosecutors who represent the last, desperate gasps of a deeply flawed punishment regime. Most of their colleagues are wisely turning away from a practice that has revealed itself to be ineffective at deterring crime, obscenely expensive, inequitably administered, and not infrequently imposed upon the innocent. But America’s deadliest prosecutors continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned.
Cox is one of them. Jeannette Gallagher of Maricopa County, Arizona, is another. She and two colleagues are responsible for more than one-third of the capital cases — 20 of 59 — that the Arizona Supreme Court reviewed statewide between 2007 and 2013. Gallagher recently sent a 19-year-old with depression to death row even though he had tried to commit suicide the day before the murder, sought treatment, and was turned away. She also obtained a death sentence against a 21-year-old man with a low IQ who was sexually abused as a child, addicted to drugs and alcohol from a young age, and suffered from post-traumatic stress disorder. She then sent a U.S. military veteran with paranoid schizophrenia to death row. Her response to these harrowing mitigating circumstances has not been to exercise restraint, but rather to accuse each of these defendants of simply faking his symptoms. The Arizona Supreme Court has found misconduct in three of her cases, labeling her behavior as “inappropriate,” “very troubling,” and “entirely unprofessional.”...
Meanwhile, in Duval County, Florida, Bernie de la Rionda has personally obtained 10 death sentences since 2008. (He failed to secure the conviction of George Zimmerman, however, for chasing down and shooting teenager Trayvon Martin.) The Florida Supreme Court reversed three of those cases; one for law enforcement misconduct and two after concluding that death was too severe a punishment. That court also reversed an earlier death sentence because de la Rionda repeatedly harped about the defendant’s sexual preferences and views on homosexuality, despite the trial court’s warning that the evidence was irrelevant....
Not surprisingly, death sentences drop precipitously after these prosecutors leave office. Bob Macy sent 54 people to Oklahoma’s death row before retiring in 2001. Over the past five years, Oklahoma County has had only one death sentence. Lynne Abraham secured 45 death sentences as the Philadelphia district attorney. Since she retired in 2010, the new district attorney has obtained only three death sentences. Joe Freeman Britt, dubbed the deadliest prosecutor in America, secured 42 death sentences during his tenure in Robeson County, North Carolina. Last year DNA evidence led North Carolina officials to release two intellectually disabled half brothers, Henry Lee McCollum and Leon Brown, each of whom served 30 years — with McCollum under a sentence of death — for a rape and murder they did not commit. Britt is the prosecutor who sent McCollum, a man with the mental age of a 9-year-old, to death row. Britt retired in the 1990s, and the county has imposed only two death sentences in the past decade.
Thursday, May 14, 2015
Any predictions about how long the capital jury will need to deliberate in the Boston bombing case?
As this Boston Globe article reports, "jurors began deliberating Wednesday on the sentence of Dzhokhar Tsarnaev, sorting through a complex 24-page verdict slip meant to help them decide whether the Boston Marathon bomber should be sentenced to life in prison or death." Here is more details about where matters now stand as a set-up to the question in the title of this post:
The jurors were left with only 45 minutes to meet Wednesday after receiving instructions from the judge and hearing closing arguments from both sides. Prosecutors used their time to depict the 21-year-old defendant as a remorseless terrorist who participated in the bombing to make a political statement; defense attorneys portrayed Tsarnaev as the troubled follower of an older brother who brainwashed him into joining his violent plan.
Both sides also reminded jurors — the same panel that convicted Tsarnaev last month — of the emotionally charged testimony and graphic photos presented during the 10 weeks of testimony. Yet they recommended contrasting methods of weighing whether Tsarnaev deserved to be put to death.
In her closing argument, Judy Clarke, Tsarnaev’s attorney, delivered a surprising concession, telling jurors they could quickly endorse some of the sections of the verdict slip that refer to the factors that permit, but do not require, the imposition of the death penalty for her client. “Check them off,” she said with a dismissive flick of the wrist.
Clarke acknowledged there was ample evidence presented during the trial that Tsarnaev, among other things, intended to kill, that his crime was premeditated, and that it was especially cruel and heinous — all factors that make his offenses subject to capital punishment.
But prosecutors urged a more careful review of each section of the verdict form, calling on the 12 jurors to study the long list of Tsarnaev’s actions and each question they must answer in reaching their decision. They called on jurors to remember that they promised to remain open to the death penalty if the government proved its case. “I urge you to take your time with each one,” said prosecutor William Weinreb, who gave the rebuttal closing after Clarke’s statement.
But Clarke, as has been her style since the beginning of the trial, when she startled the courtroom by conceding that Tsarnaev committed the crimes, continued to try to show jurors that she was leveling with them and that she was a high-minded attorney looking to not waste their time with legal technicalities.
In her 90-minute statement, Clarke struck a more philosophical note, saying sometimes good kids emerge out of chaotic, troubled homes to become good young adults — but sometimes not. She went through photos and evidence suggesting that Tsarnaev’s parents were emotionally, and later physically, absent from his life, and that Tsarnaev’s older troubled and radicalized brother, Tamerlan, filled the void. The root cause of the violence that erupted on Boylston Street on April 15, 2013, was Tsarnaev’s older brother, Clarke said. “Dzhokhar would not have done this but for Tamerlan,” she said....
Echoing themes of war, prosecutors passionately argued before jurors that Tsarnaev was his own man and chose to become a jihadist warrior. They portrayed him as part of a disturbing number of young anti-American terrorists who seek to kill to send a political message. While the defense has cited Tsarnaev’s age — he was 19 when he planted the bombs — as a mitigating factor against the death penalty, prosecutor Weinreb rejected the notion.
“These weren’t youthful crimes,” he said. “There was nothing immature or impulsive about them. These were political crimes, designed to punish the United States . . . by killing and mutilating innocent civilians on US soil.”
He went on to say that while the defense case focused heavily on Tamerlan as the evil force who corrupted his younger brother, no evidence to back up the theory emerged in court. “Where is the evidence of brainwashing and mind control?” Weinreb asked.
Reaching their final decision will be more art than science, both sides said, telling jurors that it will not be a simple tabulation of how many aggravating factors they endorse against the number of mitigating factors they find. Those factors, among other things, are delineated on the verdict slip.
For the jury to impose the death penalty, all 12 members would have to unanimously agree on that sentence for at least one of the 17 death-eligible counts for which Tsarnaev was convicted. Anything short of that would require the judge to impose life in prison without parole. Jurors are scheduled to resume deliberations Thursday.
I have a nagging feeling that, because I am going to be off-line during most of the work day today and tomorrow with a variety of professional commitments, we are going to get a verdict from the jury before the end of this week. But perhaps because there are multiple formal elements to the capital verdict form, and perhaps also because the jurors may want ample time to talk through all their perspectives, it certainly seems possible we will not get a verdict until next week.
A few prior related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
- As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
- Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?
- Is it unseemly I wish I could watch the Boston bombing closing arguments?
Extended coverage of messy Oklahoma execution and execution methods
The just-released June issue of The Atlantic magazine has a lengthy cover story headlined "Cruel and Unusual: The botched execution of Clayton Lockett — and how capital punishment became so surreal." This piece is a long and valuable read, and these excerpts provides a flavor of its coverage beyond the events of a single capital case:
Since the mid-1990s, when lethal injection replaced electrocution as America’s favored method of execution, states have found drug combinations that they trust to quickly and painlessly end a life. They often use three drugs. The first is an anesthetic, to render the prisoner unconscious. The second is a paralytic. The third, potassium chloride, stops the heart.
What many people don’t realize, however, is that choosing the specific drugs and doses involves as much guesswork as expertise. In many cases, the person responsible for selecting the drugs has no medical training. Sometimes that person is a lawyer — a state attorney general or an attorney for the prison. These officials base their confidence that a certain drug will work largely on the fact that it has seemed to work in the past. So naturally, they prefer not to experiment with new drugs. In recent years, however, they have been forced to do so....
[In early 2014], Mike Oakley, the general counsel for the Oklahoma Department of Corrections, had returned from vacation to find the department in a near-frenzy. Before he’d left, the department had ordered pentobarbital from a compounding pharmacy for the executions of Clayton Lockett and Charles Warner, a 46-year-old man convicted in 2003 of raping and killing his roommate’s 11-month-old baby. But compounding pharmacies had come under pressure to stop selling drugs for executions, and Oklahoma’s supplier had backed out. With the executions scheduled for March 20 and March 27, one of Oakley’s deputies began driving around the state, walking into pharmacies and asking for pentobarbital, without success.
Oakley didn’t know why the task of finding drugs for executions fell largely to him: he had no medical training. But he wanted to help his colleagues — especially the warden, whom he considered conscientious and hardworking — because he knew how much strain carrying out a death sentence put on them. He had gone into corrections, 25 years earlier, because Oklahoma was doing interesting work in mediation between victims and offenders. Now he was about to retire, and he found himself, as his swan song, developing a new execution cocktail.
The Atlantic also hasin its June issue this companion piece headlined "A Brief History of American Executions: From hanging to lethal injection." Here is how it starts:
Hanging is perhaps the quintessential American punishment. In the pre-revolutionary era, criminals were also shot, pressed between heavy stones, broken on the wheel, or burned alive. (An estimated 16,000 people have been put to death in this country since the first recorded execution, in 1608.) But the simplicity of the noose triumphed, and its use spread as the republic grew.
In theory, a hanging is quick and relatively painless: the neck snaps immediately. But hangings can be grisly. If the rope is too short, the noose will slowly strangle the condemned. If the rope is too long, the force of the fall can decapitate the person.
The Supreme Court has never struck down a method of execution as unconstitutional. But states have at times tried to make the process more humane. “Hanging has come down to us from the dark ages,” New York Governor David B. Hill told the state legislature in 1885. He asked “whether the science of the present day” could produce a way to execute the condemned “in a less barbarous manner.”
Wednesday, May 13, 2015
Former Georgia Supreme Court Chief Justice call for absolute capital abolition
As reported in this Atlanta Journal-Constitution article, headlined "Former justice calls for end to death penalty," reports on a notable speech given by a notable former jurist. Here are the details:
A former chief justice of Georgia’s highest court on Tuesday strongly renounced the death penalty and called for its abolition. Norman Fletcher, who served 15 years on the Georgia Supreme Court, said the death penalty is “morally indefensible,” “makes no business sense” and is not applied fairly and consistently.
“Capital punishment must be permanently halted, without exception,” Fletcher said. “It will not be easy, but it can and will be accomplished.”
Fletcher, now a Rome lawyer, retired from the state Supreme Court in 2005. Although considered one of the court’s more liberal members, he cast numerous votes upholding death sentences. In more recent years, he has signed on to legal briefs urging courts to halt the executions of a number of condemned inmates.
Fletcher made his remarks Tuesday evening at the Summerour Studio near Atlantic Station, where he received the Southern Center for Human Rights’ Gideon’s Promise Award for his role in helping create a statewide public defender system. In his acceptance speech, Fletcher said he was about to “shock” those attending the ceremony.
Lawyers who once criticized his decisions upholding death sentences were justified, he said. “With wisdom gained over the past 10 years, I am now convinced there is absolutely no justification for continuing to impose the sentence of death in this country,” Fletcher said....
Fletcher added, “There can be no doubt that actually innocent persons have been executed in this country.” Too often, Fletcher contended, budgetary issues, race and politics factor into the decision-making of whether to seek the death penalty.
Fletcher cited the late U.S. Supreme Court Justice Harry Blackmun, who once said he could “no longer tinker with the machinery of death.” Blackmun made this declaration before he retired from the high court in 1994. “It is time for us to quit the tinkering and totally abolish this barbaric system,” Fletcher said.
Tuesday, May 12, 2015
Is it unseemly I wish I could watch the Boston bombing closing arguments?
The question in the title of this post reflects my (perverse?) frustration with the absence of cameras in federal courtrooms, especially in cases in which the work of advocates seem so significant in the sentencing decision-making process. From the start of the Tsarnaev trial, I have long thought that the sentencing outcome would turn on how well the prosecution keeps the jury's focus on the horrible crime (which surely seems death-worthy) and how well the defense turns the focus to mitigating personal factors which perhaps led Tsarnaev to commit the horrible crime. I am expecting that the closing arguments would capture and encapsulate the debate over this crime, criminal and his punishment in a fascinating way. But, to my disappointment, I will only get to read accounts of the arguments rather than see and hear them directly.
For those eager for a bit of a preview, this new Boston Globe article, headlined "Lengthy, complex checklist awaits Tsarnaev jurors," explains the formal death sentencing process the jury will soon be facing:
In the end, the punishment of Dzhokhar Tsarnaev will come down to one question: Have federal prosecutors proved that the Boston Marathon bomber’s crimes were so heinous he deserves to be sentenced to death?
But before jurors weigh that singular decision they will first have to wade through a complex checklist in a lengthy verdict sheet to show that they have indeed weighed all the factors in the case — those identified by prosecutors, known as aggravating factors, as well as those presented by defense attorneys, called mitigating factors.
Legal analysts say the thoroughness of the process is meant to assure that jurors focus on relevant factors and ignore prejudicial and arbitrary circumstances in determining a defendant’s fate. “The jury has to consider the circumstances that the government says is relevant, that justifies a death sentence, and then the jury makes a reasoned, morally responsible response to that evidence,” said George Kendall, a New York lawyer who has handled hundreds of death-penalty cases. “The idea is we want to have a system of accountability.”
Unlike typical criminal cases, the jury that determined Tsarnaev’s guilt in the first phase of his trial is also tasked with deciding his punishment during this second phase of his trial. And in deciding which sentence to bestow, the jurors will weigh the aggravating factors — or reasons why Tsarnaev’s crimes were so heinous he deserves death — against the mitigating factors, or arguments that seek to explain and soften his culpability in the crimes.
The formula of arguing aggravating vs. mitigating factors in capital crimes was upheld by the US Supreme Court in 1976, in a case originating in Georgia, and it became the basis for modern federal death penalty laws. The decision ended an unofficial moratorium on the death penalty that had begun four years earlier after the Supreme Court ruled that death penalty laws were unconstitutional because they were being applied arbitrarily.
Now, under the modern application of the death penalty, jurors must consider aggravating factors and mitigating factors for each defendant — and they must record their conclusion on each of those factors on the verdict slip. They must then repeat the process for each count. Tsarnaev faces 17 charges that carry the possibility of the death penalty.
US District Judge George A. O’Toole Jr. has not released a copy of the verdict slip, but prosecutors have already identified aggravating factors in the case: That Tsarnaev intentionally sought to kill and inflict bodily injuries; that he targeted vulnerable victims, including children and spectators at the Marathon finish line; Tsarnaev has shown no remorse; the attacks were in the name of jihad, or terrorism; one of his victims was a police officer; and the attack was premeditated.
Jurors will have to be unanimous in finding that each of the aggravating factors was proven. They also must be unanimous if they choose to sentence Tsarnaev to death. A split jury would result in a life sentence.
But jurors will also vote on the defense team’s mitigating factors, and they do not have to be unanimous on each one. “The defense doesn’t have the same kind of burden, it’s the prosecutors who have the burden to prove this beyond a reasonable doubt, that death is the only appropriate sentence,” Kendall said.
Jurors will then weigh the totality of aggravating and mitigating factors before deciding on a sentence. O’Toole has already instructed jurors that choosing a sentence isn’t a matter of simple math of how many aggravating factors were proven vs. how many mitigating factors the defense presented, but a “reasoned, moral response” to the overall case. “A single mitigating factor can outweigh several aggravating factors,” O’Toole told jurors.
The defense team has not publicly disclosed the mitigating factors it will list on the verdict sheet, but they will likely draw from the themes they have sought to crystallize in the trial: That Tsarnaev was an impressionable teenager who was manipulated by a dominating older brother; that brain science shows that teenagers do not have a fully matured brain; that he came from a troubled upbringing, and was looking for guidance in a vulnerable time in his life; and that his family held to old cultural tradition that he obey the direction of his older brother....
Kendall said jurors in Tsarnaev’s case are likely to weigh each argument seriously, having sat through 27 days of testimony in both phases of the trial, and listening to more than 150 witnesses. “It’s not just paperwork,” Kendall said. “It’s after all this evidence that the decision is being based on factors the law considers prudent and right ones.”
Jurors are scheduled to hear closing arguments Wednesday morning and could begin their deliberations Wednesday afternoon.
A few prior related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
- As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
- Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?
Ohio legislators moving forward on recommended death penalty reforms
As reported in this local article, headlined "Lawmakers want to exclude mentally ill from death penalty," a number of recommendations made by a death penalty task force on which I served here in Ohio are emerging in notable bills. Here are the basics:
Killers diagnosed as “seriously mentally ill” at the time of the crime could not be executed in Ohio under proposed legislation expected to be introduced Tuesday in the Ohio Senate. If passed, the bill sponsored by Sens. Bill Seitz, R-Cincinnati, and Sandra Williams, D-Cleveland, would be a major change in Ohio, which now prohibits the execution of mentally disabled people but not the mentally ill.
Seitz and Williams have been jointly developing legislation based on recommendations from the Ohio Supreme Court Death Penalty Task Force, released in April 2014. About a dozen task force recommendations are expected to be introduced in the General Assembly.
The bill would bar execution of people who, when they committed the crime, suffered from a serious mental illness that impaired their ability to “exercise rational judgment in relation to their conduct, conform their conduct to the requirements of the law, or appreciate the nature, consequences or wrongfulness of their conduct,” according to the National Alliance on Mental Illness Ohio, which supports the legislation....
Several of the 53 inmates executed in Ohio since 1999 could possibly have been excluded under the proposed change. Wilford Berry, the first person to be executed when Ohio resumed capital punishment on Feb. 19, 1999, was considered to have mental illness with delusions. At one point, Berry said he saw the angel of death sitting with him in his prison cell.
NAMI and the Ohio Psychiatric Physicians Association wrote a letter to lawmakers seek support for the legislation. “We believe that those who commit violent crimes while in the grip of a psychotic delusion, hallucination or other disabling psychological condition lack judgment, understanding or self-control. Until such time as the U.S. Supreme Court decides on this question, the responsibility for prohibiting the execution of such individuals in Ohio rests with the Ohio General Assembly.”...
Other task force proposals to be unveiled in the legislature in the future are establishing a statewide indigent death-penalty litigation fund in the Ohio Public Defender's office; requiring certification for coroner's offices and crime labs; and prohibiting convictions based solely on uncorroborated information from a jailhouse informant.
Monday, May 11, 2015
Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?
The question in the title of this post is the interesting legal question to be resolved this week in federal court in Boston as the defense team finalizes its mitigation case on behalf of Boston Bomber Dzhokhar Tsarnaev. This Boston Globe piece, headlined "Will judge allow nun to testify for Tsarnaev defense?," provides some context:
While everybody in and around Boston is celebrating Mother’s Day and spring sunshine, George O’Toole has something weighing on him. O’Toole is a judge and has presided over the trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev with his typical geniality. But even genial judges have to make tough decisions.
The trial, which began with jury selection in the first week of January, and testimony in the first week of March, is winding down. If all goes to plan, and it seldom does in trials, the jury could be sent away by the end of this week, ready to contemplate sentencing Tsarnaev to death or life in prison without the possibility of parole.
But before any of that happens, George O’Toole has to decide whether a 76-year-old Roman Catholic nun can testify as part of the effort to save a 21-year-old Islamic extremist from death. The nun in question is Helen Prejean, a Sister of St. Joseph, and if you ask what that means, you never had nuns.
Sister Helen Prejean is an icon of the antideath penalty movement, something of a celebrity. “Everybody knows Sister Helen,” said David Hoose, a Northampton defense attorney who has worked on death penalty cases. And it’s true, a lot of Americans do know her, at least vicariously. They know her as Susan Sarandon, the actress who won an Oscar for her portrayal of Sister Helen in the 1995 film “Dead Man Walking.”
Twenty years after Sister Helen became the face of the antideath penalty movement in America, she is here in Boston, poised, if O’Toole allows it, to be the last witness for the defense in the trial of Dzhokhar Tsarnaev.
No one saw this coming. As prominent as the New Orleans-based Sister Helen is in the antideath penalty movement, she is not known for testifying in death penalty cases. But she wanted to get involved in this case, somehow. Inevitably, she found herself in the defense camp....
[A]s someone who has counseled death row inmates, Sister Helen can impart [the] message ... that a death sentence hardly guarantees death.
Since 1988, when the federal government got back in the business of executing people, the government has sought the death penalty in nearly 500 cases. In 232 of those cases, there was a guilty verdict where jurors had to decide between life and death, and in 79 cases they chose death. Of those 79, only three have been executed. It’s possible that Dzhokhar Tsarnaev would be No. 4 if the jury sentences him to death, but the odds are against it.
In the meantime, Judge O’Toole has to decide on the government’s motion to exclude Sister Helen’s testimony. In death penalty cases, the defense is given a wide berth in calling witnesses as they present mitigating evidence. Even if O’Toole is on the fence about the relevance of Sister Helen’s testimony, and is inclined to tightly limit the scope of what she can speak to, he might not want to risk a reversal of the whole trial over one final witness.
The defense may only want Sister Helen to repeat one of her stock lines: “People are more than the worst thing they have ever done in their lives.” That has been the underlying message of the defense all along. That Dzhokhar Tsarnaev, as a human being, is more than the unspeakable, unforgivable things he did one week in April 2013.
In this post at Crime & Consequences, Kent Scheidegger reasonably asks "What does Helen Prejean know that is relevant to the Tsarnaev case?". I think Kent (and others in the comments) make sound points that could provide a legal justification for the district judge here precluding Prejean from being able to testify at the sentencing hearing on behalf of the Boston bomber. But I also think, as the article above hints, judges are generally disinclined to preclude completely any offered defense testimony at the sentencing-phase of a capital trial. I thus predict that the district judge here will allow Prejean to testify in some limited way if the defense presses aggressively for her to be a witness.
A few prior related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
- As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
UPDATE: Apparently Prejean started to testify not long after I wrote this post. This new USA Today article, headlined "Sister Helen Prejean: Tsarnaev 'genuinely sorry for what he did'," starts with this account of what transpired:
Sister Helen Prejean, the Catholic nun and anti-death penalty activist whose story came to fame with the 1995 film Dead Man Walking, took the stand on Monday in the penalty phase of convicted Boston Marathon bomber Dzhokhar Tsarnaev's trial. She said he is "genuinely sorry for what he did," and told her how he felt about the suffering he caused to the bombing's victims.
"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did." She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."
Prejean said she had met with Tsarnaev five times since early March and that he "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.
Prejean said she talked with Tsarnaev about both their faiths: his Islam and her Catholicism. "I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said, quickly drawing an objection from the prosecution.
Defense attorney Miriam Conrad, questioning Prejean, interjected, "Stop you right there." Conrad asked Prejean what she heard in Tsarnaev's voice she he spoke about the victims' suffering. "It had pain in it," she said.
Friday, May 08, 2015
"Have Texans lost their taste for capital punishment?"
The question in the title of this post is the first line in this Dallas Morning News commentary by Steve Blow headlined "Even in tough-on-crime Texas, death penalty convictions decline." Here are excerpts from the start of the piece:
I was struck by recent news accounts of a local murder trial. I remembered the crime well. Jacob Galen Everett, 22, was convicted of entering a Red Wing shoe store in Arlington, directing clerk Randy Pacheco to the back room and shooting him once between the eyes. Robbery was the motive, and the evidence showed that Everett got away with $200.
A few years ago, that would have been a certain death penalty case -- a cold-blooded murder committed in the course of a robbery. Instead, prosecutors sought life without parole and jurors went along.
I’m sure Texas still prides itself as a law-and-order state, but our hang-’em-high reputation may be in jeopardy. “There is no doubt about it. We’re seeing a reduction in the use of the death penalty in Texas,” said Kathryn Kase, executive director of Texas Defender Service. That’s a nonprofit that assists in death penalty defenses and advocates for fair trial policies. “We have a reduction in death penalty cases going to trial, and we have a reduction in death verdicts,” she said.
In 1999, Texas courts sent 39 people to death row. Last year, it was 11. And so far this year, none. “Here it is May, and we have had only two death penalty cases in Texas,” Kase said. “And in both, the jury chose life without parole instead. That strikes me as really significant.”
A decline is also evident in the number of executions being carried out. Yes, Texas still led the nation in executions last year, but it was with an asterisk. For the first time in decades, Texas shared that distinction. We tied with Missouri. Both states executed 10 people. Florida was close behind with eight.
And those numbers reflected a downward trend in executions -- both in Texas and the other 31 states with the death penalty. Executions in Texas peaked at 40 in the year 2000.
Thursday, May 07, 2015
Delaware Gov pledges to sign death penalty repeal legislation
As reported via this local article, Delaware "Gov. Jack Markell broke his silence on the effort to repeal Delaware's death penalty, telling the News Journal that he believes capital punishment is an 'instrument of imperfect justice'." Here is more:
"It doesn't make us safer," Markell said. "Should the repeal bill come to my desk, I would sign it." Markell's comments come just days before a House committee takes up the legislation which repeals the state's death penalty, except for those 15 inmates already on death row.
This is the first time Markell has publicly spoken on the matter. Markell said he's taken his time to formulate his position on the matter, saying that recent exonerations nationally and revelations of flawed testimony in certain cases have helped shape his view. "This is not an easy issue. My thinking has changed and I just wanted to give it very careful consideration," he said.
In April, the legislation passed the Senate in April 11-9 and now heads to the House Judiciary Committee. The legislation was not passed out of the same House committee last General Assembly. Police groups strongly oppose repeal and are expected to step up opposition in the House.
Markell said he respects all viewpoints on the matter, saying that at one point while serving on the state's Board of Pardons, he supported four of the five death penalty cases that came before him. "I know this is a really difficult issue for members of the General Assembly," he said. "I hope that after considering the arguments as I have, they will reach the same conclusion that I have."
Electrifying Tennessee fight over electric chair as back up execution method
BuzzFeed has this interesting new article about an interesting legal fight unfolding in Tennessee. This extensive headline provides the basics: "Tennessee Officials Fight Inmates’ Attempt To Challenge Electric Chair Plans: The electric chair is Tennessee’s plan B if the state can’t get ahold of lethal drugs. The inmates argue it’s unconstitutional, but the state argues that they can’t challenge it yet." Here are some details from the start of the article:
Can death-row inmates challenge the constitutionality of electrocution? The Tennessee Supreme Court will soon decide.
Death penalty states once phased out the electric chair in favor of drugs — for humane reasons. Now that drugs have become hard to obtain, states like Tennessee have turned to older execution methods like the chair as a backup.
On Wednesday, the state court will weigh whether death-row inmates can challenge the method’s constitutionality. Thirty-four inmates allege electrocution is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — that the electric chair disfigures the body and is an affront to evolving standards of decency.
But Tennessee has pushed to have the lawsuit dismissed, arguing that the inmates can’t challenge the method because none of them are actually scheduled to face electrocution.
Tennessee’s preferred method is lethal injection, using pentobarbital made from a secret compounding pharmacy. Lawmakers passed a law last year that makes electrocution the contingency plan if either drug makers or the courts make lethal injection impossible.
“The[y] are asking the court in this case to… consider hypothetical situations involving uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all,” Attorney General Herbert Slatery’s office wrote.
Wednesday, May 06, 2015
Boston bombing defense team turns to brain science in making mitigation case
As reported in this new Boston Globe piece, headlined "Brain expert testifies for Tsarnaev defense in penalty phase," jurors tasked with deciding what punishment to impose on the Boston Marathon bomber got a lesson in brain science during today's trial activities. Here are the details:
The part of the brain that matures the latest is the part that controls impulses and imagines consequences of actions in the future, a brain development expert testified Wednesday at the death penalty trial of Boston Marathon bomber Dzhokhar Tsarnaev.
Dr. Jay Giedd, a professor at the University of California San Diego and a child psychiatrist, was called as a witness by the defense, which is seeking to stave off a death sentence for Tsarnaev, who was 19 at the time of the bombing. Giedd’s testimony came on the sixth day of the defense case in the penalty phase of Tsarnaev’s trial in US District Court in Boston. The defense is seeking a sentence of life without parole....
Giedd’s testimony appeared to be intended to suggest that Tsarnaev was not fully responsible for what he did because of his youth. In teenagers, Giedd said, impulse control is “still under construction.”
“Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences,” he said. He said people’s brains tend to become adults in the second decade of their lives. But he said, “There are so many exceptions to the rule.”
He also emphasized the role of environment in a child’s brain development. Parents, he said, are “always on, teaching our children about dealing with emotion. ... Our brains learn by example.”
Under cross-examination by Assistant US Attorney Nadine Pellegrini, Giedd also testified that it was crucial to look at a person’s behavior to determine how mature they are. “The behavior itself is ... key,” he said.
He acknowledged that people even younger than Tsarnaev was could have the brain maturity to recognize the consequences of their actions. “Age might just be a number when we’re talking about the level of maturity of an individual?” Pellegrini said. Giedd agreed.
Monday, May 04, 2015
Fairer capital fight has Virginia prosecutors fighting for the death penalty less
As reported in this notable new AP article, headlined "Pace of death sentences, executions slows in Virginia," once the state of Virginia provided a sounder means to defend to capital defendants, prosecutors decided it was sounder not to seek death sentences quite so often. Here is how the lengthy article gets started:
A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation. Virginia has sent only six people to death row in the last nine years after sending 40 over the previous eight years, according to statistics compiled by the Death Penalty Information Center. As a result, the state only has eight inmates awaiting execution — down from a high of 57 in 1995 — and unless something changes, Jesse Matthew Jr. won't be joining them.
Matthew is charged with first-degree murder in the death of 18-year-old Hannah Graham. He also is charged with abduction with intent to defile, which is the first of 15 offenses listed in state law that can elevate a murder count to capital murder. Albemarle County's chief prosecutor has declined to say specifically why Matthew, who is due in court for a hearing on pretrial matters Tuesday, was not charged with capital murder.
Matthew's case, perhaps the most high-profile murder case in Virginia since the 2002 Washington-area sniper shootings that left 10 dead, is playing out as the death penalty is on the wane. Virginia has slipped from second to third nationally — behind Texas and Oklahoma — with 110 executions since the U.S. Supreme Court reinstated capital punishment in 1976. No executions are currently scheduled.
Legal experts say there are many reasons for the deceleration of the death penalty in Virginia, but perhaps the biggest is the establishment in 2004 of four regional capital defender offices staffed by attorneys and investigators who devote all their time to death penalty cases.
"In the past, an awful lot of people who ended up on death row had abysmal representation," said Steve Northup, a lawyer and former executive director of Virginians for Alternatives to the Death Penalty. "Prosecutors were able to take advantage. Now prosecutors know capital defendants are going to be well represented."
It's no coincidence, experts suggest, that the sharp downturn in death sentences began the year the capital defender offices opened. The year before, Virginia sent six people to death row. No more than two death sentences have been imposed in any year since.
A recent study by University of Virginia law professor John G. Douglass concluded that the number of capital murder charges has declined, but not as rapidly as the number of death sentences. Virginia prosecutors obtained an average of 34 capital murder indictments a year between 1995 and 1999, but only 22 per year from 2008 through 2013. The percentage of those cases going to trial fell from 38 percent in the late '90s to 19 percent, suggesting more cases are being resolved by plea negotiations resulting in punishment less than death. "Virginia prosecutors have not abandoned the death penalty," Douglass wrote. "Instead, increasingly, they bargain with it."
Douglass agrees with others who cite establishment of the state-funded capital defender's offices, which operate on a budget of $3.5 million a year, as one of the reasons Virginia's death row has been steadily shrinking. "A capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," Douglass wrote.
UPDATE: Bill Otis via this post at Crime & Consequences provides some important corrections to the AP article linked and excerpted above.
Saturday, May 02, 2015
Seventh Circuit, in 6-5 en banc ruling, allows new federal 2241 review of Atkins claim based on new evidence
If you love to spend a spring weekend thinking through the statutes and policies that govern federal collateral review of federal death sentences — and really, who doesn't? — then the en banc Seventh Circuit has a great ruling for you. Dividing 6-to-5, the Seventh Circuit in Webster v. Daniels, No. 14-1049 (7th Cir. May 1, 2015) (available here), decided that a federal death row inmate was "not barred as a matter of law from seeking relief under section 2241" to continue to pursue based on new evidence his claim that he was "so intellectually disabled that he is categorically ineligible for the death penalty under Atkins and Hall."
This following paragraph from the dissent authored by Judge Easterbrook highlights why this ruling took the majority many pages to reach and is controversial:
Whether Webster is “retarded” was the principal issue at his trial and sentencing. He raised his mental shortcomings as a mitigating factor, and four jurors found that they mitigate his culpability, but the jury still voted unanimously for capital punishment. The sentencing hearing spanned 29 days, with abundant evidence. The district judge found that Webster is not retarded within the meaning of §3596(c) and sentenced him to death. The Fifth Circuit affirmed on the merits and later affirmed a district court’s decision denying a petition under §2255 addressed to retardation. If Webster is retarded, he is ineligible for the death penalty. Whether he is retarded has been determined after a hearing, collateral review under §2255, and multiple appeals. What Webster now wants is still another opportunity to litigate that question. The majority gives Webster that opportunity in a new district court and a new circuit, setting up a conflict among federal judges. Section 2255 is designed to prevent that, and prudential considerations also militate against one circuit’s disagreeing with another in the same case.
Friday, May 01, 2015
"How a Death Row Inmate's Request to Give His Organs Kept Him Alive"
The title of this post is the headline of this notable lengthy Newsweek article discussing the array of remarkable developments that have surrounded the application of the death penalty in Ohio over the last few years. Here are excerpts which provide a unique spin on the saying that it's always better to give than to receive:
On November 13, 2013, prison officials transferred Ronald Ray Phillips from death row, where he had resided for 20 years, to the “death house” in southern Ohio. He had finally run out of appeals. In less than 24 hours, they would strap him to a gurney and inject a fatal drug combination into his veins. Just days before his scheduled death, however, Phillips made an unprecedented request—one that has kept him alive until today. He asked to give his heart to his sister, who had a heart condition, and his kidney to his mother, who was on dialysis....
In the fall of 2013, Ohio had just instituted a new lethal injection protocol as its primary method of execution, and its effects were uncertain. The fatal drug cocktail might destroy Phillips’s organs. On the other hand, if Phillips went to the operating room beforehand and doctors removed his heart while he was unconscious, they could save it. But since he couldn’t survive without his heart, they would simultaneously complete the execution in a novel method that had never been considered in Ohio’s capital punishment laws.
Phillips was scheduled to die at 10 the next morning. Just before 4 p.m., as prison employees headed home for the evening, the death house received a call from the governor. “I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen,” Republican Governor John Kasich said in a statement to the press hours before the scheduled execution. Kasich granted Phillips a reprieve, removing him—temporarily, at least—from the death house....
But the agencies that govern transplantation refused his organs, calling the idea “morally reprehensible.” Parceling out the organs to strangers could be a human rights violation. Because Phillips was a prisoner, he couldn’t voluntarily consent to these procedures. The idea of saving “innocent” lives could also incentivize prosecutors and judges to favor the death penalty. Ohio denied Phillips’s request to donate non-vital organs to strangers.
Yet [a former attorney for the mother of Phillips' victim] counters, “Why doesn’t an inmate have a right to donate his or her kidney? Why is that seen as one of the rights that they’ve given up because they’re incarcerated?”...
Because of Phillips’s reprieve, convicted killer Dennis McGuire took his place. Reporter Alan Johnson witnessed McGuire’s execution. Approximately six minutes into it, McGuire “suddenly starts gasping—deep gasps. His chest would compress, his stomach started going out," Johnson says....
The McGuire fiasco prompted a federal judge to temporarily halt all Ohio executions. Nevertheless, Arizona used Ohio’s protocol that summer to execute Joseph Wood. The execution lasted over two hours, with Wood gasping 640 times. It provoked another moratorium on the death cocktail.
In January 2015, before Phillips’s fourth execution date, Ohio rescinded its controversial mixture, announcing a return to the pentobarbital drug class. Because Ohio has been unable to obtain this drug from Lundbeck, executions will resume in 2016 at the earliest. Phillips’s fifth execution date remains unscheduled.
Phillips’s unprecedented request set off a chain of events that have kept him alive till today. For over a year, he’s been next up on Ohio’s list of scheduled executions. But he’s ridden the wave of botched executions and may transition from a temporary reprieve to a permanent one. Phillips and his attorneys declined multiple requests to be interviewed for this story.
Thursday, April 30, 2015
Timely (but incomplete) report on political debates as de facto moratorium on federal executions continues
The New York Times this morning has this new front-page article discussing a remarkable national death penalty story that seems never to get nearly as much attention it merits. The article is headlined "Obama Adminintration Steps Back From Effort to End Federal Death Penalty," and here are excerpts:
For a moment last year, it looked as if the Obama administration was moving toward a history-making end to the federal death penalty. A botched execution in Oklahoma brought national attention to the issue, public opinion polls began to shift and President Obama, declaring that it was time to “ask ourselves some difficult and profound questions,” directed Attorney General Eric H. Holder Jr. to review capital punishment.
At the Justice Department, a proposal soon began to take shape among Mr. Holder and senior officials: The administration could declare a formal moratorium on the federal death penalty because medical experts could not guarantee that the lethal drugs used did not cause terrible suffering. Such a declaration would have pressured states to do the same, the officials reasoned, and would bolster the legal argument that the death penalty is unconstitutionally cruel punishment.
But the idea never gained traction, and Mr. Obama has seldom mentioned the death penalty review since. Now, as the Supreme Court considered arguments Wednesday over whether lethal injection, as currently administered, was unconstitutional, the obstacles the Obama administration faced provide vivid examples of just how politically difficult the debate remains.
“It was a step in the right direction, but not enough of a step,” said Charles J. Ogletree Jr., a Harvard professor and a death penalty opponent who met with administration officials as part of the review. The Justice Department, he added, has been refusing to say what he thinks senior officials there believe: “We’ve had too many executions that didn’t work and killing somebody’s not the answer.”
In remarks last May after a prisoner in Oklahoma regained consciousness and writhed and moaned during a lethal injection, Mr. Obama, who has supported the death penalty, seemed to raise expectations for a policy change. He lamented its racial disparities and the risk of executing innocent people. He referred the matter to Mr. Holder, a liberal stalwart who opposed capital punishment. But privately the White House was cautious, sending word to the Justice Department to keep its focus narrow, administration officials said.
Mr. Obama called for the review at a time when there had not been a federal execution since 2003, when Louis Jones Jr. was killed for raping and murdering a 19-year-old female soldier. Since 2010, the federal government has effectively had a moratorium on executions — all are carried out by lethal injection — because manufacturers in Europe and the United States refused to sell the government the barbiturates used to render prisoners unconscious. States, however, found alternatives, including the sedative midazolam, which was used in the gruesome execution of Clayton D. Lockett in Oklahoma last year.
As the Justice Department sought advice from experts on both sides of the issue, opposition to the idea came from unexpected corners. Some of the most outspoken voices against the death penalty also urged the most caution, fearful that a federal announcement would actually do more harm than good. “From my view, we’re better off with things bubbling up in the states,” said Henderson Hill, the executive director of the Eighth Amendment Project and one of several people consulted by the administration last year....
Advocates in particular worried that having Mr. Obama and Mr. Holder as the faces of the anti-death penalty movement would stoke conservative support for capital punishment at a time when some libertarian-minded Republicans, Christian conservatives and liberal Democrats appeared to be finding common ground in opposition to it. “I’m not sure that what the administration would have to say would be inherently influential in Nebraska,” Mr. Hill said.
Opposition to the death penalty was growing in Nebraska last year and lawmakers voted overwhelmingly this month to replace it with life in prison, setting up a veto fight with Gov. Pete Ricketts, a Republican.
Advocates were further worried that if lethal injections were eliminated, states would bring back older methods of execution, a concern borne out in Utah, where officials said they would bring back firing squads if lethal drugs were not available. Other states are reviving plans to use the electric chair or gas chambers.
Inside the Justice Department, some officials opposed a formal moratorium because it would eliminate the option for the death penalty in terrorism cases like the one against Dzhokhar Tsarnaev, who faces a possible death sentence for the 2013 bombings at the Boston Marathon. Others worried that eliminating the death penalty would make it harder to persuade Congress to move terrorist suspects from the island prison at Guantánamo Bay to the United States for trial. There were also logistical hurdles.
Advocates and administration officials asked what would happen to the roughly five dozen people on federal death row. Would Mr. Obama, who has said the death penalty was appropriate in some cases, commute the sentences of men who raped and murdered people? There were no clear answers.
In the end, the question never made it to Mr. Obama’s desk. Last fall, Mr. Holder announced plans to resign, and officials said it would be inappropriate to recommend a major policy change on his way out of office, then leave it up to his successor to carry it out. In January, the Supreme Court agreed to hear the case of three convicted murderers who challenged the lethal injection drugs. Now with the issue before the justices, the review at the Justice Department has come to a halt because any administration action could be seen as trying to influence the court.
Attorney General Loretta E. Lynch, who was sworn in this week, told senators during her confirmation hearing that the death penalty “is an effective penalty.” But she did not elaborate. Emily Pierce, a Justice Department spokeswoman, said the review continued. “And we have, in effect, a moratorium in place on federal executions in the meantime.”
The last line in this excerpt highlights for me the federal death penalty story that continue to fail to get nearly as much coverage, legally, politically and practically, as I think it should. The feds have, I believe, a significant number of capital murderers on federal death row who have completed all their appeals but who have been escaping their imposed punishment since 2007 because of all the state lethal injection litigation that resulted in the Supreme Court's Baze ruling and all the subsequent uncertainty that has followed.
I have long been troubled that the Bush Administration starting in 2007, and the Obama Administration in the years that have followed, have made no apparent effort to try to carry out existing federal death sentences. Whatever the reasons for a nearly-decade-long de facto executive moratorium on the federal death penalty, I believe federal prosecutors should feel some obligation to defendants, victims and the general public to provide some public explanation about what the heck is going on with the actual administration of the federal death penalty.
April 30, 2015 in Baze and Glossip lethal injection cases, Criminal justice in the Obama Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, April 29, 2015
Intriguing reports on Supreme Court oral argument about Oklahoma's lethal injection protocol
Lyle Denniston at SCOTUSblog has this report on the oral argument today in the Supreme Court case concerning Oklahoma's lethal injection protocols. It starts this way:
For months, the Supreme Court has given no explanation as it refused to give inmates awaiting execution any chance to learn about the methods by which they would be put to death, and has said nothing as it allowed states to experiment with new lethal-drug combinations even after some of those executions were seriously botched. It allowed one inmate to be put to death even before it decided whether to hear his case. In other words, the regime of capital punishment went forward without any new constitutional assessment of it by the Justices; they have not done so on lethal-drug executions for seven years.
On Wednesday, the nation may have gotten the beginnings of an explanation. What appears to be a clear majority of the Court has grown frustrated with the repeated constitutional assaults on the death penalty, especially since that penalty is still constitutionally permitted. That frustration almost boiled over as the Court heard the case of Glossip v. Gross.
That case, at its core, is only about whether the first drug Oklahoma uses in its three-drug lethal combination is capable of making the inmate sufficiently unconscious that he feels little or no pain as the next two, highly toxic drugs paralyze and then kill him. The grim possibility of that particular protocol was described alarmingly by Justice Elena Kagan as “burning alive, from the inside.”
And Wednesday’s argument started out as if it would proceed through a detailed examination of the properties of that first drug — midazalom — and how two lower courts had analyzed its effect in the execution chamber. There was much discussion about judicial fact-finding and what was open to the Supreme Court to second-guess about that.
But the tone and the substance of the argument changed abruptly, when Justice Samuel A. Alito, Jr., moved aggressively into an exchange with the Oklahoma death-row inmates’ lawyer, Robin C. Konrad. “Let’s be honest about what’s going on here,” Alito began. He mentioned how controversial the death penalty is, and said its opponents would be free to continue to try to get it abolished. But, he said, until that happens, “is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”
This Reuters article about today's arguments, headlined "Lethal injection case exposes U.S. top court's death penalty divide," develops similar themes in its review of the arguments. It starts this way:
Tensions on the Supreme Court over America's use of the death penalty boiled over on Wednesday as the justices appeared badly split in a case challenging Oklahoma's lethal injection method as a breach of the Constitution's ban on cruel and unusual punishment.
The nine-member court's five conservatives seemed likely to side with Oklahoma in the case brought by three death row inmates, while its four liberals expressed doubt about the propriety of using the drug at the center of the dispute. Conservative Justice Anthony Kennedy, who often casts deciding votes in close cases, said nothing to suggest he would side with the liberals.
The full oral argument transcript is available at this link.
Recent related posts:
- Just what will SCOTUS focus on when reviewing Oklahoma's lethal injection protocol?
- "The Supreme Court Is About to Decide the Future of Lethal Injections"
"The Supreme Court Is About to Decide the Future of Lethal Injections"
The more I think about the Glossip lethal injection case being considered by the Supreme Court today (basics previewed here), the more I think the Justices will be inclined to issue a very narrow ruling that only clearly impacts the lethal injection protocol in Oklahoma and perhaps a few other states. However, this National Journal article which carries the headline I used in the title of this post, seems to think it will be a huge deal whatever SCOTUS does in the case. Here is how the piece starts:
How much pain is constitutionally acceptable for a prisoner sentenced to death to feel during his or her execution? What, exactly, is cruel and unusual punishment?
Though not the precise question presented before the justices, the Supreme Court will be forced to wrestle with those nagging Eighth Amendment concerns Wednesday as it hears arguments in a case challenging the application of a combination of lethal drugs that have been linked to a string of grisly botched executions over the past year.
In Glossip v. Gross, the Court is being asked to determine whether the use of of a sedative known as midazolam by Oklahoma and a number of other states is reliable and effective enough to use as part of three-drug lethal cocktail to execute prisoners on death row.
Midazolam has been subject to rising scrutiny since it was first used by Florida in 2013 as a replacement for another drug that became difficult for states to acquire, amid boycotts from European drug manufacturers opposed to capital punishment.
Even a narrow ruling striking against the use of midazolam could reverberate much more widely and further disrupt states' ability to carry out death sentences—a penalty that has grown increasingly rare in recent years as only a handful of states continue the practice. States scrambling to find suitable lethal cocktails are finding the task increasingly difficult, as fewer and fewer options remain available.
Recent related post:
Tuesday, April 28, 2015
Indonesia executes by firing squad eight of "Bali nine" for drug offenses
As reported in this New York Times article, "the Indonesian government executed eight drug convicts after midnight on Wednesday, including seven foreigners." Here is more:
The executed prisoners, from Australia, Brazil and Nigeria, along with one Indonesian, were shot by police firing squads about 12:25 a.m. local time at a site outside the gates of Pasir Putih prison on the island of Nusa Kambangan off the southern coast of Java, according to the attorney general’s office.
The authorities granted the stay of execution to Mary Jane Veloso, 30, a Philippine citizen, after the Philippine government requested her assistance in a human trafficking case involving a woman who surrendered to the Philippine police on Tuesday....
The mass execution was the second in Indonesia this year. In January, five foreign drug convicts and one Indonesian convicted of murder were shot by firing squads on the island.
On Saturday, the attorney general’s office gave 72 hours’ notice to the latest group of condemned prisoners, their legal teams and their respective embassies that the executions would be carried out. On Monday, an Australian prisoner, Andrew Chan, married his Indonesian fiancée in a small ceremony at the prison. A French citizen who was also originally on the list to be executed won a two-week reprieve from the State Administrative Court in Jakarta, the Indonesian capital, which will hear his challenge to a clemency rejection by President Joko Widodo.
Shortly after taking office last October, Mr. Joko declared that Indonesia was facing “a national emergency” of drug abuse, and he rejected 64 clemency appeals from death row drug convicts, most of them foreigners. Saying Indonesia had a right to exercise its drug laws, Mr. Joko’s government rejected international pleas to cancel the executions, including from Ban Kimoon, secretary general of the United Nations.
The executions have angered some of Indonesia’s largest aid donors, including Australia and the European Union. Australia announced on Wednesday that it would withdraw its ambassador to Indonesia, and Prime Minister Tony Abbott described the deaths of Mr. Chan and another Australian, Myuran Sukumaran, as a dark moment in Australia’s diplomatic relations with Indonesia.
Just what will SCOTUS focus on when reviewing Oklahoma's lethal injection protocol?
The Supreme Court concludes its oral arguments with a capital bang on Wednesday by hearing the case of Glossip v. Gross. Lyle Denniston at SCOTUSblog has this effective argument preview which starts this way:
In an era when botched executions of death-row inmates happen more often, raising new questions about capital punishment, the Supreme Court continues to rely upon a set of legal principles about lethal-drug protocols that have not been reexamined in seven years. The Justices have given themselves the opportunity to do so next week when they hear an Oklahoma case, but just how far they are prepared to go to reopen those principles probably will only be clear as the oral argument unfolds.
In one sense, the case of Glossip v. Gross is focused on the use of a single drug in a three-drug execution “cocktail” — a sedative, the first dose, that is supposed to put the inmate in a sufficiently deep state of unconsciousness that there will be no pain, or at least only tolerable pain, from injections of the other two drugs, which paralyze and then kill. But in another sense, the entire constitutional structure surrounding execution by lethal drugs could be at stake.
This extended US News and World Report article about the case, headlined "At the Supreme Court, a Lethal Injection Drug on Trial," starts by providing this helpful background:
The Supreme Court on Wednesday will consider the methods states use to execute criminals — an issue attracting increasing attention, but one the high court has avoided for the better part of a decade. The case — Glossip v. Gross — will focus on one specific drug, Midazolam, that some states are using to render inmates unconscious in capital punishment procedures. Yet it reflects the larger challenges correctional departments are having in obtaining lethal injection drugs in light of a global boycott and increasing public scrutiny.
Prompted by four apparently botched executions that made national headlines last year, the lawsuit the justices will consider was brought by three inmates on Oklahoma's death row. Their lawyers say Midazolam — the drug used to render inmates unconscious before administering drugs to paralyze and kill them — does not put inmates in a deep enough coma to shield them from pain and thus violates the Eighth Amendment’s prohibition against cruel and unusual punishment. In executions using the drug in Oklahoma, Ohio and Arizona, prisoners reportedly gasped for air, groaned, writhed, grimaced and even said they were experiencing burning pain.
Three other states currently include Midazolam in their lethal injection protocols. But more are considering it, the plaintiffs' lawyers says, and a Supreme Court decision that affirms its constitutionality will likely increase its use. Conversely, a ruling finding use of the drug unconstitutional could lead to further declines in what has been the predominate method of execution for decades, even as capital punishment overall dropped last year to a 20-year low and the number of death sentences issued hit its lowest mark since 1976. The death penalty is currently legal in 32 states, but only about a dozen states still regularly execute prisoners.
Some states are considering abandoning lethal injection altogether. Utah lawmakers recently approved allowing firing squads if death penalty drugs are not available, while Oklahoma has made nitrogen gas chambers a back-up for its executions.
"Going Retro: Abolition for All"
The title of this post is the headline of this notable new and timely article authored by Kevin Barry now available via SSRN. Here is the abstract:
The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so. Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes. State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row. In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty.
Some states, however, are “going retro.” In 2012, California’s Proposition 34 would have applied retroactively, reducing over 700 death row prisoners’ sentences to life without parole (“LWOP”). More states should attempt to pass retroactive death penalty repeals, but they are not doing so, for two reasons. The first is political: legislators are not pursuing retroactive legislation because they do not have the votes. The second reason is legal: legislators are not pursuing retroactive legislation because they believe that the separation of powers and state constitutional prohibitions on retroactive laws forbid it. These arguments are reasonable ones, and they reach far beyond the death penalty sphere — to retroactive crack sentencing laws and retroactive juvenile LWOP sentencing laws, among others.
This Article argues that neither the separation of powers nor state constitutional prohibitions on retroactive laws prohibits states from retroactively repealing their death penalties. While politics may prevent legislatures from pursuing retroactive repeal of the death penalty, the law should not. As California’s 2012 repeal bill makes clear, “fairness, equality, and uniformity” demand retroactivity. They demand abolition for all.
Monday, April 27, 2015
As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
I find notable the results of a new poll reported in this Boston Globe article headlined "Few favor death for Dzhokhar Tsarnaev, poll finds: Less than 20% of Mass. residents support execution." Here are the details, along with some explantions:
Although nearly a third of Massachusetts residents say they support the death penalty for egregious crimes, less than 20 percent believe Boston Marathon bomber Dzhokhar Tsarnaev should be put to death — a level of support that has eroded over recent months as the jury’s decision on his fate nears, a Boston Globe poll shows.
“It seems that voters have concluded that Tsarnaev does not deserve a quick death, but rather should spend the remainder of his days in a windowless cell contemplating the heinous acts that put him there,” said Frank Perullo, president of Sage Systems LLC, which conducted the poll. “To voters, it would seem death is too easy an escape.”
In Boston, support for the death penalty has dwindled even further: Only a quarter believe it is ever appropriate, and just 15 percent think Tsarnaev should be executed. Almost 66 percent of Bostonians and nearly 63 percent statewide favor a life sentence.
The poll comes in the penalty phase of Tsarnaev’s trial. Jurors have just heard three days of wrenching accounts from victims and families of the dead. Now the defense will begin its case to spare his life. Perhaps surprisingly, given seven weeks of graphic testimony, the public’s appetite for Tsarnaev’s execution appears to have diminished over the course of the legal proceedings....
A Globe poll taken a few months after the bombing in September 2013 showed that 33 percent favored death. A WBUR poll conducted days after his conviction this month showed that 26 percent favored death. Those compare with the 18.9 percent favoring death in the new Globe poll, which was based on telephone interviews April 22 and 23 with 804 people, nearly half in Boston....
[E]xperts offered several possible explanations for the diminishing appetite for the death penalty, starting with the timing of the survey: The Globe poll was conducted after Bill and Denise Richard, whose son Martin was killed and whose daughter, Jane, lost a leg in the blasts, made their plea on the front page of the Globe for prosecutors to drop the death penalty. The Tsarnaev brothers’ dual bombs, and the crime spree that followed, left four people dead and injured more than 260 others....
Daniel S. Medwed, a Northeastern University criminal law professor who has followed the case closely, said the letter and the discussion that followed might have changed people’s minds. “It didn’t talk about moral opposition. It was much more about the process of the death penalty case and being dragged through this for years and years,” he said. “The heartfelt letter resonated with the community.”...
David Hoose, a criminal defense attorney with the Northampton firm Sasson Turnbull Ryan & Hoose who has experience in federal death penalty cases, said the opposition to death for Tsarnaev could be rooted in the concerns over his youth or the cost and drawn-out nature of the appeals process....
Hoose and others cautioned that the poll results could not predict what a jury might do. “The people answering this poll have not had to sit through the weeks of gut-wrenching testimony by these victims,” said Hoose, who is also on the board of the Massachusetts Citizens Against the Death Penalty Fund. “I think the real $64,000 question here is, how much is this going to influence the 12 people making the decision?”
A few recent related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- Reviewing Massachusetts' "long and tortured history" with the death penalty
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
Sunday, April 26, 2015
Arguments against death penalty abolition prevail in great Intelligence Squared debate
I have long been a fan of the Intelligence Squared debate series, which I often hear on my local NPR station (and which too often leads me to stay in my car longer than I had intended). I was especially excited when I learned that the series was finally going to focus on the death penalty. The live debate took place earlier this month, and this NPR link provides access to the 50-minute audio recording, as well as this account of the event (with my emphasis added):
The death penalty is legal in more than 30 states, but the long-controversial practice has come under renewed scrutiny after a series of botched executions in several states last year.
Opponents of capital punishment argue that the death penalty undermines the fair administration of justice, as wealth, geography, race and quality of legal representation all come into play, with uneven results.
But proponents of the death penalty believe capital punishment serves a moral and social purpose in American society. They argue that while the administration of the penalty is not perfect, improvements can be made in the justice system to address some opponents' concerns without doing away with the punishment altogether. Some people deserve to die, they say, for committing certain types of crime.
Two teams faced off over these questions in the latest event from Intelligence Squared U.S., debating the motion, "Abolish The Death Penalty." In these Oxford-style debates, the team that sways the most people to its side by the end is the winner.
Before the debate, 49 percent of the audience at the Kaufman Music Center in New York voted in favor of the motion, while 17 percent were opposed and 34 percent were undecided. After the event, 54 percent agreed with the motion and 40 percent disagreed, making the team arguing against abolishing the death penalty the winners of the debate.
For The Motion
Diann Rust-Tierney became the executive director of the National Coalition to Abolish the Death Penalty in 2004. With 30 years of experience in public policy and litigation advocacy, she manages the operations of NCADP and directs programs for the organization and its 100 affiliate organizations....
Barry Scheck is the co-founder and co-director, with Peter Neufeld, of the Innocence Project and a professor at the Cardozo School of Law. Known for landmark litigation that has set standards for forensic applications of DNA technology, he and Neufeld have shaped the course of case law nationwide, leading to an influential study by the National Academy of Sciences, as well as important state and federal legislation....
Against The Motion
Robert Blecker is a professor at New York Law School, a nationally known expert on the death penalty and the subject of the documentary Robert Blecker Wants Me Dead. After a brief stint prosecuting corruption as a New York special assistant attorney general, he joined New York Law School, where he teaches constitutional history and criminal law, and co-teaches death penalty jurisprudence with leading opponents....
Kent Scheidegger has been the legal director of the Criminal Justice Legal Foundation since 1986. A nonprofit, public interest law organization, CJLF's purpose is to assure that people who are guilty of committing crimes receive swift and certain punishment in an orderly and constitutional manner. Scheidegger has written over 150 briefs in U.S. Supreme Court cases....
I think it is fair to assert that both sides in this debate had a "dream team" arguing, and I also think it is very notable that an audience in New York City by its votes determined, essentially, that arguments against abolition of the death penalty are more compelling than argument for abolition. For that reason (and many others), anyone interested in the death penalty should find 50 minutes to listen to this terrific IS debate.