Monday, November 09, 2015
"The Most Ambitious Effort Yet To Abolish The Death Penalty Is Already Happening"
The title of this post is the headline of this extraordinary new BuzzFeed News piece about the significant on-going effort to build a case for the Supreme Court to abolish the death penalty through a major constitutional ruling. The very lengthy article by Chris Geidner covers lots of ground, making the full piece a must-read for any and everyone who follows any aspect of the debate over the modern death penalty. Here is how the piece gets started:
Henderson Hill and Rob Smith are the odd couple shepherding a collaborative effort to end the death penalty in America at the most significant moment for that movement in decades.
As talk of mass incarceration, racial disparities, and criminal justice legislation has permeated the public debate on both sides of the political spectrum, another effort has taken shape under the radar: the laying of the groundwork for a Supreme Court ruling that the death penalty is unconstitutional, a violation of the Eighth Amendment’s ban on cruel and unusual punishments.
When Supreme Court Justice Stephen Breyer, along with Justice Ruth Bader Ginsburg, raised the prospect this June of the Supreme Court revisiting the constitutionality of the death penalty — using a key part of Smith’s work as evidence — the ground shifted overnight, and discussions went from hypothetical to hyperdrive.
In the wake of that change, two of the death penalty’s most strident abolitionists sat down with BuzzFeed News to make their case not only for ending the death penalty in the United States — but for doing so in the next few years. The effort, as with so many focused on the Supreme Court, ultimately comes down to Justice Anthony Kennedy.
The 8th Amendment Project, which Hill and Smith run, is a centralized effort to advance death penalty abolition research, raise issues of legal system accountability, and help capital defense efforts — all with the Supreme Court in mind. It has a $1 million budget and six full-time staff members this year. It is part of a national effort backed by the Themis Fund, a donor collaborative dedicated to ending the death penalty in America, the fund’s director told BuzzFeed News. The Themis Fund was launched as an initiative of the progressive Proteus Fund in 2007, when a broad array of opponents of capital punishment — from litigators to funders — came together to figure out a way to end capital punishment in the country.
As death sentences and executions slowed down across the country — and some states got rid of it altogether — the Themis Fund donors decided to ramp up their efforts. In 2014, Hill, a 59-year-old black lawyer who began his career decades ago as a public defender, was made the head of the project, giving it its current name. He has since brought on Smith, a 34-year-old white law professor who graduated from law school in 2007, to serve as the project’s litigation director.
Sunday, November 08, 2015
California (finally!) officially announces switch to one-drug lethal injection protocol
California, the state with the largest death row and the seemingly most-dysfunctional and expensive capital punishment system, late last week announced that it is finally going to try to modernize its long-dormant execution protocol. This extended Los Angeles Times piece provides the details and the back-story:
California unveiled a new method for executing prisoners Friday, proposing a “humane and dignified” single-drug injection protocol that could restart capital punishment after a nearly 10-year hiatus. The regimen would replace a three-chemical method the state used in the past. That mixture was struck down in 2006 by a judge who said it could cause inhumane suffering if one of the drugs failed to work.
The new proposal stems from a lawsuit filed against the state by crime victims' families who favored the death penalty and wished to see it enforced. A settlement of the suit, brought by the Criminal Justice Legal Foundation, required the state to devise a new lethal injection method by this month.
Executions are not likely to resume immediately, however. Public vetting of the proposal could take a year, and court challenges may follow. In addition, voters may see one or more ballot measures on the death penalty next year....
The new California protocol would allow a choice of four barbiturates for lethal injection: amobarbital, pentobarbital, secobarbital and thiopental. The selection would be made on a “case-by-case basis, taking into account changing factors such as the availability of a supply of chemical,” according to the proposal, published online Friday by the California Department of Corrections and Rehabilitation.
The single-drug protocol creates “a better flexibility, a better system of options,” said Michael Rushford, who heads the foundation that filed the suit. Rushford expressed chagrin over the state's decision to use the regulatory process, which allows two months for public comment and will delay the resumption of executions.
He said officials had dragged their feet in crafting a new policy. He attributed that to Gov. Jerry Brown and Atty. Gen. Kamala D. Harris, who oppose the death penalty although they have said they would enforce it. “If we had a different governor and a different attorney general, these wouldn't be problems,” Rushford said.
Harris' office did not immediately respond to requests for comment. Corrections spokeswoman Terry Thornton, speaking for the Brown administration, ascribed the delay to the developing national debate over execution methods, not resolved until a U.S. Supreme Court ruling in June.
At least 16 death row inmates in California have exhausted their appeals and could be executed if the protocol is adopted. The inmates range in age from 49 to 78. One was condemned for crimes that took place 36 years ago.
Some condemned prisoners were stoic when told about the impending arrival of a new execution protocol. “In the meantime, I have my life,” Clifton Perry, 46, said in a recent interview, noting that legal challenges could drag on for years. He was sentenced to death for the 1995 killing of a convenience store owner during a robbery.
California has 749 inmates on death row, the most in the country. Since 1978, the state has executed 13 prisoners, 68 condemned offenders have died from natural causes and 24 have committed suicide....
California voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000. Death penalty opponents have proposed an initiative for the November 2016 ballot that would replace capital punishment with life without the possibility of parole. Legislative analysts this week said such a move would save California some $150 million a year, by reducing the costs of capital punishment trials and subsequent penalty appeals.
A competing measure, sponsored by law enforcement and victim groups, also has been submitted for state review. That measure would propose changes to speed up executions.
Saturday, November 07, 2015
A citizen's notable (and radical?) suggestions for improving the Ohio execution process
Yesterday I received an interesting e-mail from an Ohioan styled as a "letter to the editor" and which I received permission to reprint here:
Dear Mr. Berman,
In reference to the PD article "Ohio in quandary over how to resume executions " (Oct 24) about lethal-injection drugs, I would like to comment.
Since I live in Ohio, I would like to address our execution dilemma. Allow me to suggest an alternative to lethal injection.
I am disappointed to see the failure of execution cocktails that have taken an half an hour or more to end a prisoners life. Although the suffering of these dying criminals does not seem unfair.
But I would like to solve -- once and for all -- the problems with inefficient lethal drugs. Let's make execution less painful for us all. As an alternative to drugs, we simply use the Red Cross method of donating a pint of blood, but using a 20 ounce bag to hold all of a person's blood, resulting in a complete draining of all blood for a quick and painless eternal sleep.
I call this the 'Total Blood Withdrawl' execution. I wrote the protocol for this method. Maybe Red Cross can use the blood.
Let's use this transition method to a day when there will be no more executions.
I have no idea if this plan for "Total Blood Withdrawal" would actually produce a "quick and painless eternal sleep." But given that officials in Ohio and elsehwere seem unwilling and/or unable to come up with viable alternatives to problematic lethal injection protocols, I am pleased to highlight here that even average citizens are eager to offer alternative execution methods for consideration.
Friday, November 06, 2015
Reflecting on 2015's historically low number of executions (and on death penalty dogs not barking)
This DPIC yearly execution page highlights that we have had only 25 executions so far throughout the United States in 2015, and this page listing scheduled executions suggests it is very unlikely we will have more than a couple more executions before the end of the year. Statistically and historically speaking, then, 2015 will be a year with a remarkably low number of executions in the US: in every single year since 1992,there have been 30 or more executions and there were 98 executions nationwide in 1999; throughout both the 1990s and 2000s, the US averaged nearly 60 executions per year.
Lots of factors have contributed to the significant recent decline in yearly executions now resulting in 2015 becoming a record-low execution year: abolition of the death penalty in a few states, moratoria on executions in a few others, persistently effective litigation challenging state lethal injection protocols, persistently ineffective efforts by states to improve lethal injection protocols and obtain needed execution drugs, and continued judicial and public scrutiny long-ago-imposed death sentences even after standard appeals have concluded. For what it is worth, I am highly disinclined to attribute a decline in US executions to diminished public support for the death penalty: both national polls and surveys in the states that have historically carried out the most death sentences indicate that, at least among the general public, support for a functioning death penalty system remains strong and deep.
Though I encourage comments about what most accounts for 2015's historically low number of executions, I was moved to write this post by the realization that I have not seen or heard a single traditional death penalty advocate or "tough-and-tougher-on-crime" proponent claim that the widely-discussed uptick in homicides in some US cities might be attributable to the US now being softer on murderers. Not long ago, when the US was averaging five or six executions every month and murder rates were in decline, there was considerable complex empirical research contending that every execution might save a dozen or more innocent lives. But I noticed less and less of this kind research in the years before 2015, perhaps because we were still generally exeperiencing declining murder rates even as the number of yearly executions have started to decline.
Given how much talk and concern there is concerning an uptick in homicides in a number of cities, and especially given that there is much discussion and debate over whether and how criticisms of the police or recent drug epidemics or recent sentencing reforms might be playing a role, I am now struck and intrigued by the realization that traditional death penalty advocates and "tough-and-tougher-on-crime" proponents have not yet suggested there could be a link between fewer executions and more homicides in 2015. Critically, I am not trying to make any accusations about research agendas nor to suggest that there readily could or should be significant research efforts seeking to link modern execution trends and homicide rates. I am just observing that, despite what seems like a tendency for the "tough-and-tougher" crowd to attribute any crime spike to the nation "going soft" in some way, I have seen no effort to link the remarkably low number of executions in the US in 2015 to any crime patterns.
Wednesday, November 04, 2015
"Death sentences are down across the country — except for where one of these guys is the defense attorney."
The title of this post is the subheadline of this notable new Slate commentary authored by Robert Smith. The piece merits a full read, and here are some excerpts:
“He looks like a killer, not a retard,” Nathaniel Carr, a lawyer in Maricopa County, Arizona, wrote about his client, Israel Naranjo, who is now on death row. Naranjo has a standardized IQ score of 72, but Carr badly botched the introduction of this evidence at trial. The trial judge found that Carr “violated the rules of criminal procedure” and admonished him for both lacking candor and filing “offensive” and “incomprehensible” motions. The Arizona Supreme Court said Carr’s behavior could be described as “willful misconduct.” Carr has represented four of the men who currently occupy Arizona’s death row....
Carr might not visit his capital clients very often, but he does seem to be dedicated to his job — his other job as a high school football coach. People who knew Carr at the county courthouse told Paul Rubin of the Phoenix New Times that “coaching seems Carr’s true passion.” Indeed, Carr “often was unavailable to clients and co-counsel on most weekday afternoons during football season—and always on game days.” This dual career did not stop Carr from billing the county an average of $370,000 per year for his services — even though some the hours he billed were for team meetings and prison visits that appear to be fictitious. (Carr did not respond to requests for comment.)
Last year marked the lowest number of new death sentences in modern American history. Nationwide, in the five-year period from 2010 through 2014, only 13 counties imposed five or more death sentences. Maricopa County is one of those 13. With 24 new death sentences between 2010 and 2014, Maricopa is the nation’s second highest producer of death sentences, after Los Angeles County, which is twice as populous.
One explanation for why counties like Maricopa hang on to capital punishment is that the prosecutors in these places are outliers who continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned. But prisoners sentenced to death in these counties often suffer a double whammy — they get both the deadliest prosecutors in America and some of the country’s worst capital defense lawyers. Nathanial Carr makes that list of awful lawyers, but he is not the only one from Maricopa who deserves to be included.
Herman Alcantar has been called, by a lawyer intervening on behalf of one of his former clients, “arguably the busiest capital defense attorney in the entire United States.” That’s not a compliment. Capital cases are notoriously complex and time-consuming. One trial-level capital case can be a full caseload for a defense attorney, and almost no one considers it a good idea to handle more than two active death penalty cases at a time. During the winter of 2009, Alcantar represented five pretrial capital defendants at once. He was so busy, in fact, that one month before the trial of Fabio Gomez was set to begin, Alcantar had neither filed a single substantive motion nor visited his client in more than a year. Six of Alcantar’s former clients are on death row....
Like Maricopa, Duval County, Florida, is among the few counties in America that continue to regularly impose death sentences. Since 2010, it is the second highest producer of death sentences per capita, after Caddo Parish, Louisiana. MO When Shirk took over, he fired 10 lawyers, including senior capital litigators Ann Finnell and Pat McGuinness, whose stellar representation of a wrongfully arrested 15-year-old, Brenton Butler, was the subject of an Oscar-winning documentary film, Murder on a Sunday Morning. With his experienced capital litigators gone, Shirk hired Refik Eler to be his deputy chief and the head of homicide prosecutions. Since 2008, Eler has been a defense lawyer on at least eight cases that resulted in a death sentence. That’s more than any other lawyer in Florida. (Eler declined to comment.)...
The quality of defense representation in capital cases has substantially improved in many places. But not in Caddo Parish. Like Maricopa and Duval counties, Caddo Parish, Louisiana, is one of the few districts that continue to regularly impose the death penalty. Indeed, Caddo has become the leading per capita death-sentencing machine in America. Of the death sentences imposed in Caddo Parish since 2005, 75 percent of the cases involved at least one defense lawyer who, under the new case representation standards, is no longer certified to try capital cases in Louisiana....
In the counties with the most death sentences, prosecutors and defense lawyers, often abetted by judges and other local officials, fight to maintain the status quo that Stephen Bright wrote about 20 years ago. In these places, the death penalty is still a punishment reserved mostly for the people with the worst lawyers. Disproportionate numbers of death sentences in these few counties do not result from a high number of murders, or even the unique fervor of the residents who reside there, but instead from the operation of death’s double whammy—bloodthirsty, overreaching prosecutors and woefully inadequate defense lawyers.
Tuesday, November 03, 2015
Supreme Court stays Missouri execution to allow consideration of medical claim concerning execution
As reported in this AP article, the "U.S. Supreme Court on Tuesday put on hold the execution of a Missouri man convicted beating three people to death with a claw hammer while a lower court considers an appeal." Here is more about the stay:
Ernest Lee Johnson claims the execution drug could cause painful seizures because he still has part of a benign tumor in his brain, and surgery to remove the rest of the tumor in 2008 forced removal of up to 20 percent of his brain tissue.
The Supreme Court granted a stay while the 8th U.S. Circuit Court of Appeals considers whether his complaint was properly dismissed. It wasn't immediately clear how quickly the appeals court might rule....
Johnson was convicted of three counts of first-degree murder for killing 46-year-old Mary Bratcher, 57-year-old Mable Scruggs and 58-year-old Fred Jones during a closing-time robbery of a Casey's General Store in Columbia on Feb. 12, 1994. Johnson wanted money to buy drugs, authorities said. All three workers were beaten to death with a claw hammer, but Bratcher was also stabbed at least 10 times with a screwdriver and Jones was shot in the face....
Johnson grew up in a troubled home and his attorney, Jeremy Weis, said his IQ was measured at 63 while still in elementary school. Testing after his conviction measured the IQ at 67, still a level considered mentally disabled.
He was already on death row in 2001 when the U.S. Supreme Court ruled that executing the mentally disabled was unconstitutionally cruel and a new sentencing hearing was ordered. Johnson was again sentenced to death in 2003. The Missouri Supreme Court tossed that sentence, too, forcing another sentencing hearing. In 2006, Johnson was sentenced to death for a third time.
The brain tumor was removed in an operation in 2008. While benign, doctors could not remove the entire tumor. Weis said the combination of the remaining tumor and the fact that Johnson lost about one-fifth of his brain has left him prone to seizures and with difficulty walking.
Missouri's execution drug is a form of pentobarbital believed to be manufactured by a compounding pharmacy — the state won't say where it gets it. Weis cites a medical review by Dr. Joel Zivot, who examined MRI images of Johnson's brain and found "significant brain damage and defects that resulted from the tumor and the surgical procedure," according to court filings. "Mr. Johnson faces a significant medical risk for a serious seizure as the direct result of the combination of the Missouri lethal injection protocol and Mr. Johnson's permanent and disabling neurologic disease," Zivot wrote.
Court filings by the Attorney General's office note that Missouri has carried out 18 "rapid and painless" executions since it went to the one-drug method in November 2013.
"Death Penalty Opponents Split Over Taking Issue to Supreme Court"
The title of this post is the headline of this interesting new New York Times article by Adam Liptak. Here is how the piece gets started:
In the long legal struggle against the death penalty, the future has in some ways never looked brighter. In a passionate dissent in June, Justice Stephen G. Breyer invited a major challenge to the constitutionality of capital punishment. This fall, Justice Antonin Scalia all but predicted that the court’s more liberal justices would strike down the death penalty.
But lawyers and activists opposed to the death penalty, acutely conscious of what is at stake, are bitterly divided about how to proceed. Some say it is imperative to bring a major case to the court as soon as practicable. Others worry that haste may result in a losing decision that could entrench capital punishment for years.
“If you don’t go now, there’s a real possibility you have blood on your hands,” said Robert J. Smith, a fellow at Harvard Law School’s Charles Hamilton Houston Institute. His scholarship was cited in Justice Breyer’s dissent from a decision upholding the use of an execution drug that three death row inmates argued risked causing excruciating pain.
But others are wary. “There are reasons to be cautious about pushing the court to a decision too early,” said Jordan M. Steiker, a law professor at the University of Texas.
The divide is partly generational. Many veteran litigators have suffered stinging setbacks in the Supreme Court, and they favor an incremental strategy. They would continue to chip away at the death penalty in the courts, seek state-by-state abolition and try to move public opinion. Some younger lawyers and activists urge a bolder course: to ask the Supreme Court to end capital punishment nationwide right away.
Monday, November 02, 2015
"Will the Roberts court abolish capital punishment?"
The question in the title of this post is the headline of this recent lengthy article in The Hill. Here are excerpts:
The U.S. Supreme Court appears on track to revisit the constitutionality of the death penalty, with recent remarks from justices and world leaders sparking fresh optimism from opponents of capital punishment.
The high court under Chief Justice John Roberts has in recent terms agreed to rule on cases related to how states handle death penalty prosecutions and conduct executions, but has yet to weigh in on whether the practice violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
Some court watchers say that will soon change, pointing to signals suggesting an appetite among some of the justices to delve into that question in the near future, if not this term. “There is a feeling that this is not a long shot with the court anymore,” said Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project. “I think there is no question we have four votes.”
Many in the legal field have pointed to Justice Stephen Breyer’s dissenting opinion in a case known as Glossip v. Gross as evidence of the court’s trajectory. The case, decided last year, centered on whether state can use of the drug midazolam in lethal injections. While the majority ruled in the affirmative, some viewed Breyer’s dissent — which was joined by Justice Ruth Bader Ginsburg — as practically inviting lawyers defending death row inmates to bring a broad challenge, and providing a blueprint for what it might look like.
“Today’s administration of the death penalty involves three fundamental constitutional defects: serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty’s penological purpose,” Breyer wrote. “Perhaps as a result, most places within the United States have abandoned its use.”...
But even conservative Justice Antonin Scalia says it could happen. During a speech last month at a Tennessee college, Scalia said he “wouldn’t be surprised” if the court ruled the death penalty unconstitutional, suggesting there are at least four justices that hold that view, according to a report in The Los Angeles Times....
The speculation comes amid renewed attention on the divisive issue, sparked most recently by Pope Francis’ call during September’s address to Congress for the “global abolition” of the death penalty.
President Obama, who supports the death penalty in certain cases, has himself shown signs of shifting his position, particularly after a botched execution in Oklahoma last year that prompted him to order a study of issues surrounding capitol punishment. The White House said Obama was “influenced” by the pope’s remarks in Washington. And in a recent interview with The Marshall Project, Obama said he finds the practice of the death penalty "deeply troubling.” He went on to reference racial disparities in it’s application, how long it takes to carry out, inmates who have been found innocent and recent executions that, as he said, have been “gruesome and clumsy.”...
Proponents of the death penalty, however, push back against the notion that the tide has begun to turn against the death penalty. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, pointed to an October Gallup poll showing stable support. The poll found that 63 percent of Americans favor the death penalty for convicted murderers, numbers that proved generally consistent with attitudes in 2008....
Public support or not, Scheidegger said cases challenging the death penalty have been coming before the court for over 50 years. “It’s not something that is a new idea,” he said. “I would not expect them to grant certiorari on a question of whether the death penalty violates the Eight Amendment in the foreseeable future.”
Even so, Scheidegger said potential vacancies on the Supreme Court coupled with a new president could threaten a practice that’s legal in 31 states. “It’s been a consistent pattern that justices nominated by Democratic presidents are more criminal friendly than those appointed by a Republican president,” he said. “ I would expect that pattern to continue to hold.”
For now, the court has only agreed to hear questions on procedural aspects of death penalty cases. On Monday, for example, the court will hear arguments in Foster v. Chatman, which questions if race was used to discriminate against potential jurors in a capital case out of Georgia. Scheidegger said these types of cases have very little to do with the justice of the case, but rather are designed to chip away at capitol punishment. “Polls consistently show the death penalty is just and right in some cases,” he said. “They are trying to grind it down through a war of attrition.”
Saturday, October 31, 2015
Might California get two completing capital punishment propositions to consider in 2016?
The question in the title of this post is prompted by this notable new Los Angeles Times article headlined "Voters may weigh competing death penalty measures on 2016 ballot." Here are excerpts:
A pro-death penalty group unveiled a ballot measure Friday that would require death row inmates to work in prison and provide new deadlines intended to expedite appeals. The measure, which would appear on the November 2016 ballot, is aimed at speeding up executions in California. The state has executed 13 inmates since 1978, but nearly 750 remain on death row, the largest in the nation. Most condemned inmates die of suicide or illness.
A proposed anti-death penalty initiative also has been submitted for state review, creating the possibility that voters next year will weigh competing initiatives on capital punishment. Both measures would require current death row inmates to work and pay restitution to victims, but one would keep the death penalty, and the other scrap it for life without parole.
Backers of the death penalty estimate their new measure would reduce the time from conviction to execution from as long as 30 years to 10 to 15 years. San Bernardino County Dist. Atty. Mike Ramos, one of several supporters who spoke about the measure at a Los Angeles news conference, said it would honor the more than 1,000 victims — including 229 children and 43 peace officers — who have been murdered by inmates on California’s death row.
Neither side in the death penalty debate has yet raised the commanding sums needed to assure ballot placement. The pro-death penalty group said it has raised $1 million so far. The opposition has raised $350,000. An estimated $2 million is probably needed to gather the required signatures.
Friday's news conference came a few days before the state plans to release a revised method of execution. The new protocol will involve a single drug rather than the three-drug cocktail previously used. Court rulings have prevented the state from executing anyone since 2006. A federal judge ruled that the former method exposed inmates to inhumane suffering if one of the three drugs failed to work....
The measure announced Friday is similar to one that death penalty supporters launched more than a year ago. The earlier proposal did not get enough signatures to qualify for the ballot. A key difference is that the former was a proposed constitutional amendment, which requires more signatures than a mere change in state law.
Like the earlier measure, the newest one would allow the revised lethal injection method to take effect without exhaustive public comment. Death row inmates would be housed throughout the prison system.
The state’s voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000.
Ana Zamora, the criminal justice policy director for the ACLU of Northern California, which sponsored the 2012 initiative to end the death penalty, said Friday’s proposal would just cause more delays. “The only solution is to keep murderers in prison until they die,” she said.
But Kermit Alexander, whose mother, sister and two young nephews were killed in 1984, said families deserve the execution of those who killed their loved ones. Choking back tears, the former football star said the killer, now on death row, had mistakenly gone to the wrong house when he killed Alexander’s family. “If you prey upon the elderly or massacre our children,” Alexander said, “you should be required to pay the ultimate price. It's the law. … Justice isn't easy. Justice isn't gentle. But justice denied isn't justice.”
As some readers may know, I am a huge fan of direct democracy and thus I am always generally support of any and all efforts to bring important issues directly to voters through the initiative process. In addition, because I generally view the death penalty to be an issue that can be effectively and soundly addressed through the initiative process, I am now rooting for both capital reform proposals to make it to California voters. (Indeed, I have of late been thinking/hoping someone might have the resources and inclination to bring some kind of initiative reform concerning the death penalty to Buckeye voters in my own state of Ohio.)
Friday, October 30, 2015
"IQ, Intelligence Testing, Ethnic Adjustments and Atkins"
The title of this post is the title of this intriguing new paper authored by Robert M. Sanger and available via Bepress. Here is the abstract:
In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty. Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled. Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.
Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty. This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race. The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores. Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.
Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors — such as childhood abuse, poverty, stress, and trauma — can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.
Florida finally completes execution three decades after triple murderer sentenced to death (nonunanimously)
As reported in this local article, headlined "Orlando man on death row executed for 1985 murders," Florida carried out a notable death sentence last night. Here are the basics, which highlight that the case involved issues that the Supreme Court has taken up in recent years:
Though it took 30 years for Jerry Correll to receive his death sentence, the process to kill him took 10 minutes. Correll, one of Orange County's most notorious killers, was pronounced dead at 7:36 p.m. Thursday at Florida State Prison after receiving a lethal injection that included the controversial sedative midazolam.
About two dozen witnesses watched as the 59-year-old Orlando man lay on a gurney covered with a white sheet from the neck down, his hands covered in bandages, his wrists strapped down and IVs in his arms. When the curtain surrounding him rose, Correll looked to his right and mouthed the words, "Thank you," to a man wearing a cross in the front row. Asked whether he wanted to say any last words, Correll responded to the leader of the execution team, "No, sir."
Correll had been on death row for three decades after stabbing to death his ex-wife, Susan; their 5-year-old daughter, Tuesday; and Susan's mother and sister in 1985. Police and prosecutors described the murders at the Conway-area home as among the most bloody and gory they had ever seen....
The victims' family members released a statement saying they were "at peace in knowing justice had finally been served." "Jerry Correll chose to take the lives of four beautiful, innocent people on June 30, 1985," the statement said. "People who are still loved and missed by their family and friends 30 years later. The consequences of those actions should be no less than death itself."...
The execution was the first in the nation since a U.S. Supreme Court ruling in June that allowed the use of midazolam, a sedative that is part of the three-drug protocol used in Florida executions.... Correll becomes the second inmate executed in Florida this year and the 91st since 1979, according to the Death Penalty Information Center.
A U.S. Supreme Court case regarding whether all death-penalty decisions should require a unanimous jury verdict in sentencing death ... is pending.... A jury of 10 women and two men, selected in Sarasota because of the publicity locally, convicted Correll of four counts of first-degree murder after a weeklong trial. Jurors voted 10-2 that he should die.
Thursday, October 29, 2015
Leading Dems stake out notable positions on death penalty and marijuana reform
For sentencing and criminal justice fans, last night's GOP Prez debate was a big snooze. But, as the two articles linked below highlight, the leading Prez candidates for the Democrats made headlines in this arena yesterday:
October 29, 2015 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)
Sunday, October 25, 2015
Extraordinary tales of extraordinary government dsyfunctionality in execution business
In this recent post I spotlighted the remarkable reporting by BuzzFeed News about the peculiar fellow in India who has become a central figure in some states' efforts to get their machinery of death up and running again. Continuing their great investigavtive journalism in this space, BuzzFeed now has up two additional reports documenting how a trio of states apparently violated federal laws in order to try to import lethal injection drugs from this fellow. Here are links to the two pieces with their extended headlines:
"Arizona, Texas Purchased Execution Drugs Illegally Overseas, But FDA Halts The Import: Both Arizona and Texas attempted to illegally import sodium thiopental in July, but the shipments are still being held at the airports. Nebraska also attempted to import the same drug illegally this summer, as previously reported."
"Three States Bought Illegal Execution Drugs From Supplier In India: Chris Harris, the execution drug salesman who has been the focus of ongoing reporting by BuzzFeed News, sold drugs to Texas, Arizona, and Nebraska."
Here is how the second of these two articles concludes:
The FDA has consistently maintained that importing sodium thiopental would be illegal, but the states proceeded regardless. FDA records first reported on Thursday by BuzzFeed News show that two shipments of sodium thiopental made their way to the Phoenix and Houston airports in late July.
On Friday, TDCJ’s Clark told BuzzFeed News that, after obtaining an import license from the DEA prior to the shipment, TDCJ filed the required notice with the agency of the anticipated shipment.
After the shipments were held upon arrival, Arizona Department of Corrections Director Charles Ryan wrote to the FDA in August, asking them to release the drugs. “The Department will not use, or attempt to use, the cargo until it is either unconditionally released by FDA or the Department is otherwise permitted to do so by a Court Order, whichever comes first,” Ryan wrote. “I am writing to advise you that we need to take possession of the shipment.”
The FDA was not persuaded. Domenic Veneziano, who heads the FDA division that handles imports, replied, “FDA has determined that this shipment should not be allowed to move to destination at this time and thus will not be requesting that CBP lift its detention.”
For its part, Texas isn’t giving up yet, with TDCJ’s Clark telling BuzzFeed News on Friday that it “is going through internal proceedings set up for addressing the lawful status of imports with the Food and Drug Administration and is awaiting their decision.”
The FDA confirmed to BuzzFeed News on Friday that it was still holding the shipments. “Courts have concluded that sodium thiopental for the injection in humans is an unapproved drug and may not be imported into the country for this purpose. FDA has notified the state correctional facilities of the status of their respective shipments,” spokesperson Jeff Ventura wrote.
Asked whether, given the FDA’s repeated statements that such importation of sodium thiopental would not be allowed, TDCJ is challenging that position, TDCJ’s Clark responded, “We disagree with your characterization of the FDA’s statement as to the legality of importing sodium thiopental, we are appealing the detention of the drugs through the FDA’s internal proceedings.”
As if this story of government dysfunctionality was not ugly enough on its own terms, this post by Kent Scheidegger at Crime & Consequences contends that the federal government is the one really acting outside the rightful reach of the law. His post is titled "FDA Blocks Execution Drug Importation Based on Erroneous Court of Appeals Decision," and it makes the case (as was made in a slightly different way by Ohio officials) that the FDA is off-base and over-reaching in this arena.
In addition to wanting to note that my expertise on the death penalty comes up short when the issues is federal and state squabbles over federal drug and import laws, I am now especially eager to stress that I have been calling for Congress for nearly a decade to conduct hearings and investigate all the difficulties states have been facing with lethal injections protocols and securing executions drugs. But, as one commentors suggested in response to my post on this topic in May 2014, perhaps the only way we woud get hearing on this topic in short order would be if there was some link to Benghazi.
Some prior related posts:
- Investigating the international drug dealer working with some death penalty states
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
- How could (and should) Congress clean up the lethal injection mess? (from April 2006)
- A lethal hearing (in the wrong place?) (from Sept 2006)
- Shouldn't Congress be holding hearings to explore federal and state execution methods? (from April 2014)
Friday, October 23, 2015
"Utah latest red state grappling with death penalty"
The title of this post is the headline of this notable local article reporting on a notable new discussion about the death penalty in the Beehive State. Here are the basics:
For the first time in years, Utah lawmakers are debating the merits of the death penalty, with some conservative Republican legislators questioning whether the cost and risk of executing innocent people argued for doing away with executions in the state.
"I'd pull the switch if I knew the person was guilty, and I have no problem with an eye for an eye," said Sen. Mark Madsen, R-Saratoga Springs. "But it is not a conservative value to have blind, slavish faith in government and to assume that they'll always get it right just because they have a badge or work in the prosecutor's office and we've invested them with a lot of authority."
Members of the Legislature's Judiciary Interim Committee heard from a pair of legislators in Nebraska about why that state recently abolished capital punishment, and critics of the death penalty who said the cost is exorbitant and the risk of executing innocent people is very real.
Madsen, the committee chairman, described his own evolution on the issue, to the point where he would support following the lead of legislatures in other states and do away with the death penalty. Other states are already moving in that direction.
Last week, Ohio Gov. John Kasich granted a reprieve to inmates scheduled for execution in 2016, since the state has been unable to obtain the drugs used in lethal injections. The attorney general in Oklahoma announced a one-year moratorium on executions after it was found the state used the wrong drug in its most recent case. Earlier this month, a judge in Montana blocked executions in that state for the same reason.
And the Nebraska Legislature repealed the death penalty earlier this year, but a petition drive seeking to reverse the move has blocked the repeal from taking effect until after the 2016 election.
Nebraska Republican Sen. Brett Lindstrom told the committee by phone that he supported the death penalty a year ago, but botched executions in other states and concerns about the cost and false convictions led him to a change of heart. "It just wasn't something that was working all that well in the state of Nebraska," he said....
The prospects for such a major shift among Utah's conservative Legislature are unclear, and neither Madsen nor any other Utah lawmaker is currently sponsoring a bill to end the death penalty. "I don't think Utahns think that much about the death penalty because it hardly ever happens in our state, but when it does, it's a horrific thing," said Rep. Steve Handy, R-Layton. But he acknowledged polls continue to show public support for the practice. "I don't see — and I'm going to say, unfortunately — too much of an appetite to ban the death penalty."
Handy cited figures he had prepared by legislative analysts in 2012 that showed executing a hypothetical 25-year-old convict would cost the state $1.6 million more than it would cost to incarcerate the same inmate for the rest of his or her life. And the state, at that time, spent $1.75 million a year handling death-row appeals.
More compelling to several lawmakers, was the risk of wrongly executing an inmate. Jensie Anderson from the Rocky Mountain Innocence Project said there are estimates that 4 percent of those on death row in the United States are innocent. Since 1973, there have been 156 death-row convicts who have been exonerated — one exoneration for every nine inmates put to death. "The problem is the system gets it wrong," she said....
But some, like Rep. Dixon Pitcher, R-Ogden, has no problem with continuing the current course. He and Handy knew Carol Naisbitt and her son Cortney, who were shot in the back of the head during the Ogden Hi-Fi murders in 1974. Carol was killed and Cortney lived with debilitating injuries until he died in 2002. Their killers, Pierre Dale Selby and William Andrews, were executed in 1987 and 1992, respectively.
Pitcher said he trusts the checks in place in the justice system to get it right and would be "opposed to taking [the death penalty] off the table."...
House Minority Leader Brian King, D-Salt Lake City, said the process of going through an execution itself is detrimental to society. "It's not the high road that I think we as a state and we as a country should be on, and the existence of the death penalty for me is a very coarsening thing," King said.
Thursday, October 22, 2015
"Heroin as an execution drug?"
The title of this post is the headline of this notable Columbus Dispatch article discussing the legislative conversation starting to emerge in the wake of the recent decision by Ohio Gov Kasich to extend the state's de facto moratorium on executions due the the continuing difficulty securing lethal injection drugs (noted here). Here are excerpts:
As Ohio continues to struggle to find the drugs needed to carry out executions of death row inmates, the president of the Ohio Senate says it may be time to find other methods. “If we can’t get the drugs that our protocol calls for, either we need to change our protocols, or we need to think about other solutions,” said Senate President Keith Faber, R-Celina.
“There are a lot of people out there talking about other solutions. I’ve heard everything from using heroin, to using nitrogen, to going back to the electric chair. That’s a debate we probably need to have.”
The state's has not executed an inmate since Jan. 16, 2014, when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of drugs being used for the first time anywhere in the U.S. The state last week canceled all executions for 2016 and there are now 24 inmates with executions scheduled into 2018.
A law that Gov. John Kasich signed in December allowing prison officials to secretly buy lethal-injection drugs from compounding pharmacies has not worked in getting Ohio the necessary drug mixture. Pharmacies have generally been unwilling to participate in a process that leads to little in sales but a potential for harsh blowback from the public if they are discovered.
The federal government has thus far blocked Ohio’s efforts to import the drugs from overseas, though the state continues to seek ways to do that. Asked if the state would bring back the electric chair known as “Old Sparky,” Faber said, “there are options out there.”
A few prior related posts:
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
- In defense of Ohio officials trying to figure out how to get execution drugs legally
- Ohio Gov Kasich extends de facto execution moratorium into 2017
Investigating the international drug dealer working with some death penalty states
BuzzFeed this week published this fascinating report on a curious person who has become a central figure in some states efforts to get their machinery of death up and running again. The article's full headline highlights why the piece merits a full read: "This Is The Man In India Who Is Selling States Illegally Imported Execution Drugs: When states ran out of execution drugs, they started paying tens of thousands of dollars to Chris Harris, a salesman in India with no pharmaceutical background." Here is how the extended article gets started:
Eight thousand miles from the execution chamber at the Nebraska State Penitentiary is Salt Lake City — a planned satellite town in Kolkata, the capital city of India’s West Bengal state. It’s a modern mecca of swanky office complexes, colleges, shopping malls, and restaurants. Here, on the eighth floor of a plush glass building overlooking a lake, is an office where Nebraska’s lethal injection drug supplier says he makes his drugs.
A laminated paper sign stuck on the door of room 818 reads “Harris Pharma - manufacturer and distribution.” The office, with powder-blue walls and a frosted glass facade, is one of 61 spaces on the floor rented out to various companies.
This is the facility in India where a man named Chris Harris, a salesman without a pharmaceutical background, claims his manufacturing and distribution business is based. He has sold thousands of vials of execution drugs for corrections officials in the U.S. who are desperate to find drugs to carry out the death penalty. An employee who works at the facility, however, said the office is not being used to make drugs.
Saurav Bose, a customer relations officer at the office rental company who has met Harris twice since he started working here a few months ago, said Harris did not manufacture drugs in this rented office. Harris’s office, which was shut on a Tuesday morning when a reporter from BuzzFeed News visited, is much like the other ready-to-use, standardized workspaces available to rent by Regus — an international firm operating in 900 cities across the world, including the more well-known Salt Lake City in Utah. It appeared highly unlikely that the rented office would accommodate laboratory equipment required to manufacture pharmaceutical drugs.
“He comes only two to three times in a month,” Bose said, adding that most of his communication with Harris was limited to email. Bose, who described Harris as being “fickle” with his visits to the office, said he rarely had any clients or other people in the office.
BuzzFeed News identified several such inconsistencies after reviewing thousands of pages of court records, emails, and invoices; interviewing his past business partners; and visiting the locations in India from which Harris claims to run his business. BuzzFeed News spent more than four months trying to talk to Harris over emails, via phone calls and during a visit to his office in India. Each time, Harris refused to talk.
“Quote me on this. I don’t speak to reporters as they always say what is not true,” Harris told BuzzFeed News when first contacted for comment in June. After months of reporting on his sale to Nebraska, Harris again declined to talk with BuzzFeed News in September, writing, “Do and say what you want. But I will never give a reporter 2 min of my time. As all print what they want. Not the true story. They need a scandal to get sales and keep they jobs.”
BuzzFeed News has been able to confirm four times that Harris sold execution drugs illegally to four death penalty states, and documents indicate there is likely a fifth. His sales follow a typical script: The legal issues are fixed this time, don’t worry about it. Other states are buying it, too. You aren’t the only one. You just need to make it a “minimum order” to make it worth the while. Payment in advance. The documents show little effort by states to investigate Harris’s qualifications or the legalities of importing drugs.
Harris has gotten states to pay tens of thousands of dollars for his drugs, but each time, after concerns were raised over the legality of the purchase, the drugs have gone unused. Somehow, states are still falling for it.
Noting the notable decline in death sentences in Texas
A few years ago, I generally considered talk of the "death of the death penalty" to have been somewaht overstated even as a few new states abolished the death penalty and a few other states struggled with executions. In the past I saw the talk as overstated largely because committed death penalty states like Texas and a few others were still regularly carrying out executions and because most years nationwide still more murderers were getting sentenced to death row than we getting released from death row.
But now, circa fall 2015, with Arkansas, Ohio and Oklahoma all recently halting scheduled execution plans because of continued lethal injection problems and litigation even after the Glossip ruling, I see more to the talk of the death penalty's demise. And this notable death penalty administration story out of the Lone Star State, headlined "Texas Poised to See New Low in Death Sentences," provides more reason for justified excitement among death penalty abolitionists. Here are the details:
Texas is on track to see fewer death sentences handed down in 2015 than in any other year since the state’s death penalty was reinstated in 1976. In the past two weeks, two new inmates arrived on Texas’ death row — the state’s first two death sentences of 2015. A jury sentenced a man to death in a third case, but he is awaiting a competency trial, so that sentence is unofficial.
Kathryn Kase, executive director of Texas Defender Services, a nonprofit organization of death penalty attorneys, said that there is one new death penalty trial underway and another case “threatening to go” for a death penalty. “That’s a very low number [of cases] for Texas," Kase said. “We see fewer cases overall going to the death penalty across the country, and that’s no different in Texas.”
In 2011, eight people were sentenced to death in Texas, currently the lowest number for any full calendar year, according to TDCJ. Kase said that there had been three other death penalty cases this year, all ending in sentences of life without parole.
Experts often point to the 2005 introduction of a penalty of life without parole in the state as a reason for the decline in death sentences in recent years. In 2015, however, there has been a drastic drop from even last year, when there were 11 death sentences handed out.
There are many theories on the cause of this year’s drop, including new legislation from 2013 on criminal discovery reform and prosecutors pursuing the death penalty less often, Kase said. “You see prosecutors who are more concerned about innocence, more concerned about intellectual disabilities,” Kase said.
Robert Kepple, executive director of the Texas District & County Attorneys Association, points to a simpler reason for the decrease: a lower crime and murder rate. “We shouldn’t be surprised that death penalty cases are going down when there have been less murders,” Kepple said. “That’s a success story.”
The three death sentences handed down by Texas juries this year were all within the last two weeks. The sentences came 10 months after Eric Williams was sent to death row in December for the 2013 killing of the Kaufman County district attorney's wife, Cynthia McLelland. It was the state’s longest stretch between new death sentences since the death penalty was reinstated, Kase said, adding that the timing of the three cases is “purely coincidental."
Wednesday, October 21, 2015
Evangelical group adds interesting nuance to death penalty stance
As reported in this Christian Science Monitor article, a notable religious group has made a notable change in its death penalty position. The article's headline(s) provide the basics: "Why US evangelicals are changing their position on the death penalty: The National Association of Evangelicals has officially supported the death penalty for more than 40 years. They have now softened their stance." Here are the details:
As the death penalty continues to lose favor with Americans, the National Association of Evangelicals has adjusted its position on the practice. Since the early 1970s, the NAE has supported capital punishment as a deterrent to criminals. But on Monday, the organization — which represents more than 45,000 churches from almost 40 different denominations, serving millions of Americans — passed a resolution that acknowledges growing opposition and differing views on death penalty.
"Evangelical Christians differ in their beliefs about capital punishment, often citing strong biblical and theological reasons either for the just character of the death penalty in extreme cases or for the sacredness of all life, including the lives of those who perpetrate serious crimes and yet have the potential for repentance and reformation," the resolution states. "We affirm the conscientious commitment of both streams of Christian ethical thought."...
White evangelical support for the death penalty has waned recent years, from 77 percent in 2011 down to 71 percent in 2014, according to a March survey from the Pew Research Center. At the same time, 66 percent of white mainline Protestants and 63 percent of white Catholics favor the death penalty. Overall, the survey shows American support for the death penalty has dropped from 78 percent in 1996 to 56 percent in 2014.
Tuesday, October 20, 2015
Arkansas Supreme Court stays execution to allow lethal injection litigation
As reported in this AP article, a partial ruling in favor of the state today by the top court in Arkansas was insufficient to allow the state to move forward with a number of scheduled executions. Here are the details:
The Arkansas Supreme Court ruled Tuesday that a lower-court judge overstepped his jurisdiction by halting the executions of eight death row inmates. But the high court immediately granted its own stay to give the inmates time to challenge a new state law that bars Arkansas from disclosing its execution-drug supplier.
The justices sided with the state in agreeing to toss this month's order by Pulaski County Circuit Judge Wendell Griffen. Still, Attorney General Leslie Rutledge said she was disappointed that the executions, the first of which was scheduled for this week, remained on hold. "While the Supreme Court's decision is not about the merits of the case, it is unfortunate that this further delays justice for the victims. I will continue to defend Arkansas's lethal injection statute and fight for the victims and their grieving families," Rutledge wrote in a statement Tuesday.
The high court also refused to order Griffen to schedule an earlier hearing in the case. He set the next hearing for March, just months before one of the state's execution drugs is set to expire. The attorney general's office had asked for a faster timetable, arguing that defense attorneys were trying to delay the case until the drug was no longer usable.
The prisoners are challenging the constitutionality of the state's new secrecy law, saying they need information about where and how the state's execution drugs were made to determine whether they will lead to cruel and unusual punishment. They also argue that the law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information, but the state has said the agreement was not a binding contract.
The inmates also are challenging Arkansas' three-drug execution protocol, focusing on the use of the drug midazolam. The sedative was implicated after inmates gasped and groaned during longer-than-expected executions in Oklahoma, Ohio and Arizona. "We realize there is a lot of litigation yet lying in front of us. But we feel the decision of the Supreme Court was the appropriate decision in this case," said Jeff Rosenzweig, an attorney for the inmates. "The state made a binding commitment to provide us with this information and we are entitled to this information."
Sunday, October 18, 2015
Referendum on legislative death penalty appeal now officially on Nebraska ballot for 2016
As reported in this local article, headlined "Death penalty supporters put repeal on hold till 2016 vote," Nebraska is going to be the locus and focus for a lot of death penalty debate over the next year. Here is why:
A pro-death penalty group has submitted enough valid signatures to postpone the repeal of capital punishment and place a referendum on the issue on the November 2016 ballot, it was confirmed Friday.
Nebraska Secretary of State John Gale said Friday that he has sent letters certifying the success of the petition drive mounted by Nebraskans for the Death Penalty, a group backed by Gov. Pete Ricketts.
The group launched a signature drive in June shortly after the Nebraska Legislature overrode a veto by Ricketts to abolish the death penalty in the state.
Gale said the petition drive had not only submitted enough signatures to force a vote on the issue during the 2016 general election, but also to postpone the repeal until that vote is taken. “More than 143,000 signatures were verified to our office from counties where signatures were collected, which was more than enough to meet each of those thresholds,” Gale said in a press release.
Chris Peterson, a spokesman for the pro-capital-punishment group, said in a press release that the campaign to retain the death penalty has begun. “Our message is simple: the death penalty is an appropriate punishment for the most heinous of murders, it protects public safety officers from criminals who otherwise have nothing to lose by murdering a corrections officer, and is a worthwhile deterrent if it saves even a single life,” Peterson said.
Dan Parsons, a spokesman for the anti-death-penalty coalition Nebraskans for Public Safety also issued a statement. “Nebraska voters will have the same opportunity the Legislature did to have a thoughtful discussion on whether to bring back a failed system that hasn’t been used in nearly two decades, is not a deterrent, and is a waste of taxpayer dollars,” Parsons said.
As a result of Friday’s announcement, the death penalty remains on the books, according to Nebraska Attorney General Doug Peterson, who also issued a press release. But the state still lacks the necessary drugs to carry out a lethal injection execution. Even if the state could obtain the drugs, legal scholars have expressed doubt that the Nebraska Supreme Court would approve a death warrant pending the Nov. 8, 2016, vote....
Ricketts issued a statement Friday after the verification: “Nebraskans continue to tell me that the death penalty is an important public safety tool. Today’s announcement takes us one step closer to giving the voters a say in retaining the death penalty.”
One thing that could prevent a vote on the issue would be a court order, and death penalty opponents have filed two lawsuits in an attempt to do that. One of the lawsuits claims that Ricketts should have been listed as an official sponsor of the petition drive because he was a major financier of the effort, contributing $200,000.... The second lawsuit maintains that the ballot language approved by the Nebraska Attorney General’s office was misleading and slanted.
Saturday, October 17, 2015
"The Decline of the Virginia (and American) Death Penalty"
The title of this post is the title of this notable new article by Brandon Garrett now available via SSRM. Here is the abstract:
The American death penalty is disappearing. Death sentences and executions have reached the lowest levels seen in decades. Public support for the death penalty has declined. More states have abolished the death penalty or imposed de facto moratoria. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline. Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s. How times have changed. There are now two or fewer trials a year in Virginia at which a judge or jury even considers imposing the death penalty. Still more surprising, over one half of those trials in Virginia now result in a life sentence (11 of 21 cases from 2005 to present at which there was a capital sentencing hearing resulted in a life sentence).
Why is this happening and in Virginia of all places? In this study of the decline in the Virginia death penalty, I examine every capital trial since 2005, a group of 21 trials, and I compare those to a group of twenty capital trials from 1996 to 2004. The law on the books has not meaningfully changed in ways that would make it harder to obtain death sentences in Virginia. However, in 2004 regional capital defense resource centers were created to handle capital cases. From 1996 to 2004, the crucial sentencing phase at which the judge or jury decided whether to impose the death penalty was typically cursory, averaging less than two days long. In the more recent trials, the average was twice that — four days — and still more striking was the increase in numbers of defense witnesses called, greater use of expert witnesses, and the added complexity of sentencing proceedings. Only seven counties have imposed death sentences in the past decade in Virginia. The changed understanding of effective mitigation, together with improved defense resources, may help explain the decline.
I examine additional evidence from North Carolina and Florida, situating the role of other factors such as national trends in homicide rates, and conclude by describing heightened Eighth Amendment concerns with the scattered state of the American death penalty.
Friday, October 16, 2015
Oklahoma AG officially agrees not to seek state executions anytime soon
As reported in this new local piece, headlined "All executions may be put on hold until 2016, court documents show," a new court filing suggests Oklahoma now has another de facto temporary moratorium on executions in place. Here is why:
Attorneys for death row inmates and the Oklahoma attorney general's office jointly filed a motion in federal court early Friday morning requesting that executions and a legal challenge to the state's death penalty be put on hold. If granted, the request would mean no executions would take place in Oklahoma until 2016, at the earliest.
All of Oklahoma's scheduled executions were put on hold last month after the execution of inmate Richard Glossip was halted when corrections officials noticed they'd received the wrong drug for the procedure. Oklahoma Attorney General Scott Pruitt said the indefinite stay made it unnecessary to litigate challenges to the state's execution protocol brought by Glossip's attorneys.
“As I have previously stated, my office is conducting a full and thorough investigation into all aspects of the Department of Corrections' handling of executions," Pruitt said. "The Oklahoma Court of Criminal Appeals granted the state's request for an indefinite stay of all scheduled executions. My office does not plan to ask the court to set an execution date until the conclusion of its investigation."
In the filing, both parties agree the state should not seek any new execution dates until all on-going federal and state investigations into Oklahoma's death penalty have been completed, any investigations and changes to protocol are made available to the extent they are public, and the Oklahoma Department of Corrections is able to comply with its execution protocol.
A multicounty grand jury will hear testimony on Tuesday from Corrections Department Director Robert Patton and other officials as part of a state investigation, and the attorney general's office is conducting an internal inquiry into recent lethal drug mix-ups.
Some recent prior posts:
- Oops: "Oklahoma used wrong drug in January execution, autopsy report shows"
- Is anyone surprised to learn of government dysfunction as Oklahoma operates machinery of death?
Notable new polling on distinct sentencing/punishment issues
Via two of my favorite crime and punishment bloggers, I see that there are two new polls about public views of two different sets of sentencing and punishment issues:
From Kent Scheidegger at Crime & Consequences, "Gallup: Solid Majority Continue to Support Death Penalty"
For a host of reasons, I am not sure these polls are especially consequential when it comes to changing the minds or votes of established politicians. After all, as I discussed in this recent post about medical marijuana reforms consistently polling at 90% support, we long ago would have seen an end to blanket federal marijuana prohibition if elected officials were very responsive to public polling on all these issues. Still, these polls still provide a useful snapshot of some public perceptions of sentencing reform debates, and they also might lead even established politicians to be more (or less) confident about how aggressive they should be in their efforts in this arena.
Thursday, October 15, 2015
Texas completes its 12th execution of 2015
While many other states continue to struggle to acquire execution drugs (as highlighted here) or to properly administer the drugs they have (as highlighted here), Texas continues to have its machinery of death humming. This AP article, headlined "Texas Executes Inmate for Killing Dallas Police Officer," reports on the state's latest execution:
A Texas man already being sought for a neighbor's slaying when he killed a Dallas police officer outside a club was executed Wednesday. Licho Escamilla was put to death for the November 2001 death of Christopher Kevin James who was trying to break up a brawl involving Escamilla. The 33-year-old prisoner was pronounced dead at 6:31 p.m. CDT — 18 minutes after the lethal injection began.
Escamilla became the 24th convicted killer executed this year in the United States. Texas has accounted for 12 of the executions. Before dying, Escamilla looked at the slain officer's daughter, who was seated a few feet away watching through a window, and told her: "God bless your heart."
He turned to his relatives watching through another window and said he loved them and everyone who supported him. "Pope Francis, God's children has asked the state of Texas to switch my death sentence to life in prison," he said. "But the state of Texas has refused to listen to God's children. They will have to take that up with God," he added.
He took two breaths as the sedative pentobarbital took effect, then became still. His sister cried and screamed for God not to take him. The rumbling of motorcycles could be heard outside the prison where bikers supporting the punishment had gathered....
James and three other uniformed officers were working off-duty when the brawl started. Escamilla pulled out a gun and opened fire on the officers as they tried to end the fight. The bullets from his 9 mm semi-automatic handgun struck James twice, knocking him to the ground. Escamilla then calmly walked up to the officer and fired three more shots into the back of his head before running and exchanging shots with other officers, witnesses said. A second officer wounded in the shootout survived. A wounded Escamilla was arrested as he tried to carjack a truck.
About a half-dozen Dallas police officers stood at attention and saluted as relatives of the slain officer entered the prison in Huntsville ahead of the execution. "It's taken longer than we would have liked," Frederick Frazier, first vice president of the Dallas Police Association, said. He said he and others showed up to support James and make sure he's remembered for the work he did. While officers know they're risking their lives every day, James' death has been difficult for them because of how it happened, Frazier added.
Tuesday, October 13, 2015
Lots of tea leaves (readings may vary) from SCOTUS arguments in Montgomery and Hurst
I have now had just enough time to skim the SCOTUS oral argument transcripts in Montgomery v. Louisiana (which is here) and in Hurst v. Florida (which is here). Both transcripts showcase, albeit in somewhat different ways, all the complicated and intersecting jurisprudential issues in play in both cases.
At this stage, and based perhaps more on my pre-argument beliefs than on what I surmised from my first review of the transcripts, I would predict narrow wins for the defendants in both cases. And by narrow, I mean holdings that are fairly fact-based, case-specific and that also produce somewhat split rulings. But maybe others read the tea leaves in these transcripts differently, and will share their insights in the comments.
Lots of media previews of today's two big SCOTUS sentencing cases
The Supreme Court returns from a long weekend with two cases that should remake, or at least will refine, retroactivity jurisprudence and capital sentencing procedures. I have previewed Montgomery v. Louisiana and Hurst v. Florida in a bunch of prior posts, and here I will provide links to a handful of mainstream media coverage of the cases:
- "Justices to decide on sentences for young prison 'lifers'"
Monday, October 12, 2015
Does the Sixth or Eighth Amendment matter more for jury's role in capital punishment?
The question in the title of this post is the primary uncertainty likely to impact Supreme Court debate over Florida's capital punishment system during tomorrow's scheduled oral argument in Hurst v. Florida. Helpfully, Lyle Denniston has this lengthy preview post at SCOTUSblog titled "Defining the jury's role on death penalty," and here are excerpts:
For years, the Supreme Court has been engaged in an energetic effort to enhance the role of the jury in criminal courts. No part of that has been more actively pursued than deepening the jury’s involvement in sentencing — a part of the process long dominated by trial judges. A new case from Florida, set for argument at 11 a.m. on Tuesday, provides a new test.
Florida is the last state to hold out against a common requirement that jurors must be unanimous in both specifying why a convicted individual is eligible for a death sentence and recommending a sentence. Juries in Florida death penalty cases have only an advisory role to begin with, and even that influence on the judge is potentially lessened by the lack of unanimity and by the judge’s authority to make the key decisions anyway.
The Court is examining the case of a brutal slaying at a Popeye’s fast-food restaurant in Pensacola, Fla. (Hurst v. Florida), to determine how far a state may go to assign the important decisions on death sentencing to the judge. The Justices attempted to curb that role, and give more of it to the jury, in a 2002 decision but the Florida Supreme Court has essentially exempted the state’s capital punishment process from that ruling.
In Ring v. Arizona thirteen years ago, the Supreme Court ruled that a judge may not make the factual findings about “aggravating factors” — the seriousness of the crime that can make an individual eligible to be sentenced to death — because that role under the Sixth Amendment belongs to the jury. The Court has said repeatedly that, if a potential sentence is to be made more severe, the enhancement must be based upon the jury’s findings.
The Court, however, has never ruled that juries must be used in the sentencing phases of a case in which a death sentence is a possibility, and it has never ruled that a jury recommendation of a death sentence must be by a unanimous vote. It has allowed guilty verdicts by less than unanimous votes in cases involving lesser crimes. The case set for a hearing next Tuesday could provide new interpretations on both of those issues....
Florida law splits up the roles on death sentencing between the jury and the judge. The jury’s advisory role is to ultimately recommend a sentence to the judge. To do that, the jury weighs aggravating and mitigating factors and decides whether to recommend a death sentence. It can make that final recommendation on a split vote — it must be at least seven to five, as it was in Hurst’s case. But there is no need for even a majority of jurors to agree on even one of the aggravating factors the jurors as a group had apparently indicated did exist.
The sentencing duty then shifts to the judge, who does the same weighing process of the two kinds of factors; in doing so, the judge is not bound by what the jury concluded. The judge then decides for or against a death sentence, again with no duty to follow the jury’s recommendation.
The Florida Supreme Court, upholding that process as used in Hurst’s case, found no constitutional problem with the role of either the jury or the judge. The state court divided four to three, with the dissenting justices arguing that the Florida approach violates both the Sixth and Eighth Amendments and deviates from the Supreme Court’s ruling in Ring v. Arizona.
Hurst’s lawyers took the case on to the Supreme Court, raising two multi-faceted questions, with most of them focusing on the split role of judge and jury. The Court granted review in March, rephrasing the issue to be whether the Florida scheme violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.” The order did not specify whether it would consider Hurst’s argument that he also had a claim of mishandling in his trial of a mental disability claim, but the Court did not appear to have accepted that for review and it has dropped out of the case.
Hurst’s brief on the merits largely separates the arguments between the Sixth Amendment, claiming that provision is violated by the jury’s limited role in finding whether Hurst was eligible for a death sentence, and the Eighth Amendment, claiming that provision is violated by allowing the judge to impose the sentence after a split verdict by the jury. However, he also levels a separate Sixth Amendment challenge to the judge’s role in imposing a death penalty....
Florida’s brief on the merits noted that the Supreme Court has examined its capital punishment scheme at least four times before and has not found it to be flawed under the Constitution. The state also insisted that Hurst’s lawyers had exaggerated what is required under Ring v. Arizona. That decision, it contended, only mandates a role for the jury in the death-eligibility analysis, and does not insist that it have a role in the actual selection of the sentence to be imposed.
As fans of Ring v. Arizona should recall, a few of the Justices still on the Court now considered these issues to be primarily of Sixth Amendment concern (Justices Scalia, Thomas and Ginsburg), whereas some other of the Justices still on the Court viewed these issues primarily from an Eighth Amendment perspective (Justices Kennedy and Breyer). And, notably, the four newer Justices have had a lot of distinct (and differing) things to say about both the Sixth and Eighth Amendments in recent years. How all this will add up to a majority ruling in Hurst remains to be seen, but I will suggest that anyone sentenced to death in Florida after a non-unanimous jury recommendation already ought to be getting ready to file a new habeas petition as soon as we get a ruling in Hurst.
Is anyone surprised to learn of government dysfunction as Oklahoma operates machinery of death?
The question in the title of this post is prompted by this latest local story from a state that has spotlighted how jurisdictions are continue to struggle with lethal injection protocols. The piece is headlined "Emails from Gov. Fallin's office show state agencies' struggle to respond to scrutiny over execution," and it begins this way:
An examination of more than 40,000 pages of records released Thursday by Oklahoma Gov. Mary Fallin’s office in response to an open-records request provides a picture of multiple state agencies scrambling under pressure to send coordinated, consistent responses to reporters and each other after an April 2014 execution went awry.
The Tulsa World requested the documents 17 months ago after Clayton Lockett’s April 29, 2014, execution — the first in Oklahoma to be carried out using the sedative midazolam — ended 43 minutes after it began in what records later called a “bloody mess” carried out by inexperienced medical staff who were using the wrong size needles to start IVs in Lockett’s veins.
Lockett was set to die for the murder of 19-year-old Stephanie Neiman of Perry ahead of Charles Warner, who received a death sentence for the rape and murder of 11-month-old Adrianna Waller. The state issued a temporary stay for Warner after realizing Lockett’s lethal injection had gone wrong.
An autopsy report released to the World on Thursday, the contents of which were first reported by The Oklahoman, shows that Warner was executed Jan. 15 using potassium acetate rather than potassium chloride, the latter of which is required according to Oklahoma’s lethal-injection protocol. In correspondence to attorneys representing Lockett and Warner, John Hadden, an assistant attorney general, told them potassium chloride would be used as part of a three-drug cocktail in the lethal injection.
Many of the records provided Thursday had little to do with the World’s or other media outlets’ requests, but the emails exchanged between Fallin’s office, Attorney General Scott Pruitt’s staff and Department of Corrections personnel show numerous people were involved in drafting replies to media inquiries. Officials from each agency appeared not to know on multiple occasions whether they, or a spokesperson from the Department of Public Safety, should comment publicly on questions about the fallout from Lockett’s execution and subsequent DPS investigation.
Saturday, October 10, 2015
Should GOP Prez candidates be questioned on why being pro-life and anti-government doesn't lead to death penalty opposition?
The question in the title of this post is prompted by this The Week commentary authored by Bonnie Kristin and headlined "The rise of the anti-death penalty conservative." Here are excerpts:
[P]rotesting abortion is not all the consistent pro-life ethic entails. As typically expressed, most often in Catholic circles, consistent defense of human life in all its forms also requires opposition to the death penalty and assisted suicide (as well as any involuntary form of euthanasia).
"Life is something that comes from God and shouldn't be taken away by man," explains Father Thomas Reese, a Jesuit priest. Those with a consistent pro-life ethic "are concerned about a person from womb to tomb." For all Christians, consistent pro-lifers argue, "Something is definitely wrong when we claim to follow a man who halted an execution (John 8:1–11) and then was unjustly executed by the state, but still prefer justice over mercy."...
[T]here are some conservatives for whom capital punishment is already a pressing issue. "For those of us who are pro-life and maintain the far-from-radical notion that our government shouldn't kill innocent Americans, the death penalty fails to live up to our standards," argues Marc Hyden of Conservatives Concerned About The Death Penalty (CCATDP), a nonprofit that exists to question "a system marked by inefficiency, inequity, and inaccuracy."
And marked by these difficulties it most certainly is. As CCATDP enumerates, the problems and perils of capital punishment in modern America are many. There's the risk — as in the Glossip case and too many others, like Marlon Howell or Cameron Todd Willingham — of accidentally killing an innocent person. More than 150 people sentenced to die in America have been exonerated in the last four decades, some after spending 30 years or more on death row.
Beyond that, the death penalty is exorbitantly expensive for taxpayers — as much as 10 times more expensive than a life sentence by some calculations. The lengthy process drags out the grief of murder victims' families, endlessly resuscitating it with a new appeal or evidence. And there's no evidence that the threat of death deters crime. Furthermore, capital punishment is implemented in a systemically unfair manner: Factors like where you live, your race and the race of your alleged victim, and even whether your judge is elected or appointed can all influence whether you're sentenced to prison or death.
With inequities like these, Hyden argues, there's nothing "limited or wise about giving an error-prone government the power to kill its citizens, especially when many of us don't trust the state to even deliver mail."
In spite of the evidence that — as conservatives tend to agree in other policy arenas — the government is neither competent nor trustworthy, polling suggests that CCATDP is still in the minority on the right: Only 11 percent of Americans oppose both abortion and the death penalty. There is "no significant correlation between attitudes about the legality of abortion and views on capital punishment," according to Robert P. Jones of OnFaith, and if we zoom in on Tea Partiers, support for a consistent pro-life ethic drops to just 7 percent.
So in 2016, Republican debate moderators looking for a tough but thoughtful question to add to their list should consider question grilling presidential contenders on the death penalty. Thanks to the Planned Parenthood footage — not to mention the cross-partisan popularity of the broader cause of criminal justice reform, as well as the consistently pro-life Pope Francis — the timing is good. And thanks to the clear discrepancies between opposition to big government handing out a license to kill, on the one hand, and support for the death penalty on the other, the chance to catch candidates in hypocrisy is pretty good, too.
Some prior related posts:
- Is there a "growing movement against death penalty – on the right"?
- "Why conservatives should oppose the flawed death penalty, too"
- New talk of abolishing the death penalty in Ohio spurred by pro-life conservative
- Ron Paul at Townhall: "Death Penalty is Big Government at Its Worst"
- Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?
Friday, October 09, 2015
In defense of Ohio officials trying to figure out how to get execution drugs legally
This new AP story, headlined "Ohio Challenges FDA's Stand on Execution Drug," provides more details and context for the notable letter sent today by Ohio officials to the FDA (first reported here). Here are excerpts (with my bold emphasis):
With two dozen scheduled executions in limbo, Ohio sent a forceful letter to Washington on Friday asserting that the state believes it can obtain a lethal-injection drug from overseas without violating any laws.
The letter to the Food and Drug Administration stopped short of suggesting Ohio is moving forward to obtain the powerful anesthetic sodium thiopental. However, the state asked to begin discussing with federal officials about acquiring the substance legally.
The FDA had warned Ohio in June that importing the restricted drug could be illegal as a result of recent federal court decisions, setting up the latest roadblock to carrying out the death penalty.
Ohio hasn't executed anyone since January 2014, when condemned killer Dennis McGuire gasped and snorted repeatedly during a 26-minute procedure with a two-drug method that had yet to be tried. Ohio abandoned that method in favor of other drugs it now can't find.
Pharmaceutical companies have discontinued the medications traditionally used by states in executions or put them off limits for use in lethal injections. Stephen Gray, chief counsel for the Ohio Department of Rehabilitation & Correction, said the state has no intention of violating the law to obtain such drugs — but "the responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly."
Death penalty opponents have seized on trouble with lethal injections, as in McGuire's case, and difficulty in obtaining drugs as further justification for ending it. Supporters of capital punishment encourage states to continue to pursue legal avenues for getting the drugs — or find alternatives — so that condemned killers can be brought to justice.
Ohio's latest correspondence comes as the state is set to resume executions in a little over three months. The state is scheduled to execute Ronald Phillips on Jan. 21 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another 23 executions have been scheduled into 2019.
In part because I know and respect, both professional and personally, a number of Ohio executive officials, I have highlighted parts of the story above that I suspect may have led many of them to feel duty-bound to explain to FDA why Ohio thinks it legally could (and perhaps sensibly should) seek to import lethal injection drugs. Ohio has a long (and sometimes ugly) history with its lethal injection protocols, but Ohio officials have always seemed (at least to me) to be willing and eager to make reasonable efforts to adjust its execution protocols in order to try to carry out lawful death sentences in the most humane way possible. I perceive that an effort to find a legal way to import sodium thiopental is another example of Ohio officials making this effort.
Of course, opponents of the death penalty are often quick to say that no execution is humane and that Ohio's troubles with executions protocols and drug acquisition provide further reasons for the state to get entirely out of the capital business. Ironically, I suspect many Ohio executive officials personally share this perspective, especially because their jobs would surely get easier if they did not have to worry about the next scheduled execution (or the 23 others right behind it). But all executive officials, short of perhaps Ohio Gov John Kasich, are duty-bound to apply the existing law enacted by Ohio's elected representatives, not the law as would serve their own personal interests. (Indeed, in neighboring Kentucky, Kim Davis recently highlighted the ugliness that can ensure when executive officials seek to elevate personal law over the actual law.)
Consequently, unless and until the Ohio General Assembly repeals the death penalty or Gov Kasch uses his clemency authority to create an execution moratorium, it strikes me as defensible (and arguably obligatory) for Ohio executive officials to look to secure drugs needed for execution by any and all lawful means. And it will now be especially interesting to see if FDA official will be willing and able to work with Ohio officials to help the state lawfully secure execution drugs (assuming, as I think all should, that this is what Ohio would like to be able to do).
Prior related post:
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
In this post a few months ago, I reported on a letter sent by the US Food and Drug Administration (FDA) to the head of the Ohio Department of Rehabilitation Correction (ODRC) expressing concern that Ohio might be trying to import illegally the drug it needed to carry out scheduled executions. Now I can report on an interesting official response sent today from ODRC back to FDA. In a four-page letter, ODRC provides an extended explanation for how, in Ohio's view, it could be legal for it to import certain drugs needed to carry out executions.
The full letter from ODRC to FDA, which is available for downloading below, merits a careful read by anyone closely following the challenges many states are having securing needed drugs for executions. As a kind of summary, here is how the ODRC letter starts and concludes:
Your June 26, 2015 letter to Director of the Ohio Department of Rehabilitation and Correction (ODRC), Gary Mohr, referenced some unspecified information you had received about Ohio's "inten[t] to obtain bulk and finished dosage forms of sodium thiopental." Based on this information, you referenced two federal court decisions, Beaty v. FDA, 853 F. Supp. 2d 30 (D.D.C. 2012) and Cook v. FDA, 733 F.3d 1(D.C. Cir. 2013), and sought to "remind [Ohio] of the applicable legal framework" for importation of sodium thiopental. Contrary to the implication in your letter that the importation of sodium thiopental is currently prohibited, there is a legal framework for a state, if it so chooses, to import sodium thiopental in accordance with both the federal Food, Drug, and Cosmetic Act (FDCA) and the June 2012 Court Order issued by Judge Leon in Beaty. Further, please be advised that if at some point in the future the State of Ohio should choose to pursue the importation of sodium thiopental or any other drug that may be used to carry out a sentence of lethal injection, Ohio has no intention of breaking any federal laws or violating any court orders in an attempt to procure the legal drugs necessary to carry out constitutionally approved and court-ordered death sentences....
Given the specific facts and parameters of those [above-referenced] decisions, it is clear that importation of sodium thiopental is not completely prohibited by Judge Leon's 2012 Orders. That is, importation of sodium thiopental is not prohibited provided that [five key conditions are met]....
Thus, we believe that if a state were to attempt to import sodium thiopental under these five conditions, then the specific terms of the Beaty injunction would not apply. In other words, the FDA would not be permanently enjoined from permitting that shipment into the United States, and that it would be lawful and permissible for a state to proceed with such lawful importation.
The responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly. To that end, ODRC has no intention of attempting to procure drugs for lethal injection in a manner that would violate a proper interpretation of the FDCA. And, as the federal agency tasked with enforcing the FDCA and subject to the Court Order in Beaty, we would be happy to begin a dialog with the FDA as to how best achieve this goal.
Prior related post:
Thursday, October 08, 2015
Oops: "Oklahoma used wrong drug in January execution, autopsy report shows"
The title of this post is the headline of this article (with a little extra commentary) from The Christian Science Monitor. Here are the details:
The wrong lethal injection drug was used in an Oklahoma execution in January, an autopsy report obtained by an Oklahoma newspaper shows. The Oklahoman reported Thursday that potassium acetate, instead of potassium chloride as required under the state's protocol, was the final drug administered to stop Charles Frederick Warner's heart during his Jan. 15 execution.
Mr. Warner, convicted of the rape and murder of an 11-month-old in 1997, is the last murderer to be executed at the Oklahoma State Penitentiary in McAlester. His punishment was carried out almost nine months after the execution of murderer Clayton Lockett, whose botched execution triggered an investigation into the combination of drugs used that went all the way up to the Supreme Court on the grounds of Eighth Amendment rights infringement -- that is, whether or not Oklahoma failed to protect Mr. Lockett from “cruel and unusual” punishment....
The same incorrect drug found in Warner’s autopsy report were delivered to corrections officials Sept. 30 for the scheduled execution of another convicted murderer, Richard Glossip. After learning of the mistake, Oklahoma Gov. Mary Fallin granted a last-minute stay and postponed off the executions of two additional death row inmates.
An investigation into the circumstances surrounding Warner's execution was announced by Attorney General Scott Pruitt shortly after. On Wednesday, Mr. Pruitt said the investigation will cover any previous drug mistake, The Oklahoman reports.
“I want to assure the public that our investigation will be full, fair, and complete and includes not only actions on Sept. 30, but any and all actions prior, relevant to the use of potassium acetate and potassium chloride,” Pruitt said.
Governor Fallin said Wednesday night she supports further inquiry into Warner's execution, and told the newspaper it “became apparent” on Sept. 30 when Glossip’s execution was delayed that a similar mix-up may have occurred in Warner’s case....
“It is imperative that the attorney general obtain the information he needs to make sure justice is served competently and fairly,” Fallin said in an email to The Oklahoman. “Until we have complete confidence in the system, we will delay any further executions.”
She said she and the attorney general delayed Glossip's execution as a precaution, despite the doctor and the pharmacist working with corrections officials agreeing that potassium chloride and potassium acetate are medically interchangeable. “The active ingredient is potassium, which, when injected in large quantities, stops the heart,” the governor said.
She said “it became apparent” during the discussions Sept. 30 about a delay that the Corrections Department may have used potassium acetate in Warner's execution. “I was not aware nor was anyone in my office aware of that possibility until the day of Richard Glossip's scheduled execution,” she said. On Tuesday, Fallin said she has hired an outside attorney “to look at the whole process” and provide oversight.
Highligthing that states, despite Glossip ruling, continue to struggle with lethal injections
This lengthy new New York Times article, headlined "Death Penalty States Face Hurdles in Carrying Out Executions," reports on the (surprising?) reality that the Supreme Court's recent Glossip ruling has not made it significantly easier for states to complete scheduled lethal injections. Here are excerpts:
Despite a Supreme Court ruling allowing a controversial drug to be used for lethal injections in Oklahoma, deathpenalty states are finding it harder to carry out executions as they struggle to obtain and properly use limited supplies of everchanging combinations of lethal injection drugs.
Prison officials in Texas and Virginia have improvised a short-term solution by trading drugs for lethal injections. Both Ohio and Nebraska have sought to buy a drug no longer available in the United States from overseas only to be told by the federal Food and Drug Administration that importing the drug is illegal.
Executions in Mississippi have been postponed for months over a federal lawsuit challenging the state’s three-drug protocol. The delay will stretch into next year, with a trial scheduled in July 2016. And in Montana on Tuesday, a judge blocked the state from carrying out executions, ruling that one of the two drugs it planned to use did not comply with the state law governing lethal injections. The only way Montana can resume executions with that drug, the judge said, is by having the State Legislature modify the law.
“Over time lethal injection has become only more problematic and chaotic,” said Deborah W. Denno, a professor at Fordham Law School and an expert on lethal injections.
Oklahoma last week halted the execution of Richard E. Glossip, who was part of the challenge the Supreme Court had turned down, after officials realized two hours before it was to take place that the state’s supplier had sent prison officials the wrong drug. The error led to a court-ordered stay of the three executions scheduled in October and November while officials conduct an investigation....
The scramble for drugs has caused some states to embrace or consider more unusual or more antiquated ways of putting inmates to death. In 2014, Tennessee authorized prison officials to use the electric chair if lethal-injection drugs were unavailable. Gov. Gary R. Herbert of Utah signed a bill into law in March approving firing squads when drugs cannot be obtained.
In April, Oklahoma made nitrogen gas its new backup method. In Louisiana, where executions have been postponed following a federal lawsuit over its lethal-injection system, prison officials recommended in a report in February that nitrogen gas be adopted as an alternative method, through the use of a mask or other device but not a gas chamber.
Wednesday, October 07, 2015
Previewing Kansas capital case day for SCOTUS argument
The Supreme Court will be spending the morning today talking a lot about how Kansas administers its death penalty. (The official nickname for Kansas is the Sunflower State, but perhaps the Justices will be thinking of the state's unofficial nickname of Bleeding Kansas.) Helpfully, SCOTUSblog and Crime & Consequences provides previews. Here are links and leads from their efforts:
The Justices closed out last Term with a high-profile death penalty case, holding that Oklahoma’s lethal injection procedures do not violate the Eighth Amendment’s ban on cruel and unusual punishment. The decision in that case may be best known for Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, in which he suggested that the death penalty itself is unconstitutional. The Eighth Amendment is back before the Court again tomorrow, albeit with lower stakes, this time in a set of challenges to the procedures used to sentence three Kansas inmates to death. The oral arguments and the Court’s eventual decision may tell us more about whether some of the Justices’ discomfort with the death penalty will translate into additional protections for defendants in capital cases or whether the Justices will instead remain — as they were in the Oklahoma case — sharply divided.
Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them. The United States Supreme Court considers such a case tomorrow. It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.
UPDATE: This short post-argument Reuters piece reports that the "U.S. Supreme Court on Wednesday appeared poised to rule against two brothers challenging their death sentences for a 2000 crime spree in Kansas that included the execution-style murders of four people on a snowy soccer field."
Tuesday, October 06, 2015
Texas completes lethal injection not long after Montana judge finds state's lethal drugs problematic
Two notable lethal injection developments in two states on late Tuesday. Here are the headlines and parts of the stories:
Texas on Tuesday executed its 11th inmate of this year — a man who killed a former missionary during an $8 robbery when he was a teenager. Juan Garcia, 35, received a lethal injection and was was pronounced dead at 6:26 p.m. (7:26 p.m. ET). He was executed for the 1998 murder of Hugh Solano, who had just moved to Houston from Mexico to give his children a better education.
The Texas Board of Pardons and Paroles rejected Garcia's clemency bid in a 5-2 vote last week. Garcia in the past fought execution with claims of mental impairment, but had no appeals pending Tuesday morning.
Garcia apologized to Solano's relatives in Spanish ahead of the execution, and Solano's wife and daughter sobbed and told the inmate they loved him. "The harm that I did to your dad and husband — I hope this brings you closure," Garcia said. "I never wanted to hurt any of you all."
As the dose of pentobarbital began, he winced, raised his head and then shook it. He gurgled once and snored once before his movement stopped. He was pronounced dead 12 minutes later.
A Helena district judge on Tuesday ruled that Montana’s method of lethal injection does not comply with state law, effectively staying all executions in the state indefinitely. District Court Judge Jeffrey Sherlock wrote that the state’s current protocol for executing inmates by lethal injection relies on a drug that is not an “ultra-fast-acting barbiturate,” as required by state law.
The challenge to Montana’s execution methods went to trial last month, when attorneys for prisoners Ronald Allen Smith and William Gollehon — Montana’s only two death row inmates — argued that the drug, pentobarbital, does not adhere to a state law requiring that an “ultra-fast acting” barbiturate must be used during execution.
Montana’s lethal injection law calls for use of an ultra-fast acting barbiturate as well as a paralytic agent. The state’s execution protocol lists sodium pentothal as the barbiturate, with pentobarbital as a substitute; however, sodium pentothal is no longer available for use in executions in the United States, and its importation is illegal because it is not approved by the Food and Drug Administration.
The state’s revised protocol indicates it will use pentobarbital as a substitute barbiturate, despite the fact that pentobarbital is an intermediate-acting barbiturate, which isn’t allowed under the state’s lethal injection protocol. In his order, Sherlock wrote that by using the term “ultra” in its statute, the Legislature limited the state to using only drugs in the fastest category of barbiturates. Sherlock ruled that “while pentobarbital may operate in a fast nature, it is not ultra-fast as is required to comply with Montana’s execution protocol.”
Monday, October 05, 2015
Previewing the early criminal law cases on the SCOTUS docket
In this post at the Federalist Society blog, Kent Scheidegger provide an effective preview of the handful of Supreme Court cases dealing with criminal law issues that are to be heard by the Supreme Court in the first few weeks of its new Term. As regular readers know and as Kent notes, a number of the early cases involve the death penalty, and this recent Wall Street Journal article highlights the capital case concentration in an article headlined "Supreme Court Docket Loaded With Death-Penalty Cases."
But before the capital case kvetching gets started in earnest, the first criminal justice case to be heard by the Justices comes on Tuesday with Ocasio v. United States. At SCOTUSblog here, Rory Little has this lengthy preview of Ocasio, which gets started this way:
The Court’s first criminal case of the Term presents a real brain teaser: may a defendant be convicted of conspiracy to commit an offense, when he has the intent necessary to commit the offense but his co-conspirator does not? The case arises in the specific context of the unusual federal Hobbs Act extortion statute, and getting to the specific question initially requires some complex explanation. But unless I misunderstand it, the general question is as old as the common law.
Missouri Gov commutes death sentence at last minute because...............??
The quirky question in the title of this post is my reaction to this notable capital clemency news out of the Show Me state that leaves me wishing the chief executive of the state had showed all of us more about his reasons for communiting a death sentence only days before a scheduled execution. Here are the (somewhat mysterious) details via this local article headlined "Nixon commutes death sentence for convicted murderer Kimber Edwards":
Missouri Gov. Jay Nixon commuted on Friday the death sentence for Kimber Edwards, who was convicted in the 2000 murder-for-hire of his ex-wife, to a life sentence without parole. Edwards had been scheduled to be executed by injection at 6 p.m. Tuesday. His attorneys had recently asked the Missouri Supreme Court to throw out his conviction and death sentence because of doubts raised about his guilt.
Nixon did not explain his surprise decision, other than to say it came after a “thorough review of the facts” and was “not taken lightly.” He said the evidence supported the jury’s decision to convict Edwards of first-degree murder.
“After a thorough review of the facts surrounding the murder of Kimberly Cantrell, I am convinced the evidence supports the jury’s decision to convict Kimber Edwards of first-degree murder. At the same time, however, I am using my authority under the Missouri Constitution to commute Edwards’ sentence to life without the possibility of parole. This is a step not taken lightly, and only after significant consideration of the totality of the circumstances. With this decision, Kimber Edwards will remain in prison for the remainder of his life for this murder.”
Reached later Friday, a spokesman for Nixon said he would not elaborate.
Kimberly Cantrell, 35, was shot twice in the head in her apartment in the 1100 block of Midland Avenue in University City on Aug. 22, 2000. Authorities said Edwards had hired Orthell Wilson to kill Cantrell, Edwards’ ex-wife, to prevent her from testifying in a child-support hearing.
One of Cantrell’s siblings, Chuck Cantrell of San Jose, Calif., said that his family was informed of the decision less than five minutes before it was made public. Cantrell spoke to a legal adviser for the governor but wanted to speak to Nixon himself. “I would think that the governor would certainly understand that his action of this magnitude certainly has impact on the survivors of the victim,” he said. “I just can’t imagine that his office could be so callous. I would hate to think this would be some sort of political maneuver. It doesn’t make a whole lot of sense.”
He said family members had had no plans to witness the execution, but that didn’t mean they didn’t care about the case. He said he and his family had no doubt about Edwards’ guilt and that they knew how Edwards could manipulate a situation to his advantage. Edwards’ attorneys had recently tried to cast doubt on his guilt. They focused on two statements that were central to his case. One was a statement by Wilson, who said Edwards had hired him to kill Cantrell in 2000. The other was a confession from Edwards.
Wilson, who is serving a life sentence without parole, has recanted his statement, telling a Post-Dispatch reporter in April that he had acted alone and had lied about being hired by Edwards. He then signed an affidavit saying so. Edwards claimed at his trial — and ever since — that he was innocent. In new appeals, his attorneys pointed to the possibility that police had coerced his confession. They claimed Edwards has a form of autism that could have made him vulnerable to aggressive interrogation techniques, leading him to make a false confession.
Edwards’ attorney, Kent Gipson of Kansas City, petitioned the state Supreme Court to throw out the conviction for murder and armed criminal action, and the death sentence, and appoint a special master to review Edwards’ innocence claim. The court denied in July a similar request to study Edwards’ claim of innocence. The court has not yet ruled on Gipson’s petition. But he said he made the same case to lawyers from Nixon’s office this week.
“We’re all very happy because (days leading up to an execution are) always a very stressful and difficult time for everyone, the clients, the lawyers and the family,” Gipson said. “It’s a load off everyone’s shoulders, particularly the client, because he’s going to live.”... Gipson said the commutation of the death sentence would give him and Edwards more time to potentially seek a new trial.
In recent days, Gipson had been pressing a claim with Nixon’s office that during the penalty phase after Edwards’ conviction, the prosecutor in the case had inquired whether Edwards would be willing to waive appeals in the case in exchange for life in prison. But his supervisors refused.
According to notes in the attorney’s file from 13 years ago, Judge Mark D. Seigel expressed in chambers that he was unhappy about the lack of a deal to spare Edwards. Reached Friday, Seigel said that he did not remember the conversation and that it “does not sound like something I would have said in chambers or anywhere else.”
I presume that lingering concerns about guilt prompted the Governor's actions here, but it would be helpful if the commutation statement spoke to that possibility or whatever else might have motivated the Governor to act in this way. I think it is entirely appropriate and readily justifiable for a clemency board or a governor to commute a death sentence based on concerns about residual guilt. But I do not consider it appropriate or justifiable for a decision made on this basis (or others) to be hidden behind the kind of cursory statement offered by Gov Nixon in this case.
Friday, October 02, 2015
Top Oklahoma court puts all executions on hold upon state request after drug snafu
As reported in this AP piece, "Oklahoma's highest criminal court unanimously agreed Friday to halt all of the state's scheduled executions after the state's prison system received the wrong drug for a lethal injection this week." Here is more:
The Oklahoma Court of Criminal Appeals granted the state's request and issued indefinite stays of execution for Richard Glossip, Benjamin Cole and John Grant. Oklahoma Attorney General Scott Pruitt requested the stays to give his office time to investigate why the Oklahoma Department of Corrections received the wrong drug just hours before Glossip was scheduled to be executed Wednesday.
Just hours before Glossip was set to die, prison officials opened a box of lethal drugs and realized they received potassium acetate instead of potassium chloride, the third drug utilized in Oklahoma's lethal injection formula. The court ordered the state for status reports every 30 days, "including any proposed adjustments to the execution protocol."
Oklahoma's execution protocols were overhauled after last year's botched execution of Clayton Lockett, who writhed on a gurney and struggled against his restraints before being declared dead more than 40 minutes after the procedure began.
On Thursday, Oklahoma Department of Corrections Director Robert Patton insisted that those new protocols were properly followed. But the attorney general expressed concerns about the department's ability to properly carry out an execution. "Until my office knows more about these circumstances and gains confidence that DOC can carry out executions in accordance with the execution protocol, I am asking the Oklahoma Court of Criminal Appeals to issue an indefinite stay of all scheduled executions," Pruitt said in a statement after requesting the stays.
Virginia completes execution of multi-state serial killer
As reported in this AP piece, last-minute appeals with claims of disability did not thwart Virginia's plans to execute a multiple murder last night:
Virginia has executed a convicted serial killer who claimed he was intellectually disabled. Alfredo Prieto was pronounced dead at 9:17 p.m. on Thursday at the Greensville Correctional Center in Jarrat.
The 49-year-old had fought to prove that he's intellectually disabled to bar the state from putting him to death. But a federal appeals court in Virginia upheld his death sentence in June and the U.S. Supreme Court refused Thursday to block his execution.
Prieto was sentenced to death in Virginia in 2010 for the rape and murder of 22-year-old Rachael Raver and the slaying of her boyfriend Warren Fulton III more than two decades earlier. The El Salvador native had already been on death row in California for the rape and murder of a 15-year-old girl at the time.
Notably, as the Death Penalty Iinformation Center details here, there are three more executions in three states scheduled for next week and over a dozen scheduled in the next six weeks. If only two-thirds of these executions are completed, the US would hit another notable recent low in total executions for the year. But if all the executions scheduled for the next three months are crried out, 2015 could end up having more executions than 2014.
Wednesday, September 30, 2015
Oklahoma Gov grants 37-day "stay" of Richard Glossip's scheduled execution
As detailed in this official press release, "Governor Mary Fallin has issued a 37 day stay of Richard Glossip’s execution to address legal questions raised today about Oklahoma’s execution protocols." here is the rest of the text of the press release:
The stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the state’s court-approved execution procedures.“Last minute questions were raised today about Oklahoma’s execution protocol and the chemicals used for lethal injection,” said Fallin. “After consulting with the attorney general and the Department of Corrections, I have issued a 37 day stay of execution while the state addresses those questions and ensures it is complying fully with the protocols approved by federal courts.”The new execution date will be Friday, November 6.“My sincerest sympathies go out to the Van Treese family, who has waited so long to see justice done,” said Fallin.
Amusingly, as noted here by Kent Scheidegger at Crime & Consequences, Gov Fallin technically granted Glossip a reprieve, not a stay, according to the terms of the Oklahoma Constitution. But I suppose we should not expect a Gov or her legal staff to be concerns about such semantics. Intriguingly, as reported here by Lyle Denniston at SCOTUSblog, this order came after the Supreme Court had formally rejected Glossip's various last-minute appeals and stay requests and only Justice Breyer dissented from that decision.
Georgia finally completes execution of female murderer
As reported in this NBC News article, headlined "Georgia Woman Kelly Gissendaner Sings 'Amazing Grace' During Execution," a flurry of last-minute appeals did not prevent the Peach State from finally carrying out a high-profile execution. Here are the basics:
A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until she was given a lethal injection, witnesses said. Kelly Renee Gissendaner, who graduated from a theology program in prison, was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.
Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me." She was the first woman executed in Georgia in 70 years and one of a handful of death-row inmates who were executed even though they did not physically partake in a murder.
The mother of three was nearly executed in February, but the lethal injection was abruptly called off because the chemicals appeared cloudy. After a new execution date was set, Gissendaner, 47, convinced the Georgia Board of Pardons and Paroles to reconsider her application for clemency.
In an extraordinary turn, Pope Francis — who called for a global ban on the death penalty during his U.S. visit last week — urged the board to spare her life. "While not wishing to minimize the gravity of the crime for which Ms. Gissendander has been convicted, and while sympathizing with the victims, I nonetheless implore you, in consideration of the reasons that have been expressed to your board, to commute the sentence to one that would better express both justice and mercy," Archbishop Carlo Maria Vigano wrote on the pontiff's behalf.
Shortly thereafter, the board announced that it would not stop the execution.
The victim's family was split on whether Gissendaner should live or die: Her children appeared before the parole board to ask that their mom be spared the death chamber, but her husband's relatives said she did not deserve clemency. "Kelly planned and executed Doug's murder. She targeted him and his death was intentional," Douglas Gissendaner's loved ones said in a written statement.
"In the last 18 years, our mission has been to seek justice for Doug's murder and to keep his memory alive. We have faith in our legal system and do believe that Kelly has been afforded every right that our legal system affords. As the murderer, she's been given more rights and opportunity over the last 18 years than she ever afforded to Doug who, again, is the victim here. She had no mercy, gave him no rights, no choices, nor the opportunity to live his life. His life was not hers to take."
In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison....
Jeff Hullinger, a journalist with NBC station WXIA who witnessed the execution, later told reporters that Gissendaner appeared "very, very emotional, I was struck by that." He added: "She was crying and then she was sobbing and then broke into song as well as into a number of apologies ... When she was not singing, she was praying."
Tuesday, September 29, 2015
#BESTEA: "Will the Supreme Court 'peck away at' capital punishment?"
The title of this post is has my silly new SCOTUS hashtag along with the headline of this new ABA Journal article previewing the death penalty cases that the Supreme Court will hear in the next few weeks as it starts #BESTEA. (This silly hashtag is explained in this prior post.) Here is an excerpt:
On Oct. 7, the court will hear arguments in cases from Kansas that raise procedural questions. The key question is whether the Eighth Amendment requires that a jury considering a death sentence be given explicit instructions pointing out that mitigating circumstances do not have to be proven beyond a reasonable doubt. The Kansas Supreme Court concluded that such an instruction was required, and the state asked the U.S. Supreme Court to review Kansas v. Gleason and Kansas v. Carr.
On Oct. 13, the justices are scheduled to hear arguments in Hurst v. Florida, another case that addresses death penalty sentencing procedures. In Florida, a defendant may not be sentenced to death without a factual finding of at least one aggravating factor. The jury weighs aggravating and mitigating factors, and it makes a recommendation to the trial judge about whether death should be imposed. The jury’s recommendation need not be unanimous. But Florida law also requires the judge to independently weigh aggravating and mitigating factors. The judge must give the jury’s recommendation “great weight” under state precedents, but he or she can override the recommendation in extraordinary circumstances.
Monday, September 28, 2015
A busy (and diverse) week for execution plans and capital concerns
Over the next three days, three condemned murderers are scheduled to be executed in three different states, and in each case a different pitch is being made to try to halt the execution. Here are the basics:
Tuesday, September 29: Georgia is scheduled to execute Kelly Gissendaner, who would be the first woman executed by the state in 70 years. She was convicted in February 1997 of conspiring with her lover to kill her husband. (The lover, who took a plea deal and testified against Gissendaner, is serving a life sentence and he will be eligible for parole in 2022.) The Georgia Board of Pardons and Paroles announced today it would consider additional pleas for clemency at a hearing the morning of the scheduled executions.
Wednesday, September 30: Oklahoma is scheduled to execute Richard Glossip, who was the lead litigant in the challenge to Oklahoma's execution protocol which a divided Supreme Court rejected in Glossip v. Gross. He was convicted (again) a 2004 retrial of conspiring with a co-worker to kill their boss. (The co-worker, who took a plea deal and testified against Glossip, is serving an LWOP sentence.) The Oklahoma Court of Criminal Appeals, in a split vote today, declined to halt Glossip's execution after having delayed it earlier this month based principally on renewed claims of Glossip's innocence.
Thursday, Oct 1: Virginia is scheduled to execution Alfredo Prieto, who is a foreign national and whose guilt in a number of killings seems to be uncontested. He was first sent to California's death row for the rape/murder of a teenage girl before being transferred and sentenced to death in Virginia five years ago for the 1988 killing of two college students. His lawyers assert he is intellectually disabled and apparently want him sent back to California to have his disability claim considered on the other coast.
For the sake of assessing my ability to prognosticate in the capital arena, I will on Monday predict that at least one, perhaps two, but not all three of these executions will be completed this week. Anyone else care to make predictions about any or all of these cases on the eve of what will surely be a mid-week full of capital conversations and litigation.
Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?
The silly question in the title of this post is my effort to coin a silly hashtag (#BESTEA = Best Ever SCOTUS Term for Eighth Amendment) for the start of a new Supreme Court Term in which a number of notable Eighth Amendment cases/issues are set to occupy the Justices. Over at SCOTUSblog, Rory Little provides this effective preview of what #BESTEA is all about in this lengthy post titled "As the 2015 Term opens: The Court’s unusual Eighth Amendment focus." I recommend reading Rory's post in full, and here is just a taste (with links from original):
Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.” Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.” Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.” Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.
Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty. All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2). One can expect that the smoldering embers of the Glossip debate will be quickly reignited. This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).
Here is a quick rundown of what is coming up:
1. Gleason and Carr — October 7...
2. Kansas v. Carr and Carr (Question 2) — October 7...
3. Montgomery v. Louisiana — October 13...
4. Hurst v. Florida — October 13...
5. Foster v. Chatman (Warden) — November 2...
After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import. Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions. But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment. In at least some of these cases — with that of the Carr brothers being the best example — there seems to be no doubt about guilt. The horrific character of multiple rapes and murders is undeniable. Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences. Such cases thus starkly showcase the divergent views on the Eighth Amendment — and a nine-Justice Court is not different in this regard from much of America. So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.
In part because I want a short-hand way to describe all these cases, and in part because I am a sill fool, I am likely to turn #BESTEA into an on-going meme in this bloggy space as the Supreme Court Term kicks off. If readers like the idea, I hope folks will tell me so in the comments and perhaps join me in using this short-hand. And if you hate the idea, perhaps I will grow to as well.
Saturday, September 26, 2015
Latest Glossip kerfuffle concerns whether Texas could make and export "better" execution drugs
The latest intriguing issue to arise in the ugly world of execution administration concerns whether Texas could supply "better" lethal injection drugs to other states. This BuzzFeed article about the latest filing in the (never ending?) Glossip case explains:
The state of Texas is making its own execution drugs and has sold them to at least one other death penalty state, an inmate facing execution in Oklahoma alleges in a court filing Thursday. His attorneys point to documents that show the Texas Department of Criminal Justice sold pentobarbital to Virginia in late August.
Pentobarbital is a sedative that many death penalty states, including Oklahoma, have claimed is impossible for them to get their hands on. As a result, some states have turned to midazolam, a drug that critics argue is significantly less effective. The U.S. Supreme Court upheld the use of midazolam in executions this June.
The records submitted as part of the new filing show that Virginia received 150 milligrams of the drug. Under the heading “Name of Supplier,” the Texas Department of Criminal Justice is listed. The labels do not identify the pharmacy that prepared the drug. However, the lawyers for the Oklahoma inmate state that the labels were created by the Texas Department of Criminal Justice, which they also allege “is compounding or producing pentobarbital within its department for use in executions.”
On Friday, Texas confirmed to BuzzFeed News that it sent the execution drugs to Virginia. A spokesman said it was to repay Virginia for having given Texas drugs in the past. “In 2013, the Virginia Department of Corrections gave the Texas Department of Criminal Justice pentobarbital to use as a back up drug in an execution,” spokesman Jason Clark said. “Virginia’s drugs were not used.”
“The agency earlier this year was approached by officials in Virginia and we gave them 3 vials of pentobarbital that [were] legally purchased from a pharmacy. The agency has not provided compounded drugs to any other state. Texas law prohibits the TDCJ from disclosing the identity of the supplier of lethal injection drugs.”...
The lawyers raise these issues to make the argument that Oklahoma could avoid the use of the controversial midazolam drug in its executions. It could do so, they argue, by purchasing pentobarbital from Texas, like Virginia, or by “compounding or producing pentobarbital in the same manner as does TDCJ.”
States have struggled to obtain execution drugs for years after makers enacted more stringent guidelines to keep them away from states that would use them for executions. The idea of a state-run lab making its own death penalty drugs is something Missouri Attorney General Chris Koster raised last year, although many wondered how it could be done. Missouri, like Texas, has had no trouble obtaining pentobarbital.
Friday, September 25, 2015
Notable reactions and commentary after Pope Francis calls again for death penalty abolition
Pope Francis' comments to Congress about his support for the abolition of the death penalty (basics here) has, unsurprisingly, generated lots of buzz from various quarters. Here are some headlines and links to some notable press pieces:
Thursday, September 24, 2015
Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)
I have finished watching the Pope's speech to a joint session of Congress, and these passages from the full text of the speech should be of special interest to sentencing fans (with my emphasis added at end):
Our world is facing a refugee crisis of a magnitude not seen since the Second World War. This presents us with great challenges and many hard decisions. On this continent, too, thousands of persons are led to travel north in search of a better life for themselves and for their loved ones, in search of greater opportunities. Is this not what we want for our own children? We must not be taken aback by their numbers, but rather view them as persons, seeing their faces and listening to their stories, trying to respond as best we can to their situation. To respond in a way which is always humane, just and fraternal. We need to avoid a common temptation nowadays: to discard whatever proves troublesome. Let us remember the Golden Rule: "Do unto others as you would have them do unto you" (Mt 7:12).
This Rule points us in a clear direction. Let us treat others with the same passion and compassion with which we want to be treated. Let us seek for others the same possibilities which we seek for ourselves. Let us help others to grow, as we would like to be helped ourselves. In a word, if we want security, let us give security; if we want life, let us give life; if we want opportunities, let us provide opportunities. The yardstick we use for others will be the yardstick which time will use for us. The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.
This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.
These passages will surely be the focal point for those eager to advocate for the complete abolition of the death penalty, but the language of hope and rehabilitation never being excluded from "just and necessary punishment" is also significant as a criticism of sentences of life without the possibility of parole.
A few prior related posts:
- Pope Francis categorically condemns death penalty as "inadmissible" in today's world
- Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty
Is Justice Scalia saying four (and maybe five) colleagues are now ready to judicially abolish death penalty?
The question in the title of this post is prompted by press reports on Justice Antonin Scalia's speech given at Rhodes College on Tuesday. This BuzzFeed story's extended headlined provides the basics: "Justice Scalia Says He 'Wouldn’t Be Surprised' If Supreme Court Ended Death Penalty: In a speech Tuesday at Rhodes College, the conservative Supreme Court justice said that four of his colleagues think that the penalty is unconstitutional, The Commercial Appeal reported." Here is the full context:
Supreme Court Justice Antonin Scalia told attendees of a speech given Tuesday that four of his colleagues believe the death penalty is unconstitutional and that “he wouldn’t be surprised” if the court ends the penalty, according to reports from the event.
Speaking at Rhodes College, the conservative justice bristled at the concept, believing the penalty to be constitutional and telling attendees that death penalty opponents should go to the states if they want to end it, Jennifer Pignolet of The Commercial Appeal tweeted.
According to Pignolet’s report, Scalia said that “he ‘wouldn’t be surprised’ if his court ruled it unconstitutional, despite his belief that the Constitution allows for it with the establishment of protections like a fair trial.” Specifically, Scalia said that “he now has 4 colleagues who believe it’s unconstitutional,” Pignolet tweeted.
The statements provide new insight into the court’s internal discussions — or at least Scalia’s take on his colleagues — as his comments go further than Scalia’s colleagues have gone themselves.
After the Glossip ruling in June, I was somewhat dismissive of claims by abolitionists that Justice Breyer's dissent suggested that it might only be a matter of time before there could be a majority of Justices ready to decalre the death penalty categorically unconstitutional. But Justice Scalia's comments now suggest that hopes for coming judicial abolition of capital punishment throughout the United States may not be just wishful thinking.
Prior related posts:
- Despite Glossip, hope for judicial abolition of the death penalty endures
- Would a Prez Hillary Clinton lead to the judicial abolition of the death penalty in the US?
Wednesday, September 23, 2015
Investigating how elected judiciary may impact capital punishment's administration
Reuters has this new investigative report exploring the relationship between an elected judiciary and a jurisdiction's administration of the death penalty. The full headline and subheading provide a summary of the themes of the report: "Uneven Justice: In states with elected high court judges, a harder line on capital punishment. Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed, a Reuters analysis finds, suggesting that politics play a part in appeals. Now, the U.S. Supreme Court is about to decide whether to take up the issue in the case of a Ohio cop killer." Here are passages from the report:
Ohio is one of the states where high court judges are directly elected – and that, a Reuters analysis found, makes a big difference in death penalty appeals.
A review of 2,102 state supreme court rulings on death penalty appeals from the 37 states that heard such cases over the past 15 years found a strong correlation between the results in those cases and the way each state chooses its justices. In the 15 states where high court judges are directly elected, justices rejected the death sentence in 11 percent of appeals, less than half the 26 percent reversal rate in the seven states where justices are appointed.
Justices who are initially appointed but then must appear on the ballot in “retention” elections fell in the middle, reversing 15 percent of death penalty decisions in those 15 states, according to opinions retrieved from online legal research service Westlaw, a unit of Thomson Reuters.
Some academic studies over the past 20 years have mirrored the Reuters analysis, showing a relationship between the result in death penalty appeals and how state supreme courts are selected. The U.S. Supreme Court has not addressed these findings in its rulings.
Now, however, at least three current justices are sympathetic to the idea that political pressure on judges is a factor that leads to arbitrary, and perhaps unconstitutional, application of the death penalty. The findings, several legal experts said, support the argument that the death penalty is arbitrary and unconstitutional because politics – in addition to the facts – influence the outcome of an appeal.
Courts have a responsibility to protect a defendant’s constitutional rights without political pressure, especially when the person’s life is at stake, said Stephen Bright, a Yale Law School lecturer who has worked on hundreds of death defenses. “It’s the difference between the rule of law and the rule of the mob,” Bright said....
State supreme courts automatically review every death penalty verdict. Apart from examining whether any legal errors were made, judges must also weigh different factors to decide whether the death sentence is an appropriate punishment. Was it the defendant’s first offense or do they have a history of violent behavior? When a death sentence is reversed, the offender usually gets life in prison instead.
But as the Reuters analysis suggests, external factors may come into play. The election effect was a far stronger variable in determining outcomes of death penalty cases than state politics and even race. Justices in states that supported Democratic President Barack Obama in the 2012 election reversed death sentences at roughly the same rate as those that went for Republican candidate Mitt Romney, at around 14 percent.
African-American defendants had lower reversal rates in both elected and appointed states. Nationally, death sentences were reversed 15 percent of the time for whites, compared with 12 percent for African-Americans, according to the Reuters findings.
Reuters did not analyze the possible impact of the race of the victim on death penalty appeals. The analysis also excluded a category of death penalty appeals known as habeas challenges, because state supreme courts are not required to hear them and overwhelmingly refuse to do so....
In 2013, Justice Sonia Sotomayor cited a study showing that Alabama judges are more likely to impose the death penalty in election years, part of a failed effort to persuade her colleagues to review an Alabama capital case.
Last June, in Glossip vs. Gross, the high court voted 5-4 that the method of execution in Oklahoma is constitutional. In dissent, Justices Stephen Breyer and Ruth Bader Ginsburg cited studies showing capital punishment is arbitrary because of racial bias, as well as political pressure, “including pressures on judges who must stand for election."
Retired U.S. Supreme Court Justice John Paul Stevens, who has said he believes the death penalty to be unconstitutional, said in an interview that the Reuters findings “definitely lend support” to his side of the debate because they show how arbitrary capital punishment can be.
Monday, September 21, 2015
Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?
The question in the title of this post is prompted by this The Week feature article which has a headline promising to go "Inside the growing conservative movement to end the death penalty." Here is how the piece starts and ends:
After years of sitting on death row in Oklahoma, Richard Glossip was scheduled to die on Wednesday. But today, Friday, he's still alive. That's thanks to a last-minute, two-week reprieve — which was granted in no small part because of a growing cadre of conservative activists who oppose the death penalty.
Glossip's case — he was convicted of hiring someone to kill his boss — had exhausted every avenue of appeal, even briefly heading to the Supreme Court last year as the justices weighed the legality of lethal injection. But time and again, state officials and the legal system rejected his team's claims of innocence.
In recent weeks, pressure began to mount from evangelicals, young activists, and figures in the local media who wanted the state to take one last look at his case. The outreach to these groups came largely from an organization called Conservatives Concerned About the Death Penalty. Their outreach specialist is a man named Marc Hyden, a former campaign field representative for the National Rifle Association who argues that opposing capital punishment is a natural philosophical fit for tough-minded conservatives.
"Point to a single government program that works flawlessly. Death penalty supporters have to accept that it's a human-run program and so my question is, how many innocent people are you willing to execute?" Hyden told me.
The fallibility of government is just one of several strategic points from which Hyden and his conservative constituency come at capital punishment. They are also quick to point out that putting someone to death is far more expensive than simply keeping them in prison. Then there's the empirical data challenging whether the threat of execution is truly a disincentive for would-be criminals. Some anecdotal accounts challenge whether families of victims benefit in any measurable way from seeing a perpetrator put to death. And for the truly committed pro-life believer, there is the larger philosophical dilemma of whether a God-fearing society should be empowering the state to execute its citizens....
Conservatives Concerned About the Death Penalty got off the ground in 2010 in Montana, an ideal breeding ground for forward-thinking conservative positions. After all, this is the same state where citizens have tussled with the federal government over using their gun registration cards to purchase medical marijuana.
Conservatives Concerned About the Death Penalty has expanded to states including Florida, Delaware, Tennessee, Kentucky, North Carolina, Texas, Georgia, Connecticut, and Nebraska. The latter two abolished capital punishment this year. Altogether, seven states have banned the death penalty since 2000, by far the biggest shift in American history.
Over the coming days and weeks, Glossip's case will bring an increased spotlight to capital punishment and whether it has a place in modern American society. It's unlikely any one case will prove to be the tipping point, but when you consider that just five years ago, legalized marijuana and gay marriage seemed farfetched to most, it's not crazy to think that with a bipartisan coalition opposing it, the death penalty may soon find itself on life support, too.