Sunday, September 03, 2017

Ohio Gov delays multiple executions while denying clemency for double murderer slated to die later this month

As noted and lamented in this recent Fair Punishment Project report, "Prisoners on Ohio’s Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age," as of the end of August 2017, Ohio had scheduled 26 executions to take place between now and 2020.  But as of the start of September 2017, thanks to the clemency/reprieve powers of Ohio Gov John Kasich and as detailed here, Ohio has only 18 executions scheduled to take place between now and 2020 with eight others being pushed back to 2021 and 2022.

The delaying of numerous execution was explained in this press release, which also notes that Gov Kasich has (unsurprisingly) denied clemency for a double murderer still scheduled to be executed on September 13:

Gov. John R. Kasich has denied a request for executive clemency from Gary Otte who was convicted in Cuyahoga County for the 1992 robbery and murder of 61 year-old Robert Wasikowski and 45 year-old Sharon Kostura at their respective apartments in Parma, OH.  The Governor’s decision follows the advice of the Ohio Parole Board, who on February 10, 2017, recommended against clemency for Otte by a vote of 11-0.

Additionally, in consultation with the Ohio Department of Rehabilitation and Correction, the governor updated Ohio’s current execution schedule.  After the U.S. Supreme Court rejected claims by Ohio inmates that the state’s protocol was unconstitutional, allowing the execution of Ronald Phillips to proceed in July, the state reviewed the existing schedule to ensure Ohio would meet the goal of conducting court-ordered executions in a humane and professional manner.

Looking over the revised execution schedule, I surmise that the folks at the Ohio Department of Rehabilitation and Correction were not too keen on having to gear up for an execution scheduled nearly every month for the next two years and so they urged Gov Kasich to set a revised schedule that now has an execution taking place only, roughly, every other month through the next five years.

Notably, there are, as detailed here, another 123 persons on Ohio's death row in addition the the 26 with current execution date. That means that even if Ohio were to keep up the pace of six execution per year going forward after 2022, it would take until 2042 to carry out the sentences only of those currently condemned to die. That reality, in turn, lead me to start speculating about who might be governor of Ohio in a quarter century and whether she might be a proponent or opponent of capital punishment.

September 3, 2017 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Thursday, August 31, 2017

Florida Supreme Court says Gov was within authority to remove prosecutor from capital cases

The Florida Supreme Court issues a ruling today in Ayala v. Scott, No. SC 17-653 (Fla Aug 31, 2017) (available here). Here is the start of the opinion and the some of its analysis section:

Aramis Donell Ayala, State Attorney for Florida’s Ninth Judicial Circuit, petitions this Court for a writ of quo warranto, challenging Governor Rick Scott’s authority under section 27.14(1), Florida Statutes (2016), to reassign the prosecution of death-penalty eligible cases in the Ninth Circuit to Brad King, State Attorney for Florida’s Fifth Judicial Circuit. We have jurisdiction.  See article V, § 3(b)(8), Fla. Const.  For the reasons below, we deny Ayala’s petition....

Ayala argues that the Governor exceeded his authority under section 27.14 by reassigning death-penalty eligible cases in the Ninth Circuit to King over her objection because article V, section 17, of the Florida Constitution makes Ayala “the prosecuting officer of all trial courts in [the Ninth] [C]ircuit.”  While quo warranto is the proper vehicle to challenge the Governor’s authority to reassign these cases to King, see Fla. House of Representatives v. Crist, 999 So. 2d 601, 607 (Fla. 2008), Ayala is not entitled to relief because the Governor did not exceed his authority on the facts of this case....

[T]he executive orders reassigning the death-penalty eligible cases in the Ninth Circuit to King fall well “within the bounds” of the Governor’s “broad authority.”  Finch, 254 So. 2d at 204-05.  Far from being unreasoned or arbitrary, as required by section 27.14(1), the reassignments are predicated upon “good and sufficient reason,” namely Ayala’s blanket refusal to pursue the death penalty in any case despite Florida law establishing the death penalty as an appropriate sentence under certain circumstances. See generally § 921.141, Fla. Stat. (2017).

Notwithstanding the Governor’s compliance with all of the requirements of section 27.14(1), however, Ayala and her amici urge this Court to invalidate the reassignment orders by viewing this case as a power struggle over prosecutorial discretion.  We decline the invitation because by effectively banning the death penalty in the Ninth Circuit — as opposed to making case-specific determinations as to whether the facts of each death-penalty eligible case justify seeking the death penalty — Ayala has exercised no discretion at all.  As New York’s high court cogently explained, “adopting a ‘blanket policy’ ” against the imposition of the death penalty is “in effect refusing to exercise discretion” and tantamount to a “functional[] veto” of state law authorizing prosecutors to pursue the death penalty in appropriate cases. Johnson v. Pataki, 691 N.E.2d 1002, 1007 (N.Y. 1997).

Two Justices dissented, and the dissenting opinion starts this way:

This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices’ resources, free from interference by a Governor who disagrees with their decisions.  The issue before this Court is whether a duly elected State Attorney’s choice to forgo seeking one potential penalty in a class of criminal cases, in favor of seeking another penalty authorized by statute, constitutes “good and sufficient reason” for the Governor to exercise his removal power under section 27.14(1), Florida Statutes (2017).  I dissent because the State Attorney’s decision to prosecute first-degree murder cases but not seek the death penalty at this time does not provide a basis for the Governor to remove State Attorney Aramis Ayala.

August 31, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13)

Wednesday, August 30, 2017

New report spotlights concerns with background of 26 Ohio condemned scheduled for execution in coming months and years

In this post earlier this year, I reported on a significant report produced by the Fair Punishment Project (FPP) examining the background and case history of eight death row defendants in Arkansas who had approaching execution dates.  That March 2017 Arkansas report from FPP was titled "Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering," and I am inclined to assert that the FPP report played a role in a few of these Arkansas defendants getting their executions stayed.

Now FPP has turned its eye to the Buckeye State now that Ohio has gotten its machinery of death operating again, and FPP's latest report here is titled "Prisoners on Ohio’s Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age." Here is how this report gets started:

On July 26, 2017, Ohio ended its three-year execution moratorium and put Ronald Phillips to death.  Phillips, 19 at the time he committed his crime, had the intellectual functioning of a juvenile, had a father who sexually abused him, and grew up a victim of and a witness to unspeakable physical abuse — information his trial lawyers never learned or presented to a jury.

Ohio intends to execute three more people in 2017 and then 23 more between 2018 and 2020.  We examined the cases of these 26 men, relying on available legal pleadings, court opinions, and where accessible, trial testimony.  We found that these men are among the most impaired and traumatized among us — a pattern replicated across America’s death rows.  At least 17 out of the 26 men experienced serious childhood trauma — horrifying instances of extensive physical and sexual abuse.  At least six men appear to suffer from a mental illness, and at least 11 have evidence of intellectual disability, borderline intellectual disability, or a cognitive impairment, including brain injury.  Three were under the age of 21 at the time they committed their offenses, a period during which an individual’s brain, especially the section related to impulse control and decision-making, is still underdeveloped.  Many of these men fall within several of these categories, which compounds the impairments.

We use the term “at least” because three of these men waived the presentation of mitigation at their trials.  And several had lawyers who conducted little to no investigation at both the trial and post-conviction phase or failed to seek the assistance of psychologists and other experts, despite the presence of familial mental illness, which is often hereditary. Therefore, in those cases, we know very little about existing impairments, even though execution dates are looming.

The Constitution mandates that the state restrict the use of the death penalty to only those “whose extreme culpability makes them ‘the most deserving of execution,’” regardless of the severity of their crimes. The individuals identified here have been convicted of horrible crimes, and they must be held to account.  But the evidence suggests that Ohio has not met its constitutional obligation.  It is instead planning to execute nearly two dozen individuals with substantial impairments, rather than reserving the punishment for those with the greatest culpability.

Below, we describe some of the stories we uncovered while researching these 26 Ohio cases.  We have grouped them by category of impairment which includes serious trauma, mental illness and intellectual disability, and youth.  These distinctions, however, are artificial — many of these men have heartbreaking stories falling within multiple categories. For each example of a debilitating impairment, we could have included many other equally terrifying stories about those facing a sentence of death.

August 30, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (14)

Tuesday, August 29, 2017

In wake of Marcellus Williams stay and inquiry, broader reflections on innocence and racial dynamics in capital punishment's administration

As reported in this post last week, just before Marcellus Williams was to be put to death for the 1998 murder of a former newspaper reporter, Missouri Gov Eric Greitens issued a stay of execution and appointed a Board of Inquiry to explore his claims of innocence.  With that case obviously fresh in mind, this week has brought these two related commentaries:

Here, respectively, are the final paragraphs of each piece:

This will not be the first time that we have executed a man despite real doubts about the case. So long as we have the death penalty, it will not be the last.

Racist death penalty statutes must be the first to go. Exercising meaningful, impactful leadership, Gov. Greitens can and should, start with Missouri’s.

August 29, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, August 25, 2017

Florida completes (historic?) execution 30 years after double murder

As reported in this local article, headlined "In a first, Florida executes a white defendant for killing a black victim," a demographically notable execution was carried out late yesterday.  Here are the details:

For the first time in 18 months, Florida carried out a death sentence, killing Mark James Asay as final punishment for two 1987 murders in Jacksonville and making Asay the first white man ever executed in the state for killing a black victim. Asay was pronounced dead at 6:22 p.m. Thursday. He was 53.

The execution began at Florida State Prison after the U.S. Supreme Court, without comment, denied Asay’s final appeal. At 6:10 p.m., a curtain lifted between the death chamber and a room for witnesses. The lighting flickered, and the air-conditioning was turned off, making for an eerie quiet. “Mr. Asay, do you have a final statement?” a guard asked. “No, sir,” he replied. “I do not.”...

Asay’s chest moved up and down, and then it stopped. The guard shook Asay’s shoulders, then stood back. Eight minutes later, a doctor emerged.

The state executed Asay because a jury found him guilty of killing Robert Lee Booker and Robert McDowell minutes apart in Jacksonville’s Springfield neighborhood. The jury recommended he be put to death by a vote of 9 to 3. The U.S. Supreme Court later ruled that death sentencing system unconstitutional, and though the Florida Supreme Court now requires unanimous jury decisions, the new standard applies only to cases going back to 2002.

Asay’s attorneys said the best argument for stopping the execution would have been to say that 2002 is an arbitrary date, and because the death sentence vote wasn’t unanimous, he should be resentenced. Asay refused to let them make that argument, attorney Marty McClain said, instead asking them to argue he wasn’t guilty of murdering Booker, the black man.

When Asay was arrested, his arms bore white supremacist tattoos, and witnesses said he referred to one of the victims by the N-word. Frank Booker, Robert Booker’s brother, said Thursday afternoon that “we’ve been waiting for this since 1987, and that’s a long time. I feel a lot of pressure and anxiety will be off me, and I’ll be able to continue in life, I think, a lot more peaceful because this was something that touched a lot of us really, really deep. I know he feels sorry now, but he should’ve thought about that in ’87 when he did what he did. He did it. All the evidence pointed that way.”

Asay’s brother and another friend who were with him the night of the killings testified that the three were drinking and looking for sex. While his brother was talking to Booker, Asay used racial slurs. He then shot Booker in the stomach and fled. The men then hired McDowell, who was dressed as a woman and using the name Renee Torres, to perform oral sex, according to their testimony. Asay then shot and killed McDowell. One of the witnesses said Asay killed McDowell because he felt ripped off. A jailhouse informant later said Asay referred to McDowell using a derogatory word for gay men.

Asay admitted this week to News4Jax that he killed McDowell, who was white. The race of Asay’s victims matters because a racist motive can help prove a murder is cruel, calculated and premeditated, and worthy of execution.

The execution of Asay included the use of two drugs never before used in Florida: potassium acetate, which was used by accident in an Oklahoma execution in 2015, and etomidate, which had never been used anywhere for an execution. States that still carry out the death penalty have struggled to acquire the necessary drugs for lethal injection and have started changing their cocktails. Asay’s lawyers argued that the new injection mixture would violate his constitutional right to be free of cruel and unusual punishment. On Thursday afternoon, a corrections official handed out packets about how the new injection process would work, but she wouldn’t answer questions about how the state chose the drugs.

Since Asay’s trial in 1988, Duval County has led the state in handing down death sentences, with Assistant State Attorney Bernie de la Rionda getting more death sentences than almost any prosecutor in the country. Asay’s execution was the first of de la Rionda’s death sentences to be carried out.

As hinted in the title of this post, I am not sure I want to use the label "historic" to describe the fact that a southern state has carried out the execution of a white murderer who had a black victim. At the same time, I do think it worth noting that this murderer was actually sentenced to death for his crime way back in the 1980s, and thus this execution might be deemed historic simply because it took three decades for Florida to be able to carry out his sentence. Also historic, in some sense, is an execution based on a a non-unanimous jury death recommendation, which will not be possible any longer.

August 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (11)

Thursday, August 24, 2017

California Supreme Court seems to clear way for resumption of executions after resolving Prop 66 challenges against capital defendant

As reported in this local article, the "California Supreme Court on Thursday upheld a ballot measure narrowly approved by voters to change the state's dysfunctional death penalty system and speed up executions."  Here is more on the ruling and its context from this press account:

The highly anticipated ruling concerned Proposition 66, a push to "mend not end" capital punishment in California. The measure aimed to expedite death sentences in part by setting a five-year deadline on court appeals by condemned inmates. With two of the seven justices dissenting, the state Supreme Court said the five-year deadline was advisory, not mandatory — a point that supporters of the measure had conceded during oral arguments....

Condemned inmates in California currently languish for decades and are more likely to die of natural causes than from lethal injection. There are nearly 750 inmates on death row and only 13 have been executed since 1978 — the last in 2006. It now takes up to five years for death row inmates to get an attorney, and it can take upward of 25 years to exhaust appeals.

Proposition 66 would expand the pool of appellate lawyers handling capital cases and allow lower level state courts — not just the California Supreme Court — to hear appeals.

Death penalty opponents agreed with Proposition 66 backers that the current system was broken, but they argued that the measure would lead to the appointment of incompetent attorneys and overwhelm courts. The result: Insufficient review that could send innocent people to their deaths. Arguments before a divided California Supreme Court in June focused on whether the measure's five-year deadline to hear appeals was realistic and enforceable. Supporters of the measure surprised observers when they conceded the time limit was not mandatory but more of a guideline....

The measure — approved by 51 percent of voters — was designed by prosecutors to revamp the appeals process so the "worst of the worst" murderers are actually executed. Under the measure, more lawyers would have to take death penalty appeals, and they would be assigned almost immediately after sentencing. It would shift one type of appeal focused on newly discovered evidence or alleging misconduct by jurors or prosecutors to trial court judges. With 380 death penalty appeals now pending, there was concern from some legal observers that the state's high court would be overwhelmed trying to meet the deadline imposed by the measure and would hardly hear other cases of merit.

The full ruling in Biggs v. Brown runs 121 pages and is available at this link. I hope to have time to read and perhaps comment further on the opinion in the days ahead, and in the meantime here is how the opinion for the court begins:

In the November 2016 election California voters approved Proposition 66, the Death Penalty Reform and Savings Act of 2016. (Gen. Elec. (Nov. 8, 2016) § 1.) The measure’s various provisions are intended to facilitate the enforcement of judgments and achieve cost savings in capital cases. Petitioner Ron Briggs seeks writ relief from this court, challenging the constitutionality of certain aspects of the proposition.  Governor Edmund G. Brown, Jr., Attorney General Xavier Becerra, and the Judicial Council of California oppose the petition as respondents.  They are joined by intervener Californians to Mend, Not End, the Death Penalty, a campaign committee representing the proponents of the initiative. The issues raised are of sufficient public importance to justify the exercise of our original jurisdiction in the interest of a prompt resolution. (Legislature v. Eu (1991) 54 Cal.3d 492, 500.)

Petitioner asserts four grounds for relief.  He claims Proposition 66 (1) embraces more than one subject, as prohibited by the California Constitution; (2) interferes with the jurisdiction of California courts to hear original petitions for habeas corpus relief; (3) violates equal protection principles by treating capital prisoners differently from other prisoners with respect to successive habeas corpus petitions; and (4) runs afoul of the separation of powers doctrine by materially impairing the courts’ ability to resolve capital appeals and habeas corpus petitions, and to manage their dockets in general.

Petitioner’s constitutional challenges do not warrant relief.  However, we hold that in order to avoid serious separation of powers problems, provisions of Proposition 66 that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory.

August 24, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Tuesday, August 22, 2017

Missouri Gov halts scheduled execution and appoints Board of Inquiry to investigate innocence claim

As reported in this local article, today just "before Marcellus Williams was to be put to death for the 1998 murder of a former newspaper reporter, Gov. Eric Greitens issued a stay of execution and appointed a board to look into the case." Here is why:

“A sentence of death is the ultimate, permanent punishment,” Greitens said in a statement Tuesday afternoon. “To carry out the death penalty, the people of Missouri must have confidence in the judgment of guilt. In light of new information, I am appointing a Board of Inquiry in this case.”

Williams’ attorneys have been pleading for a stay, arguing that Missouri was on the verge of executing the wrong person. Williams, 48, was sentenced to death in 2001 for killing Felicia Gayle, who had been a reporter with the St. Louis Post-Dispatch. Gayle was stabbed 43 times with a butcher knife in her home. Williams was scheduled to be executed in 2015, but the Missouri Supreme Court stayed his lethal injection, allowing him time to obtain new DNA testing.

DNA testing of the murder weapon, conducted in 2016 and using technology that was not available at the time of the killing, shows Williams is not a match for the male DNA found on the murder weapon.

The Missouri Supreme Court last week turned down his attorneys’ attempt to have the execution stopped. The court did not provide a reason....

Greitens said he would appoint a five-member board that will include retired judges and have the power to subpoena evidence and compel witnesses to testify. The board will look into the case and make a recommendation to the governor as to whether Williams should be executed or have his death sentence commuted....

A spokeswoman for Attorney General Josh Hawley told The Washington Post this week that based on “non-DNA evidence in this case our office is confident in Marcellus Williams’ guilt and plans to move forward.” Among the other evidence cited by Hawley’s office is testimony by Williams’ former cellmate and an ex-girlfriend implicating him in the murder. Some of the victim’s belongings were found in a car Williams drove the day she was killed.

Opponents of the death penalty say Williams’ case should help fuel the push to end the practice in Missouri. “Marcellus Williams’ case is a classic example of the inherent injustice of the death penalty system,” said Zeke Johnson, senior director of programs at Amnesty International USA, “and why it should be altogether abolished.”

Williams was set to face lethal injection at 6 p.m. Tuesday if not for the governor’s order 

Gov. Greitens' full two-page statement is available at this link.

August 22, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

Johnson & Johnson the latest drug company to balk about its drugs being used in lethal injection protocol

This notable new Wall Street Journal article reports on a notable new company expressing concern about an execution protocol. The piece is headlined "Johnson & Johnson Wades Into Death Penalty Debate For First Time: J&J’s Janssen Pharmaceuticals protests use of its drug in a lethal injection."  Here is how the piece gets started:

A Johnson & Johnson company opposes plans by Florida authorities to use one of its drugs in a coming execution, marking the first time the world’s largest pharmaceutical manufacturer has waded into the death-penalty debate.

Earlier this year, Florida amended its lethal-injection protocol to include etomidate, an anesthetic agent that has never been used in executions, after exhausting its supply of the sedative midazolam.  Florida authorities are slated to use the updated protocol for the first time on Thursday in the execution of Mark Asay, who was sentenced to death for the 1987 killings of Robert Lee Booker and Robert McDowell in Jacksonville, Fla.

Scientists at Johnson & Johnson’s Janssen Pharmaceuticals NV created etomidate in the 1960s.  The company never distributed the drug in North America and divested the rest of the business in 2016.  But the company protested on Monday Florida’s plan to use etomidate to render death-row inmates unconscious before injecting them with a paralytic agent and a third drug to stop their hearts.  “We do not support the use of our medicines for indications that have not been approved by regulatory authorities,” a Janssen spokesman said in an email.  “We do not condone the use of our medicines in lethal injections for capital punishment.”

No Johnson & Johnson drugs have been used so far in executions, according to Reprieve, an international-rights group that opposes the death penalty.  At least eight companies make etomidate. Florida, like many states, keeps the identity of its suppliers secret.

August 22, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8)

Friday, August 18, 2017

Califorina judge precludes death penalty for mass murderer as sanction for government misconduct

A helpful reader made sure I did not miss the notable state trial ruling reported in this new HuffPost piece.  As the piece reports, "Scott Dekraai, a 47-year-old man who admitted to killing eight people at a beauty salon in the worst mass shooting in Orange County, California, history, will not face execution for his crimes because of law enforcement misconduct linked to a jail informant program, a judge ruled Friday."  Here is more:

In a rare move, Superior Court Judge Thomas Goethals excluded the death penalty as a punishment option.  The ruling comes after the judge held weeks of hearings centered on whether the Orange County Sheriff’s Department could be trusted to turn over all records in the case.

It’s now expected that next month Goethals will sentence Dekraai to eight consecutive life terms in prison without the possibility of parole ― unless the California Attorney General’s office files a challenge to the ruling with the 4th District Court of Appeal.  “This is not a punitive sanction,” Goethals said in court Friday. “Rather it is a remedial sanction necessitated by the ongoing prosecutorial misconduct.”

Deputy Attorney General Michael Murphy ― the prosecutor who took over the Dekraai case after Goethals recused the Orange County District Attorney’s office due to misconduct ― had argued that the judge should keep the death penalty on the table.  Murphy said that Goethals had already doled out the appropriate sanctions in removing the district attorney’s office from the case and that excluding the death penalty would amount to an additional, unnecessary sanction.  Ultimately, Goethals disagreed. Reading from his ruling, the judge said that compliance by prosecutors and other law enforcement officers with his lawful court orders to turn over evidence in the Dekraai case “remains an elusive goal” and that ignoring those violations would be “unconscionable.”...

The judge’s ruling is extraordinary in the case of a mass murderer.  Dekraai almost immediately confessed to police about his role in the 2011 killing. He formally pleaded guilty to the crimes in 2014.  It appeared Dekraai would swiftly be dispatched to San Quentin’s death row.  But the case against him has been marred by allegations of egregious government malfeasance. His sentencing has remained in limbo amid ongoing allegations that county prosecutors and sheriff’s deputies improperly used a jailhouse informant in his case and then hid key evidence about that for years....

Just days after the 2011 shooting, county law enforcement moved Dekraai, then held in a local jail, next to a prolific jailhouse informant, Fernando Perez. Perez questioned Dekraai about his case. Then prosecutors and law enforcement officers interviewed Perez, and a recording device was placed in Dekraai’s cell, capturing more conversations between the pair.

While it is generally legal for law enforcement authorities to use informants to help bolster cases, Dekraai’s lawyer, Assistant Public Defender Scott Sanders, has argued that in the particular circumstances, the move was a violation of his client’s constitutional rights.  That’s because it is illegal for government agents, including informants, to question or coerce statements out of a defendant who has been formally charged with crimes and is already represented by a lawyer, as Dekraai was.  Prosecutors contended there was no intentional violation because they did not instruct Perez to question Dekraai.

While the contents of the conversations between Dekraai and Perez remain sealed, court records have shown that the informant did probe Dekraai about his crimes.  As Sanders requested more information about the contacts between the two men, he discovered that Perez had also been used as an informant against another one of his clients, Daniel Wozniak.  Wozniak was sentenced to death last year for the killing of two of his friends in an attempt to fund his wedding.

Prosecutors said it was simply a coincidence that the same informant was used against two of Sanders’ most high-profile clients, but the public defender didn’t believe that. Sanders pushed to uncover what would turn out to be tens of thousands of records about the use of informants inside county jails by prosecutors and sheriff’s deputies.... Additional evidence of the informant program came to light over the course of four years and three evidentiary hearings. Sanders’ efforts would ultimately reveal a disturbing trove of long-hidden records: a 25-year-old computerized system that detailed critical information about jail inmates and informants; more than four years of logs created by deputies who managed the informants, which was deleted in 2013 just days before Judge Goethals issued an order requiring its disclosure; and internal sheriff’s department memos, including one boasting of “hundreds of informants.”...

Nonetheless, the sheriff’s department continues to deny a jail informant program exists.  In recent hearings, Sheriff Sandra Hutchens and members of her command and management staff suggested that if there was any informant-related misconduct in the jails by deputies, it was the work of just a handful of rogue officers operating independently of their orders.  Three deputies refused to testify at the hearings, invoking their Fifth Amendment right to silence.  Leaders of the sheriff’s department have also said they’ve made changes to how deputies handle inmates in the jail. The district attorney’s office has maintained that any misconduct by county prosecutors was unintentional and that the scandal has been overblown....

 The 4th District Court of Appeal found last year that the cheating by prosecutors and sheriff’s officials in the county was very real and that the “magnitude of the systemic problems cannot be overlooked.”  Afterward, the U.S. Department of Justice announced an investigation into the official use of jail informants in Orange County.

The scandal had already led to the unraveling of more than a dozen murder, attempted murder and felony assault cases in the county and threatens to upend countless more.  But the ruling in Dekraai’s case on Friday is arguably the most crushing defeat that the beleaguered district attorney’s office has faced since the scandal broke.

UPDATE: A copy of the ruling referenced above is available at this link.

August 18, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16)

Tuesday, August 15, 2017

Spotlighting a prominent constitutional challenge to Arizona's and the nation's death penalty

Chris Geidner has this new Buzzfeed News report about a new cert petition under the headline "A Top Lawyer Asks Supreme Court To Hear A Major Death Penalty Case." Here are some of the details:

An Arizona death row inmate, Abel Daniel Hidalgo, has been arguing for the past three years that the state’s death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty, among those convicted of murder. Earlier this year, Neal Katyal, best known these days for serving as the lead lawyer for Hawaii’s challenge to President Trump’s travel ban, agreed to serve as Hidalgo’s lawyer at the Supreme Court.

Katyal, the former acting solicitor general in the Obama administration, asked the justices in Monday’s filing to hear Hidalgo’s case and to strike down Arizona’s death penalty law.

The filing comes more than two years after Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, called for a wholesale review of the constitutionality of the death penalty. Justice Sonia Sotomayor has also expressed great concerns about the courts’ handling of death penalty cases, as well as some states’ death penalty laws.

And Justice Anthony Kennedy has expressed concerns about the death penalty’s imposition, and has cast key votes excluding groups of people — like children or the intellectually disabled — from being eligible for the death penalty. He has not, however, given any specific indication that he is ready to join Breyer’s call to review the constitutionality of the death penalty overall — and has allowed several executions to proceed since Breyer's call.

Katyal, however, joined by other lawyers at his firm, Hogan Lovells, as well as the Office of the Legal Advocate in Arizona and Arizona attorney Garrett Simpson, thinks the time is now — a move that could be tied to concerns by many liberal lawyers about whether and when Kennedy, at 81, might retire from the court. “I have spent the last few years with my team looking for cases that highlight the gross problems with the death penalty in practice, and this case is a perfect example of them,” Katyal told BuzzFeed News on Monday evening. “We look forward to the Supreme Court's review of Mr. Hidalgo's petition.”...

The brief points out that the court in Gregg found the new state death penalty laws to be constitutional because they required the finding of “aggravating” circumstances — a move that the court’s controlling opinion concluded would “direct and limit” who was eligible for execution “so as to minimize the risk of wholly arbitrary and capricious action.”

Forty years later, Arizona’s death penalty law is such that there are so many aggravating circumstances that “every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor” making the person eligible for the death penalty. Hidalgo pleaded guilty in 2015 to two January 2001 murders in a murder-for-hire scheme in Maricopa County, Arizona. He was then sentenced to death by a jury. “Arizona’s scheme utterly fails,” Katyal wrote, to “genuinely narrow the class of persons eligible for the death penalty” as the court has required over the time since Gregg.

For this reason alone, Hidalgo’s legal team argues, the court should take the case and strike down Arizona’s death penalty law. But, beyond that, the filing goes on, “A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance.” The brief argues that the court should take the case and rule that the death penalty, nationwide, is unconstitutional under the Eighth Amendment’s guarantee against cruel and unusual punishment. This is so, the brief argues, because “the number of death sentences imposed and carried out has plummeted.”

The brief also points to three further key arguments in support of this larger aim: First, states can’t give guidance that ensures that only “the worst offenders” are sentenced to death. Second, states can’t enforce the death penalty without “ensnaring and putting to death the innocent.” And, finally, “the present reality of capital punishment” — decades spent on death row with “the remote but very real possibility of execution” — is its own possible constitutional violation.

The cert petition, available at this link, sets out these "Questions Presented":

I.  Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment.

II.  Whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

August 15, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Saturday, August 12, 2017

Interesting and consequential Florida Supreme Court decision on retroactivity of Hurst

As this Death Penalty Information Center posting details, the Florida Supreme Court this past week reiterated that it would not apply retroactively its rulings requiring unanimous jury verdicts for death sentences to cases made final by June 2002 when SCOTUS decided Ring v. Arizona. The Florida court's per curiam opinion in Hitchcock v. Florida, No. SC17-445 (Fla. Aug. 10, 2017) (available here), mostly just restates a prior retroactivity ruling, but concurring and dissenting opinions make for interesting reads on retroactivity doctrines and policies.

As the DPIC posting notes, "Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases." I suspect most, if not all, of these prisoners will not be seeking certiorari to the US Supreme Court, but I would be surprised if SCOTUS takes up any of their cases.

August 12, 2017 in Apprendi / Blakely Retroactivity , Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, August 10, 2017

A reminder of why an active death penalty system in the US now seems so unlikley

Arguably the US has never had an active death penalty system, though there were a few hundred executions each year during the first decades of the 20th Century.  In the so-called modern death penalty era since 1976, the most completed executions in a single year was 98 (in 1999); there have been fewer than 50 executions in nearly every year over the last decades, and only 20 completed executions in 2016.  (This page from the Death Penalty information Center provides these recent details.)

As I have mentioned before, I find it notable that all the new law-and-order talk coming from the Trump Administration has not really included talk of ramping up use of the death penalty.  That, in my view, is a mark of a achievement by the abolitionist movement.  Another mark is the extraordinary difficulty these seems to be in securing death sentences, as discussed in this new Injustice Today piece headlined "Even in the deep red South, death sentences are on the decline." Here is an excerpt:

Twenty years ago, a brutal murder in a red state like Mississippi would likely guarantee a death sentence for a defendant.  But as last week’s sentencing of Scotty Lakeith Street illustrates, juries in the South and across the country continue to shift away from capital punishment.  In 1997, four people in Mississippi were sentenced to death; last year, 2016, not one person was. Street was sentenced to life without parole for stabbing retired teacher Frankie Fairley to death in 2014. The jury in Street’s trial, faced with a choice between the death penalty or life in prison, couldn’t reach a unanimous verdict, and split 10–2....

Those that opted for life without parole may have been swayed by Street’s extensive history of mental illness. As reported by WLOX, jurors heard testimony from his sister that Street had “been institutionalized so much, it’s beyond my count.” Street’s lawyers also presented testimony from a mental health provider who explained that Street suffered from schizophrenia and “needed to be in a group home with a caregiver.”  Street was also reported to have displayed “bizarre behavior,” including “putting plastic bags on his head to keep his brain from leaking out and running naked in public with objects tied to his scrotum.”...

Mental illness aside, death sentences are on the decline across the country.  Last year, 30 people were sentenced to death in the U.S., while in the mid-1990s, more than 300 people received capital sentences.  That decline in popularity is reflected in Street’s case, as well as in other Mississippi capital cases.  Though the death penalty’s legality remains alive and well, juries across the country are rejecting it.

August 10, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Tuesday, August 08, 2017

Horrible abuse and female defendant's demeanor lead Arizona jury to send child murderer to death row

Because so relatively few women are sent to death row, it is always noteworthy when a female defendant is sentenced to death.  And I found this local article from Arizona, headlined "Jurors: Sammantha Allen lacked remorse," a particularly notable account of what prompted an Arizona jury to vote to send a woman to death row yesterday for her role in the killing of a child.  Here are details:

Sammantha Allen dropped her head and burst into tears moments after jurors announced their verdict in the penalty phase of the woman's trial: death. "She didn't care what happened to this child," said Amanda Keagh, a juror in the trial. "It was all about what was going to happen to her."

This marks the end of one more chapter in the horrific 2011 murder of 10-year-old Ame Deal, whose lifeless body was found locked inside a plastic footlocker left out in the blazing Arizona heat. Police said the girl was forced into the box as punishment for stealing a popsicle. Allen, along with her husband John, were charged in the girl's murder. The woman was convicted of first-degree murder on June 26 and arguments over whether she would be sentenced to death lasted several weeks.

Jurors outside the courtroom said they maintained an open mind throughout the penalty phase of the trial, but ultimately pointed to Allen's demeanor inside the courtroom as a major factor in their decision. "So I think that was a pivotal moment for me," Keagh said. "I was waiting for something from her. That was her chance to plead for her life and it just fell short."

The defense team argued Allen's actions were a result of a dysfunctional childhood and family life that was heavily influenced by Allen's mother and grandmother. Her attorney argued the control continued into Allen's adulthood including how she treated Ame.

"We just felt at some point she was not as passive of a person as we previously thought," said Chuck Pritchett, another juror....

The jurors said the entire process was difficult, explaining some of the details and testimony will stay with them forever. "The hardest thing for all of us was the victim (Ame) and learning about what her life really entailed," said Ann Opseth, a juror. "The years of abuse that she suffered."

This additional local article about the case provides more details about the crime and context for the sentencing. As is often true for all sorts of sentencings, both capital and non-capital, the defendant's character and history may have mattered even more than her crime.

August 8, 2017 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, August 04, 2017

Kentucky judge rules death penalty unconstitutional for all offenders under 21 years old

As reported in this local article, headlined "Fayette judge rules death penalty unconstitutional for man under 21," a Kentucky judge reached a significant constitutional conclusion this week. Here are the basic details:

The death penalty is unconstitutional for a defendant who was younger than 21 at the time of his offense, Fayette Circuit Judge Ernesto Scorsone ruled earlier this week. Scorsone issued an order declaring the death penalty unconstitutional in the case of 21-year-old Travis Bredhold. He was 18 years and five months old when he was charged in 2013 with murder and robbery in the fatal shooting of Marathon gas station attendant Mukeshbhai Patel.

Fayette County Commonwealth’s Attorney Lou Anna Red Corn said in a statement Friday that she will appeal Scorsone’s order “because it is contrary to the laws of Kentucky and the laws of the United States.” Red Corn said two other cases eligible for the death penalty and pending before Scorsone will be affected by his ruling.... Red Corn’s statement said the judge’s ruling “will result in delays” in all three cases.

In a 2005 decision, the U.S. Supreme Court ruled that the execution of people who were younger than 18 at the time of their crimes violated the federal constitutional guarantee against cruel and unusual punishments.

Bredhold’s defense team asked Scorsone to extend that exclusion to people 21 and younger. Prosecutors argued that the death penalty is constitutional and argued that there is no national consensus with respect to offenders under 21.

Scorsone disagreed. “Contrary to the commonwealth’s assertion, it appears there is a very clear national consensus trending toward restricting the death penalty, especially in cases where defendants are 18 to 21 years of age,” Scorsone wrote.

The judge also cited research showing that 18- to 21-year-olds are less culpable for the same reasons that the U.S. Supreme Court found teens under 18 to be. The age group lacks maturity to control their impulses and fully consider risks, making them unlikely to be deterred by knowledge of likelihood and severity of punishment, the judge wrote. In addition, they are susceptible to peer pressure and emotional influence. And their character is not yet well formed, “meaning that they have a much better chance at rehabilitation than do adults,” the judge wrote.

“Given the national trend toward restricting the use of the death penalty for young offenders, and given the recent studies by the scientific community, the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age,” Scorsone wrote.

An individual evaluation that Bredhold “operates at a level at least four years below that of his peers” further supports the exclusion of the death penalty for Bredhold, the judge concluded.

I cannot yet find a copy of Judge Scorsone's opinion, but I am looking forward to finding it and seeing what he cites to support the assertion that there is a national trend toward restricting application of the death penalty "especially in cases where defendants are 18 to 21 years of age.” I know a lot of death penalty opponents are eager to see Roper extended to older offenders, but I am not aware of any legislation in any state that has precluded those age 18 or older from the reach of the death penalty.

UPDATE:  I just found the full opinion in this case via the Death Penalty Information Center's website, and the court relies heavily on the overall decline of executions and death sentences in recent years to make the "objective" case that application of the death penalty to defendants aged 18 to 21 are in decline. 

August 4, 2017 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Thursday, August 03, 2017

"Capital Punishment of Unintentional Felony Murder"

The title of this post is the title of this recent paper that I just recently came across via SSRN. The paper was authored by Guyora Binder, Robert Weisberg and Brenner Fissell, and here is its abstract:

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment.  This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill.  The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death.

This Article shows that this mechanical reading of precedent is mistaken, because the underlying justifications of Eighth Amendment jurisprudence require a rational selection for death of only the most deserving and deterrable offenders, and this in turn requires an assessment of culpability.  We argue that the Supreme Court should address this open question in Eighth Amendment law and that it should correct the lower courts by imposing a uniform requirement of at least recklessness with respect to death for capital punishment of felony murder.

August 3, 2017 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Tuesday, August 01, 2017

Should Justice Ginsburg be accused of propagating "fake news" about the death penalty?

The somewhat tounge-and-cheek question in the title of this post is prompted by a short passage in this New York Times article by Adam Liptak discussing some recent public comments by Justice Ruth Bader Ginsburg.  Here is that passage:

Justice Ginsburg spoke at George Washington University Law School, at an event sponsored by the Washington Council of Lawyers, a bar association. Asked about the future of the death penalty in the United States, Justice Ginsburg did not mention a 2015 dissent in which she and Justice Stephen G. Breyer had called for a fresh look at the constitutionality of the practice.  But she said capital punishment may soon be extinct in any event.

“The incidence of capital punishment has gone down, down, down so that now, I think, there are only three states that actually administer the death penalty,” she said.  “We may see an end to capital punishment by attrition as there are fewer and fewer executions.”

The number of executions has indeed fallen sharply, with only 20 carried out in 2016, the smallest number in decades.  But seven states have executed condemned inmates this year, according to the Death Penalty Information Center.

In addition to 7 states completing executions in 2017, the DPIC reports here that 13 states imposed death sentences in 2016.  I certainly consider the imposition of death sentences to be another aspect of "actually administering the death penalty," and one might also note that more than 30 jurisdictions in the US have persons sitting on death row.  So, in various ways, the suggesting that only a few states still use the death penalty is really not quite right.

Moreover, and arguably ever more important for Justice Ginsburg's comments here, three states had voters in 2016 reaffirm a committment to having an operational system of capital punishment.  Initiatives votes in favor of the death penalty in Oklahoma, Nebraska and especially California all run counter to the suggestion that we may soon see "an end to capital punishment by attrition."

That all said, there is no doubt that the use and importance of the death penalty diminished considerably in recent decades, both politically and pratically.  I find particularly notable, for example, that neither Prez Trump nor AG Sessions has promoted greater us of the death penalty in their "law-and-order" rhetoric or in policy proposals.  But that reality does not lead me to expect to see the end of executions or death sentencings anytime soon. 

August 1, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Monday, July 31, 2017

"The Republican Party, Conservatives, and the Future of Capital Punishment"

The title of this post is the title of this new article authored by Ben Jones now available via SSRN. Here is the abstract:

The United States has experienced a significant decline in the death penalty during the first part of the 21st century, as death sentences, executions, public support, and states with capital punishment all have declined.  Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause.  Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states.  This Article puts these efforts by Republican lawmakers into historical context, and explains the conservative case against the death penalty: its incompatibility with limited government, fiscal responsibility, and promoting a culture of life.  Understanding Republican opposition to capital punishment takes on particular importance now following setbacks to efforts against the death penalty in the 2016 election.  In this environment, building support among Republicans and conservatives likely will prove critical for taking further steps toward limiting and eventually ending the death penalty in the U.S.

July 31, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (8)

Friday, July 28, 2017

Texas completes second US execution in as many days

On the heals of Ohio on Wednesday completing its first execution in 3.5 years (details here), Texas late Thursday completed its fifth execution of 2017.  This Texas Tribune article provides some details, from which these excerpts are drawn:

After more than 12 years on death row, a San Antonio man convicted in a fatal stabbing was executed Thursday night. It was Texas’ fifth execution of the year. TaiChin Preyor, 46, had filed a flurry of appeals in the weeks leading up to his execution date, claiming his trial lawyer never looked into evidence of an abusive childhood and his previous appellate counsel — a disbarred attorney paired with a real estate and probate lawyer who relied on Wikipedia in her legal research — committed fraud on the court.

But he lost all of the appeals, with the U.S. Supreme Court issuing a final ruling in the case more than two hours after his execution was originally set to begin. At 9:03 p.m., he was injected with a lethal dose of pentobarbital in Texas’ death chamber and pronounced dead 19 minutes later, according to the Texas Department of Criminal Justice. In his final words, he mentioned his love for his wife and kids and cited a Coretta Scott King quote, saying, "Justice has never advanced by taking a life," according to TDCJ.

Preyor was accused of breaking into 20-year-old Jami Tackett’s apartment in February 2004 and stabbing her to death. He was found at the scene by police covered in her blood. Preyor claimed the killing was done in self-defense after a drug deal gone bad, but the jury was unconvinced. He was convicted and sentenced to death in March 2005. No witnesses for Preyor or Tackett attended the execution, according to TDCJ spokesman Robert Hurst.

During his latest appeals, Preyor’s attorneys argued that his trial lawyer, Michael Gross, was inadequate because he didn’t present evidence of a physically and sexually abusive childhood that could have swayed a jury to hand down the alternate sentence of life in prison. “[The jury] did not learn that Preyor jumped from a fourth floor balcony as a teenager, breaking both his ankles in the fall, to escape his mother as she chased him with a knife,” attorneys Hilary Sheard and Cate Stetson wrote in a filing to the Texas Court of Criminal Appeals. “... Any competent counsel would have recognized the importance of uncovering these harrowing details and presenting them to the jury responsible for recommending a life sentence or a death sentence.”

July 28, 2017 in Death Penalty Reforms | Permalink | Comments (27)

Wednesday, July 26, 2017

Will Ohio successfully get its machinery of death operational today after 3.5 years of delays?... UPDATE: Yes

The question in the title of this post is prompted by the fact that, after years of difficulties securing execution drugs and then litigation delays, Ohio appear poised to have its first execution today since January 2014.  This AP story, headlined "US Supreme Court denies stay of execution for Ohio convict," provides the basic backstory:

A condemned child killer was scheduled to die on Wednesday in the state's first execution in more than three years after the U.S. Supreme Court denied his requests for more time to pursue legal challenges. Ronald Phillips was transported to the death house at the Southern Ohio Correctional Facility in Lucasville on Tuesday morning, about 24 hours before his execution was planned. He was convicted of the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.

Justices denied the 43-year-old Phillips a stay on three requests, with a pair of justices dissenting on a request by Phillips that was joined by two other death row inmates with upcoming execution dates. The inmates had asked the court for a delay while they continue challenging Ohio's new lethal-injection method. Justices Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented, arguing the inmates had demonstrated a likelihood of success at trial. Sotomayor objected to the court's "failure to step in when significant issues of life and death are present."

The death penalty has been on hold in Ohio since January 2014, when a condemned inmate repeatedly gasped and snorted during a 26-minute procedure with a never-before-tried drug combination. Republican Gov. John Kasich halted upcoming executions after that, and delays have continued because the state had trouble finding new supplies of drugs and death row inmates sued on the grounds the state's proposed new three-drug execution method represented "cruel and unusual punishment."

Phillips' arguments were backed up by 15 pharmacology professors, who stepped in Monday to argue that a sedative used in the process, midazolam, is incapable of inducing unconsciousness or preventing serious pain. A federal court last month upheld the use of midazolam, which has been problematic in several executions, including Ohio's in 2014 and others in Arkansas and Arizona.

Phillips also sought a delay based on his age at the time of the killing. He was 19, older than the Supreme Court's cutoff of 18 for the purposes of barring executions of juveniles. His request argued the age should be 21. His lawyers said he had such "psychosocial deficits" when he was picked up by police that they initially took him to a juvenile, rather than an adult, facility.

Attorneys for the state argued Phillips made meritless, often conflicting, legal claims. "Phillips argues that youth, like IQ, cannot be reduced to a number. But he also argues that the Eighth Amendment prohibits the execution of adults under age twenty-one," they wrote in a court document filed Tuesday. "He cannot have it both ways; if age cannot make one eligible for death, it cannot make one ineligible for death."...

Phillips has had several previous delays to scheduled executions, most notably in 2013, when he made a last-minute plea to donate his organs. He said that he wanted to give a kidney to his mother, who was on dialysis, and possibly his heart to his sister. His request was denied. His mother has since died.

If Ohio completes this execution and two more scheduled for 2017 without difficulties, the state could be poised to be the most active execution state in coming years. Ohio has 10 "serious" execution dates already scheduled for 2018, and I believe the state has enough lethal injection drugs to complete them all.

UPDATE:  This local story reports that "Akron child killer Ronald Phillips was put to death Wednesday ... by lethal injection at 10:43 a.m. Wednesday at the Southern Ohio Correctional Facility in Lucasville." According to the report, "there were no complications, and witnesses said Phillips showed no signs of gasping, choking or struggling."

July 26, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (15)

Saturday, July 15, 2017

Notable high-profile functionality of the dysfunctional Pennsylvania death penalty

Long-time readers surely recall some (of many) prior posts, including ones here and here, highlighting some (of many)  dysfunctional realities of the death penalty in Pennsylvania.  But this local article about horrible multiple murders getting national attention highlights how even a dysfunctional death penalty can still serve a significant function.  The article is headlined "Legal experts praise Bucks deal that led to murder confession," and here are excerpts:

The deal that spared Cosmo DiNardo the death penalty in exchange for a murder confession in a case that’s captivated the region and drawn national attention was lauded Friday by legal experts, who said the agreement was a swift and shrewd way to bring the gruesome case nearer to a close.

Cosmo DiNardo, 20, confessed to participating in the killings of four men. DiNardo also agreed to tell investigators where to find the bodies and lead them to an accomplice.  In exchange for the cooperation, his defense lawyer Paul Lang said, prosecutors agreed not to seek the death penalty.

DiNardo’s four victims, young men from Bucks and Montgomery Counties, disappeared last week.  Their families’ fears were confirmed when human remains were discovered in a 12-foot grave on a farm owned by DiNardo’s parents.  On Friday, DiNardo was charged with murder and related offenses.  Authorities also arrested his cousin and alleged accomplice, Sean Kratz, 20, on the same charges.  And also Friday, they discovered the body of one of the missing men, Jimi Taro Patrick, 19, on the farm.  The remains of Dean A. Finocchiaro, 19; Thomas C. Meo, 21; and Mark R. Sturgis, 22, had been discovered elsewhere on the sprawling property Wednesday.

Bucks County District Attorney Matthew D. Weintraub on Friday credited DiNardo’s confession with implicating Kratz and leading investigators to Patrick’s body, which had been buried separately from the others.  “I’d like to think he wanted to help us get these boys home,” he said, describing the cooperation agreement with DiNardo as critical to solving the case.

In interviews Friday, several legal experts agreed.  “It was absolutely the right thing to do,” Jack McMahon, a former prosecutor who is now a prominent defense lawyer, said of the deal.  “I think both sides did the right thing.”  With evidence mounting in a case this serious, McMahon said, “the defense probably realized that the evidence against his client was pretty overwhelming.  He had only one chip to play, and he used it to leverage for a life sentence.”

Marc Bookman, a former public defender who is director of the Atlantic Center for Capital Representation in Center City, said the agreement had clear benefits for DiNardo and for prosecutors.  “In a case like this, there’s a give and take,” he said.  For the defense, Bookman said, “you’ve got four bodies.  Any defense lawyer is thinking, ‘There’s no real defense to the killing of four people.’ There are defenses to a murder case, but it’s difficult to conceive of a legitimate defense to four bodies buried 12 feet in the ground.”

The severity of the crime made it a clear candidate for a death penalty prosecution, legal experts agreed, giving the prosecution leverage and the defense reason to seek a deal.  “The defense is giving the prosecutor something compelling,” Bookman said.  “He said he would direct them to where the bodies are. You’ve got four grieving families who desperately want closure, however sad that closure might be.  And he’s asking for something in exchange.”

For prosecutors, the threat of life on death row — if not actual execution in a state with a moratorium on the death penalty — upon conviction proved persuasive.  “It’s good to have the death penalty for cases like this — whether you agree with it or not,” said former Philadelphia District Attorney Lynne M. Abraham, whose tenure was marked by an aggressive willingness to pursue the death penalty in murder cases.  “The prosecutor had a bargaining chip, and the defense attorney used it to bargain away [the possibility of] being on death row for 25 to 40 years.”...

The deal DiNardo’s lawyers reached with prosecutors spares the families of the four victims a painful trial and saves taxpayers the expense.  In addition, Abraham said, it saves “hundreds of thousands, if not millions” of dollars spent on the appeals offered to all defendants convicted in capital cases.  Those often go on for decades.

Dennis J. Cogan, a former prosecutor and veteran defense lawyer, called the agreement a “win-win.” Without the confession, he said, the crime might have proved a “tough case” for prosecutors.  With the deal Weintraub struck with DiNardo’s lawyers, Cogan said, “they get the guy, they get the accomplice, and hopefully they bring closure for the families.”

July 15, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Wednesday, July 12, 2017

Spotlighting and unpacking the modern decline in death sentences

170711_TE_death-penalty-graph.png.CROP.promovar-mediumlargeBrandon Garrett has this new Slate commentary under the full headline "Why Jurors Are Rejecting the Death Penalty: There used to be 300 death sentences each year in the United States. Last year, there were just 30." Here are excerpts:

Prosecutors in Wake County, North Carolina, have sought the death penalty in eight cases over the past decade. Each time, jurors have rejected the sentence, most recently in March.  The most recent time Wake County jurors imposed a death sentence was a decade ago....

Capital punishment has now been outlawed in 19 states. In the places where it remains legal, jurors are increasingly reluctant to impose it.  Just 30 people were sentenced to death in the United States last year, and only 27 counties out of more than 3,000 nationwide sent anyone to death row.  In the mid-1990s, by contrast, more than 300 people were sentenced to death, with capital punishment being undertaken in as many as 200 counties each year.

Jurors have even started to reject the death penalty in Texas, which has sentenced more people to death than any other state in modern times.  Texas prosecutors are seeking the death penalty less often, and when they do, they’re frequently failing to persuade juries to impose it.  In 15 capital trials in the state since 2015, just eight have resulted in death sentences.

So, what has changed the minds of jurors?  It’s not that they’re morally opposed to the death penalty.  In fact, jurors who object on principle can be disqualified from serving in capital trials.  These are people who are open to imposing the ultimate punishment but decide to reject it after hearing a convicted murderer’s life story, including evidence of mental health issues, childhood abuse, and other mitigating circumstances....

Another reason for the decline in death sentences is that murders have steadily declined across the country, beginning in the mid-’90s.  (There has, however, been a recent spike in the murder rate in certain large cities.)  When my co-authors and I analyzed death sentencing data by county from 1990 through 2016, we found that a drop in the murder rate was strongly associated with the decline in death sentencing.

But death sentences have fallen far faster than murders.  One reason may be the growth in adequately resourced defense lawyers.  In general, states that have statewide offices to represent defendants at capital trials, as opposed to locally appointed lawyers, have experienced far greater declines in death sentencing.  Those offices have the resources to hire experts who can present mental health evidence and explain the defendant’s social history....

Our research also shows there is a strong “muscle memory” effect in death sentencing.  Counties that have issued a death sentence in the past are far more likely to obtain more.  What explains this substantial effect?  Prosecutors may get in the habit of seeking the death penalty, even when neighboring counties do not.  Perhaps losing a capital trial can put a damper on that enthusiasm.  Generally, once that muscle memory fades, counties do not get it back. Indeed, the counties that started out with the most death sentences have experienced the biggest declines over the past 15 years.  For example, in Harris County, Texas, where in the mid-1990s prosecutors led the country by securing 15 or more death sentences per year, there were no death sentences at all in 2015 or 2016.

As the death penalty fades, jurors may become more and more skeptical of its utility.  Last year, psychologists Daniel Krauss and Nicholas Scurich joined me in surveying nearly 500 people summoned for jury duty in Orange County, California, an area that regularly imposes death sentences.  We found that one-third of jurors — a surprisingly high share in that fairly conservative county — would not qualify to serve on a capital jury because they opposed the death penalty on principle.  About one-quarter — a separate group from the one-third of jurors described above — said they would not convict someone of capital murder if that meant the defendant would be executed.  Most strikingly, two-thirds of all jurors we surveyed said the fact that there had not been an execution in California in a decade made them less likely to sentence a person to death.

July 12, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Sunday, July 09, 2017

DPIC provides mid-year review of of 2017 death penalty developments

I just noticed that the Death Penalty Information Center recently provided this effective review of 2017 death penalty developments to date. Here are the details with links from the original:

As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States.  As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled.  By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued.

Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low.  However, even with the spate of four executions carried out in Arkansas from April 20-27 — that state's first executions since 2005 — there will likely be fewer executions in 2017 than in any other year since 1990.  

New death sentences also remain near historically low levels.  DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional.

Three people have been exonerated from death row in 2017 — Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida — bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness.  A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases.  In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.

Other states that have carried out executions so far in 2017 are Texas (4), Alabama (2), Georgia (1), Missouri (1), and Virginia (1).

July 9, 2017 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (30)

Thursday, July 06, 2017

Virginia Gov decides claim of delusional disorder does not justify halting scheduled execution of double murderer

As noted in this prior post, tonight's planned execution in Virginia of William Morva has brought renewed attention to the intersection of mental illness and capital punishment. That attention likely played a role in this decision by Virginia Governor Terry McAuliffe to release this statement today explaining his decision not to prevent Morva's execution. Here is how the statement starts and ends:

Over the past several weeks, my staff and I have carefully considered the petition for clemency submitted by William Morva, who was tried, convicted, and sentenced to death for the murder of Montgomery County Deputy Sheriff Corporal Eric Sutphin and hospital security guard Derrick McFarland.  We have also reviewed extensive communications from family members of the victims, law enforcement officials, community leaders, and concerned observers from all over the world.

Consistent with the three previous petitions for commutation of a capital sentence that I have reviewed, I have evaluated Mr. Morva’s submission for evidence that he has been subjected to a miscarriage of justice at any phase of his trial that could have impacted the verdict or his sentence.  After extensive review and deliberation, I do not find sufficient cause in Mr. Morva’s petition or case records to justify overturning the will of the jury that convicted and sentenced him.

There is no question that, in a carefully orchestrated effort to escape custody while awaiting trial for burglary, robbery and firearms charges, Mr. Morva brutally attacked a deputy sheriff, stole his firearm and used it to murder Mr. McFarland, who was unarmed and had his hands raised as he was shot in the face from a distance of two feet.  The next day, Mr. Morva murdered Corporal Sutphin by shooting him in the back of the head.

Mr. Morva’s petition for clemency states that he suffers from a delusional disorder that rendered him unable to understand the consequences of his actions.

That diagnosis is inconsistent with the findings of the three licensed mental health professionals appointed by the trial court, including an expert psychiatrist who is Board-Certified in both Psychiatry and Forensic Psychiatry.  Two of these three experts were called by Mr. Morva’s own legal team.  These experts thoroughly evaluated Mr. Morva and testified to the jury that, while he may have personality disorders, he did not suffer from any condition that would have prevented him from committing these acts consciously and fully understanding their consequences....

I have determined that Mr. Morva was given a fair trial and that the jury heard substantial evidence about his mental health as they prepared to sentence him in accordance with the law of our Commonwealth.  In short, the record before me does not contain sufficient evidence to warrant the extraordinary step of overturning the decision of a lawfully empaneled jury following a properly conducted trial.

I personally oppose the death penalty; however, I took an oath to uphold the laws of this Commonwealth regardless of my personal views of those laws, as long as they are being fairly and justly applied. Thus, after extensive review and deliberation consistent with the process I have applied to previous requests for commutation, I have declined Mr. Morva’s petition. I have and will continue to pray for the families of the victims of these terrible crimes and for all of the people whose lives have been impacted.

UPDATE: This Reuters article suggests that Morva's execution was completed without difficulty Thursday night.

July 6, 2017 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (11)

Sunday, July 02, 2017

Reviewing what Hurst has come to mean for the death penalty in Florida

This new Miami Herald article, headlined "There are fewer murderers on Florida’s Death Row but not because of executions," reports on the enduring echo effects of the Supreme Court's most significant capital punishment ruling in recent years. Here is how the article gets started:

The full impact of a historic U.S. Supreme Court ruling on Florida’s death penalty system is finally emerging as the state’s Death Row population is smaller than it was more than a decade ago and will keep shrinking for a long time.

Florida has not executed an inmate in 18 months. No inmates haves been sent to Death Row in more than a year, a sign that prosecutors are not trying as many first-degree murder cases because of uncertainties in the sentencing system.

“There is no reason to sign a death warrant if you know it’s going to get delayed,” said State Attorney Bernie McCabe, the top prosecutor in Pinellas and Pasco counties. “I think judges are reluctant to if they don’t know what the rules are.”

Florida’s Death Row population now stands at 362, according to the Department of Corrections web site. That’s the lowest number since 2004; only a year ago, the population was 389.

Many more cells on Death Row are certain to be emptied as the Florida Supreme Court continues to vacate death sentences because they violate a 2016 U.S. Supreme Court decision known as Hurst v. Florida.  The case struck down the state’s death penalty sentencing system because it limited jurors to an advisory role, a violation of the Sixth Amendment right to a trial by jury.

In four new cases, the state’s high court upheld first-degree murder convictions Thursday but ordered that all four defendants must be resentenced because of the Hurst decision, a step that could spare any or all of them a trip to the execution chamber.

One of the four, John Sexton, was convicted of the brutal 2010 Pasco County slaying of Ann Parlato, a 94-year-old woman who lived alone. The jury that convicted Sexton recommend his execution by a vote of 10 to 2, a split decision that justices said Thursday is a violation of the Hurst decision.  Justices also lifted the death sentence of Tiffany Ann Cole, convicted of burying a couple alive in Jacksonville.  She’s one of three women on Death Row.

Legal experts say that in all, up to 150 death sentences could be reversed or be sent back to trial courts for resentencing hearings in other cases in which the jury’s recommendation of a death sentence was not unanimous. Those penalty phase hearings will strain the limited resources of prosecutors and public defenders, who must scramble to find old trial transcripts and witnesses and must empanel new juries.  “I’ll use one word: ‘chaos,’ ” said retired Supreme Court Justice Gerald Kogan of Miami. “It’s just a mess.”

Scott Sundby, a law professor at the University of Miami, said the impact on the criminal justice system will be significant.  “It essentially means that every new penalty phase is going to have to be re-investigated and presented in full,” Sundby said.  “There will not be an ability to simply rely on the prior penalty phase.”

July 2, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, June 29, 2017

The rest of SCOTUSblog's symposium on OT 2016 death penalty decisions

I noted in this post on Tuesday that the folks at SCOTUSblog had a new "Special Feature" in the form of a "Symposium on October Term 2016’s death-penalty decisions."  In the prior post I linked to the first four entries in this symposium, and here are now the last four:

June 29, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Murderers admit they went on prison murder spree in order to get death sentences

Regular readers know that I think one of the hardest conceptual and practical issues for death penalty abolitionists is what to do about killers already serving life without parole sentences who go on to kill again while in prison. If the death penalty is completely eliminated, these offenders may conclude there is no real punishment if they kill again.  But this recent AP article, headlined "Inmate: I Strangled Prisoners to Try to Land on Death Row," reports on the awful reality that a pair of killers serving LWOP in a South Carolina prison apparently were inspired to go on a murder spree because of the presence of the death penalty. Here is the start of a horrible story:

One by one, Denver Simmons recalled, he and his partner lured inmates into his cell. William Scruggs was promised cookies in exchange for doing some laundry; Jimmy Ham thought he was coming to snort some crushed pills.  Over the course of about a half-hour, four men accepted Simmons' hospitality.  None of them made it out alive.

Calmly, matter-of-factly, the 35-year-old inmate told The Associated Press how he and Jacob Philip strangled and beat their blockmates to death and hid their bodies to avoid spooking the next victims. They had nothing against the men; one of them was even a friend, Simmons admitted.

Why did they do it? Convicted in the cold-blooded shootings of a mother and her teenage son, Simmons knew he would never leave prison alive.  Tired of life behind bars, a failure at suicide, he hoped killing these criminals would land him on death row.

Officials say Philip and Simmons have confessed to the April 7 slayings of Ham, 56; Jason Kelley, 35; John King, 52; and Scruggs, 44. But until Simmons talked to the AP, no motive had been made public. The South Carolina Department of Corrections doesn't allow in-person interviews with inmates.  So the AP wrote letters to the two men. Philip's attorney responded with an email: "Jacob is a severely mentally ill young man who has been so adjudicated by the court. Accordingly, I would ask that you make no further efforts to interview him or contact him."

Simmons, though, called the AP three times, once using another inmate's time slot. And he described a twisted compact between two men who had "a whole lot in common" from the moment they met — most important, both despair and a willingness to kill again.

"I'd always joke with him — from back in August and September and October of 2015 — that if we weren't going to kill ourselves, that we could make a name for ourselves, so to speak, and get the death penalty," Simmons, told the AP. "The end of March of this year, he was willing to do it. So, we just planned to do it. And we did it."

Each man was serving life without the possibility of parole for a double murder....  Both men were sent to Kirkland Correctional Institution, a maximum security facility a few miles from the state capitol in Columbia. They were being housed in a unit for inmates who need significant mental health help but whose conditions aren't serious enough to require hospitalization.

Simmons said spending the rest of his life in prison would be a meaningless life of fear and boredom. Inmates are always scheming to take advantage or hurt fellow prisoners and guards only see the men behind bars as numbers. "It's just not a good place to live, you know, day in and day out," Simmons said.

June 29, 2017 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Prisons and prisoners | Permalink | Comments (9)

Wednesday, June 28, 2017

En banc Sixth Circuit reverses preliminary injunction that had been preventing Ohio from moving forward with executions

Unsurprisingly, the en banc Sixth Circuit today ruled for the State of Ohio in its appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  Here is how the majority opinion (per Judge Kethledge, who wrote the dissent in the original panel ruling) in  In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. June 28, 2017) (available here) gets started:

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed. See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995).  Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head.  Two nights later, Otte pushed his way into a woman’s home and did the same things to her. After each murder Otte went out partying. See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).  Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back.  His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts, 749 N.E.2d 226, 237-39 (Ohio 2001).

Phillips, Otte, and Tibbetts now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment.  In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted). The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court upheld in Glossip.  Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here.  See McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017); Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016).  Yet here the district court thought the same procedure is likely invalid.  We respectfully disagree and reverse the court’s grant of a preliminary injunction.

The chief dissent was penned by Judge Moore (who wrote the majority decision for the original panel upholding the stay).  This dissent runs about twice as long as the majority opinion, and it gets started this way:

There is a narrow question before this court: Should Gary Otte, Ronald Phillips, and Raymond Tibbetts have a trial on their claim that Ohio’s execution protocol is a cruel and unusual punishment, or should Ohio execute them without such a trial?  The majority has concluded that there is no need for a trial on the merits of Plaintiffs’ constitutional claim. I disagree.

There is no dispute that the second and third drugs in Ohio’s execution protocol cause immense pain.  There is significant evidence that the first drug, midazolam, cannot prevent someone from feeling that pain.  After a five-day hearing on Plaintiffs’ motion for a preliminary injunction, the district court determined that there should be a full trial on the merits of Plaintiffs’ claim that Ohio’s use of midazolam as the first drug in a three-drug execution protocol creates a constitutionally unacceptable risk of pain. Despite the deferential standard of review that this court should apply, the majority casts aside the district court’s determination that Plaintiffs should have a trial before the state executes them.  The majority also determines that despite Defendants’ unequivocal sworn testimony that they would no longer use pancuronium bromide or potassium chloride in executions, judicial estoppel does not prevent their renewed attempt to use those drugs. For the reasons discussed below, I would hold that Plaintiffs should have a trial on their Eighth Amendment and judicial-estoppel claims, and I respectfully dissent.

This Ohio DRC execution page details that Ohio is scheduled to execute Ronald Phillips on July 26 and has scheduled executions for more than two dozen other Ohio inmates running all the way through 2020. This Sixth Circuit will surely be appealed by Phillips to the US Supreme Court in the coming weeks, but I would be very surprised if SCOTUS takes up the case after it has recently allowed other midazolam executions to go forward. And if Ohio is able to to complete executions uneventfully with its current protocol, the state could now be on a path to having more executions in the next few years than perhaps any other state in the nation.

June 28, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, June 27, 2017

SCOTUSblog begins symposium on OT 2016 death penalty decisions

I will not likely remember the Supreme Court term just completed, October Term 2016, as especially notable for sentencing developments.  There were no big blockbuster sentencing cases, although the Beckles vagueness ruling was certainly consequential and a few other rulings will surely launch a few law review article.  And, of course, in the intricate and endlessly litigated world of the death penalty, a mixed bag of smaller SCOTUS rulings still add up to something worth watching (especially with the added bit of uncertainty that comes with Justice Gorsuch replacing Justice Scalia).

Helpfully for those who just cannot get enough of the SCOTUS capital docket, the folks over at SCOTUSblog have this new "Special Feature" in the form of a "Symposium on October Term 2016’s death-penalty decisions."   Here are links to the four pieces already up at SCOTUSblog, and I surmise more be coming:

June 27, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, June 25, 2017

Could mental illness be the next big battle-front in debates over capital punishment?

The question in the title of this post is prompted by this lengthy Washington Post article headlined "He’s a killer set to die. But his mental illness has set off a new death penalty battle."  Here are excerpts:

Someone was trying to kill him. William C. Morva was certain of it.  He couldn’t breathe and he was withering away, he told his mother in a jailhouse call.

“Somebody wants me to die and I don’t know who it is,” he said.  “They know my health is dwindling, okay?” He sounded paranoid. His voice grew more frantic with each call over several months on the recorded lines.

“How much more time do you think my body has before it gives out?” he asked just months before he escaped from custody, killing an unarmed guard and later a sheriff’s deputy before his capture in woods near Virginia Tech’s campus.

Morva faces execution July 6 for the 2006 killings. With the date looming, Morva’s family, friends and lawyers are pressing for clemency from Virginia Gov. Terry McAuliffe (D) in what has become a broader national push to eliminate capital punishment for people with severe mental illnesses such as Morva’s delusional disorder....

The Supreme Court in recent years has ruled that juveniles, whose brains are not fully developed, and people with intellectual disabilities are not eligible for the death penalty.  Lawmakers in eight states, including Virginia, Tennessee and Indiana, have introduced bills that would expand the prohibition to people with severe mental illnesses.

A vote on an Ohio measure pending in the state legislature is expected this fall.  It is backed by a coalition of providers of mental-health services, social justice groups, religious leaders, former state Supreme Court justices and former Republican governor Bob Taft.  The bills address punishment, not guilt or innocence.  If lawmakers in Columbus sign off on the measure, Ohio would become the first state to pass an exclusion for severe mental illness among the 31 that retain the death penalty....

Advocates for reform say the penalty was not intended for people who are incapable of distinguishing between delusions and reality, and that jurors often misunderstand mental illness.  The reformers’ efforts have met with resistance mostly from prosecutors and law enforcement officials who say jurors already can factor in mental illness at sentencing and that the exemptions are too broad.

June 25, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (3)

Friday, June 23, 2017

"People keep voting in support of the death penalty. So how can we end it?"

The title of this post is the notable headline of this notable new commentary by noted death penalty abolitionist Austin Sarat.  The first sentence of the headline highlights an important political reality, and the commentary goes on to review recent political developments and to emphasize the political challenges that abolitionists face.  I recommend the commentary as a modern recap on the state of capital politics and as providing insights on how abolitionists can seek to develop a claim that capital abolition is not anti-democratic.  I found found this little piece of political history especially interesting:

Since the beginning of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once.  From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968, during the height of America’s tough-on-crime, law-and-order era.

In a few of those elections, voters have been asked only to approve technical changes in their state’s death penalty law. In others, like last year in Oklahoma, they had to decide whether to change their state constitutions to protect or reinstate the death penalty.

Sometimes death penalty abolitionists have led the way in pushing for a referendum. More often, especially since 1968, voters have been asked to respond to a legislative, judicial or executive action which threatened to end, or ended, the death penalty. In those circumstances, the issue generally has been put on the ballot by pro-death penalty politicians.

Yet whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.

Let’s consider the three times opponents of capital punishment won. In Oregon, abolitionists prevailed in 1914. But, just six years later, another referendum brought the death penalty back — only to have it voted down again in 1964. Arizona voters rejected the death penalty in 1916, but brought it back in 1918.

Abolitionists have consistently lost in even supposedly progressive states like Massachusetts, which voted in favor of the death penalty in 1968 and 1982.

June 23, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Monday, June 19, 2017

By a 5-4 vote, SCOTUS decides failure of Alabama courts to provide expert mental health assistance to capital defendant was unreasonable

The Supreme Court handed down a notable split decision in a capital case this morning in McWilliams v. Dunn, No. 16-5294 (S. Ct. June 19, 2017)(available here). Justice Breyer authored the opinion for the Court for the usual coalition of Justices most skeptical of application of the death penalty, and that opinion starts this way:

Thirty-one years ago, petitioner James Edmond McWilliams, Jr., was convicted of capital murder by an Alabama jury and sentenced to death.  McWilliams challenged his sentence on appeal, arguing that the State had failed to provide him with the expert mental health assistance the Constitution requires, but the Alabama courts refused to grant relief. We now consider, in this habeas corpus case, whether the Alabama courts’ refusal was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). We hold that it was.  Our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” Id., at 83.  Petitioner in this case did not receive that assistance.

A sharp dissent in McWilliams, which runs longer than the majority opinion, is authored by Justice Alito (and joined by the newest Justice), and it starts this way:

We granted review in this case to decide a straightforward legal question on which the lower courts are divided: whether our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that an indigent defendant whose mental health will be a significant factor at trial is entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.

The answer to that question is plain: Ake did not clearly establish that a defendant is entitled to an expert who is a member of the defense team.  Indeed, “Ake appears to have been written so as to be deliberately ambiguous on this point, thus leaving the issue open for future consideration.” W. LaFave, Criminal Law § 8.2(d), p. 449 (5th ed. 2010) (LaFave).  Accordingly, the proper disposition of this case is to affirm the judgment below.

The Court avoids that outcome by means of a most unseemly maneuver.  The Court declines to decide the question on which we granted review and thus leaves in place conflicting lower court decisions regarding the meaning of a 32-year-old precedent.  That is bad enough.  But to make matters worse, the Court achieves this unfortunate result by deciding a separate question on which we expressly declined review.  And the Court decides that factbound question without giving Alabama a fair opportunity to brief the issue.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

SCOTUS summarily reverses Sixth Circuit reversal of Ohio death sentence

The US Supreme Court this morning issued this order list that did not include any grants of certiorari, but did include a summary reversal in the Ohio capital habeas case of Jenkins v. Hutton, No. 16-1116 (S. Ct. June 19, 2017) (available here).  Here are some key passages from this brief per curiam opinion: 

According to Hutton, the court gave the jurors insufficient guidance [when deciding on whether to recommend a death sentence] because it failed to tell them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase.  Hutton, however, had not objected to the trial court’s instruction or raised this argument on direct appeal, and the District Court on federal habeas concluded that his due process claim was procedurally defaulted....

Nonetheless, the Sixth Circuit held that the [miscarriage of justice] exception justified reviewing his claim. The court gave two reasons: First, Hutton was not eligible to receive a death sentence because “the jury had not made the necessary finding of the existence of aggravating circumstances.” 839 F.3d, at 498–499.  And second, since the trial court “gave the jury no guidance as to what to consider as aggravating circumstances” when weighing aggravating and mitigating factors, the record did not show that the jury’s death recommendation “was actually based on a review of any valid aggravating circumstances.” Id., at 500....

The Sixth Circuit was wrong to reach the merits of Hutton’s claim.... Hutton has not argued that the trial court improperly instructed the jury about aggravating circumstances at the guilt phase.  Nor did the Sixth Circuit identify any such error. Instead, the instruction that Hutton contends is incorrect, and that the Sixth Circuit analyzed, was given at the penalty phase of trial.  That penalty phase instruction plainly had no effect on the jury’s decision — delivered after the guilt phase and pursuant to an unchallenged instruction — that aggravating circumstances were present when Hutton murdered Mitchell.

The Sixth Circuit’s second reason for reaching the merits rests on a legal error.  Under Sawyer, a court may review a procedurally defaulted claim if, “but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.”  505 U.S., at 336 (emphasis added).  Here, the alleged error was the trial court’s failure to specify that, when weighing aggravating and mitigating factors, the jury could consider only the aggravating circumstances it found at the guilt phase.   Assuming such an error can provide a basis for excusing default, the Sixth Circuit should have considered the following: Whether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating circumstances.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22)

Sunday, June 11, 2017

"Are 18-year-olds too immature to face the death penalty?"

The question in the title of this post is part of a headline of this local Kentucky article describing an effort to extend the reach of the Supreme Court's Roper ruling. The article's headline continues with the phrase "Lexington attorney says yes." Here are excerpts from the article:

Fayette Circuit Judge Ernesto Scorsone will soon decide whether to exclude the death penalty for a murder defendant who was 18 when he was charged with murder and robbery.

In a 2005 decision, the U.S. Supreme Court ruled that the execution of people who were younger 18 at the time of their crimes violated the federal constitutional guarantee against cruel and unusual punishments. The defense team for Travis Bredhold wants Scorsone to extend that exclusion to people 21 and younger. Bredhold, 21, was 18 when he was charged Dec. 13 with murder and robbery in the fatal shooting of Marathon gas station attendant Mukheshbhai Patel.

Police said surveillance camera footage indicates that Patel, 51, was trying to comply with a robber’s demand for cash when he was shot. He died later at University of Kentucky Chandler Hospital.

Bredhold was “only five months and 13 days older than the limitation” established by the U.S. Supreme Court, public defender Joanne Lynch said. More importantly, Lynch said, research indicates that people’s brains don’t mature until they are in their mid-20s. The Supreme Court ruled that people who are young and immature and who are likely to be more impulsive are not as culpable as a group and shouldn’t be up for the death penalty.

Bredhold’s defense team is asking to extend the exclusion “because people under the age of 21 are almost completely like people under the age of 18. You really don’t mature until you are in your mid-20s,” Lynch said.

Fayette Commonwealth’s Attorney Lou Anna Red Corn argued during a hearing Friday that there isn’t a “national consensus” on whether to extend the death-penalty exclusion to defendants 21 and younger.

June 11, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (18)

Saturday, June 10, 2017

Is adequate due process for capital cases "arguably impossible"?

The question in the title of this post is prompted by this San Francisco Chronicle editorial complaining about the prospect that the state of California might try to give effect to the voter initiative passed in the Fall, Proposition 66, intended to try to get the state's death penalty operational again.  Here are excerpts from the editorial, headlined "California should not speed up death penalty," which concludes with the phrase quoted in the title of this post:

Voters last fall narrowly approved Proposition 66, which sets a deadline for court review of capital-punishment appeals and takes other steps to restart a capital punishment machine that ground to a halt a decade ago. Fortunately, the state’s Supreme Court justices, who are considering a challenge to the initiative, have expressed appropriate doubts.

Efforts to prevent wrongful or torturous executions have slowed or stopped executions in many states as attorneys wrangle over challenges to convictions, court procedures and killing methods. The delays inevitably suggest one of two diametrically opposed political solutions: ending executions or expediting them. California voters rejected death penalty abolition and supported acceleration.

The constitutional amendment they approved sets a five-year deadline for each of two stages of death penalty appeals, which would shorten the average appeal by several years. With some 750 prisoners on Death Row and a backlog of more than 300 appeals, the justices noted, that would substantially shift court resources toward capital punishment and away from all other cases.

Prop. 66 also attempts to force more defense attorneys to take on capital cases, raising questions about how many of them would be qualified and eager to do so. Another provision would curtail review of lethal-injection procedures; California stopped executions in 2006 amid claims that its drug cocktail caused cruel and unusual punishment, and the state has yet to devise a new protocol.

The trouble with all these execution-efficiency measures is that they add up to an assault on the level of due process the death penalty requires, which is at least extraordinary and arguably impossible.  Barriers to carrying out the death penalty have their roots in serious questions about its irreversibility, arbitrariness and immorality.  Executing prisoners more quickly is exactly the wrong answer to those questions.

I understand all sorts of variations on abolitionist arguments, but I am sometimes troubled this notion that it is "arguably impossible" to provide capital cases with sufficient due process.  Recent high-profile federal and state capital cases involving Dzhokhar Tsarnaev (Boston Marathon bomber) and James Holmes (Aurora mass shooter) provide good examples of mass murderers getting plenty of process. Of course, if a jurisdiction is trying to secure many hundreds of death sentences every year, it is certainly possible (perhaps even likely) that a kind super due process would not be provided in every case.  But still, as long-time readers know well, I generally worry a lot more about lesser criminals not getting much process at all than about modern capital defendants not getting enough procedural protections.

June 10, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (27)

Friday, June 09, 2017

Alabama carries out second execution in as many weeks using midazolam as first lethal injection drug

A couple of weeks ago, as noted here, Alabama carried out the death sentence of Tommy Arthur for a 1982 murder-for-hire.  Last night, as this AP article reports, the state executed a "man convicted of killing three people during the 1994 robbery of an Alabama fast-food restaurant." Here are the basics:

Robert Melson, 46, was pronounced dead at 10:27 p.m. CDT Thursday at a southwest Alabama prison, authorities said. The execution was the state's second of the year. State prosecutors said Melson and another man who used to work at the restaurant, robbed a Popeye's in Gadsden, 60 miles northeast of Birmingham, and Melson opened fire on four employees in the restaurant's freezer. Nathaniel Baker, Tamika Collins and Darrell Collier were killed.  The surviving employee, Bryant Archer, crawled for help and was able to identify one of the robbers as the former worker which led police to Melson.

Collins' family members wore a badge with her photograph and the phrase "In Our Hearts Forever."  Her family issued a statement saying that three young people lost their lives for "a few hundred dollars" and criticized court filings on behalf of Melson that challenged the state's execution procedure as inhumane. Collins' mother and two sisters witnessed the execution. "He has been on death row for over 21 years being supported by the state of Alabama and feels he should not suffer a little pain during the execution. What does he think those three people suffered after he shot them, leaving them in a freezer?" the statement said.

Melson shook his head no when the prison warden asked if he had a final statement.  A prison chaplain knelt with him. Melson's hands quivered at the start of the procedure and his breathing was labored, with his chest moving up and down quickly, before slowing until it was no longer perceptible.

Melson's attorneys had filed a flurry of last-minute appeals seeking to stay the execution.  The filings centered on Alabama's use of the sedative midazolam which some states have turned to as other lethal injection drugs became difficult to obtain.  The U.S. Supreme Court temporarily delayed the execution to consider Melson's stay request, but ruled after 9 p.m. that the execution could go forward....

"Robert Melson's decades-long avoidance of justice is over. For twenty-three years, the families of the three young people whose lives he took, as well as a survivor, have waited for closure and healing. That process can finally begin tonight," Attorney General Steve Marshall said in a statement after the execution.

I have stressed in my post title the drug Alabama has used in its recent executions in part because that drug is sure to be at the center of discussions next week when the full en banc Sixth Circuit considers a current stay on Ohio executions based in part on concerns with the use of the drug midzolam. For basic background on that story, one can check out these posts:

June 9, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5)

Monday, June 05, 2017

Gearing up for big state court argument on the state and fate of California's death penalty

The San Francisco Chronicle has this new article about the new issues the California Supreme Court is facing concerning the state's old death penalty problems. The piece is headlined "State high court ruling on death penalty could restart executions<" and here are excerpts:

The California Supreme Court hears many high-stakes cases on issues such as individual rights, taxes, and the lawmaking powers of the state and its voters. But it has seldom confronted a case with such potentially dramatic consequences as Tuesday’s hearing on the Proposition 66 death-penalty initiative.

If the court — traditionally deferential to the will of the voters — upholds the central provisions of Prop. 66, it will open the door to the resumption of executions in a state that last put a prisoner to death in January 2006. Nearly 750 condemned inmates inhabit the nation’s largest Death Row, and about 20 have run out of appeals to their conviction and sentence.

Prop. 66 also seeks to speed up future executions, in part by requiring the state’s high court to decide all death-penalty appeals within five years of sentencing — more than twice its current pace. If the court upholds that requirement, one of the most hotly contested in the case, it may have to reconfigure itself as a tribunal that gives priority to capital cases over all other types of criminal and civil law disputes in the nation’s most populous state.

California has long been what one expert calls a "symbolic death penalty state," one of 12 that has capital punishment on the books but has not executed anyone in more than a decade. Prodded by voters and lawsuits, the nation's most populous state may now roll back toward allowing executions, though observers are split on how quickly they will resume, if at all.

The justices could reject the deadlines while upholding other Prop. 66 provisions aimed at shortening the death-penalty process, such as limiting prisoners’ appeals and requiring more lawyers to accept capital cases. But opponents say the proposed timetables for court action are the heart of an initiative that seeks to hamstring judicial authority over state law.

Neither lawmakers nor voters can “force the courts to prioritize a certain type of case at the expense of all other types of cases,” said Christina Von der Ahe Rayburn, a lawyer in the suit to overturn Prop. 66. The requirement to move death cases to the front of the line, she said, would “impair the court’s inherent function of giving fair and equal treatment to (all) litigants.”

Not so, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and an author of Prop. 66. He said the measure would actually relieve the state Supreme Court of some of its current death-penalty workload by transferring some hearings to trial courts. It sets a five-year deadline that he says the court could meet if it eliminated needless delays. “If our side wins, we can get back to having a death penalty that actually works and really see some executions being carried out,” probably before the end of this year, said Scheidegger, who will argue in defense of the measure along with Attorney General Xavier Becerra’s office at the hearing in Los Angeles.

Rayburn said an unrelated federal court case would probably delay any executions in California by at least six months, even if Prop. 66 were upheld. If the court overturns most or all of the initiative, executions will remain on hold for a year or longer as challenges to proposed new lethal-injection procedures work their way through state and federal courts....

Prop. 66 passed with 51 percent of the vote on the same November ballot in which a rival measure to repeal the death penalty in California was rejected by about seven percentage points, nearly twice the margin of defeat for a similar measure in 2012. While the votes were close, the message seemed clear: Californians want the death-penalty law enforced.  But the far-reaching provisions of Prop. 66, which received little attention during the campaign, have evidently raised concerns among the justices, who put the measure on hold while they consider a lawsuit seeking to overturn it....

Another provision of the measure seeks to expand the pool of defense lawyers by requiring attorneys to take capital cases if they already accept court appointments to represent defendants in other criminal cases.  Supporters say the change would ease the shortage of available lawyers, one of the chief reasons appeals take so long.  Opponents say it would put condemned inmates’ fates in the hands of unqualified lawyers and prompt many lawyers to refuse future assignments.

Prop. 66 would also speed up the state’s switch from three-drug executions, in use from 1996 to 2006, to lethal injections of a single barbiturate. Gov. Jerry Brown’s administration proposed procedures for one-drug executions last year in settlement of a lawsuit by relatives of murder victims.  Prison officials are still reviewing those procedures under a long-standing law that requires them to consider public comments.  The commenters have included organizations that say the proposed drugs are untested in executions and the procedures are unreliable....

Two of the court’s seven justices, Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, have removed themselves from the case because they are members of the state’s Judicial Council....  Their replacements are two randomly selected appeals court justices, Andrea Hoch of the Sacramento court, an appointee of Gov. Arnold Schwarzenegger, and Raymond Ikola, appointed to the court in Santa Ana by Gov. Gray Davis.

June 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, June 03, 2017

"Is the death penalty dying in Dallas County?"

The question in the title of this post is the headline of this local article which documents a trend that leads me to think that the death penalty is never again likely to be a significant part of American criminal justice systems (if it every really was in the recent past).  Here are excerpts:

The crimes were heinous but Dallas County jurors couldn't condemn the convicted killers. A college student killed three people at a drug house in a premeditated robbery. A former special education teacher and U.S. Army veteran killed his girlfriend, her teenage daughter, his estranged wife, her adult daughter and severely wounded four children in a two-city rampage.

But neither killer received the death penalty, a punishment reserved for the "worst of the worst." Statewide, juries have declined death sentences in nearly half of the cases presented to them in the past two years.

So, what does it take to win a death penalty sentence? "You gotta be perfect probably these days," said Edwin King, a special prosecutor in one of the Dallas County cases.

Jurors couldn't agree to the death sentence in the two recent capital murder trials. They were the first Dallas County cases in which the state sought the death penalty since 2014.

The decision to seek the death penalty is based on the the severity of the crime, criminal background and what the victim's family wants, said Dallas County District Attorney Faith Johnson. "Our office only seeks the death penalty in the most heinous and serious of crimes," Johnson said....

"Even in Texas, the death penalty is dying," said Jason Redick of the Texas Coalition Against the Death Penalty. In the 15 death penalty cases tried in Texas since 2015, jurors have sent only eight men to death row. Death sentences peaked in the 1990s. Between 2007 and 2013, Dallas County led the state in defendants sent to death row. During that time, the county sentenced 12 people to death. Executions in Texas are also declining because of legal reforms that give prisoners more chances to have their sentences reviewed.

Jurors are only selected after they agree that they can give the ultimate punishment. Even so, they appear to be split on the issue in recent years. "We know these aren't folks who are anti-death penalty folks," Redick said. "At one point, they said they could hand out a death sentence."

June 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Thursday, June 01, 2017

"Will the Death Penalty Ever Die?"

The title of this post is the title of this new article in The New York Review of Books authored by Judge Jed Rakoff and reviewing of the book "Courting Death: The Supreme Court and Capital Punishment" by Carol and Jordan Steiker. Here is the intriguingly personal start to what then becomes a fairly standard review of the modern death penalty debate:

When my older brother Jan David Rakoff was murdered in 1985, bolts of anger and outrage not infrequently penetrated the black cloud of my grief.  Though I knew almost nothing about Jan’s confessed murderer except his name, I wished him dead.

My brother, aged forty-four, had just begun to come into his own.  His innovative educational theories were starting to attract attention, and, just as important, he had come to terms with his homosexuality, which for many years he had struggled to suppress.  While on a trip to Manila, he engaged the services of a male prostitute, but at the end they quarreled over money.  In a fit of rage, the prostitute assaulted my brother with a pipe burner and an ice pick, bludgeoning and stabbing him to death.  To cover his tracks, the prostitute then set fire to the bungalow where my brother was staying; but the smoke attracted the attention of a security guard, who apprehended the fleeing assailant.  Later that evening, the prostitute provided a full written confession.

When my brother’s body arrived back in the United States, his face and head were barely recognizable, so vicious had been the assault.  My heart cried out for vengeance. Although the death penalty was then available in the Philippines, the defendant, taking full advantage of a corrupt legal system, negotiated a sentence of just three years in prison.  Had, instead, the prosecutor recommended the death penalty, I would have applauded.

It took many years before I changed my mind.

The law professors Carol S. Steiker and Jordan M. Steiker (sister and brother) have written a revealing book about the history of the death penalty in the US and, in particular, the continued difficulties the Supreme Court has had in attempting to regulate capital punishment so that it conforms to constitutional standards.  If I have a criticism of their otherwise trenchant account, it is of their failure to give more than passing attention to the moral outrage that provides much of the emotional support for the death penalty — outrage felt not only by the family and friends of a murder victim, but also by the many empathetic members of the public who, having learned the brutal facts of the murder, feel strongly that the murderer has forfeited his own right to live.

For the Steikers, the debate over the death penalty is “first and foremost” a symbolic battle over cultural values, with a strong current of racism running just below the surface.  This may well be true, but unless one acknowledges that rational human beings can feel such revulsion at the taking of an innocent life as to wish the taker dead, one misses part of the reason that the death penalty continues to enjoy significant popular support, even in many of the states and countries that have banned it.

June 1, 2017 in Death Penalty Reforms | Permalink | Comments (5)

Saturday, May 27, 2017

"What will happen to Pennsylvania's death penalty?"

The title of this post is the headline of this lengthy local article. Here are excerpts:

Five times a year, Pennsylvania corrections officials meet inside a white block masonry field house on the grounds of the prison near Penn State, and carry out a mock execution. They escort the “inmate” to the execution chamber. They strap that person onto the gurney. And then they simulate injecting a lethal dose of drugs into his body.

They perform this drill even though capital punishment in the commonwealth remains indefinitely on hold while government officials await a report, now years in the making, analyzing capital punishment’s history, effectiveness and cost in Pennsylvania.

The death sentence imposed last month on Eric Frein, the Poconos survivalist who killed a State Police trooper and injured another in September 2014, has reignited questions – and in some cases, criticism – about why the state has taken so long to decide whether to continue or stop, once and for all, executing criminals....

And state Sen. Scott Wagner, a York County Republican hoping to unseat the governor next year, has signaled it’s an issue he’ll press on the campaign trail. “I can assure you, when I’m governor, within the first 48 hours, I’ll be up there reversing that moratorium,” Wagner said in an interview Friday....

In Pennsylvania, ... Wolf, a Democrat, [imposed] a moratorium on the death penalty after taking office in early 2015. He argued the state should await the results of a long-awaited report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment before putting any more criminals to death. The report is expected to analyze more than a dozen factors involving the death penalty, such as cost, bias and effectiveness.

Wolf’s decision has drawn backlash from organizations like the Pennsylvania District Attorneys Association, which in 2015 called it “a misuse of [the governor’s] power” that ignores the law. The study itself has also come under fire, particularly for how long it’s taking to complete: It was ordered up by the state Senate in 2011 and was supposed to be completed by 2013....

Meanwhile, tax dollars still go toward keeping prisoners on death row. Each of the state’s 165 death row inmates — from Frein, who was sentenced last month, to Henry Fahy, who has been awaiting his punishment since November 1983 — cost Pennsylvania $10,000 more a year to house than a convict sentenced to life in prison. This does not account for the additional legal fees associated with capital cases: Some estimate prosecuting and litigating a capital murder case can cost up to $3 million more than a non-capital murder case....

“We have spent billions of dollars having a death penalty – including maintaining a death facility – and we have not executed someone who did not ask to be executed” since 1962, Sen. Daylin Leach, a Montgomery County Democrat and one of four members of a Senate task force awaiting the report, said last week. Leach is an unapologetic opponent of the death penalty. He has introduced bills to abolish it since 2009, arguing that it is “immoral and barbaric,” and calling the cost of capital punishment “troubling” – including the cost of maintaining the execution complex.

May 27, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Friday, May 26, 2017

Alabama finally carries out death sentence for Thomas Arthur

As reported here by CNN, "Alabama executed death row inmate Tommy Arthur early Friday after a lengthy court battle that included multiple lethal injection delays." Here is more:

Arthur, 75, was convicted in the 1982 murder-for-hire of romantic rival Troy Wicker. The inmate, who was nicknamed the "Houdini" of death row because he'd had seven prior execution dates postponed, died by lethal injection at the Holman Correctional Facility at Atmore.

The Supreme Court issued a temporary stay Thursday, then lifted it later that night, leading to his execution.

"No governor covets the responsibility of weighing the merits of life or death; but it is a burden I accept as part of my pledge to uphold the laws of this state," Gov. Kay Ivey said in a statement. "Three times Tommy Arthur was tried, convicted, and sentenced to death. Each time his case was reviewed thoroughly at every level of both our state and federal courts, and the appellate process has ensured that the rights of the accused were protected."

Arthur's lawyers had filed motions arguing that Alabama's method of execution was cruel and unusual, and that the attorneys should have access to a cellphone while witnessing the execution. Before the Supreme Court decision, stay requests had been rejected by the 11th US Circuit Court of Appeals, the Alabama Court of Criminal Appeals and the governor....

Arthur was convicted of killing Wicker of Muscle Shoals by shooting him in the right eye on February 1, 1982, according to court documents. He was a work release prisoner at that time. He had been convicted of killing his sister-in-law in 1977, also by shooting her in the right eye.

May 26, 2017 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (7)

Thursday, May 25, 2017

"Capital Punishment and the Courts"

The title of this post is the title of this commentary/book review authored by Jonathan Mitchell and available via SSRN. Here is the abstract:

In Courting Death, Professors Carol Steiker and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s capital-punishment jurisprudence.  They present data and anecdotes showing that capital punishment today is no less “arbitrary” than it was before the Supreme Court started regulating capital punishment in 1972 — leaving us with a regime that imposes costly, arcane, and highly technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking.  The Steikers also observe that many of these court-created doctrines suffer from vagueness and indeterminacy.  And they even suggest that the Supreme Court’s efforts to restrict the death penalty have had the paradoxical effect of strengthening and entrenching the institution of capital punishment.

Yet the pathologies with the Court’s capital-punishment doctrines go even beyond what the Steikers have identified.  The Court’s “proportionality” doctrine, for example, rests on a non sequitur: That capital punishment is rarely applied to juveniles or people with mental disabilities does not indicate that a national consensus exists against any use of capital punishment in those situations.  It is also wrong for the Court to infer “evolving standards of decency” from a state’s decision to establish minimum age or IQ thresholds for the death penalty.  Governments often choose to legislate by rule for reasons that have nothing to do with standards of decency.  Finally, the Court’s “proportionality” doctrine creates perverse incentives for prosecutors and elected officials, because it threatens to eliminate capital punishment across the board — or at least as applied to specified categories of offenders — unless the government produces enough executions to defeat a claim that a death sentence is no longer consistent with “evolving standards of decency.”  The Steikers are right to criticize the Court’s efforts to regulate capital punishment, but the problems go beyond what they identify in their thorough and comprehensive book.

May 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, May 24, 2017

After nearly 35 years, is Alabama finally going to carry out death sentence in case showcasing capital punishment's myriad difficulties?

As detailed in this New York Times piece, headlined "Alabama Inmate Hopes to Dodge Death for an Eighth Time," an execution scheduled for tomorrow in Alabama is notable for many reasons. Here is the Times accounting of some of these reasons:

Tommy Arthur, who was first sentenced to death in 1983, has long imagined what could be his end: time in a so-called death cell, a choice of a last meal, the final telephone calls and then a lethal injection.  That end could come Thursday, his eighth execution date in a case that has spanned the tenures of eight Alabama governors, starting with George Wallace.  If it does, it will conclude a legal odyssey that quietly became, for death penalty supporters and critics alike, a symbol of the troubles of the capital punishment system in the United States.

“It’s one of those cases in which nobody is happy,” said Robert Dunham, the executive director of the Death Penalty Information Center, a research group that has voiced concerns about the application of capital punishment.  “People who simply want the execution are unhappy because of the passage of time,” he said.  “People who oppose the death penalty are unhappy because they don’t want Tommy Arthur executed. People who want fairness are unhappy because, despite the length of time this case has been in the courts, the process has never been fair.”

In Alabama, where 58 people have been put to death since Mr. Arthur was sentenced for the 1982 murder of Troy Wicker, the most pressing issue these days seems to be how long it takes to carry out capital sentences.  If Mr. Arthur, 75, is executed on Thursday, his death will come one week after the Legislature gave final approval to a plan to reduce the length of appeals in capital cases....

Mr. Arthur confessed to one murder but was given a death sentence for a second that he insists he did not commit.  In regards to the latter, the state authorities contend that Mr. Wicker’s wife, Judy, hired Mr. Arthur, her lover, to carry out the killing so she could collect an insurance payout.  Ms. Wicker, who was found guilty and spent about a decade in prison before being released on parole, ultimately testified against Mr. Arthur, who was on work release from a life sentence for another killing when Mr. Wicker was murdered. (A woman who answered the phone at a number connected to Ms. Wicker hung up on a reporter.)

Near the end of a trial in the early 1990s, Mr. Arthur proclaimed his innocence but asked for a death sentence that he said would allow him greater opportunities for appeal. “I will not be executed,” Mr. Arthur said, according to a transcript of the proceedings.  “I’m totally positive of that. I wouldn’t dare ask you for it if I thought for a minute that I would be executed.”

He had already won two new trials by then. In the years that followed, Mr. Arthur’s case began to stand out to some scholars and lawyers because he so frequently staved off scheduled executions.  Mr. Arthur, whose lawyers have not raised intellectual disability or mental health claims, maintained his innocence and sought new forensic testing of evidence.  He argued his sentence was unconstitutional and that his claims of ineffective counsel were never fully considered.  He raised questions about Alabama’s execution methods, including a challenge to a lethal injection drug, midazolam.

Another prisoner once admitted to Mr. Wicker’s murder, but a judge found that Mr. Arthur and the inmate had “engaged in an attempt to defraud” the court with a false confession.  A defense lawyer for Mr. Arthur, Suhana S. Han, said that litigation had still not led to a full airing of the facts and rulings on the merits of Mr. Arthur’s claims of innocence.  Instead, Mr. Arthur’s supporters see a government increasingly desperate to put a man to death....

State officials regard Mr. Arthur as someone who will do anything to avoid his death sentence.  “I think there’s just an attitude by the other side to basically file anything that they can whether it has any merit or not,” said Clay Crenshaw, chief deputy attorney general and a former leader of his office’s capital litigation division. “I think he and his lawyers have successfully manipulated the system.”...

Alabama has moved to limit the risk of protracted cases in the future, and on Friday, Gov. Kay Ivey is scheduled to sign a measure requiring capital defendants to pursue their direct and post-conviction appeals simultaneously in the state’s courts. Under existing law, defendants have been allowed to bring a new appeal after an earlier effort failed.

The Alabama attorney general, Steven T. Marshall, said the proposed changes, similar to provisions already in force in at least four other states, would benefit people affected by capital crimes without trampling on constitutional rights.  “This is victim-driven for us,” Mr. Marshall said.  “We’ve heard the stories. We’ve seen the anguish. Victims do not sense, in a capital setting, that their voices are heard fully.  This is an opportunity for us as a state to be able to say that we’re going to allow defendants to have their fair opportunity to be heard in court for their claims to be evaluated, but we’re going to do it in a timely way.”

But Mr. Dunham of the Death Penalty Information Center, who noted that 60 percent of death row exonerations since 2012 involved cases at least 20 years old, suggested that quickening the pace to the death chamber would very likely lead to more executions of innocent people.  In 2015, Alabama released an innocent man, Anthony Ray Hinton, after he spent almost 30 years on death row; the state had spent years resisting demands that investigators conduct new tests on an alleged murder weapon.  “This is not about having more efficient judicial review,” Mr. Dunham said. “This is about expediting executions at the expense of fairness and accuracy.”

The Arthur case only lurked in the background of the legislative debate, but Mr. Marshall, a local prosecutor until February, acknowledged that Mr. Arthur’s history had long attracted attention.  “It’s the example of how the system has failed victims, and how he’s manipulated, through various filings, the court system to delay what should have occurred long ago,” Mr. Marshall said.

May 24, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, May 19, 2017

"An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases"

The title of this post is the title of this new paper authored by Lauren Sudeall Lucas now available via SSRN.  Here is the abstract:

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty.  More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability.  Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove their intellectual disability beyond a reasonable doubt at the guilt phase of the trial to be legally exempted from execution.

This article is the first to provide an empirical assessment of Georgia’s “guilty but mentally retarded” (GBMR) statute, including its beyond a reasonable doubt standard of proof.  In doing so, it fills a critical gap not only in the scholarly literature on the subject, but also for those who continue to litigate the issue.  Its analysis reveals that no defendant facing the death penalty in Georgia has ever received a GBMR verdict for malice murder from a jury in the statute’s nearly thirty-year existence.  Prior to Atkins, only one capital defendant had ever received a GBMR jury verdict at trial, in a felony-murder case, by meeting this extremely high standard of proof, thus exempting herself from the death penalty.

The absence of any successful GBMR jury verdict in a malice murder case and the absence of any successful GBMR verdict in any capital case post-Atkins, in combination with Georgia’s lone status in imposing such a procedure, all contribute to the argument that the beyond a reasonable doubt standard, and the jury’s decision regarding intellectual disability in the guilt phase create, in the words of the Court, an “unacceptable risk” that capital defendants with intellectual disability will be executed in violation of the Eighth Amendment.

May 19, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, May 16, 2017

In last-minute appeal, condemned Georgia inmate urges extension of bar on juve capital punishment to those under 21

As reported here, "a Georgia inmate scheduled to be executed Tuesday has filed an appeal with the U.S. Supreme Court arguing that it is wrong to sentence an offender less than 21 years old to death."  Here is more on the effort to halt an execution scheduled to take place a quarter century after the crime:

J.W. "Boy" Ledford Jr., now 45, was 20 years old when he was sentenced to death after being convicted of killing a doctor who had given him a ride in Georgia in 1992. Ledford is scheduled to be the first Georgia inmate executed in that state this year. The Georgia Supreme Court earlier Tuesday declined to halt the execution.

"Intelligence testing shows Ledford to have, at best, borderline intellectual functioning," attorneys for Ledfrod wrote in their petition to the U.S. Supreme Court. It argues that the execution violates would violate Eight Amendment protections against cruel and unusual punishment and 14th Amendment guarantees of due process.

The petition argues that other rulings barring the death penalty for juvenile offenders apply to those who commit crimes from the ages of 18 to 21 — "a period in life during which, new scientific investigation forcefully shows, individuals suffer from the same impairments in judgment and self-control that prompted this Court to ban the application of capital punishment to juvenile offenders."

Ledford killed Dr. Harry Johnston after the physician gave him a ride, leaving the victim nearly decapitated. He then went to the doctor's home and tied up and robbed his wife. She has since died.

Lawyers for the state said the argument that Ledford was too young to be sentenced to death had not been raised before. The state said arguments of "evolving standards of decency" about the age of sentenced offenders are vague, and laws about juveniles don't apply to Ledford's case.

Ledford had previously argued that a firing squad would be a more humane way to die than the lethal injection planned by the state. A federal appeals court on Monday denied a request for a stay of execution.

UPDATE: As reported here, "Georgia carried out its first execution of the year early on Wednesday, putting to death a man convicted of killing a 73-year-old neighbor in 1992. J.W. Ledford Jr., 45, was pronounced dead at 1:17 a.m. at the state prison in Jackson, more than six hours after his initial execution time. The delay was waiting for a ruling from the U.S. Supreme Court, which denied his request for a stay."

May 16, 2017 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (10)

Saturday, May 13, 2017

"Courting Abolition"

The title of this post is the title of this new book review authored by Deborah Denno and now available via SSRN. Here is the abstract:

Forty-five years ago capital punishment was nearly eliminated in Furman v. Georgia, where the Supreme Court held that the imposition of the death penalty in the cases before it violated the Eighth and Fourteenth Amendments.  The Furman Court’s abrogation was short-lived, however.  The 1976 decision of Gregg v. Georgia ended the 1967–1976 moratorium that had existed on executions by ruling that the death penalty was not a per se violation of the Eighth Amendment and by upholding newly passed, guided-discretion statutes.  As Professors Carol Steiker and Jordan Steiker contend in their book, Courting Death: The Supreme Court and Capital Punishment, the Supreme Court’s subsequent efforts to entrench capital punishment have involved the Court’s “top-down” regulation of states’ application of the death penalty by enforcing federal constitutional law, thereby attempting to establish a middle ground between completely abolishing capital punishment and allowing it to run amok.  According to the Steikers, this “experiment” with the death penalty has failed due to the Court’s cumbersome and complex regulatory mechanisms.

Courting Death, which builds on the authors’ prior work from their 1995 article, Sober Second Thoughts, as well as their report to the American Law Institute, is a markedly compelling book that captures the complicated story of the death penalty and explores the factors that would both shape and stymie capital punishment’s future.  The book includes a detailed history of the death penalty in the United States, its deep connection with southern racial oppression and the factors that prompted national judicial regulation, as well as the shortcomings and issues created by that regulation.

This Review of Courting Death offers a different take on two of the Steikers’ major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty.  The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge.  In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers’ prediction — that, when abolition seems right, it will come by way of a “Furman II” Supreme Court decision — to readily comport with the death penalty’s trajectory over the last fifty years.

May 13, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, May 11, 2017

Eleventh Circuit rejects effort to attack Alabama's lethal injection by suggesting hanging or firing squad as alternative execution methods

As reported in this local article, "condemned inmate Anthony Boyd asked the state of Alabama to carry out his execution by either hanging him or putting him in front of a firing squad. But the federal appeals court in Atlanta on Tuesday rejected Boyd’s request and cleared the way for his execution by lethal injection."  The Eleventh Circuit's lengthy ruling in Boyd v. Warden, No. 15-14971 (11th Cir. May 9, 2017) (available here), gets started this way:

It is by now clear in capital cases that a plaintiff seeking to challenge a state’s method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state’s planned method of execution.  Appellant Anthony Boyd, an Alabama death row inmate, appeals the district court’s dismissal of his federal civil rights lawsuit challenging the constitutionality of Alabama’s lethal injection protocol.  Boyd filed this lawsuit pursuant to Section 1983, alleging, among other things, that Alabama’s new lethal injection protocol, which substituted midazolam hydrochloride for pentobarbital as the first of three drugs, violates his Eighth Amendment right to be free from cruel and unusual punishment.  Notably, however, he did not allege that execution by a lethal injection protocol generally is unconstitutional.  Currently, Alabama law provides inmates sentenced to death with a choice between two methods of execution: lethal injection or electrocution. Instead of identifying an alternative method of lethal injection that would be feasible, readily implemented, and substantially less risky than the midazolam protocol or opting for death by electrocution, however, Boyd alleged that Alabama should execute him by hanging or firing squad.

The district court determined that Boyd had failed to state a claim under the Eighth Amendment because Boyd’s proposed alternative methods of execution -- firing squad and hanging -- are not authorized methods of execution under Alabama law and, therefore, are neither feasible nor readily implementable by that state.  It further held that Boyd’s remaining claims challenging Alabama’s execution protocol, the execution facilities, and the state’s decision to keep certain information about the protocol secret were time-barred by the statute of limitations.  Finally, the district court ruled that amending these claims would be futile and dismissed Boyd’s complaint.

We agree with the district court that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain.  The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution.  But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses an unconstitutional risk of pain.  Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.  We also agree that Boyd’s remaining claims were filed well beyond the two-year statute of limitations governing § 1983 claims in Alabama.  Accordingly, we affirm.

May 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, May 08, 2017

A lethal Ohio procedural question: are there any formal rules on when new circuit judges are to be involved in pending en banc matters?

The question in the title of this post came to mind this morning in the wake of the news that, as discussed here, two of President Trump's latest judicial nominees are slated to fill open slots on the Sixth Circuit: Justice Joan L. Larsen and John K. Bush.   As noted here a few months ago, Prez Trump's very first circuit court nomination was also to the Sixth Circuit via the naming of Judge Amul Thapar.  Assuming relatively swift and successful confirmations, the Sixth Circuit could have three new judges within the next few months.

Meanwhile, as regular readers may recall from this post, also scheduled to take place in the next few months in the Sixth Circuit is the rehearing en banc the State of Ohio's appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  The Sixth Circuit has scheduled oral argument on these matters for June 14, and the full court will probably try to issue a ruling in the matter not too long thereafter given that Ohio has a long-postponed execution now scheduled for July 26.

I am inclined to guess that Judge Thapar — who has already coasted through his confirmation hearing — will be a member of the Sixth Circuit by the time of the en banc oral argument in June.  Given that Justice Gorsuch at SCOTUS has apparently been fully participating in cases in which oral argument took place after the time he joined the Court, I would further guess that everyone will think Judge Thapar can and should fully participate in the Sixth Circuit's en banc consideration of Ohio's lethal injection protocol if he is there in time for oral argument.

But what should happen if Justice Larsen and/or Mr. Bush are both confirmed in, say, late June.  Could they and should they be involved in the consideration of these lethal Ohio matters?   Adding to the potential intrigue and head-counting is the fact that I believe Judge David McKeague is technically now still an active judge, but will be only until his successor if confirmed. Arguably, Judge KcKeague should not be part of the en banc decision-making once and whenever Justice Larsen gets confirmed to the Sixth Circuit.

Perhaps the Sixth Circuit has some clear rules on these kinds of en banc transition issues, and I would welcome any and all input from knowing en banc mavens.  In addition, it is quite possible that there are sufficient votes currently on the Sixth Circuit one way or the other to make these transition issues relatively inconsequential to the outcome in this important en banc case.  Still, when it comes to review of lethal injection protocols or just about anything else dealing with the death penalty, it does not seem that anything ever really becomes inconsequential.  

(In addition, and surely not to be overlooked as the buzz over another SCOTUS retirement grows, if and when Judge Thapar and Justice Larsen join the Sixth Circuit, this court will have three of the remaining 20 persons from Prez Trump's SCOTUS short lists.  This fact alone makes anything the Sixth Circuit does in the coming months even that much more interesting.)

Prior recent related posts:

May 8, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Sunday, May 07, 2017

Reflecting on decreasing death sentences and increasing life sentences

The Washington Post has this "trendy" article headlined "The steady decline of America’s death rows," which reviews some of the latest notable numbers about death sentences and executions and also throws in a paragraph about life sentences based on this week's new Sentencing Project report on the topic (discussed here).  Here are excerpts:

Capital punishment in the United States is slowly and steadily declining, a fact most visible in the plummeting number of death penalties carried out each year.  In 1999, the country executed 98 inmates, a modern record for a single year.  In 2016, there were 20 executions nationwide, the lowest annual total in a quarter-century.

Death sentences also sharply declined. Fewer states that have the death penalty as a sentencing option are carrying out executions, a trend that has continued despite two U.S. Supreme Court rulings in the past decade upholding lethal injection practices. States that would otherwise carry out executions have found themselves stymied by court orders, other legal uncertainty, logistical issues or an ongoing shortage of deadly drugs. Fewer states have it on the books than did a decade ago, and some that do retain the practice have declared moratoriums or otherwise stopped executions without formally declaring an outright ban....

Another way to see the changing nature of the American death penalty: The gradual decline of death row populations. At the death penalty’s modern peak around the turn of the century, death rows housed more than 3,500 inmates. That number is falling, and it has been falling for some time. New Justice Department data show that death-row populations shrank in 2015, marking the 15th consecutive year with a decline.

There were 2,881 inmates on state and federal death rows in 2015, the last year for which the Justice Department has nationwide data available. That was down 61 from the year before.  States carried out 28 death penalties in 2015, but nearly three times as many inmates — 82 — were removed from death rows “by means other than execution,” the Justice Department’s report states. (Another 49 inmates arrived on death row in 2015.)

In some cases, inmates left death row after being cleared of the crimes for which they were sentenced. Five people sentenced to death were exonerated in 2015, according to the National Registry of Exonerations, a project of the University of Michigan Law School and the Northwestern University School of Law. Other inmates died of other causes before their executions could occur. In Alabama, three inmates died of natural causes in 2015 and a fourth hanged himself that year inside a prison infirmary, according to corrections officials and local media reports. North Carolina officials say one death-row inmate died of natural causes that year, another was resentenced to life without parole and a third had his death sentence vacated and a new trial ordered. Death sentences were thrown out in some cases. Four death-row inmates in Maryland had their sentences commuted to life in prison without parole in 2015, a decision made by then-Gov. Martin O’Malley after that state formally abolished the death penalty....

Another shift also has occurred: The number of people sentenced to life in prison has ballooned, reaching an all-time high last year, according to a report released this week from the Sentencing Project. The report states that more than 161,000 people were serving life sentences last year, with another 44,000 people serving what are called “virtual life sentences,” defined as long-term imprisonment effectively extending through the end of a person’s life. Similar to overall prison populations, people of color are disproportionately represented; black people account for nearly half of the life or virtual-life sentences tallied in the report.

Long-time readers likely know that these numbers provide one of the primary reasons why I have long worried that some criminal justice reforms advocates worry far too much about capital punishment and worry far too little about extreme prison sentences.  The fact that there are seven times as many persons serving life sentence as are on death row leads me to believe that nearly any and every concern raised about death sentencing may well be a problem of far greater magnitude with respect to lifers.

Most critically for those concerned about proportionate sentencing, every one of the almost 3000 persons on death row is an adult who was convicted of some form of aggravated murder and had a chance to argue to a jury for a lesser sentence.  But, according to the Sentencing Project data, nearly "12,000 people have been sentenced to life or virtual life for crimes committed as juveniles" and over "17,000 individuals with [some kind of life sentence] have been convicted of nonviolent crimes" and a significant percentage of lifers were subject to a mandatory sentencing scheme that required imposition of a severe prison sentence without any input by a jury or a judge.  

Though I fully understand why the death penalty has so much salience for both advocates and the general public, I still wish some portion of the extraordinary attention and energy always given to capital punishment might be redirected toward lifer laws, policies and practices.  

May 7, 2017 in Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5)

Monday, May 01, 2017

Ohio Gov Kasich officially pushed back nine executions as lethal injection litigation comes before en banc Sixth Circuit

As noted in this post, last week the en banc Sixth Circuit took up the current stay in Ohio blocking executions, but set oral argument for a month after Ohio's scheduled execution.  Thus, unsurprisingly and as reported in this local piece, "execution dates for nine death row inmates have been delayed while the state continues its appeal of a court decision blocking use of its lethal injection protocol."  Here is more:

Nine executions were pushed back in a revised schedule released Monday by Gov. John Kasich. The next execution, of Akron child killer Ronald Phillips, was rescheduled for July 26.

On Jan. 26, a federal magistrate judge found the state's three-drug injection cocktail to be unconstitutional and stayed the next three executions. A three-judge panel for the U.S. 6th Circuit Court of Appeals agreed with the lower court and kept the stay in place. The full Cincinnati appeals court last week agreed to rehear the state's appeal. A hearing has been set for June 14.

The state had planed to execute Phillips and Gary Otte, who killed two people to death in back-to-back robberies in Parma, before that date. Otte's execution was moved to Sept. 13. The state has scheduled 33 executions through March 2021.

I think it reasonable for Gov. Kasich to expect the full Sixth Circuit to rule on the state's execution protocol within roughly a month after hearing oral argument.

Prior recent related posts:

May 1, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, April 29, 2017

"Is the death penalty un-Christian?"

The question in the title of this post is the headline of this recent commentary authored by Mathew Schmalz, ans Associate Professor of Religion at the College of the Holy Cross and published in The Conversation. Here are excerpts:

As a Catholic scholar who writes about religion, politics and policy, I understand how Christians struggle with the death penalty -- there are those who cannot endure the idea and there are others who support its use.  Some Christian theologians have also observed that capital punishment could lead to the conversion of criminals who might repent of their crimes when faced with the finality of death.

Is the death penalty anti-Christian?

In its early centuries, Christianity was seen with suspicion by authorities.  Writing in defense of Christians who were unfairly charged with crimes in second-century Rome, philosopher Anthenagoras of Athens condemned the death penalty when he wrote that Christians “cannot endure even to see a man put to death, though justly.”  But as Christianity became more connected with state power, European Christian monarchs and governments regularly carried out the death penalty until its abolition in the 1950s through the European Convention on Human Rights....

In the Hebrew Bible, Exodus 21:12 states that “whoever strikes a man so that he dies shall be put to death.” In Matthew’s Gospel, Jesus, however, rejects the notion of retribution when he says “if anyone slaps you on the right cheek, turn to him the other also.”  While it is true that the Hebrew Bible prescribes capital punishment for a variety of offenses, it is also true that later Jewish jurists set out rigorous standards for the death penalty so that it could be used only in rare circumstances.

At issue in Christian considerations of the death penalty is whether the government or the state has the obligation to punish criminals and defend its citizens.  Saint Paul, an early Christian evangelist, wrote in his letter to the Romans that a ruler acts as “an avenger who carries out God’s wrath on the wrongdoer.”  The Middle Ages in Europe saw thousands of murderers, witches and heretics put to death.  While church courts of this period generally did not apply capital punishment, the church did turn criminals over to secular authorities for execution.

Thirteenth-century Catholic philosopher Thomas Aquinas argued that the death penalty could be justified for the greater welfare of society.  Later Protestant reformers also supported the right of the state to impose capital punishment.  John Calvin, a Protestant theologian and reformer, for example, argued that Christian forgiveness did not mean overturning established laws....

Among Christian leaders, Pope Francis has been at the forefront of arguing against the death penalty. Saint John Paul II also maintained that capital punishment should be reserved only for “absolute necessity.”  Pope Francis observes that the death penalty is no longer relevant because modern prisons prevent criminals from doing further harm. Pope Francis speaks of a larger ethic of forgiveness.  He emphasizes social justice for all citizens as well as the opportunity for those who harm society to make amends through acts that affirm life, not death.

For many, the debate is about the relationship between Christ’s call for forgiveness and the legitimate powers of the state.  Those Christians who support capital punishment argue that Jesus was talking about heavenly realities, not the earthly matters that governments have to deal with.  Christians who oppose the death penalty say that being Christian means bringing heavenly realities to the here and now.  This debate is not just about capital punishment, but about what it means to be a Christian.

April 29, 2017 in Death Penalty Reforms, Religion | Permalink | Comments (21)