Thursday, December 25, 2014
Ohio officials (and taxpayers) get a lethal injection lawsuit for the holidays
On the last day of Hanukkah which happened also to be Christmas Eve, a group of lawyers for a quartet of Ohio condemned prisoners gave the state a very predictable present: a lawsuit challenging Ohio's new lethal injection law. This local story, headlined "Death-row inmates challenge new execution-secrecy rules," provides the details (and this link to the suit):
Four death-row inmates are challenging the constitutionality of Ohio's new execution secrecy rules, their attorney announced Wednesday morning. In a lawsuit filed in U.S. District Court in Columbus, the inmates claim the new law, which shields the identities of most participants in Ohio's execution process, violates their rights to free speech and due process.
Proponents of the rules, signed into law by Gov. John Kasich last week, say they are needed to protect individuals involved with Ohio executions from harassment and potential harm.
The lawsuit was filed Tuesday afternoon on behalf of death-row inmates Ronald Phillips, Raymond Tibbetts, Robert Van Hook and Grady Brinkley. The first three are scheduled to be executed next year; Brinkley's execution date has not yet been set.
Under the new law, House Bill 663, Ohio must keep secret the names of people involved with executions, other than top officials. The law also protects the identity of small-scale drug manufacturers called compounding pharmacies if they make lethal-injection drugs for the state. The inmates' lawsuit claims these measures violate the First Amendment because they were passed to silence death-penalty critics and "foreclose all effective advocacy" against executions in Ohio.
The lawsuit also challenges other parts of the law that require courts to seal such information from the public and prevents the state's medical board from disciplining physicians who testify about Ohio's execution method. "These laws violate some of the most basic principles upon which our democracy was founded," said Timothy Sweeney, the inmates' attorney, in a statement. "Everyone should be deeply troubled by this bold piece of legislation which has been passed to artificially reduce public criticism of government actions in one of the most important areas in which it acts: the taking of a human life."
The defendants in the lawsuit are Kasich, Attorney General Mike DeWine, state prisons director Gary Mohr and Donald Morgan, warden of Southern Ohio Correctional Facility, where Ohio's executions are carried out. DeWine spokeswoman Lisa Hackley said Wednesday that the attorney general's office is reviewing the lawsuit. Spokesmen for the governor's office and the state's prisons agency declined comment.
HB 663 is an attempt to overcome problems that Ohio — like many other states — has had obtaining lethal-injection drugs in recent years. Ohio ran out of its preferred lethal-injection drug, pentobarbital, last year because European pharmaceutical companies refused to continue selling it for use in executions....
Supporters of HB 663 say that the state could turn to compounding pharmacies to make pentobarbital, but the companies are reluctant to make lethal-injection drugs unless they can remain anonymous, for fear of public reprisal. DeWine and other proponents of the legislation have said the changes are needed if Ohio is to resume executions next February, once a court-ordered moratorium ends.
As long-time readers know, Ohio's execution problems, plans and procedures have been subject to extensive litigation over the last half-decade. Time will tell if this latest litigation will extend another half-decade. As the title of this post indicates, Ohio (and federal) taxpayers get the bill for all this litigation, and I cannot help but wonder how much Ohio costs its taxpayers by trying took keep its death penalty system alive and killing.
Tuesday, December 23, 2014
Are Arizona and Oklahoma likely to have their machineries of death operational early in 2015?
I blogged here a few days ago about steps taken by the Ohio legislations to get its lethal injection drugs and protocols shored up so the state can get back in the business of executing condemned murderers in 2015. Now I see from this New York Times report that Arizona and Oklahoma, two others states that had messy execution in 2014, now also appear poised to get their death chambers revved up again in the coming new year. Here are the basic details why:
A federal judge in Oklahoma City on Monday said that the state can resume executing prisoners this winter, rejecting the argument by some medical experts that using the same sedative involved in the bungled execution of Clayton D. Lockett in April amounted to an illegal experiment on human subjects.
Judge Stephen P. Friot of Federal District Court, ruling against condemned prisoners who sought to delay new executions, said that lethal injection was more humane than historical methods like hanging, and that since the sedative in question, midazolam, had been successfully used in a dozen executions elsewhere, it should not be considered new or experimental.
“Federal courts should not sit as a board of inquiry as to best practices,” Judge Friot said, adding, “The plaintiffs have failed to present a known and available alternative.” An occasional isolated episode does not constitute cruel and unusual punishment, he said.
Also Monday, in a separate ruling on another prolonged execution by lethal injection, a report commissioned by corrections officials in Arizona said the killing of Joseph Wood in July had been conducted properly. Mr. Wood appeared to gasp for nearly two hours before dying, but the report concluded that he was unconscious during that time and did not feel pain.
The unusually protracted and, in the view of many witnesses, agonizing executions in the two states led to new questions about the reliability of lethal injection and whether it can be performed humanely. These states and others have also been forced to try new drugs and combinations as manufacturers have refused to supply the barbiturates traditionally used in lethal injections.
Dale A. Baich, a lawyer for the Oklahoma prisoners, said they would appeal Judge Friot’s decision. “We are still concerned about Oklahoma’s ability to carry out executions humanely using midazolam,” Mr. Baich said....
The Arizona report, by consultants hired by the State Department of Corrections, cited the Pima County medical examiner’s statement that Mr. Wood’s “gasps, snorting and body reflexes are the normal bodily responses to dying, even in someone highly sedated.” Arizona used midazolam in a different combination from Oklahoma, pairing it with the opiate hydromorphone. Medical experts cited in the report said they could not determine why it took so long for Mr. Wood to die.
Still, Arizona’s director of corrections, Charles L. Ryan, said Monday that the state would abandon that two-drug protocol. The state will continue to search for supplies of the barbiturates of choice, pentobarbital or sodium thiopental, Mr. Ryan said. But if they remain unavailable, Arizona will use midazolam in the same three-drug regimen planned in Oklahoma, with the sedative followed by a paralyzing agent and a caustic heart-stopping drug.
Oklahoma has had a moratorium on executions since April 29, when the lethal injection of Mr. Lockett went awry. Now, saying that improved procedures are in place and that they will boost the dosage of midazolam, they plan to execute four men in three months, starting with Charles F. Warner on Jan. 15.
Sunday, December 21, 2014
With new drug secrecy law, just when is Ohio really likely to get its machinery of death operational?
The question in the title of this post is prompted by this Columbus Dispatch account of the new Ohio law enacted last week to foster procurement of needed execution drugs by state authorities. The article is headlined "New law will keep lethal-injection drug supplier secret," and here are the details prompting my question:
A new Ohio law signed yesterday by Gov. John Kasich will shield from public disclosure the supplier of drugs used in future lethal injections effective on March 20. However, two executions are scheduled before that date: Ronald Phillips of Summit County on Feb. 11, and Raymond Tibbetts of Hamilton County on March 12.
There was no immediate word from Kasich, Attorney General Mike DeWine or the Ohio Department of Rehabilitation and Correction about how the Phillips and Tibbetts executions will be handled, or if they will be postponed. There are four additional executions scheduled for later next year.
A spokeswoman for Ohio Public Defender Tim Young said new drugs can’t be purchased until House Bill 663 takes effect. “Our assumption is if they go forward with those executions, they will have to do it under existing law,” Amy Borror said.
Existing law does not permit buying drugs from undisclosed sources. The two drugs used in the last Ohio execution on Jan. 16, appeared to cause Dennis McGuire to gasp, choke and struggle against his restraints for about 20 minutes before he died.
The lethal-injection measure ... will allow prison officials to buy drugs from some of the 61 compounding pharmacies in the state. Typically smaller, independent businesses, compounders mix drugs for specific customer needs. They can ask the state not to identify them as the provider of lethal drugs for 20 years. The law also will keep confidential forever the identities of execution-team members and physicians involved in the process, even in an advisory capacity.
Another provision of the law requires an overall review to be done of the state’s lethal-injection process.
As reported in this prior post, a federal district judge back in August extended his injunction precluding executions in Ohio through January 15, 2015. I expect that state officials will seek to formulate a new execution plan in light of this new law, and that defense attorneys will seek to preclude executions from starting again until such a new plan is fully formulated and fully examined through litigation.
In light of all these realities, I am inclined now to tentatively predict that we likely will not have another execution in Ohio until well into 2015. At the same time, if and when Ohio gets its machinery of death operational in 2015, it seems quite possible that the state will try to move forward with a new execution every six weeks.
Friday, December 19, 2014
"Six Reasons the Death Penalty is Becoming More Expensive"
The title of this post is the headline of this effective piece from The Marshall Project whihc served as something of a companion piece to its effective coverage (noted here) of how localities struggle with the economic realities of pursuing capital cases. Here are excerpts:
We know the basic reasons why death penalty cases are expensive: more lawyers, more experts, more time. Prosecutors and defense attorneys often spend more than a year preparing for death penalty trials. Every successful conviction is appealed to several state and federal courts, meaning the government pays for both prosecutors and defenders to pick over the trial transcript and for judges and clerks to spend hours reading appeals. While this is going on, it costs more to house prisoners on death row than in the general population....
But the death penalty is also growing more expensive with each passing year. A 2010 report prepared for the Judicial Conference of the United States found that between 1989 and 1997 the median cost of a federal death penalty case that went to trial was $269,139; between 1998 and 2004 it had grown to $620,932.
Nobody has methodically studied how costs have been growing in state death penalty cases, but in interviews with more than 30 prosecutors, defense attorneys and other experts the consensus was that costs are going up fast. Here are the main reasons they cited:
1. Attorney Pay...
A few recent and older related posts:
- Detailed examination of how local costs may slowly kill the death penalty
- Nevada completes detailed accounting of costs of death penalty cases
- Detailing the dysfunction of Pennsylvania's death penalty system
- "Could Abolishing the Death Penalty Help States Save Money?"
- Georgia struggles to pay for a costly capital syste
- Great new (though still dated) examination of the death penalty and plea bargaining
- "Opponents Focus On Cost In Death Penalty Debate"
- NY Times editorial assails "High Cost of Death Row"
- New DPIC report assails costs (and opportunity costs) of death penalty administration
- Is it true that nobody's view on the death penalty can be influenced by its costs?
Thursday, December 18, 2014
DPIC year-end report highlights "death penalty decline continues in 2014"
As detailed in this press release, the Death Penalty Information Center today released its high-profile annual report. The full report is available at this link, and here are highlights drawn from the press release:
With 35 executions this year, 2014 marks the fewest people put to death since 1994, according to a report released today by the Death Penalty Information Center (DPIC). The 72 new death sentences in 2014 is the lowest number in the modern era of the death penalty, dating back to 1974. Executions and sentences have steadily decreased, as Americans have grown more skeptical of capital punishment. The states’ problems with lethal injections also contributed to the drop in executions this year.
Executions decreased 10% compared to 2013 — from 39 last year to 35 this year — continuing an overall decline since 1999, when there were 98 executions. The number of states carrying out executions — seven — was the lowest in 25 years. Just three states – Texas, Missouri, and Florida — accounted for 80% of the executions. For the first time in 17 years, Texas did not lead the country in executions, being tied with Missouri at 10.
Death sentences — a more current barometer than executions — have declined by 77% since 1996, when there were 315. There were 79 death sentences last year. This is the fourth year in a row that there have been fewer than 100 death sentences....
Seven people who had been on death row were exonerated in 2014, the most since 2009. Three men in Ohio were cleared of all charges 39 years after their convictions, the longest time of any death row exonerees. Two others in North Carolina were freed after 30 years in confinement. Since 1973, 150 people have been exonerated and freed from death row.
Individual state developments illustrate the growing isolation of death penalty use:
The number of executions has declined in 11 of the past 15 years. In 1999, 20 states carried out executions; in 2014, only 7 states did so.
For the seventh year in a row, Texas had fewer than a dozen death sentences, a sharp decline from 1999, when it had 48.
California (14) and Florida (11) provided 35% of the death sentences in the country.
Washington Governor Jay Inslee announced that no executions would take place while he is governor, joining the governors of Oregon and Colorado in halting executions.
In California, a federal judge declared the state’s death penalty unconstitutional.
Wednesday, December 17, 2014
Detailed examination of how local costs may slowly kill the death penalty
The Marshall Project has this effective new piece on the modern realities of administering capital punishment. The piece is headlined "The Slow Death of the Death Penalty: The public supports it, but the costs are lethal." Here are excerpts from a lengthy piece that merits a full read:
While many prosecutors are still reluctant to admit that finances play a role in their decisions about the death penalty, some of them – especially in small, rural counties – have been increasingly frank in wondering whether capital punishment is worth the price to their communities. “You have to be very responsible in selecting where you want to spend your money,” said Stephen Taylor, a prosecutor in Liberty County, Texas. “You never know how long a case is going to take.”
Some prosecutors are far more blunt, and even hyperbolic, as they lament the state of affairs. “I know now that if I file a capital murder case and don't seek the death penalty, the expense is much less,” said James Farren, the District Attorney of Randall County in the Texas panhandle. “While I know that justice is not for sale, if I bankrupt the county, and we simply don't have any money, and the next day someone goes into a daycare and guns down five kids, what do I say? Sorry?”
Since capital punishment was reinstated by the Supreme Court in 1976, the cost of carrying out a death penalty trial has risen steadily. Increasing legal protections for defendants have translated into more and more hours of preparatory work by both sides. Fees for court-appointed attorneys and expert witnesses have climbed. Where once psychiatrists considered an IQ test and a quick interview sufficient to establish the mental state of a defendant, now it is routine to obtain an entire mental health history. Lab tests have become more numerous and elaborate. Defense teams now routinely employ mitigation experts, who comb through a defendant’s life history for evidence that might sway a jury towards leniency at the sentencing phase. Capital defendants are automatically entitled to appeals, which often last for years. Throughout those years, the defendant lives on death row, which tends to cost more due to heightened security.
In states such as Texas, Arizona, and Washington, where county governments pay for both the prosecution and defense of capital defendants (nearly all of whom are indigent) when they go to trial, the pressure on local budgets is especially strong. To ease the fiscal burden, some states have formed agencies to handle the defense or prosecution of capital cases. Other states reimburse counties for the expenses of a trial.
But even with that help, county officials around the country have sometimes had to raise taxes and cut spending to pay for death penalty trials. District attorneys have taken note. Many remain reluctant to acknowledge how fiscal concerns affect their decisions — they don’t want to appear to be cheapening the lives of murder victims. But a few are surprisingly candid. Their statements suggest that money is more than ever part of the explanation for the steep decline in death-penalty cases over the past decade. That is particularly the case in Texas, where there are few political obstacles to carrying out executions.
In the six states that have abolished capital punishment over the past decade, Republican and Democratic officials have also emphasized the cost of the death penalty as a major rationale. Even in states that retain the punishment, cost has played a central role in the conversion narratives of conservative lawmakers, public officials, and others who question the death penalty as a waste of taxpayer dollars.
The rising cost of capital trials disproportionately affects counties with small populations. While the number of death sentences in the United States has been dropping steadily since a peak in the mid-1990s, an overwhelming number of the cases still being filed come from urban counties. There, the tax bases are larger, and the impact of an expensive trial may be more easily absorbed. (Harris County, where Houston is located, has been responsible for more executions than Georgia and Alabama combined.) Texas counties with fewer than 300,000 residents sought the death penalty on average 15 times per year from 1992 to 1996. Between 2002 and 2005, the average was four.
Prosecutors don’t cite statistics when discussing the costs of the death penalty; they tell stories. In Texas, they point to Jasper County, near the Louisiana border, where in June 1998 three white supremacists killed a black man, James Byrd Jr., by chaining his ankles to the back of their pickup truck and dragging his body for more than three miles. The murder made international headlines and led to new state and federal hate crime legislation.
Sunday, December 14, 2014
Detailing the dysfunction of Pennsylvania's death penalty system
This lengthy local article, headlined "Capital punishment in Pennsylvania: When death means life: Commonwealth's death penalty system called expensive and dysfunctional," provide a review of how the Keystone State has a capital punishment system that seems to function as if it were operated by the Keystone Cops. Here are excerpts from the article, which is the first is an extended series:
Pennsylvania's death penalty has cost taxpayers more than $350 million for a dysfunctional system that has sentenced hundreds but hasn't executed anyone in 15 years, a Reading Eagle analysis has found. The newspaper analysis comes three years after state lawmakers called for an intensive report on Pennsylvania's death penalty, and as a Montgomery County lawmaker maps out a proposal to abolish the system.
The long-overdue report is at least several months away from being issued. There still has been no reckoning of the system's massive financial or psychological cost — including the immeasurable agony of justice-seeking family members and the pain of families waiting for condemned relatives to be executed. "My sister didn't have a choice about when her life ended. Why should he?" said Diane Moyer of Robesonia, referring to convicted killer Glenn Lyons of Reading.
Lyons is one of 185 condemned inmates, making Pennsylvania's death row the fifth largest in the nation. He's also one of 12 death row inmates prosecuted for murders committed in Berks County, which along with York County has the second-highest number of death row inmates in the state behind Philadelphia's 69. It was 1937 when Pennsylvania last executed someone for a murder that took place in Berks.
Observers of the state's system both locally and nationally agreed it is deeply flawed. It is likely to get even more scrutiny as prosecutors move ahead with a death penalty case against Eric Frein, accused of ambushing and murdering a state trooper this year....
The newspaper's cost estimate is likely a conservative number. That's because the estimate, which relies on a 2008 Maryland study by the Urban Institute, was calculated using the Pennsylvania inmates now on death row. The estimate does not account for unsuccessful death penalty cases tried by prosecutors, nor does it include death row inmates whose sentences were overturned on appeal.
The 2008 study — which produced findings similar to other state studies — found that Maryland spent an average of $1.9 million more on cases that led to death sentences than on cases where the death penalty could have been sought but was not. At least two experts, including the researcher of the Maryland report, said the study was a fair comparison for estimating the cost to Pennsylvania taxpayers. Applying the Maryland per-case figure to Pennsylvania's current 185 death row inmates yields a Pennsylvania cost of $351.5 million....
The state has executed three men, all of whom gave up their appeals, since the U.S. Supreme Court reinstated the death penalty in 1976. But with so few executions among the 429 death warrants Pennsylvania governors have signed since 1985, experts say it's critical lawmakers know the cost to justify budget expenses with a projected $1.85 billion state shortfall in the upcoming fiscal year. So far, the death penalty hasn't been part of the budget debate.
For the loved ones of the victims, like Moyer, the financial cost of the death penalty is outweighed by the emotional toll of likely never having the killer's execution carried out. Lyons used two kitchen knives to stab Leibig, 45, of Millcreek Township, Lebanon County, again and again, investigators said. The brutal attack lasted up to 15 minutes. Lyons, now 49, was convicted and sentenced to death by a Berks jury, but claims he didn't kill Leibig.
The state Supreme Court denied his appeal in 2013, and his execution was set for August, but a federal judge granted him a stay in July, and his appeal process continues. Leibig's family is frustrated and disappointed, knowing the state may never follow through with his execution. "He'll keep fighting and playing the system," Moyer said. "He had a fair trial, and he was guilty. Put him to death. Give him the injection."...
A death penalty that doesn't actually execute people frustrates those on both sides of the debate. Death penalty proponents blame an endless and costly appeals process. Opponents criticize a system with too little funding for poor defendants....
At least one Berks judge who once supported the death penalty has had a change of heart. The judge, who asked not to be identified, had thought execution was a just punishment for the state's worst offenders and a deterrent to others. But after seeing how cases continuously circle the courts, the judge now thinks the death penalty is a waste of time and money and is unnecessarily difficult on the victim's loved ones holding out hope for an execution.
"It's horrible for the families," the judge said. Death penalty rulings aren't foolproof and should be scrutinized, but there should also be a limit on appeals, the judge said. "Now there is hearing after hearing. It never ends," the judge said....
"There is a problem with a law that is never carried out," he said. State Rep. Thomas R. Caltagirone, a Reading Democrat, said he's heard from victims' families how hard it is to sit and wait for the death penalty to be carried out. "They say: 'We lost a loved one. Why is he still living? Where is the justice?'" Caltagirone said. "And victim's rights groups are livid about the endless appeals." But Caltagirone also said he wonders whether it's appropriate for the state to execute someone. "I'm kind of torn on it," he said.
More than a dozen states have analyzed death penalty costs. Some states found the costs nearly 50 percent to 70 percent higher than non-death penalty cases. While the costs vary across the U.S., all found capital trials more expensive. The reason? Mostly because the process is more complicated at every point in the case. A death penalty case involves more attorneys, witnesses and experts. Jury selection is long, as are the trials. Also the cases usually have more pre-trial motions and require a separate trial for sentencing.
Incarcerating death row inmates in solitary confinement is also expensive — about $10,000 more a year than inmates serving a life sentence, according to the Pennsylvania Department of Corrections. And, the majority of death penalty trials on appeal are found to be flawed, some significantly, and must be redone, adding to the price tag.
The state has been studying a laundry list of issues since 2011 when lawmakers directed the Joint State Government Commission to research capital punishment. Berks officials did not know what the costs of trying capital cases are to taxpayers. "Definitely, the death penalty extremely strains our resources," Adams said. "There's no way that we can put a financial number to that."...
"You can't choose to do it and not pay for," said Marc Bookman, a former public defender and director of the Atlantic Center for Capital Representation in Philadelphia, a nonprofit resource center. "It's really expensive to do it properly and it's even more expensive to do it incorrectly," he said.
Last year, Maryland became the 18th state to abolish capital punishment. Maryland Gov. Martin O'Malley cited the cost — roughly three times as much as life without parole — as one of the factors for repealing the death penalty. John Ramon, author of "The Cost of the Death Penalty in Maryland," said the costs to Pennsylvania taxpayers are likely comparable, assuming trial and incarceration expenses are similar. "It's not as big as an assumption as it sounds," Ramon said....
Knowing the cost, Ramon and others said, changes the conversation on a very polarizing issue. "I think it changes the nature of the debate because what it's saying is let's not just ask if the death penalty is better than not having the death penalty," Ramon said. "It's saying, given the death penalty is far more expensive, is it still worth having?"
December 14, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
Wednesday, December 10, 2014
Various appeals do not interfere with Georgia and Missouri completing final executions of 2014
As detailed in this lengthy AP/CBS article, headlined "Missouri, Georgia execute murderers, one a cop killer," two executions were carried out over the last 24 hours. Here are some of the details:
A Missouri inmate was put to death early Wednesday for fatally beating a 63-year-old woman with a hammer in 1998, the state's record 10th lethal injection of 2014, matching Texas for the most executions in the country this year. In Georgia, a man convicted of killing a sheriff's deputy moments after robbing a convenience store in central Georgia was executed Tuesday night.
The Missouri case involved Paul Goodwin, 48, who sexually assaulted Joan Crotts in St. Louis County, pushed her down a flight of stairs and beat her in the head with a hammer. Goodwin was a former neighbor who felt Crotts played a role in getting him kicked out of a boarding house.
Goodwin's execution began at 1:17 a.m., more than an hour after it was scheduled, and he was pronounced dead at 1:25 a.m. Efforts to spare Goodwin's life centered on his low IQ and claims that executing him would violate a U.S. Supreme Court ruling prohibiting the death penalty for the mentally disabled. Attorney Jennifer Herndon said Goodwin had an IQ of 73, and some tests suggested it was even lower....
Missouri's 10th execution of 2014 matches the state's previous high of nine in 1999. Neither Missouri nor Texas has another execution scheduled this year. Texas, Missouri and Florida have combined for 28 of the 34 executions in the U.S. this year. Missouri has scheduled one execution each month since November 2013. Two were halted by court action, but 12 were carried out over the past 14 months.
In Georgia, Robert Wayne Holsey, 49, was declared dead at 10:51 p.m. at the state prison in Jackson, authorities said. Holsey was sentenced to die for the Dec. 17, 1995, killing of Baldwin County sheriff's deputy Will Robinson. A jury convicted Holsey in February 1997.
Holsey robbed a convenience store in the town of Milledgeville early on Dec. 17, and the store clerk immediately called police, describing the suspect and his car, prosecutors said. According to court documents, Robinson stopped a car at a nearby hotel minutes later and radioed in the license plate number. As Robinson approached the vehicle, Holsey fired at him, prosecutors said. The deputy suffered a fatal head wound....
Holsey's lawyers filed a number of last-minute appeals to stop the execution but they were all rejected. Holsey was executed nearly an hour after the U.S. Supreme Court rejected a request for a stay....
Holsey's lawyers had argued in a clemency petition that their client should be spared lethal injection because his 1997 trial was mishandled by an alcoholic lawyer who was distracted by his own problems. The trial lawyer died in 2011. The original lawyer told the court that intellectual disability would not be a factor in the case, despite records showing Holsey was intellectually disabled, Holsey's lawyers argued. And the jury also didn't hear details about Holsey's childhood, which was characterized by horrifying abuse at the hands of his mother, according to the petition.
In their efforts to halt the execution, Holsey's lawyers argued that he was intellectually disabled. The U.S. Supreme Court in 2002 barred execution of the intellectually disabled, but left the states to determine who is intellectually disabled. Georgia requires death-row inmates to prove intellectual disability beyond a reasonable doubt in order to be spared execution on those grounds. Courts have consistently upheld Georgia's toughest-in-the-nation standard of proof on this issue....
The state of Georgia argued in court filings that Holsey is not intellectually disabled. An expert found that Holsey had a learning disability but was not disabled, and his siblings relied on him as a leader, the state's lawyers argued. The state also disputed the idea that Holsey's trial lawyer was ineffective, saying the prosecutor in the case and the judge both testified that the original lawyer performed very well.
Tuesday, December 09, 2014
Scheduled Georgia execution raising again issues of poor lawyers and intellectual disability
This New York Times article reports on the legal issues surrounding the fate of a condmned murderer scheduled to be executed tonight in Georgia. Here are the basics:
A parole panel in Georgia refused on Monday to grant clemency to a man who is scheduled to die by lethal injection on Tuesday evening, apparently unpersuaded by evidence that he was ineptly represented at trial by a drunken lawyer, had an exceptionally harsh childhood and has a severe intellectual deficit.
But in what could be a legal decision with wider effects, lawyers for the man, Robert Wayne Holsey, were still waiting for the Georgia Supreme Court to respond to a last-minute appeal. They argued that the state’s standard for determining intellectual disability in capital cases — the country’s most stringent — runs afoul of a recent decision by the United States Supreme Court.
Mr. Holsey was convicted of armed robbery and murder in 1997 and sentenced to death. He had robbed a convenience store and shot and killed a pursuing officer. His trial lawyer later admitted that at the time he was drinking up to a quart of vodka daily and facing theft charges that would land him in prison. He said he should not have been representing a client.
On appeal, a Superior Court judge ruled that during the penalty phase of Mr. Holsey’s trial, his lawyer had failed to effectively present evidence that might have forestalled a death penalty, including facts about Mr. Holsey’s history and his intellectual deficit. That judge called for a new sentencing trial. But the Georgia Supreme Court reversed the decision, ruling that the jury had heard enough evidence about mitigating factors during the initial trial....
That Mr. Holsey had received ineffective counsel seemed clear, said John H. Blume, a professor and director of the death penalty project at the Cornell Law School. “But the quality of representation in capital cases is often so low,” he said, “that it’s difficult to shock the courts.”
He and other legal experts said a more promising tack — if not for Mr. Holsey, then for defendants in the future — is the challenge to Georgia’s standard of proof for intellectual disability. The state requires defendants to prove that they are intellectually disabled “beyond a reasonable doubt.” For those near the borderline, often described as an I.Q. around 70, that standard is nearly impossible to meet. Many legal experts think it violates a Supreme Court ruling last May that said states cannot create “an unacceptable risk that persons with intellectual disability will be executed.”
In other states, either a “preponderance of evidence” or “clear and convincing evidence” is necessary to establish disability, said Eric M. Freedman, a law professor and death penalty expert at Hofstra University. Both are less stringent standards than the one used in Georgia.
In a landmark decision in 2002, the United States Supreme Court barred the execution of mentally disabled people, but largely left it to the states to set the criteria. In its decision in May, the court added new conditions, ruling in Hall v. Florida that the state could not rely on a simple I.Q. cutoff but rather must take a broad look at a person’s ability to function.
Mr. Holsey’s I.Q. has been measured at around 70.... The state, he said, had argued that because he could drive a car and had a girlfriend, Mr. Holsey could not be disabled....
Constitutional scholars say it is most likely that at some point either the Georgia Supreme Court or the federal Supreme Court will strike down the standard as an unreasonable outlier. “You’ve got a national constitutional rule that people with intellectual disability shouldn’t be executed, but it’s being applied differently in different states,” Mr. Blume of Cornell said
Friday, December 05, 2014
SCOTUS takes up new capital procedures case from Louisiana
As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on three new cases, one of which involves death penalty procedure. Here is Lyle Denniston's description of Brumfield v. Cain, the new capital case on the Supreme Court's agenda:
In accepting a Louisiana murder case for review on Friday, the Court agreed to sort out whether an individual accused of a capital crime has a right to an independent court hearing on whether he suffers from mental incapacity, and thus could not be sentenced to death. In the case of Brumfield v. Cain, the issue of Kevan Brumfield’s mental state was decided as an issue at the penalty phase of his murder trial, rather than at a separate inquiry.
Brumfield was sentenced to death for the shooting death of an off-duty Baton Rouge, La., police officer during an attempted robbery at a night deposit box at a bank in 1993. The officer had used a police car to transport a store manager on a trip to the bank to deposit the store’s proceeds. Brumfield was charged with killing the officer and wounding the store manager.
In taking the case to the Supreme Court, Brumfield’s lawyers argued that he has a serious defect in his intellectual capacity, but that state courts dealt with that only as an issue during his death sentencing hearing to determine whether it should mitigate the penalty. The petition contended that he was entitled to a separate hearing on that question. His petition raised a separate question on whether Brumfield was entitled to have the state pay for gathering evidence of his mental incapacity.
UPDATE: A lot more information about this crime and the defendant in this new SCOTUS case can be found in this local article, headlined "U.S. Supreme Court to hear mental retardation claim of Baton Rouge convicted killer: Mental retardation, execution eligibility at heart of the matter."
Thursday, December 04, 2014
"The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling"
The title of this post is the title of this notable and timely new paper by Scott Sundby now available via SSRN. Here is the abstract:
In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court's Eighth Amendment jurisprudence that has found the death penalty "disproportional" for certain types of defendants and crimes. This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding. In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated "evolving standards of decency." This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making.
The Court thus articulated expressly for the first time what this Article calls the "unreliability principle:" if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed. In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants. And, unlike with the "evolving standards" analysis, the unreliability principle does not depend on whether a national consensus exists against the practice.
This Article identifies the six Atkins-Roper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional. The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court's core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness.
December 4, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Nevada completes detailed accounting of costs of death penalty cases
As reported in this local article, headlined "High cost of death penalty could affect its future in Nevada," the Silver State's audits have recently completed a detailed report on how much taxpayer gold is typically spent in capital cases. Here are the details:
Nevada’s criminal justice system spends nearly twice as much handling death penalty cases compared with murder cases where capital punishment isn’t sought, according to a report released Tuesday by state auditors.
The state-mandated study, which surveyed data from 27 state and local agencies, gives ammunition to death penalty opponents who have failed to defeat public support for capital punishment using moral objections. It is, by far, Nevada’s most comprehensive study on the controversial practice and will serve as a law makers' guide for years to come....
Auditors assembled the 105-page report by sampling data from 28 cases, calculating costs associated with legal counsel — both defense and prosecution — as well as for money spent on court proceedings and incarceration.
Here are three highlights from the document's release:
From a suspect’s arrest through his or her final days behind bars, officials spend at least $1.3 million on murder cases where convicts are sentenced to death but not executed — that’s $532,000 more compared with murder cases where capital punishment wasn't sought. Litigation costs, including the trial and appeal phase, averaged about three times more for death penalty versus non-death penalty cases. And expenses are similar for all death penalty cases, regardless of whether a sentence is given or not.
Among all prison inmates convicted of murder, costs are highest for people on death row. There were 83 people sentenced to death in Nevada as of late last year. Prosecutors could have potentially saved an estimated $44 million by never pursuing corporal punishment in those cases....
Nevada's per capita death penalty rate ranks fourth in the country and tops Texas and California, according to the nonprofit Death Penalty Information Center. But the state's death chamber is seldom used, and only a dozen people have been executed since the U.S. Supreme Court reinstated the capital punishment in 1976. Of those, only one died against his will. The last execution in Nevada happened more than eight years ago.
It’s likely the study underestimated the cost of death penalty cases because of underreporting from government agencies....
The study’s findings fall in line with previous research examining the financial burden of capital murder cases — a study released this year by the Kansas Judicial Council found that defending a death penalty case costs as much as four times more than other murder cases.
Critics of the practice hope Nevada’s study will bolster efforts to erode support for capital punishment. “A lot of people who favor the death penalty think it’s cheaper,” said Las Vegas criminal defense attorney Lisa Rasmussen, who also watched Tuesday's meeting from Las Vegas. “Once people understand and they’re informed, maybe things will change.”
The full 100+ page Nevada legislative audit document released this week, which carries the exciting title "Fiscal Costs of the Death Penalty," can be accessed at this link.
Wednesday, December 03, 2014
Fifth Circuit issues stay keepingTexas from executing mentally ill condemned murderer
As reported in this CNN piece, the Fifth Circuit today "stayed the execution of Texas death row inmate Scott Panetti, who was scheduled to be put to death at 6 p.m. Wednesday." Here is more:
Panetti's case has sparked debate for years over whether the state can execute someone who is severely mentally ill. During his trial for the 1992 slayings of his mother- and father-in-law, Panetti represented himself — dressed in a purple cowboy outfit — and called Jesus, John F. Kennedy and the Pope to the stand. The now-56-year-old was convicted of shooting them to death at close range, in front of his wife and daughter.
Panetti has suffered from schizophrenia for 30 years, his lawyers say, and he was hospitalized for mental illness numerous times before the murders. Though Panetti received initial evaluations of his mental health, his state of mind has deteriorated, his lawyer Kathryn Kase said. She noted in a letter to Texas Gov. Rick Perry that Panetti hasn't received a mental evaluation in seven years. Kase asked that Perry grant a 30-day stay to the scheduled execution so that that an evaluation can be done to determine if he understands his punishment....
"If he's executed there should be a sense of outrage," said Ron Honberg, legal director for the National Alliance on Mental Illness. "There's no question he's mentally ill. If this happens, the message would be — 'we just don't care.'
"To execute him flies in the face of even supporters of the death penalty who say that it should be carried out with inmates who are the worst of the worst," Honberg continued. "It would be much more compassionate and practical to spend money treating inmates with mental illness rather than execute this man."
The Texas Board of Pardons and Parole voted 7-0 to deny clemency in Panetti's case. There is still an appeal before the U.S. Supreme Court, in addition to the appeal the U.S. Fifth Circuit Court of Appeals granted Wednesday.
Monday, December 01, 2014
"What Death Penalty Opponents Don’t Get"
Opponents of the death penalty have had many occasions to celebrate in the new millennium. Four states have abolished the practice in the past five years, while others have legally or effectively set moratoriums on executions. Support for capital punishment in the United States is at its lowest point in four decades, and seems likely to fall further as the number of exonerations and gruesomely botched executions continues to grow.
But at what cost have these concessions been won? The NAACP Legal Defense and Educational Fund's latest “Death Row U.S.A.” report found 3,049 individuals awaiting execution in the United States. According to the Sentencing Project, at last count nearly 50,000 people were serving sentences of life without the possibility of parole — a number that has more than tripled since the early 1990s. Over 159,000 were serving life sentences — many of them ... with minimums so long that they might as well be doing life without parole, too.
In many states, the expansion — and the very existence — of life without parole sentences can be directly linked to the struggle to end capital punishment. Death penalty opponents often accept — and even zealously promote — life without parole as a preferable option, in the process becoming champions of a punishment that is nearly unknown in the rest of the developing world...
Complicating matters is the fact that life without parole rarely takes its place as simply a one-for-one alternative to the death penalty. In New York State, for example, life without parole did not exist before the state’s brief reinstitution of capital punishment from 1995 to 2004. During this period, there were never more than half a dozen men on New York’s death row, and no executions took place. Yet today, nearly 250 people are doing life without parole in New York, and more than 1 in 6 of the state’s prisoners is serving a life sentence.
Connecticut, in abolishing its death penalty in 2012, legislated a punishment even more harsh than simple life without parole. Thereafter, a new law decreed, those convicted of “murder with special circumstances” would be condemned to live out their life without parole sentences in solitary confinement. The measure was reportedly backed as a way to win enough support for the repeal bill.
Though the requirement that life/LWOP sentences be served in solitary confinement is codified into law only in Connecticut, it exists in practice throughout the nation. An unknown number of lifers have, like [New York lifer] William Blake, been placed in permanent or indefinite solitary confinement by prison officials, without benefit of any kind of due process. So have most of the individuals on the nation’s death rows, including the supposedly fortunate ones who live in states that have instituted moratoriums, and are therefore unlikely to ever face execution.
Research has confirmed that even brief periods in solitary alter brain chemistry and produce psychiatric symptoms ranging from extreme depression to active psychosis. Some prisoners who have spent longer amounts of time in isolation describe it as a condition that slowly degrades both their humanity and sanity, turning them into blind animals given to interminable pacing, smearing their cells with feces, or engaging in self-mutilation....
William Blake has said that while he cannot bring himself to take his own life, he would have welcomed the death penalty 27 years ago had he known what a lifetime in solitary confinement would be like. Perhaps the time will come when people like Blake — and the American public — are not forced to choose among such monstrous alternatives. In the meantime, it will be a shame if people who oppose state-sponsored death continue to advocate for state-sanctioned torture.
Long-time readers know that I largely share the perspective of these commentators. I find compelling the assertion that some (many?) LWOP sentences can often involve a fate worse than death, and I find moving the concern that too much of modern opposition to "state-sponsored death" in the United States tends to advocate, both formally and functionally, for a kind of "state-sanctioned torture."
Sunday, November 30, 2014
Noting some reasons the number of US executions in 2014 are so low
This new Christian Science Monitor article details some reasons why the US is on pace to have fewer than three dozen executions this year for the first time in decades. The piece carries this lengthy headline and subheading: "Death penalty in 2014: why US has seen fewest executions in 20 years: The downward trend in executions has several explanations, but experts say it’s probably not because of death penalty debates about innocence and guilt. Rather, they say, it’s the details of how the state goes about ending a condemned life." Here are excerpts:
In late November, a federal judge emptied Wyoming’s death row of its last remaining occupant, Dale Wayne Eaton. His lawyers don’t dispute that Mr. Eaton in 1988 raped and killed 18-year-old Lisa Marie Kimmell after kidnapping her and holding her hostage in his compound. The problem, the court found, was that his defense team failed to present him as a three-dimensional human being at his sentencing, including pointing out the severe beatings he received as a child and how he was evaluated to have low intelligence.
The ruling seemed of the moment in a country that has seen sentiments about the death penalty continue to shift in 2014. So far this year, America has seen the fewest executions — 32 — in 20 years....
A series of botched and disturbing executions in Oklahoma, Ohio, and Arizona has also contributed to the shifting debate, argues Rick Garnett, a law professor at the University of Notre Dame in Indiana. Death penalty states are being forced to come up with new lethal injection drug formulas as traditional suppliers of the drugs stop distributing them to states.
The downward trend in executions has several explanations, but experts say it’s probably not because of debates about innocence and guilt. Rather, they say, it’s the details of how the state goes about ending a condemned life, including the issues surrounding the lethal injection drugs.
Friday, November 28, 2014
Texas Justice calls for state's death penalty to be abolished
As reported in this local article, "Texas Court of Appeals Justice Tom Price on Wednesday denounced the death penalty, saying that Texas' 2005 life without parole law makes it unnecessary and that the possibility of executing a wrongfully convicted person is an 'irrational risk' that should not be tolerated by the criminal justice system." Here is more about this notable development which emerged in a legal challenge to a notable planned execution:
The Dallas Republican's comments, thought to be the first time such views have been voiced by a judge on the state's highest criminal appeals court, came in a strongly worded dissent to the court's Wednesday rejection of an appeal on behalf of Scott Panetti, a Fredericksburg double-killer said to suffer from schizophrenia. Panetti, 56, is scheduled to be executed next Wednesday.
"Based on my specialized knowledge of this process," Price wrote, "I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purpose served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel."
Price, 61, a former Dallas County state district judge, has served on the high appeals court since 1996. His term ends this year and he has said he will not seek re-election. In his statement, Price asserted that "society is now less convinced of the absolute accuracy of the criminal justice system."...
"In my time on this court I have voted to grant numerous applications for writs of habeas corpus that have resulted in the release of dozens of people who were wrongfully convicted," Price wrote. "I conclude that it is wishful thinking to believe that this state will never execute an innocent person for capital murder. ... I am convinced that, because the criminal justice system is run by humans, it is naturally subject to human error. There is no rational basis to believe that this same type of human error will not infect capital murder trials."
Price's comments were greeted with surprise by law professors and appellate attorneys active in death penalty cases. "I'm still absorbing it. It wasn't expected," said Maurie Levin, a former clinical law professor at the University of Texas who now is based in Philadelphia. "It's long overdue." While the concerns raised by Price have been "discussed and decried around the country for a number of years now ... for a high court judge, a CCA judge, to articulate them so forthrightly is extraordinary."...
Jani Maselli Wood, an assistant Harris County public defender, an adjunct professor at the University of Houston law school and a former Texas Court of Criminal Appeals staff attorney, said she doubts Price's statement will influence legislators or incoming juries. But, "it will impact his legacy for what he wants us to remember," Wood said. "He says we have life without parole, why do we need death convictions. He is remarkably brave. I think it is heroic."
Price's statement came in a dissent to the court's 6-3 vote not to consider a new appeal on behalf of Panetti that argues his mental condition "renders him categorically ineligible for the death penalty under the Eighth and 14th Amendments, because imposition of the death penalty on offenders with severe mental illness offends contemporary standards of decency." The court found the petition failed to meet requirements for applications of post-conviction writs of habeas corpus.
Judges Elsa Alcala and Cheryl Johnson issued a separate dissenting opinion, saying they would stay Panetti's execution to allow for an examination of his claim that the Eighth Amendment prohibits execution of seriously mentally ill individuals.
The full six-page "Dissenting Statement" by Justice Price can be accessed at this link, and here is one of a number of notable paragraphs from the opinion:
Some might argue that a victim’s family deserves the finality that comes with the execution of an offender. This is a misguided sentiment as the instant case demonstrates. Applicant has been on death row for about twenty years. The victims’ family has not gotten finality after twenty years due to the numerous appeals and writs filed by applicant in which he has contended that his mental status makes him ineligible for execution. And, perhaps, one would say that the answer is speeding up executions. But creating a more restrictive temporal limitation would only increase the risk of executing a wrongfully convicted person. In my experience, a victim’s family is more likely to quickly experience finality through the criminal justice system when an offender is sentenced to life without parole than when he is sentenced to death.
Wednesday, November 26, 2014
Some unusual suspects working to stop Texas from executing mentally ill condemned murderer
This new Mother Jones article reports on some of the interesting persons who are eager to prevent Texas from carrying out a notable death sentence next week. The article is headlined "Can Ron Paul and Conservative Evangelicals Save a Texas Death-Row Inmate? A rightwing crusade aims to stop the execution of Scott Panetti, a mentally ill convicted murder." Here are excerpts:
When Scott Panetti represented himself in a Texas capital murder case in 1995, wearing a purple cowboy suit and calling himself "Sarge," he called as a witness a veterinarian who once lived across the street from him. Panetti questioned the vet about the time he euthanized Little Blue, Panetti's old dog. The episode had nothing to do with the case. Other witnesses Panetti tried to call to the stand: John F. Kennedy and Jesus.
Trial transcripts, medical records, and expert witness testimony have documented that Panetti suffers from severe schizophrenia. He believes Texas is going to execute him to stop him from preaching the gospel — not because he shaved his head, donned camo fatigues, and shot and killed his in-laws in 1992. The Supreme Court has declared that executing the mentally ill violates the Eighth Amendment's prohibition on cruel and unusual punishment, but several Texas and federal courts — including the US Supreme Court — have reviewed Panetti's case, and each one has ruled that the state can proceed with his lethal injection. Now, with Panetti’s execution scheduled for December 3, the only thing that might save him is a national campaign being mounted by conservatives, including former Texas Republican congressman and libertarian icon Ron Paul.
Panetti's lawyers have filed a clemency petition with the Texas Board of Pardons and Parole, which can recommend that Gov. Rick Perry, a Republican, commute Panetti's sentence to life in prison without parole. That petition has received an outpouring of support from conservatives and evangelicals. In addition to Paul, this group includes Jay Sekulow, an evangelical lawyer famous for pressing religious liberties cases on behalf of social conservatives.
Paul's involvement in the case is unusual. Last year, he publicly endorsed a new advocacy group, Conservatives Concerned About the Death Penalty, saying, "I believe that support for the death penalty is inconsistent with libertarianism and traditional conservatism." This was the result of a years-long evolution....
It’s also unusual for conservative Christians to support a clemency petition like Panetti's. The last time evangelicals really rallied en masse to prevent a pending execution was in 1998, in the case of Karla Faye Tucker, who converted to Christianity in prison and became a conservative cause celebre. Despite the pleadings of evangelicals such as Pat Robertson, the Texas governor at the time, George W. Bush, went ahead with the execution, and Tucker became the first woman executed in the state since 1863.
The Panetti case is different. His religious fervor is the product of a brain disorder, and the evangelicals' opposition to his execution is not related to his religious proclamations. It is more of a reflection of the shift in public attitudes regarding capital punishment that has been driven by the growing number of exonerations of death-row inmates, the high number of mentally ill and disabled people sentenced to die, and the inefficient and expensive administration of capital punishment. "A lot of conservatives are late to realize that the whole criminal justice system is part of the government," says Richard Viguerie, a prominent conservative leader and an ardent opponent of the death penalty.
Religious conservatives are increasingly joining those who would like to see the end of the death penalty, citing their movement’s commitment to a "culture of life," which has traditionally focused primarily on restricting abortion. Conservative evangelicals, says Beaudoin, have been animated by the Panetti case over the past few weeks. Her outfit has opposed other executions, but, she says, the Panetti case has hit a nerve. She has been surprised by the number of influential Christians who have signed on to the clemency petition, especially Samuel Rodriguez, the president of the National Hispanic Christian Leadership Coalition, who's on Time magazine's 2013 list of the 100 most influential people in the world. Abby Johnson, a former Planned Parenthood clinic director who now runs a pro-life ministry for former abortion clinic employees, wrote an editorial in the Dallas News calling on Texas to spare Panetti.
"This is the largest outpouring of support on a death penalty case we've seen from evangelicals, and you can see why, given the ridiculous nature of this case," Beaudoin says. "A lot of folks who signed this [clemency] letter might have given pause about signing on to a letter opposing the death penalty generally, but they think we have no business executing Scott Panetti." She adds, "As Christians, we're called protect the most vulnerable. And there's just no question that Scott Panetti is in that number as someone who's suffered from severe mental illness. We all want to keep society safe, but I'm thankful there are other ways to do that than executing people."
Tuesday, November 25, 2014
Can and should out-going Maryland Gov commute death sentences to ensure LWOP after state's capital repeal?
The question in the title of this post is prompted by this Baltimore Sun article discussing the interesting procedural and practical issues now surrounding the fate of Maryland's death row prisoners and the decisions facing the out-going Maryland Governor who signed the law repealing the state's death penalty. Here are excerpts from the article:
A western Maryland woman whose parents were killed by a man on death row urged Gov. Martin O'Malley in a phone conversation Monday not to commute the man's sentence. The conversation came days after The Baltimore Sun reported that O'Malley had reached out to two relatives of people killed by men on death row — moves that fueled speculation that, with two months left in office, the governor may be poised to take action on the death penalty cases.
"I said, 'Don't touch this [case], let it go back to court, let the judges decide,'" said Mary Francis Moore, 71, whose father and his wife were killed in 1995 by Heath William Burch. Moore said that in their roughly 15-minute phone conversation, O'Malley did not say what his plans were. But they discussed what might happen to Burch in light of another inmate's appeal. Maryland Attorney General Douglas F. Gansler has joined the appeal, arguing that the state no longer has the authority to execute anyone.
O'Malley "talked about the possibility that if it did go back to court, that these guys would get out, that they would only get life," not life without possibility of parole, Moore said. Moore said she concluded the conversation by asking O'Malley "to pray about it." The governor told her, she said, "I hope we meet some day."...
O'Malley has largely refused to discuss the fate of the men who were already sentenced to death when he and the General Assembly repealed the death penalty last year. The repeal did not apply to them.
Maryland's governor has broad power to pardon or reduce an inmate's sentence, but the authors of the death penalty repeal law included language spelling out that he could change a death sentence to life without parole — even if that sentence did not exist when the inmate committed his crime. Two men on death row commited their crimes before 1987, when Maryland lawmakers established the sentence of life without parole.
Sen. Brian E. Frosh, a proponent of repeal and the attorney general-elect, said Monday that a court would not be able to resentence an inmate to a penalty that did not exist at the time he was convicted, but the governor can.
Advocates on both sides of the issue have been watching to see whether O'Malley might commute the sentences of the four men remaining on death row....
Moore said she "begged" O'Malley not to grant Burch clemency, though he never clearly said he was considering that. She thinks Burch should be put to death. "I asked him, 'What are you going to do, governor?' I asked him two or three times, 'What are your plans?'"...
"The last thing I said to him was, 'I want you to really think about this, and I want you to pray about it, because I want you to do the right thing,'" she said. "The right thing to me is leave it alone."
Even before the death penalty repeal, the status of Maryland's death row inmates had been up in the air since 2006 when the state's regulations for executions were thrown out by a court. They were never replaced. Lawyers from the attorney general's office are scheduled to argue Dec. 8 before a state appellate court that Maryland can't issue new regulations now that capital punishment has been abolished.
An appeal by another death row inmate, Jody Lee Miles, faces an uncertain outcome in the courts. But Gansler has noted O'Malley's authority to commute death sentences to life without parole. Governors in Illinois and New Jersey commuted the existing death sentences in their states after the repeal of capital punishment....
Dorothy Atkinson, whose son was killed by Miles in 1997, said she, too, was contacted by the governor's office about a meeting.... Though Atkinson believes Miles deserves to be executed, she submitted a letter to O'Malley two weeks ago, asking him to commute Miles' sentence to spare her family from the ordeal of further legal wrangling.
I believe that, at least in some jurisdictions, convicted defendants are able to formally refuse to except a grant of clemency. Consequently, I am not entirely sure Gov O'Malley can ensure through a commutation decision that some of the death row prisoners get an LWOP sentence nor that a commutation decision will ensure there is no further legal wrangling over these cases. That said, the procedural and practical issues arising in this setting perhaps provide a strong reason for the out-going Gov to do exactly what the victims' families now request in each case whether that involves a request for commutation or a request to leave this matter to the state courts.
Monday, November 24, 2014
"Will Texas Kill an Insane Man?"
The question in the title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:
On Dec. 3, Texas plans to execute an inmate named Scott Panetti, who was convicted in 1995 for murdering his in-laws with a hunting rifle. There is no question that Mr. Panetti committed the murders. There is also no question that he is severely mentally ill, and has been for decades.
During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ. A standby lawyer said his behavior was “scary” and “trance-like,” and called the trial “a judicial farce.”
It was not an act. Mr. Panetti, now 56, was first diagnosed with schizophrenia when he was 20, and in the years before the murders he was hospitalized several times for delusions and psychotic episodes.
In this respect, he is no different from the estimated 350,000 inmates around the country with mental illness — 10 times the number of people in state psychiatric hospitals. But Mr. Panetti is not just another insane prisoner; his name is synonymous with the Supreme Court’s modern jurisprudence about mental illness on death row. In Panetti v. Quarterman, decided in 2007, the justices held that it is not enough for a defendant simply to be aware that he is going to be executed and why — the previous standard the court had used in permitting the execution of the mentally ill....
But the justices refused to set precise guidelines for determining whether someone is competent enough to be executed, and they did not overturn Mr. Panetti’s sentence. Instead, they sent the case back to the lower courts for a fuller reconsideration of his current mental state.
By any reasonable standard — not to mention the findings of multiple mental-health experts over the years — Mr. Panetti is mentally incompetent. But Texas, along with several other stubborn states, has a long history of finding the loopholes in Supreme Court rulings restricting the death penalty. The state has continued to argue that Mr. Panetti is exaggerating the extent of his illness, and that he understands enough to be put to death — a position a federal appeals court accepted last year, even though it agreed that he was “seriously mentally ill.”
Mr. Panetti has not had a mental-health evaluation since 2007. In a motion hastily filed this month, his volunteer lawyers requested that his execution be stayed, that a lawyer be appointed for him, and that he receive funding for a new mental-health assessment, saying his functioning has only gotten worse. For instance, he now claims that a prison dentist implanted a transmitter in his tooth.
The lawyers would have made this motion weeks earlier, immediately after a Texas judge set Mr. Panetti’s execution date. But since no one — not the judge, not the district attorney, not the attorney general — notified them (or even Mr. Panetti himself), they had no idea their client was scheduled to be killed until they read about it in a newspaper. State officials explained that the law did not require them to provide notification.
On Nov. 19, a Texas court denied the lawyers’ motion. A civilized society should not be in the business of executing anybody. But it certainly cannot pretend to be adhering to any morally acceptable standard of culpability if it kills someone like Scott Panetti.
November 24, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Friday, November 21, 2014
"'Power and Greed and the Corruptible Seed': Mental Disability, Prosecutorial Misconduct, and the Death Penalty"
The title of this post is the title of this notable new paper by Michael Perlin available via SSRN. Here is the abstract:
The Supreme Court’s death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is based in large part on the assumption that prosecutors and judges will act fairly. I believe that these assumptions are based on nothing more than wishful thinking, and that the record of death penalty litigation in the thirty-eight years since the “modern” penalty was approved in Gregg v. Georgia gives the lie to them.
This article focuses solely on the role of prosecutors in this process, and the extent to which prosecutorial misconduct has contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities. This is an issue known well to all those who represent such defendants in death penalty cases but, again, there is startlingly little literature on the topic. It is misconduct that is largely hidden and ignored. The article begins with some brief background on issues that relate to the treatment of persons with mental disabilities in the criminal justice system in general. It then discusses prosecutorial misconduct and the outcomes of that misconduct, with special attention to a cohort of appellate decisions in unheralded and rarely (if ever) discussed published cases that, in almost every instance, sanction such misconduct. Next, it demonstrates how some prosecutors purposely flaunt the canons of ethics in the prosecution of defendants with mental disabilities in death penalty cases, and then will discuss some solutions raised by scholars to (at least, partially) cure this problems, and concludes with some modest suggestions of my own.