Tuesday, October 22, 2013
Mizzou revamps its lethal injection protocol and drug source for next executionAs reported in this new Reuters article, Missouri just announced new execution procedures to deal with lethal drug acquisition problems. Here are the basics and some national context:
The New Republic has published a somewhat related article here under the headline "Big Pharma May Help End the Death Penalty: Boycotts don't work against Texas executioners. But they could hurt pharmaceutical firms that make execution drugs."
A "compounding pharmacy" will supply lethal injection drugs for future executions in Missouri, the latest U.S. state to turn to the lightly regulated sector after major pharmaceutical companies refused to sell drugs for executions, the state said on Tuesday.
The Missouri Department of Corrections said in a brief statement that it would switch to using a single drug for executions, pentobarbital. Missouri had used a three drug protocol until recently. "The department also announced that it has added a compounding pharmacy to its execution team," the statement said. Asked the name of the pharmacy, department spokesman David Owen said that information could not be disclosed.
Missouri is the latest of a half dozen U.S. states turning for lethal injection drugs to compounding pharmacies - which typically mix drugs for individual prescriptions and are subject to light federal government regulation. The practice has drawn protests from opponents of the death penalty and advocates for death row inmates, who say the lack of regulation risks a botched execution.... Compounding pharmacies must register with state authorities but their products are not regulated by the Food and Drug Administration.
Texas this month executed its first prisoner using a drug from a compounding pharmacy. Other states which have turned to such suppliers or have said they may do so soon include Georgia, South Dakota, Colorado and Ohio. A judge in Georgia this year granted a temporary stay of execution for a prisoner in part because of concerns about the quality of the compounded drug.
Missouri announced earlier this month that it would search for a new drug for executions after it came under pressure from drug makers, especially in Europe, not to use the drug propofol in executions.
Can a state continue with execution plans for murderers still on death row after repeal of capital punishment?
The question in the title of this post is being considered today by the Connecticut Supreme Court, as explained in this AP article:
The Connecticut Supreme Court [today] plans to take up the appeal of Daniel Webb, who is currently awaiting execution for the 1989 kidnapping and murder of Diane Gellenbeck, a Connecticut bank executive. Webb wants his death sentence overturned based on the 2012 law that abolished the death penalty in Connecticut, except for those who had already been sentenced to die.
His lawyers argue that the law violates Webb's constitutional rights to equal protection by treating him differently than others charged with similar crimes. They say it also shows the death penalty is inconsistent with current standards of decency in Connecticut and no longer serves any valid purpose.
Given that many folks (including plenty of liberal-leaning ones) seem to believe that it is not constitutionally problematic to have federal crack defendants still subject to excessively long mandatory minimum prison sentences even after Congress reduced these sentences, I assume that most folks also likely believe that it is not constitutionally problematic to have Connecticut's murder defendants still subject to execution even after the state legislature repealed the death penalty. It will be interesting to see if a majority of the Connecticut Supreme Court shares such a perspective (and whether, if it does, federal courts will also reach the same conclusion during inevitable additional appeals).
Monday, October 21, 2013
SCOTUS grants cert on federal restitution and state Atkins application casesI was actually starting to get a bit sad and worried that the US Supreme Court, after a few consecutive years of taking up a host of interesting and important sentencing issues, had decided this term to give little or no attention to the kinds of issues that serve as an obsession for me and this blog. But, thanks to two cert grants this morning, my belief that the Justices love the sentencing issues I love (or at least my faith that these issues are often too important for SCOTUS to ignore) has been restored. Here is the early report on these latest grants via SCOTUSblog:
The Supreme Court moved on Monday to settle a long-lingering issue: the legal standard for judging whether a person is too retarded mentally to be executed for a murder. That is the issue in Hall v. Florida (docket 12-10882). The Court also agreed to hear a second case, on the scope of restitution as a penalty for bank loan fraud. That is the issue in Robers v. U.S. (12-9012).....
The new death penalty case from Florida raised this issue: “Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.” In that 2002 decision, the Supreme Court had ruled that it is unconstitutional under the Eighth Amendment to execute individuals who are found to be mentally retarded. The Court, however, left it to the states to decide who is mentally retarded and thus cannot be given the death penalty.
In the new case, attorneys for Freddie Lee Hall contended that Florida courts have adopted a “bright line” rule that a person is not mentally retarded unless their IQ falls below 70. The state Supreme Court found that Hall had an IQ of 71. In an earlier stage of Hall’s case, before the Supreme Court had decided the Atkins case, he had been found to be mentally retarded, the petition said.
The Hall case is certain to get lots of attention, and perhaps justifiably so. That case is, arguably, the first "major" capital criminal procedure case to be taken up by the Supreme Court in a number of years (and certainly the biggest one I can think of since Justices Kagan and Sotomayor joined the Court). And a ruling in Hall will necessarily have a some impact on all post-Atkins litigation in all death-penalty states.
Robers, in contrast, will likely get very little attention because the case appears only focus on a relative narrow and technical issue as to the application of a federal restitution statute. Nevertheless, even if the briefing in Robers ends up focused only on narrow and technical issues, I suspect the white-collar bar (as well as corporate counsel in various industries) will want to keep an eye on this case because its resolution could impact an array of corporate crime and punishment issues.
As I will surely cover in future posts as these cases get briefed and argued in early 2014, Hall and Robers both could become "super sleepers" of the current SCOTUS Term because both cases have lurking Fifth and Sixth Amendment issues that could (but likely will not) grab some Justices' attention. In both cases, critical facts that impact a defendant's sentence exposure are to be assessed and resolved by judges. Though I do not believe Apprendi-type Fifth and Sixth Amendment claims are being pressed by the defendants in these cases, it is certainly possible that some amici and some Justices will contend that Fifth and Sixth Amendment jurisprudence ought to impact how the issues in Hall and Robers get resolved.
Saturday, October 19, 2013
Talk in Georgia about modifying its (too) tough approach to Atkins death penalty issueThis new AP article, headlined "Ga. to review tough death penalty provision," reports about talk of possible reform to Georgia's application of the constitutionally mandated death penalty exception for the mentally retarded. Here are excerpts:
The state that was the first to pass a law prohibiting the execution of mentally disabled death row inmates is revisiting a requirement for defendants to prove the disability beyond a reasonable doubt — the strictest burden of proof in the nation.
A state House committee is holding an out-of-session meeting Thursday to seek input from the public. Other states that impose the death penalty have a lower threshold for proving mental disability, and some don't set standards at all....
Georgia's law is the strictest in the U.S. even though the state was also the first, in 1988, to pass a law prohibiting the execution of mentally disabled death row inmates. The U.S. Supreme Court followed suit in 2002, ruling that the execution of mentally disabled offenders is unconstitutional....
Thursday's meeting comes against the backdrop of the case of Warren Lee Hill, who was sentenced to die for the 1990 beating death of fellow inmate Joseph Handspike, who was bludgeoned with a nail-studded board as he slept. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times. Hil
l's lawyers have long maintained he is mentally disabled and therefore shouldn't be executed. The state has consistently argued that his lawyers have failed to prove his mental disability beyond a reasonable doubt. Hill has come within hours of execution on several occasions, most recently in July. Each time, a court has stepped in at the last minute and granted a delay based on challenges raised by his lawyers. Only one of those challenges was related to his mental abilities, and it was later dismissed.
A coalition of groups that advocate for people with developmental disabilities pushed for the upcoming legislative committee meeting and has been working to get Georgia's standard of proof changed to a preponderance of the evidence rather than proof beyond a reasonable doubt. Hill's case has drawn national attention and has shone a spotlight on Georgia's tough standard, they say.
The process has taken an enormous amount of education, said Kathy Keeley, executive director of All About Developmental Disabilities. Rather than opposition to or support for the measure she's pushing, she's mostly encountered a lack of awareness about what the state's law says, she said. The groups are hoping to not only express their views at the meeting, but also to hear from others to get a broader perspective, Keeley said. The changes should be relatively simple and very narrow in scope, targeting only the burden of proof for death penalty defendants, she said.
Ashley Wright, district attorney for the Augusta district and president of the state District Attorneys' Association, said prosecutors question the logic of changing a law that they don't see as problematic and that has repeatedly been upheld by state and federal courts. "The district attorneys don't believe that you change a law for no reason and, in this case, the law appears to be working," she said. "Where has a jury done a disservice? Why are we putting all our eggs in the defendant's basket and forgetting that there's a victim?"
Prosecutors agree that the mentally disabled shouldn't be executed, and defendants are frequently spared the death penalty when there is proof of their mental disability supported by appropriate documentation from credible and reliable experts, she said.
But Hill's lawyer, Brian Kammer, argues that psychiatric diagnoses are complex, and "experts who have to make diagnoses do not do so beyond a reasonable doubt, they do it to a reasonable scientific certainty." Furthermore, he said, disagreements between experts make the beyond-a-reasonable-doubt standard nearly impossible to meet.... In Hill's case, a state court judge concluded the defendant was probably mentally disabled. In any other state, that would have spared him the death penalty, Kammer said.
Thursday, October 17, 2013
"The Federal Death Penalty and the Constitutionality of Capital Punishment"The title of this post is the title of this notable new article by Scott Howe recently posted to SSRN. Here is the abstract:
The federal death penalty results in few executions but is central to the larger story of capital punishment in the United States. In the last decade, federal statutes governing the federal death penalty seem to have exerted outsize influence with the Supreme Court in its development of “proportionality” doctrine, the rules by which the Justices confine the use of capital punishment under the Eighth Amendment. In three cases rejecting capital punishment for mentally retarded offenders, juvenile offenders and child rapists, the Court noted that federal death-penalty statutes would have conferred protection against federal death prosecutions.
These decisions, and current federal death-penalty law, suggest that the Court could resolve certain nuanced proportionality problems by restricting the death penalty in the states. However, for observers who hope to see the Court eventually use proportionality analysis to abolish the death penalty or greatly restrict its use, these developments seem to carry mostly negative implications. The relatively broad application of federal death-penalty law would weigh against sweeping proportionality restrictions on the death penalty for murder. However, the article explains why the Court’s proportionality analysis fails adequately to consider low execution rates and why the rarity of federal executions, if persistent, should undermine any notion that federal death-penalty law and practice supports a national consensus favoring capital punishment for ordinary murder.
Wednesday, October 16, 2013
Two notable SCOTUS criminal procedure cases up for argument todayThe government shutdown is not preventing the Supreme Court from doing its usual work, and today that work includes hearing oral argument in two criminal cases: Kansas v. Cheever, a state death penalty case concerning Fifth Amendment issues and Kaley v. United States, a federal case concerning whether and when an indicted defendant's assets can be frozen. As usual, SCOTUSblog has terrific argument previews, and here are links and excerpts:
The Fifth Amendment to the Constitution provides that no one in a criminal case can “be compelled… to be a witness against himself.” In the case of death penalty defendant Scott Cheever, that means that the state obviously cannot require him to testify in his capital murder trial. But what if Cheever’s defense includes the argument that the murder could not have been premeditated because he was intoxicated at the time of the murder? Can the state rebut that defense by introducing testimony from the psychiatrist who conducted a court-ordered examination of Cheever? That is the question before the Court in Kansas v. Cheever.
Kaley v. United States... before the Court arises from the (seemingly increasingly) common practice of the government freezing the assets of an indicted criminal defendant, who needs the assets to hire a lawyer. The question is whether the defendant can challenge the grand jury’s determination that there is probable cause to indict him, when the indictment is the basis for the freeze. At first blush, that question sounds fairly dry. But criminal forfeitures are a key part of the federal government’s efforts to prosecute crime -- including because, by limiting a defendant’s ability to fight the charges against him, the pretrial restraining orders enhance the government’s ability to get either a guilty plea or a guilty verdict. As such, a pro-defendant ruling in the case could shift the balance of power in many criminal proceedings back away from the federal government. Underscoring the significance of the case is the fact that Michael Dreeben, the Deputy Solicitor General with primary responsibility for criminal cases at the Court, will argue on behalf of the United States.
For reasons suggested in these previews, I suspect the Cheever case will generally get more public attention even though the Kaley case is plainly far more consequential and important for the modern administration of criminal justice systems.
UPDATE: thanks to SCOTUSblog, I see now that the transcript from oral argument in Kaley v. United States is now here at this link and the oral argument transcript in Kansas v. Cheever is now here at this link.
Sunday, October 13, 2013
Lethal uncertainty: Mizzou Gov postpones execution due to novel drug concernsAs reported in this AP piece, headlined "Missouri gov. halts 1st US execution by propofol," the Show Me State has decided to delay its efforts to show whether a new drug might be used successful to executed condemned murderers. Here are the details:
Missouri Gov. Jay Nixon on Friday halted what was to have been the first U.S. execution to use the popular anesthetic propofol, following threats from the European Union to limit the drug's export if it were used for that purpose.
Nixon also ordered the Missouri Department of Corrections to come up with a different way to perform lethal injections without propofol, the leading anesthetic used in America's hospitals and clinics. Nearly 90 percent of the nation's propofol is imported from Europe.
"As governor, my interest is in making sure justice is served and public health is protected," Nixon said in a statement. "That is why, in light of the issues that have been raised surrounding the use of propofol in executions, I have directed the Department of Corrections that the execution of Allen Nicklasson, as set for October 23, will not proceed."
Nixon, a Democrat and staunch supporter of the death penalty, did not specifically mention the EU threat in his brief statement. Nixon was Missouri's longtime attorney general before he was first elected governor in 2008. During his 16 years as attorney general, 59 men were executed.
The leading propofol maker, Germany-based Fresenius Kabi, and anesthesiologists had warned of a possible propofol shortage that could impact millions of Americans if any executions took place.
In a statement, Fresenius Kabi applauded Nixon's move. "This is a decision that will be welcomed by the medical community and patients nationwide who were deeply concerned about the potential of a drug shortage," said John Ducker, CEO of Fresenius Kabi USA. The company said propofol is administered about 50 million times annually in the U.S....
Drug makers in recent years have stopped selling potentially lethal pharmaceuticals to prisons and corrections departments because they don't want them used in executions. That has left the nearly three dozen death penalty states, including Missouri, scrambling for alternatives. Missouri altered its execution protocol in April 2012 to use propofol. The drug gained some level of infamy in 2009 when pop star Michael Jackson died of a propofol overdose.
Nixon's decision also leaves uncertain the execution scheduled for next month for another convicted killer, Joseph Franklin. Soon after Nixon's announcement, Missouri Attorney General Chris Koster filed a motion with the Missouri Supreme Court to vacate the Oct. 23 execution date for Nicklasson and to set a new date "soon after" Franklin's execution date of Nov. 20. A spokeswoman for Koster declined comment.
In addition to concerns raised about how the EU would respond to the execution, Missouri's decision to use propofol prompted a lawsuit filed on behalf of nearly two dozen death row inmates claiming use of the unproven execution drug could result in pain and suffering for the condemned man.
Koster, a Democrat, and Republican Missouri state Sen. Kurt Schaefer have suggested that if the state can't execute by lethal injection it consider going back to the gas chamber, something that hasn't been used since the 1960s. Missouri no longer has a gas chamber but Schaefer recently wrote to Nixon, urging him to consider funding construction of a new one in his next fiscal year budget.
The corrections department on Wednesday agreed to return a shipment of propofol to Louisiana-based distributor Morris & Dickson Co. The company distributes propofol made in Europe by Fresenius Kabi and told the corrections department in November that its shipment was a mistake. Corrections spokesman David Owen said Wednesday that Missouri had a remaining supply of propofol, all of it domestically made. But Fresenius Kabi spokesman Matt Kuhn said even the use of domestically produced propofol in an execution could prompt the EU to impose export controls.
Meanwhile, Mercer Medical, a Kent, Wash.-based third-party vendor, said Friday in a news release it has asked for the 400 milliliters of propofol it sold to the corrections department in June be returned at the request of the manufacturer, Hospira. The website for Hospira says it is headquartered in Lake Forest, Ill....
Nicklasson's attorney, Jennifer Herndon, said she was pleased with the delay, but expects the state to move quickly to revise its execution protocol. "They're pretty anxious to execute people so I would think that the state would put something forward sooner rather than later," Herndon said.
Wednesday, October 09, 2013
Arizona and Texas complete executions 29 and 30 in the US in 2013
Throughout the United States, there has been on average less than one execution per week in 2013; this year might end up having the fewest executions in the US in one calendar year in nearly two decades. (The Death Penalty Information Center has the yearly execution data well assembled here.) But as reported in the articles linked below, two states today brought total number of executions up to 30:
Split Tennessee Supreme Court extensively debates capital proportionality review
This local article from Tennessee, headlined "State Supreme Court Upholds Death Sentence, Maintains Sentencing Review Standards For Death Penalty Cases," provides an effective summary of an extensive opinion handed down yesterday concerning capital proportionality review. Here are excerpts:
The 50+ page majority opinion in Tennessee v. Pruitt is available at this link, and the partial dissent which checks in at 18 pages is available here.
The Tennessee Supreme Court, in a 3-2 decision, has upheld a death sentence for a Memphis-area man who was convicted of first-degree felony murder after he killed an elderly man while stealing his car.While the entire Court agreed that Corinio Pruitt was guilty, the dissenting justices would have modified the sentence to life without parole.
In reviewing a death penalty case, the Court is required by Tennessee law to conduct what is called a “proportionality review” to ensure that the sentence of death is appropriate in comparison to similar cases. Before conducting a proportionality review with the specific facts in the Pruitt case, the Court first considered whether the methods for such review should be modified. In fact, after the case was argued before the Tennessee Supreme Court in 2012, the Court determined that the issue of proportionality review required additional briefing and argument. After receiving supplementary information from the parties, the Court held oral arguments a second time earlier this year.
The primary issue is the pool of cases used to conduct the comparison in a death penalty case. In conducting its proportionality review, the Court looks at the pool of cases and considers the facts of the crimes, the characteristics of the defendants, and the circumstances of the crimes, with a goal of determining whether a death sentence is excessive or disproportionate.
In 1997, the Court determined that it would compare all death penalty sentences to other cases in which the death penalty was sought. Prior to that, the Court considered all cases in which a defendant had been convicted of first-degree murder, but was not necessarily considered for a death sentence.
The Court on Tuesday rejected the proposal by the defense that it should broaden the pool of cases to include all first-degree murder cases, including those in which the death penalty was never sought. Instead, the Court upheld its previous decisions since 1997 that have conducted a proportionality review by looking only at cases in which the state sought the death penalty and in which a penalty phase was held, regardless of the sentence actually imposed by the jury.
The Court ruled it was inappropriate to review the prosecutors’ initial decisions regarding whether to seek the death penalty at the onset of the case, reaffirming its 1997 Opinion which “noted that including these first degree murder cases in the pool would equate to an implicit review of prosecutorial discretion, that is generally not subject to judicial review.”...
In their separate opinion, Justice William C. Koch, Jr. and Justice Sharon G. Lee, after noting that all murders are serious crimes, stated that comparing all first-degree murder cases would be more consistent with the Tennessee law that requires proportionality review and with the rule that capital punishment is not appropriate for all murders but is reserved for only the most heinous murders and the most dangerous murderers.
The two dissenting justices also pointed to a 2007 American Bar Association study of Tennessee’s death penalty, which stated that the limited pool of cases the Court adopted in 1997 undercut the purpose of proportionality review. After considering Mr. Pruitt’s background and the nature of his crime in light of similar first-degree murder cases in Tennessee, the two justices determined that Mr. Pruitt should be sentenced to life imprisonment without the possibility of parole.
Sunday, October 06, 2013
More evidence of the sad perversity of California's administration of the death penaltyAs the title of this post reveals, I have now decided that the best adjectives to describe the administration of the quasi-dormant death penalty in California are sad and perverse. This new local article, headlined "Serial killer's death sentence revives capital punishment debate," highlights why:
In 1977, 19-year-old Larry Roggasch cracked open a six-pack of beer, pouring three on his little sister's freshly covered grave in their native San Jose, and made a promise: He would see that the man who raped, strangled and dumped her on a Marin County hillside be punished.
Thirty-six years later, judgment day looms for serial killer Joseph Naso, who at age 79 will become the oldest person ever sentenced to death in California when a judge next month pronounces his penalty for the murders of 18-year-old Roxene Roggasch and three other Northern California prostitutes.
But Larry Roggasch doesn't know whether he can bear to watch Naso receive what seems to him a hollow sentence. With an ongoing moratorium on executions in California and hundreds of convicted murderers awaiting capital punishment, there is virtually no chance the state will ever put Naso to death.
"It's a joke; he's never going to be executed," said Roggasch, a 56-year-old commercial fisherman. "He's going to live out the rest of his life safe and comfortable in his own cell on death row. That's why I want him to go to mainline prison," Roggasch continued. "He needs to suffer, like them -- not just my sister, all of them."
In California, the death penalty appeals process takes so long that men half Naso's age on death row are more likely to die of natural causes or kill themselves than be executed by the state. And while they wait on San Quentin State Prison's death row, they lead a relatively comfortable existence, with single cells and access to the best attorneys fighting for prisoners' rights.
But on the heels of voters narrowly choosing to preserve the death penalty last year, California's district attorneys and peace officers are readying a proposition for the 2014 ballot that they say would expedite executions once the state lifts its moratorium on lethal injection drugs. Among those spearheading the effort are District Attorneys Steve Wagstaffe of San Mateo County, Jeff Rosen of Santa Clara County and Mark Peterson, whose Contra Costa County territory has been the scene of death penalty defendants mocking the threat of capital punishment in recent years.
"Some individuals facing murder charges would prefer the death penalty to life without parole because they believe the conditions on death row are better than among the general population," said Larry Barnes, a private defense attorney and death penalty expert. "They harbor the opinion that with some 720 men on death row, unless they are very young, they don't stand a chance of being executed."
Such was the case with Richmond-San Rafael Bridge toll plaza killer Nathan Burris, who practically begged Contra Costa County jurors to give him the death penalty at his trial last year for the jealousy-fueled ambush killing of his ex-girlfriend and her friend.
"If I was in Texas, I'd be terrified," Burris said from the witness stand in 2012. "California is not real. The death penalty means nothing to me but time to hang out and do what I'm going to do."
In the same courtroom three years earlier, Edward Wycoff received the death penalty for the ambush slayings of his sister and brother-in-law in El Cerrito. He told jurors that he deserved an award, not the death penalty, but still wanted the one-to-a-cell status that death row provides.
Between California resuming executions in 1992 and the beginning of the state's judicially imposed moratorium in 2006, just 13 men who exhausted their appeals have been executed. The California Department of Corrections and Rehabilitation counts 722 men and 20 women currently on death row, nearly 300 of whom have had their sentences affirmed by the Supreme Court. Experts say it takes 12 years on average for condemned inmates in California to exhaust their appeals, more than twice the national average for death penalty states.
Meanwhile, the costs mount; by one estimate, the state has spent more than $4 billion on death penalty trials, appeals and incarceration since 1978. "The death penalty process is broken, there is no dispute about that," said Peterson, who is part of Californians for Death Penalty Reform and Savings, a coalition of district attorneys, law enforcement professionals and victims' rights advocates in the process of raising $1.7 million to get on the November 2014 ballot an initiative they believe would cut the appeal process in half and save the state hundreds of millions of dollars a year....
But Ana Zamora, senior policy advocate at the American Civil Liberties Union of Northern California, said Peterson and his coalition face "a serious uphill battle. The death penalty system is so broken beyond repair, there is no fixing the system that won't cost millions and millions and won't put at risk executing innocent people," she said.
In the meantime, San Quentin's death row more and more resembles a geriatric ward. Killer and serial rapist Darryl Kemp currently holds the distinction as the oldest person to be sentenced to death in advance of Naso's Nov. 8 sentencing. Kemp was 73 when he slept through his 2009 trial and sentencing for the rape and murder of a Lafayette mother three decades earlier.
It was the second death sentence for Kemp, who killed just four months after he was released from San Quentin in 1978 after a California Supreme Court ruling that made capital punishment unconstitutional and commuted all death sentences to life in prison with the possibility of parole. Today, at age 77, Kemp is in the preliminary stage of his appeal that will stretch for years.
I would like to believe that some kind of successful initiative campaign in California could somehow succeed in making the state's death penalty system less sad and perverse. But I suspect and fear that it is the deep ambivalence of California's populace, politicians and population of lawyers concerning a truly functional capital punishment system that has led to the current mess, and I doubt any set of formal legal changes are likely to be able to effectively transform the system's sad and perverse realities anytime soon.
Friday, October 04, 2013
Ohio adopts new execution protocol to get needed drugs from compounding pharmaciesAs reported in this local article, Ohio has yet another new execution protocol as of this afternoon. Here are the details:
Ohio’s revised execution policy maintains use of pentobarbital, a drug that is in short supply, but allows to the state get it from a new source: compounding pharmacies. The revised policy [available here], released this morning by Ohio Department of Rehabilitation and Correction, makes no major changes other than the source of the drugs used.
The policy does not directly address the critical issue of the shortage of pentobarbital, the single drug currently used in executions. The state used what it said was the last of its supply of the drug in executing Harry Mitts Jr. of Cuyahoga County on Sept. 25.
However, it now says that pentobarbital, and the backup drugs, Midazolam, a sedative, and Hydromorphone, a strong opiate, can all be obtained from a “manufacturer, distributor or compounding pharmacy.” The state has been buying from manufacturers or distributors, but not compounding pharmacies.
Such pharmacies doing customized preparation and mixing of chemicals, usually to meet specific needs of patients or clients. However, several other states — mostly recently Texas just this week — have turned to the compounding pharmacies because manufacturers of pentobarbital refuse to sell it to states that use it for executions. Colorado, Pennsylvania and South Dakota have either obtained or investigated buying drugs from compounding pharmacies....
Compounding pharmacies have come under fire in recent years because of problems with drugs, including a 2012 outbreak of fungal meningitis that killed 63 people and sickened hundreds, according to the federal Centers for Disease Control and Prevention.
Since 1999, when Ohio resumed executions, prison officials have used three drugs, singly and in combination, for lethal injections. State officials said in a federal-court filing in August that the switch to a new execution protocol was necessary because the state’s supply of pentobarbital was running out.
Wednesday, October 02, 2013
"The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All"The title of this post is the title of this new report released today by the Death Penalty Information Center. Here are excerpts from this report's executive summary:
Contrary to the assumption that the death penalty is widely practiced across the country, it is actually the domain of a small percentage of U.S. counties in a handful of states. The burdens created by this narrow but aggressive use, however, are shifted to the majority of counties that almost never use it.
The disparate and highly clustered use of the death penalty raises serious questions of unequal and arbitrary application of the law. It also forces the jurisdictions that have resisted the death penalty for decades to pay for a costly legal process that is often marred with injustice.
Only 2% of the counties in the U.S. have been responsible for the majority of cases leading to executions since 1976. Likewise, only 2% of the counties are responsible for the majority of today’s death row population and recent death sentences. To put it another way, all of the state executions since the death penalty was reinstated stem from cases in just 15% of the counties in the U.S. All of the 3,125 inmates on death row as of January 1, 2013 came from just 20% of the counties.
Each decision to seek the death penalty is made by a single county district attorney, who is answerable only to the voters of that county. Nevertheless, all state taxpayers will have to bear the substantial financial costs of each death penalty case, and some of the costs will even be borne on a national level.
The counties that use the death penalty the most have some of the highest reversal rates and many have been responsible for errors of egregious injustice. As their cases are reversed, more money will be spent on retrials and further appeals....
Some states have recently chosen to opt out of this process altogether, greatly limiting their obligations for its high costs and disrepute. As the death penalty is seen more as the insistent campaign of a few at tremendous cost to the many, more states may follow that course.
Sunday, September 29, 2013
Boston Globe says "Eric Holder shouldn’t seek death for Dzhokhar Tsarnaev"This new Boston Globe editorial argues that the top US prosecutor ought not seek the punishment of death for the last living Boston Marathon bomber. Here is part of the paper's pitch:
In the raw days after the Marathon bombing in April, Mayor Tom Menino spoke for many Bostonians when he raised the prospect of executing those who were responsible. Though normally a death penalty opponent, Menino said that the barbarity of the attackers, who killed four people and maimed dozens, might sway him.
Now, as surviving suspect Dzhokhar Tsarnaev faces trial, that question looms for federal prosecutors, who are in the midst of a lengthy process to decide by Oct. 31 whether to seek the 19-year-old’s death by lethal injection. It’s certainly understandable why many friends, family, and supporters of the victims hope prosecutors will seek the ultimate vengeance against the man they believe masterminded the bombing along with his older brother, Tamerlan. Still, Attorney General Eric H. Holder Jr. should decide against it....
In addition to the extra cost of capital prosecutions — cases can exceed $10 million — death penalty cases drag on for years, through numerous appeals. Such lengthy proceedings would ensure that the Marathon bombing case lingers in the spotlight, compounding the sense of injury to victims. Many people would feel compelled to defend Tsarnaev on the basis of his youth, lack of past offenses, and being under the influence of his older brother — all factors that would mitigate against a death sentence. Years of proceedings, and their potential culmination in a death sentence, would also give Tsarnaev what he and his brother apparently sought: publicity and notoriety. Much better to let Tsarnaev slip into obscurity in a federal prison cell, and stay there.
It’s possible that prosecutors are keeping the death penalty on the table primarily to use as leverage against Tsarnaev, hoping that he will agree to plead guilty, skip a trial, and accept life imprisonment in order to save his life. Such a strategy raises worries about fairness under any circumstances, since it puts enormous pressure on defendants to give up their right to a trial. In this case, it’s also unnecessary. The evidence against Tsarnaev is overwhelming, and prosecutors should have nothing to fear from bringing the case to trial.
Beyond the details of this particular case, of course, lies the deeper question of whether the death penalty itself is ever right. There is no national consensus on the death penalty, and Holder needs to be sensitive to differences of public opinion. The bombing was a terrorist act aimed at this Commonwealth, where the death penalty has been repeatedly debated and repeatedly rejected. A recent Globe poll found that Boston residents oppose the death penalty for Tsarnaev by a solid margin. Of course, the attorney general should be under no legal obligation to consider the temper of the city. But perhaps it will give him the cover to make the right call. If Massachusetts can reject the death penalty, even after the most awful crimes, so can Holder.
Some recent prior posts:
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- Intriguing sparring over federal capital recommendation procedure in Boston bombing case
Saturday, September 28, 2013
Could execution drug difficulties and switches result in real public health problems?The question in the title of this post is prompted by this AP article, headlined "Use of drug for execution might cut supply: Missouri plans on using common anesthetic in October to kill convicted murderer." Here are excerpts:
The planned use of a common anesthetic in a Missouri execution is raising concerns that the anti-death penalty European Union could limit export of the drug, endangering the supply of a vital medication used every day in thousands of American hospitals and clinics.
The execution scheduled for Oct. 23 would be the first to use propofol, which is by far the nation’s most popular anesthetic. About 50 million vials are administered annually in some 15,000 locations. That’s about four-fifths of all anesthetic procedures, according to the American Society of Anesthesiologists. Propofol is popular because it works quickly and patients wake up faster with fewer side effects such as post-operative nausea.
Roughly 85 percent of the U.S. supply of propofol is made in Europe, where capital punishment is outlawed, by the German company Fresenius Kabi. Export is controlled by the European Union, which prohibits trade in goods that could be used for executions. The EU is reviewing whether to subject propofol to that rule.
If it is added to the regulation, propofol would be subject to export controls, not a complete ban, EU spokeswoman Maja Kocijancic said. Still, any change in export practices could have a drastic effect on propofol’s availability in the U.S., said Matt Kuhn, a spokesman for Fresenius Kabi USA. “It’s a real concern,” Kuhn said Friday. “And it could have enormous public health implications.”
Fresenius Kabi has launched a website specifically to address the ramifications of using propofol in a U.S. execution, http://propofol-info.com. The Food and Drug Administration is worried about any move that could affect access to propofol. FDA spokeswoman Erica Jefferson said the agency is weighing how to reach out to European officials to ensure the drug remains readily available. “We do consider this a critical need,” Jefferson said. “Without the drug, we’re concerned that surgeries would be delayed and patients would be at risk.”
Until recently, Missouri and other states with the death penalty used virtually the same three-drug protocol. That changed in recent years as drug makers stopped selling the traditional execution drugs to prison officials because they didn’t want them used for lethal injections.
Last year, the Missouri Department of Corrections turned to propofol, which made headlines in 2009 when pop star Michael Jackson died after overdosing on the drug. So far, Missouri is the only state to adopt propofol for executions, though it has not yet put anyone to death with the drug.
At one point, the shortage of execution drugs was so concerning in the state that Attorney General Chris Koster hinted that use of the gas chamber was a possible alternative. Missouri used gas for executions in the early 1900s but no longer has a working chamber.
Thursday, September 26, 2013
Ohio DP Task Force recommends excluding those with "serious mental illness" from capital punishmentAs reported in this local article, which is headlined "Group wants law excluding severely mentally ill from death penalty," Joint Task Force to Review the Administration of Ohio’s Death Penalty (of which I am a member) endorsed a significant recommendation with respect to mental illness and the administration of the death penalty. Here are the basics:
A state task force today voted to recommend that the state legislature pass a law excluding the severely mental ill from the death penalty in murder cases.
The Joint Task Force to Review the Administration of Ohio’s Death Penalty, a creation of the Ohio Supreme Court and the Ohio State Bar Association, wants the General Assembly to hold hearings and pass a law to prevent people who have a severe mental illness, such as schizophrenia, at the time of the crime from facing the death penalty. The aim is not to stop them from being prosecuted, however.
Despite the vote, there is a deep divide among task force members about what constitutes serious mental illness and whether the current legal system does an adequate job of screening for it.
“I don’t want everyone with ADHD or some real or imaginary disability to avoid responsibility,” said state Sen. Bill Seitz, R-Cincinnati, a task force member who voted for the proposal but with reservations.
Hamilton County Prosecutor Joseph Deters said the court system screens out the seriously mentally ill through the trial and appeal process. “We are producing more and more layers of litigation in capital cases that I think are unnecessary.”
John Parker, a Cleveland attorney whose subcommittee recommended the exclusion, reasoned that the legislature, not the task force, is best equipped to decide what he admitted will be a contentious issue after hearing from law enforcement, prosecutors, the public defender, mental health experts and others.
Judge Kathleen Keough of the Cleveland Court of Appeals said walling off the seriously mentally ill from the possibility of being executed is “a matter of common decency.” She said the federal courts have ruled that the mentally retarded and juveniles cannot be executed and people with severe mental illness should be considered similarly. “Mental illness is not a choice,” she said....
The task force was motivated to make the proposal by former Ohio Supreme Court Judge Evelyn Lundberg Stratton, a longtime advocate for the mentally ill, who recommended when she was on the court two years ago that the “time had come to re-examine whether we as a society should administer the death penalty to a person with a serious mental illness.”
The task force, which convened nearly two years ago, will wrap up its meetings in November and begin drafting a final report to the governor and state legislators to be submitted next year.
Wednesday, September 25, 2013
"Lethal Injection Secrecy Post-Baze"The title of this post is the title of this new and timely piece available via SSRN authored by Deborah Denno. Here is the abstract:
This article assesses the impact of the 2008 Supreme Court case Baze v. Rees on lethal injection, this country’s prevailing method of execution. The Baze Court declared Kentucky’s lethal injection protocol constitutional. Yet the opinion was too weak and vague to quell legal challenges to lethal injection, which have soared in the past five years and led states to modify their lethal injection protocols with unprecedented frequency. This article’s unique analysis of over 300 cases citing Baze from 2008-2013 reveals that states’ lethal injection protocols have become increasingly diverse from one another, and from the original protocol evaluated by the Baze Court. Consequently, Baze has been rendered largely irrelevant a mere five years after its issuance.
Meanwhile, post-Baze legal challenges have been overshadowed by an even bigger obstacle to lethal injection: unanticipated national shortages in lethal injection drugs, which have resulted in a new wave of litigation and protocol changes as states struggle to procure the drugs they need to carry out lethal injection executions. A growing number of states are considering the use of compounding pharmacies to manufacture lethal injection drugs. Yet proposed (and seemingly inevitable) legislation that would increase regulation of these facilities may render compounded drugs ineligible for use in executions.
Left with little guidance from Baze and dwindling drug supplies, states are likely to retreat into secrecy regarding their lethal injection procedures, making it increasingly difficult to identify and address enduring problems with those procedures. This article calls for transparency as a crucial foundation for efforts to ensure that lethal injections remain constitutional at a time when the future of this execution method is far from clear.
Monday, September 23, 2013
Intriguing sparring over federal capital recommendation procedure in Boston bombing caseThis AP article, headlined "Lawyers ask for more time to submit arguments against death penalty in Boston Marathon bombing," reports on an interesting tussle over procedure in a hearing today concerning one of the highest-profile on-going federal prosecutions. Here are the basics:
Federal authorities plan to recommend whether to seek the death penalty against Boston Marathon bombing suspect Dzhokhar Tsarnaev by the end of next month and expect U.S. Attorney General Eric Holder to decide early next year whether to pursue it, prosecutors said Monday.
But Tsarnaev’s lawyers objected to the timetable and asked a judge for more time to make their case against the death penalty. During a status conference in U.S. District Court, Tsarnaev’s lawyers said they have not received key evidence from prosecutors yet — including interviews or grand jury testimony of Tsarnaev’s family — and have not had enough time to submit a proposal arguing that Tsarnaev does not deserve the death penalty.
Assistant U.S. Attorney William Weinreb argued that the defense has had almost six months since the bombing. He said federal prosecutors plan to make a recommendation to Holder by Oct. 31. He will have the ultimate say on whether to seek the death penalty; his decision is expected by Jan. 31, Weinreb said....
Weinreb said prosecutors originally asked Tsarnaev’s lawyers to submit their arguments by Aug. 23 but agreed to extend that deadline to October at their request. He said prosecutors are not required by law to wait for input from the defense before submitting their recommendation to Holder. “We think that six months is a reasonable time,” he said.
But Judy Clarke, one of Tsarnaev’s lawyers, said “it’s a matter of fairness” and asked the judge to delay the date for their submission at least until they get the evidence they are seeking. “It’s pretty stunning to say they can make a decision based on what they know without some defense input,” said Clarke, a San Diego lawyer who has won life sentences instead of the death penalty for high-profile clients, including the Unabomber and the gunman in the rampage that wounded former U.S. Rep. Gabrielle Giffords of Arizona.
Judge George O’Toole Jr. took no immediate action on the request but agreed to allow the defense to submit arguments on whether the court has the authority to reset any deadlines.
Some recent prior posts:
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
Detailing the extraordinary (and justified?) costs of one federal capital case in PhillyThis remarkable local story, headlined "Bill for Savage trial easily tops $10 million," details the remarkable price tag on seeking to achieve capital justice in one remarkable federal criminal case. Here are just some of the remarkable details:
No one protested when a federal jury recommended in June that Kaboni Savage be put to death. In just a few years, Savage had left a grisly trail in North Philadelphia. He gunned down one man, ordered the killing of five others, and directed the 2004 rowhouse firebombing that killed four children and two women.
The cocaine, PCP, and other drugs he peddled poisoned families, enticed boys into crime, and kept neighborhoods in decay. Those costs are immeasurable. Determining what taxpayers have spent to investigate, convict, and detain Savage is less so.
A review of records, as well interviews with lawyers and court officials, indicates the public price tag for stopping Savage easily tops $10 million, making it among the costliest prosecutions in city history.
Court-appointed lawyers for Savage and his codefendants have logged more than $3.3 million in fees and expenses -- a record for a federal case in Philadelphia -- and are still billing. The defense total is a fraction of the prosecution cost, according to one expert. Government lawyers, FBI agents, and staff spent years building the case against Savage, at times working on nothing else.
The jury selection and murder-racketeering trial in Judge R. Barclay Surrick's courtroom lasted seven months. The court shelled out $325,000 in per-diem payments and travel expenses for 1,100 prospective jurors and the 18 eventually picked for the trial, according to information compiled by court officials. Juror lunches and snacks topped $24,000. Transcripts cost $249,000.
On most days, a half-dozen U.S. marshals ringed the courtroom and escorted the defendants, jurors, and witnesses. Additional security and travel costs exceeded $283,000, the Marshals Service said....
"Frankly, no one should be surprised to see it cost this much," said Jon B. Gould, an American University law professor who has studied defense costs in federal capital cases. "If we're going to do it right, so that [death-penalty] convictions are accurate, it's going to cost money."
In his 2010 report to the U.S. Judicial Conference, Gould and a colleague, Lisa Greenman, found the median cost for one defendant in a capital case in 2004 was $465,000. The most expensive was $1.7 million per defendant. Those numbers are likely higher now....
In some ways, the Savage case was an anomaly. U.S. prosecutors in Philadelphia have sought the death penalty three other times since 1998, but never before convinced a jury. It also reflects an increase in the last decade in federal capital cases, among the most complex to try. And it comes amid government budget woes....
Savage was already serving a 30-year term for a 2005 drug-trafficking conviction when prosecutors built the murder case. The 2009 indictment cited 12 deaths, but the centerpiece was the firebombing he ordered from prison. The victims were the mother, son, and relatives of Eugene Coleman, a former associate preparing to testify against Savage. "He had never been held accountable for this," said Assistant U.S. Attorney David Troyer, the lead prosecutor. "There was no question that he needed to be held accountable."
Charged with Savage were his sister, Kidada, who helped plot the arson bombing; Robert Merritt Jr., an accused accomplice in the firebombing; and Steven Northington, a hitman for Savage in two other murders. All were eligible for the death penalty, though prosecutors ultimately decided not to seek it for Kidada Savage.
William Purpura, one of Kaboni Savage's lawyers, said the trial was inevitable because prosecutors wouldn't consider a plea deal for life in prison. "The government's only offer in Kaboni Savage's case was death," he said. Patricia Hartman, a spokeswoman for U.S. Attorney Zane D. Memeger, said the office would not confirm or deny any plea discussions. But during the trial, prosecutors argued that Savage deserved death because he had made it clear that he could - and would - orchestrate killings from prison....
In interviews, four of the eight court-appointed defense lawyers in the Savage trial said it was the most extensive and exhausting of their career, requiring 16-hour days and preventing them from taking any other clients. "Other than just sleeping, you weren't doing anything else," said Will Spade, one of Merritt's lawyers, who had been approved for $378,000 in fees through mid-August. "I turned a lot of work away - I think every defense lawyer in the case did that."
The bulk of the fees - $1.2 million - went to Savage's lawyers. Hoey, who had worked the case since February 2010 and served as the lead trial lawyer, billed $589,000. He said the case was like seven murder trials in one. When those ended, there was another trial - the penalty phase to determine whether Savage should die.
Defense lawyers also claimed $99,000 in case-related expenses through August. Purpura said nearly all of his were for his $3,000-a-month apartment at the Benjamin Franklin residences in Center City. "There was seven months where I lived in Philadelphia, stayed away from my family," he said. "We hunkered down with this case from early-morning hours to late at night."...
The U.S. Attorney's Office said it would be impossible to determine how much it spent on the case.... Gould said his research suggests prosecutions cost more than twice as much as capital defense. "They have to spend more - and they do," he said.
According to the FBI, the two investigators assigned to the Savage case spent six years working on it exclusively and an additional four years devoting half of their time to the investigation - a tally of more than $1 million even if both made less than six-figure salaries....
And still the case goes on. Kidada Savage and Merritt are awaiting sentencing and hearings on post-trial motions filed by their lawyers. Kaboni Savage's attorneys have also filed motions asking the judge to overturn the verdict or sentencing. Any decision is likely to be appealed.
Savage will wait with 58 others on death row. Only three inmates have been executed - and none in a decade - since the federal death penalty was reinstated in 1988. Troyer, 55, said he expects Savage will cost the government time and money for years to come. "I wouldn't be surprised if this case outlives my longevity with the department -- if not the earth," he said.
I share the federal prosecutor's view that Kaboni Savage needed to be held accountable for all his carnage, and I have long thought that the death penalty is an essential punishment for anyone who has murdered multiple victims and seems likely to murder again if only given an life sentence. Nevertheless, given the federal prosecutor's also astute view that Savage seem likely to be able to appeal his death verdict (and thus forestall his execution) for decades, I find it still hard to avoid thinking that the extraordinary human and economic resources invested in this prosecution constitute a less-than-ideal expenditure of federal taxpayer resources.
Sunday, September 22, 2013
Will SCOTUS take up Warren Hill's (final?) plea to avoid a Georgia execution?The question in the title of this post is prompted by this new editorial commentary by Jesse Wegman for the New York Times. The piece is headlined "A Rare Plea to the Court," and here are excerpts:
The Supreme Court’s next term is full of big-ticket issues — from campaign finance to affirmative action to the separation of powers — but a largely overlooked death-penalty appeal the court hasn’t agreed to hear yet could clarify how broadly it views its ultimate power to stop unjust executions.
In 1990 Warren Lee Hill beat a man to death with a nail-studded board, and the state of Georgia sentenced him to die. Mr. Hill is intellectually disabled, according to all seven mental health experts who have examined him. The Supreme Court banned the execution of intellectually disabled people in 2002, but Mr. Hill remains on death row, trapped by a welter of state and federal laws that prevent him from proving his condition in court....
One hurdle for Mr. Hill is that while four of the seven mental health experts originally found that he met the criteria for mild mental retardation, three did not. Georgia requires intellectual disability to be proved beyond a reasonable doubt — an arguably unconstitutional standard no other state uses. Presumably it is possible to meet this standard. Either way, Georgia courts said a four-three split was not enough. But last year the three experts against Mr. Hill recanted. Seven to zero sounds like a winner, but it didn’t matter, a federal appeals court said, since Mr. Hill was blocked by another law that strictly limits multiple appeals on the same claim.
So Mr. Hill filed a direct appeal to the Supreme Court — a rare request the court even more rarely grants — asking it to order the lower courts to weigh the new evidence. On Sept. 30, the court will consider whether to hear Mr. Hill’s petition. It has been reluctant in the past to exercise this power, but this case is exceptional. At stake is not only a man’s life, but the court’s own authority....
Mr. Hill’s case is as simple as it is unusual: there is compelling evidence that he is categorically ineligible to be executed, and he has nowhere else to turn.
Saturday, September 21, 2013
What are enduring lessons from "The Death and Resurrection of Capital Punishment in America"?The question in the title of this post is drawn from the title of Evan Mandery's notable new book titled "A Wild Justice: The Death and Resurrection of Capital Punishment in America." Here is the description of the book from the publisher's website:
Drawing on never-before-published original source detail, the epic story of two of the most consequential, and largely forgotten, moments in Supreme Court history.
For two hundred years, the constitutionality of capital punishment had been axiomatic. But in 1962, Justice Arthur Goldberg and his clerk Alan Dershowitz dared to suggest otherwise, launching an underfunded band of civil rights attorneys on a quixotic crusade. In 1972, in a most unlikely victory, the Supreme Court struck down Georgia’s death penalty law in Furman v. Georgia. Though the decision had sharply divided the justices, nearly everyone, including the justices themselves, believed Furman would mean the end of executions in America.
Instead, states responded with a swift and decisive showing of support for capital punishment. As anxiety about crime rose and public approval of the Supreme Court declined, the stage was set in 1976 for Gregg v. Georgia, in which the Court dramatically reversed direction.
A Wild Justice is an extraordinary behind-the-scenes look at the Court, the justices, and the political complexities of one of the most racially charged and morally vexing issues of our time.
I suspect I will not be able to find time to read this book until the end of classes this semester, but this recent NPR's Fresh Air interview of the author provides an effective and efficient glimpse into the stories therein. Here is how NPR sets up the interview:
In the mid-1970s, Arkansas' electric chair was being used by the prison barber to cut hair, and the execution chamber in New Hampshire was being used to store vegetables. That's because in 1972, the U.S. Supreme Court shocked the nation by striking down Georgia's death penalty law, effectively ending executions in the United States. But the decision provoked a strong backlash among those who favored the death penalty, and within four years the high court reversed course and issued a set of rulings that would permit the resumption of executions.
Evan Mandery, a professor at the John Jay College of Criminal Justice and a former capital defense attorney, has written a new account of the tumultuous legal and political battles over the death penalty. Mandery is sympathetic to those who tried to outlaw capital punishment, but his account focuses on attorneys for both sides in the battle, as well as the views and deliberations of the justices who decided the cases. His book is called A Wild Justice: The Death and Resurrection of Capital Punishment in America.
He tells Fresh Air's Dave Davies about how the Supreme Court decisions of the '70s changed capital punishment.