Thursday, June 19, 2014

Florida completes third uneventful US execution in less than one day

As reported in this CNN piece, a "double murderer was executed in Florida Wednesday night, becoming the third man put to death in an American prison during a 24-hour period." Here are the basics:

John Ruthell Henry, 63, was declared dead at 7:43 p.m. ET at the Florida State Prison in Starke, according to CNN affiliate WFLA, which had a media witness inside the prison. Henry fatally stabbed his wife and her 5-year-old son from a previous marriage in December 1985.

In Georgia, Marcus A. Wellons, 59, was declared dead at 11:56 p.m. ET Tuesday. Wellons was convicted in 1993 of raping and killing India Roberts, 15, in Cobb County, just outside Atlanta. In Missouri, John Winfield was declared dead at 12:01 a.m. CT Wednesday, the state Department of Public Safety said....

Those three executions were the first in the United States since the botched execution of an Oklahoma man in April. The Oklahoma execution raised questions about how prisons use drugs in lethal injections.

June 19, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Wednesday, June 18, 2014

Should feds agree to moving capital trial of Boston Marathon bomber?

As discussed in this USA Today article, headlined "Lawyers for Boston bombing suspect want trial elsewhere," the most notorious federal capital defendant is likely to seek to be tried in a jurisdiction outside the community he helped terrorize.  Here are the basic details, after which I explain why I think federal prosecutors might seriously consider agreeing to a change of venue:

Attorneys for Boston Marathon bombing suspect Dzhokhar Tsarnaev are due in federal court today in Boston, where they are expected to ask a judge to move their client's November trial.

Judge George A. O'Toole Jr. last week denied a motion that would have given attorneys Miriam Conrad and Judith Clarke until August to make their case for changing venues.  At issue is whether Tsarnaev can receive a fair trial in the city where two bombs went off near the Marathon finish line on April 15, 2013, leaving three dead and more than 260 wounded....

Questions of venue came up last month in three related obstruction of justice cases. Judge Douglas Woodlock said at the time that media coverage in Boston hasn't made it impossible to impanel local juries that will be fair to three friends of Tsarnaev who allegedly interfered with bombing investigations.  "I don't find it to be the kind of press coverage that on the whole creates presumptions," Woodlock said.

He added, however, that "the proof of the pudding is in the selection of the jury." If impartial jurors can't be found in Boston, then the upcoming trials of Azamat Tazhayakov, Dias Kadyrbayev and Robel Phillipos could be moved to Springfield, Mass.  Tsarnaev's trial is scheduled to begin Nov. 3.

I wonder if the feds have thought about agreeing to a change of venue, and also urging the new venue to be a nearly jurisdiction with some history with the death penalty like Connecticut or New York. I fear that, absent a change of venue, Tsarnaev's defense team will have a potent appeal issue for challenging a death sentence for many years to come. A venue change seems the only way to avoid years of litigation on this front, and such a venue change might arguably make it easier for the feds to ultimately secure the conviction and death sentence prosecutors are seeking.

Notably, a change of venue was granted in the other historic and horrific federal capital bombing trial of recent vintage: US. District Judge Richard Paul Matsch ordered that the venue for the trial of the Oklahoma City bomber Tim McVeigh be moved to Denver based on concerns he would be unable to receive a fair trial in Oklahoma. Given that history and precedent, I think the feds would be wise to agree rather than oppose the defense effort to have the trial moved.

June 18, 2014 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Georgia and Missouri complete uneventful executions, Florida up next

As reported in this AP article, "Within an hour, Georgia, then Missouri carried out the nation’s first executions since a botched lethal injection in Oklahoma in April raised new concerns about capital punishment." Here is more:

Neither execution had any noticeable complications. Another execution, the third in a 24-hour span, is scheduled Wednesday evening in Florida.

Georgia inmate Marcus Wellons, 59, who was convicted of the 1989 rape and murder of a 15-year-old girl, received a single-drug injection late Tuesday night after the U.S. Supreme Court denied his late appeals. His sentence was carried out about an hour before John Winfield, who was convicted of the 1996 killing two women, was executed early Wednesday in Bonne Terre, Missouri.

Looks like at least two states have their machineries of death up and running smoothly again.

June 18, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Tuesday, June 17, 2014

"Six Reasons Why Support for the Death Penalty Is Evaporating"

The title of this post is the sub-headline of this new Slate commentary by William Saletan.  Here is how the piece previews six reasons that follows:

For 40 years American politicians have assumed that favoring the death penalty is a winning political position. Is that era coming to an end? Is support for capital punishment, like opposition to gay marriage, evaporating? 

We can’t be sure. But we’re seeing the first signs that it could happen.

Death penalty support peaked at 80 percent in 1994 in the Gallup poll and the National Opinion Research Center’s General Social Survey. Since then, it has been sliding. In the most recently published GSS sample, taken in 2012, support fell to 65 percent, the lowest number since the question was introduced in its current form four decades ago. If it falls any further, it’ll be in new territory. The latest Gallup sample, taken last year, found that support was down to 60 percent for the first time in 40 years.

In a Pew survey taken a year ago, support for executing murderers dropped to 55 percent, 3 points down from Pew’s previous low. Last month, in a CBS News survey, the support level fell to 59 percent (4 points down from the previous low) while the percentage of respondents who opposed the death penalty rose to 33 percent (6 points above the previous high). It’s the first time in the 26 years CBS News has asked this question that the support number has fallen into the 50s or the opposition number has climbed into the 30s.

A Washington Post/ABC News poll released this month points in the same direction. Given a choice between two punishments for murder, only 42 percent chose the death penalty. Fifty-two percent preferred life imprisonment without parole. That’s an 8-point drop in support for capital punishment since the previous Post/ABC poll in 2006. It’s the first time in recent history a majority has chosen life over death.

Why is enthusiasm for the death penalty declining? Will it keep falling? Let’s look at what has changed

June 17, 2014 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, June 16, 2014

"Lethal Injection Secrecy and Eighth Amendment Due Process"

The title of this post is the title of this timely new article by Eric Berger now available via SSRN.  Here is the abstract:

The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure with which the state plans to kill them.

This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, thereby effectively insulating it from judicial review.

As in other constitutional contexts, then, due process norms require that the inmate be permitted access to information necessary to protect his other constitutional rights. These same norms likewise require courts, rather than administrative agencies, to judge the execution procedure’s constitutionality. Indeed, judicial recognition of this due process right would not only protect Eighth Amendment values but would also encourage states to make their execution procedures more transparent and less dangerous. Just as importantly, judicial recognition would also discourage secretive governmental practices more generally, thereby promoting openness and fair process as important democratic values.

June 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

After two-month hiatus, will Georgia and Florida get US machineries of death back on line this week?

A few days after the ugly execution in Oklahoma at the end of April, I wondered in this post whether all the attention and controversy that one execution generated would impact death penalty administration outside the Sooner State.  Now, with nearly two months having gone by without any subsequent executions completed anywhere in the United States (and it seems only a handful of executions now scheduled for the coming summer months), I am prepared to assert that Oklahoma's woes have had a national impact.  

While litigation over lethal injection protocols and various drug shortages had slowed the pace of executions down considerably, before the ugly Oklahoma execution the pace was starting again to pick back up.  Indeed, over the first 4 months of 2014, the US completed on average five executions each month and was on pace for the highest yearly total of executions in more than a decade.  But with everything seemingly slowing down after the Oklahoma mess, it now seems possible the US will have the fewest executions in 2014 than in any year in over two decades.

For those who pay very close attention to the death penalty and wonder about its future in the US, this coming week is one to watch real closely.  As detailed in local press reports here and here, both Gerogia and Florida have executions schedule for the next few days.  If these executions go forward and lethal injections proceed without a hitch, there is a greater likelihood that the US will be starting its return to execution business as usual.  But if one or both of these executions get stayed or end up being botched in some manner, I suspect US death penalty and execution realities will remain quite dyanmic and unpredictable for the months and perhaps years ahead.

Some recent related posts:

June 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Thursday, June 12, 2014

Florida Supreme Court upholds state law to speed up capital appeals

As reported in this local article, headlined "‘Timely justice’ death-penalty law upheld," the Florida Supreme Court had a notable state capital appeals ruling today. Here are the basics:

The Florida Supreme Court on Thursday upheld the constitutionality of a 2013 law that legislative supporters said would reduce delays in carrying out the death penalty. Justices, in a unanimous decision, rejected arguments that the so-called “Timely Justice Act” would be an unconstitutional infringement on the court system’s authority and separation of powers, and violate due-process and equal-protection rights.

In a concurring opinion, Justice Barbara Pariente emphasized that the law would not affect the Supreme Court’s “solemn responsibility” to block executions if necessary to ensure that defendants’ rights are protected.

“[This] court is still constitutionally entrusted with the duty to issue a stay of execution if there is a meritorious post-conviction claim pending or, if at the time the warrant is signed, the defendant brings a successive post-conviction challenge that casts doubt on his or her guilt, the integrity of the judicial process, or the validity of the death sentence imposed. . . . In my view, that remains the essential fail-safe mechanism this court may utilize when necessary to ensure that the ultimate punishment of the death penalty is inflicted in a manner that fully comports with the constitution,” wrote Pariente, who was joined in the concurring opinion by justices Jorge Labarga and James E.C. Perry.

With some convicted murderers on Death Row for 30 years or longer, lawmakers in 2013 said the changes would help carry out justice more quickly. After Gov. Rick Scott signed the bill, for example, House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach, posted a Twitter message that said, “Several on death row need to start picking out their last meals.”

But the details of the law, which touched on issues such as death warrants, the clemency process and legal representation for Death Row inmates, have proved to be far more complex than the legislative debate. Scott also pushed back against characterizations that the law would “fast-track” death-penalty cases through the court system.

Attorneys for dozens of Death Row inmates filed the constitutional challenge last year, with the case focusing on four disputed parts of the law, according to Thursday’s opinion, which was written by Justice R. Fred Lewis. A key issue focused on a requirement that the Supreme Court clerk notify the governor when Death Row inmates have exhausted initial state and federal appeals. The law orders the governor to sign death warrants for such inmates within 30 days and to direct the warden to schedule their executions within 180 days — but only after the executive clemency process has been completed.

The full ruling can be accessed at this link.

June 12, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, June 11, 2014

In wake of ugly lethal injection, Oklahoma legislator talking up "firing squad, hanging and electric chair"

As reported in this AP article, headlined "Republican Oklahoma lawmaker seeks study on adding firing squad, other death penalty options," at least one state legislator is talking about moving sooner rather than later to new execution methods in the Sooner State. Here are the details:

A Republican lawmaker reacting to an Oklahoma inmate's botched lethal injection said Tuesday he wants to explore giving condemned prisoners the option of death by firing squad, hanging or the electric chair.

State Rep. Mike Christian said he's formally requesting a legislative hearing on the state's death penalty procedures following the April 29 death of Clayton Lockett, whose vein collapsed prompting prison officials to halt his punishment and note the execution drugs weren't administered properly. Lockett died of an apparent heart attack about 43 minutes after the execution began.

Christian, a former state highway patrolman from Oklahoma City, said he believes a firing squad would be the most logical second option after lethal injection. "Firing squad, hanging and electric chair. I think those are the three that are definitely constitutional," said Christian, who earlier this year called for the impeachment of state Supreme Court justices who supported a temporary stay of execution for Lockett. "I think just about anybody in Oklahoma would support some of these ideas we're talking about." Christian has said previously he wouldn't care if condemned inmates in Oklahoma were beheaded or fed to lions....

Under Oklahoma law, if lethal injection is declared unconstitutional, the state would switch to electrocution. If both of those methods are determined unconstitutional, a firing squad is a third option. Christian said he intends to explore whether to change the law to make a firing squad the second option, and if inmates should be allowed to select the method. He said any law change likely wouldn't apply to the 50 Oklahoma inmates already sentenced to die by lethal injection.

State Rep. Aaron Stiles, a Norman Republican and chairman of the House Judiciary Committee, said he's interested in Christian's study. He has said in the past that he supports looking at alternative options for executions, including a firing squad.

Christian plans to solicit testimony from experts in Utah, the last state to use a firing squad when it executed inmate Ronnie Lee Gardner in 2010. Five executioners armed with .30-caliber rifles stood about 25 feet from Gardner and fired at a white target pinned to his chest. One rifle was loaded with a blank so no one knows who fired the fatal shot.

June 11, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Sunday, June 08, 2014

"The Failure of Mitigation?"

The title of this post is this notable new paper by Robert J. Smith, Sophie Cull and Zoe Robinson now available via SSRN. Here is the abstract:

A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders.  For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma?  The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime.

This Article begins to fill the mitigation knowledge gap by describing the social histories of the last hundred offenders executed in America.  Scouring state and federal court records, this Article documents the presence of significant mitigation evidence for eighty-seven percent of executed offenders.  Though only a first step, our findings suggest the failure of the Supreme Court’s mitigation project to ensure the only offenders subjected to a death sentence are those with “a consciousness materially more depraved” than that of the typical murderer.  Indeed, the inverse appears to be true: the vast majority of executed offenders possess significant functional deficits that rival — and perhaps outpace — those associated with intellectual impairment and juvenile status; defendants that the Court has categorically excluded from death eligibility. 

June 8, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, June 05, 2014

New poll purports to show "New Low in Preference for the Death Penalty"

This new ABC News article, which has the headline quoted above, reports that a "majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls." Here is more about the latest findings from this latest poll:

Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty – the fewest in polls dating back 15 years. The result follows a botched execution by lethal injection in Oklahoma in late April.

Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That’s down sharply from 80 percent in 1994....

Another result finds that most supporters of capital punishment hold that position even if lethal injections became unavailable or were outlawed. Just 16 percent of death penalty supporters say either of those would constitute grounds for doing away with capital punishment; eight in 10 would shift to another method, e.g., the electric chair or gas chamber....

Support for the death penalty is higher in the 32 states that have it, 64 percent, vs. 54 percent elsewhere. In a wider gap, people in death-penalty states divide about evenly in their preference for capital punishment vs. life without parole, while in other states life imprisonment is preferred by a 20-point margin....

Views on capital punishment range among groups. Fifty-six percent of women support the death penalty, rising to 66 percent of men. And women prefer life in prison to the death penalty by 57-37 percent, while men are evenly divided.

There’s also a vast gap by race; whites are more likely than nonwhites to support the death penalty, and to prefer it over life in prison, by 23- and 22-point margins. The gaps are widest comparing whites to blacks, a group that’s generally skeptical of the criminal justice system. Their support for the death penalty is lower than that of any other group.

Among other groups, support for the death penalty peaks among evangelical white Protestants and Republicans, at eight in 10 each, dropping to 47 percent among Democrats. It’s 20 points higher among conservatives than liberals. Preference for capital punishment over life in prison follows similar patterns, peaking at 65 percent among evangelical white Protestants (vs. 36 percent of their non-evangelical counterparts). It’s 30 points higher among Republicans than Democrats, and 25 points higher among conservatives than liberals.

In terms of change, preference for the death penalty vs. life in prison is down by 8 points since 2006, with the most pronounced drops (by 10 to 20 points) among non-evangelical white Protestants, seniors, nonwhites, less-educated adults, liberals and independents.

June 5, 2014 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, June 03, 2014

After botching the first attempt, should Ohio be allowed a second chance to execute Romell Broom?

The old saying goes, "If at first you don't succeed, try, try again."  But, as reported in this new AP article, the Ohio Supreme Court is going to considerwhether, after the state was unable to suceed in executing Romell Brown back in 2009, it will be permitted to try again.  The AP article is headlined "Ohio Court to Weigh Repeat Execution Attempt," and here are excerpts:

Ohio's top court has agreed to hear arguments that the country's only survivor of a botched lethal injection would face cruel and unusual punishment and double jeopardy if the state again attempts to put him to death.

Romell Broom, 57, was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.

His 2009 execution was stopped by then-Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein.  Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed.  An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try — again, unsuccessfully — to find a vein.

Broom's appeals in federal court are on hold while the state court hears the constitutional arguments.  Broom has been back on death row since.  No new execution date has been set.

In 1947, Louisiana electrocuted 18-year-old Willie Francis by electric chair a year after an improperly prepared electric chair failed to work.  The U.S. Supreme Court ruled 5-4 to allow the second execution to proceed, rejecting double jeopardy arguments.  A state's administration of its criminal law isn't affected by due process rights, when "an accident, with no suggestion of malevolence, prevents the consummation of a sentence," the court ruled at the time.

Broom suffered more than inmates during "a normal execution," meaning a second attempt would punish him twice for the same offense, defense attorneys Tim Sweeney and Adele Shank told the state Supreme Court in a May 2012 filing....  The state argues that Broom never underwent the execution process since the procedure was called off before the drugs could be introduced into his veins. 

For a number of reasons, the precedental force of the split SCOTUS ruling on this issue way back in 1947 is somewhat shaky.  In addition, the Ohio Supreme Court might rely on state constitutional law to block giving Ohio officials another shot at completing Broom's death sentence.   But I suspect the state will argue forcefully that it still can and should be allowed to carry out Broom's imposed sentence.  Stay tuned.

June 3, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Empirical explorations of modern capital clemency

Michael Heise has recently posted on SSRN two intriguing pieces concerning the modern patterns of capital clemency. Here are links and abstracts:

The Death of Death Row Clemency and the Evolving Politics of Unequal Grace

While America’s appetite for capital punishment continues to wane over time, clemency for death row inmates is all but extinct.  Moreover, what little clemency activity that persists continues to distribute unevenly across gender, racial and ethnic groups, geography, governors’ political affiliation, and over time. Insofar as courts appear extremely reluctant to review — let alone interfere with — clemency activity, little, if any, formal legal recourse exists.  Results from this study of clemency activity on state death rows (1973-2010) suggest that potential problems arise, however, to the extent that our criminal justice system relies on clemency to function as coherent extrajudicial check.

The Geography of Mercy: An Empirical Analysis of Clemency for Death Row Inmates

Conventional wisdom notes persistent regional differences in the application of the death penalty, with southern states’ appetite for capital punishment exceeding that of non-southern states.  Scholars analyzing the distributions of death sentences and state executions find a geographic influence.  Less explored, however, is a possible regional difference in the distribution of executive clemency even though clemency is an integral component of a criminal justice system that includes capital punishment.  If geography influences the distribution of the death penalty, geography should also influence the distribution of clemency.  Data, however, reveal some surprises.  Using a recently-released data set of all state death row inmates from 1973 to 2010, this paper considers whether clemency is exercised in southern and non-southern states in systematically different ways.  No statistically significant differences exist between southern and non-southern states when it came to clemency, even though southern states were more prone to execute and less prone to disturb death sentences through reversal on appeal than northern states.  When it comes to the influence of geography in the death penalty context, the findings provide mixed support and convey a complicated picture.

June 3, 2014 in Clemency and Pardons, Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, June 02, 2014

Is midazolam the key problem drug in recent lethal injection experiments?

The question in the title of this post is prompted by this informative new Wall Street Journal article headlined "Lethal-Injection Drug Is Scrutinized: Midazolam, Used in Botched Oklahoma Execution, Tied to Two Other Cases Seen as Troubling."  Here are excerpts:

Anesthesiologists say midazolam works like a dream. A few milligrams of the sedative calms patients' preoperative anxiety, while leaving them alert enough to talk with doctors and nurses before the more potent drugs kick in.

Reviews of its newer role as part of states' lethal-injection protocols aren't as unanimous. The drug, made by several companies in the U.S., has come into the spotlight with April's high-profile botched execution in Oklahoma, the first in that state to use midazolam. State officials injected Clayton Lockett, convicted of kidnapping and murdering a 19-year-old woman, with 100 milligrams of midazolam to render him unconscious. They then injected another drug to paralyze him and a third to stop his heart....

The drug has been used in nine executions since last fall, and lethal-injection experts have voiced concerns about three of those—the Oklahoma case, one in Florida and another in Ohio.

In the past, executioners would typically use thiopental and pentobarbital, which belong to a class of drugs known as barbiturates. Anesthesiologists say thiopental, which has largely been phased out of use, was aimed mostly at preventing a patient from feeling stimuli that would typically be painful. Pentobarbital is still used, they say, mostly to induce comas.

The makers of thiopental and pentobarbital, worried about the drugs being associated with capital punishment, cut back their availability for executions, leading some states to turn to midazolam. It belongs to a drug class known as benzodiazepines, which anesthesiologists say are most often used to sedate or calm patients, not anesthetize them. Anesthesiologists say they typically administer midazolam to a patient only a few milligrams at a time and therefore know little about the effects of much larger doses, like those given in lethal-injection protocols.

There is little agreement about how much to use in executions. Florida uses 500 milligrams, while Oklahoma used 100 milligrams on Mr. Lockett. Ohio used only 10 milligrams of midazolam in a January execution, but in April announced that it would change to 50 milligrams. None of the three states would comment on why they chose midazolam or how they settled on dosages.

"It's uncharted territory," said David Waisel, an anesthesiologist at Boston Children's Hospital who has testified on behalf of death-row inmates. "States literally have no idea what they're doing to these people." Dr. Waisel and others say that even when administered properly and at high doses, it is unclear whether midazolam sufficiently anesthetizes the sensations caused by the other drugs often used alongside it, such as vecuronium bromide, a muscle relaxant that causes paralysis, and potassium chloride, which stops the heart. Both of those drugs were used on Mr. Lockett.

June 2, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Sunday, June 01, 2014

"Death penalty in Kansas: Will the state ever execute another prisoner?"

The title of this post is the headline of this lengthy article in the Lawrence Journal World. And though focused on the modern story of capital administration in the Sunflower State, there are likely at least a dozen other states which still have the death penalty on the books and a number of prisoners on death row (ranging from California to Pennsylvania, from North Carolina to Washington) for which the same question could be reasonably asked given the lack of execution in these states for more than half a decade.  Here are excerpts abut the modern capital story in Kansas that is similar (though with distinct facets) to what happen in a number of states :  

Moments before he was hung to death, George York expressed contrition for his sins....

The state of Kansas had not forgiven York, convicting him of one of several murders he had confessed to as part of a cross-country killing spree with fellow Army deserter James Latham. So on June 22, 1965, York was led up the 13 steps of the gallows at the Kansas State Penitentiary in Lansing. A prison chaplain read from the 23rd Psalm as the noose was placed around York's neck. At 12:53 a.m., the trap door dropped. The 22-year-old was pronounced dead 19 minutes later.

York was the last person executed by the state of Kansas. In recent years, several states have banned capital punishment. It is on hiatus in some states because of problems obtaining the drugs used in lethal injections, which has led to botched executions, mostly recently in Oklahoma.  But in Kansas, the death penalty is in a sort of legal limbo: still on the books, just not being carried out.

There have been no executions in the 20 years since the death penalty was reinstated in Kansas, due, observers say, to an exhaustive appeals process, a cautious state Supreme Court dealing with a fairly new and restrictive law, and the state's relatively low murder rate. Nine men are currently on death row in Kansas.

Only two other states besides Kansas — Nebraska and California — have a lethal injection chamber that has never been used. The only death penalty state that has gone longer without an execution is New Hampshire, which last killed a prisoner in 1939 and has only one person on death row. Kansas doesn't even have lethal injection drugs in stock because a possible execution is so far in the future....

Earlier this year, the Kansas legislature debated a bill that proponents said would speed up the appeals process in capital cases.  The legislation didn't pass. One of its supporters, state Sen. Greg Smith, R-Olathe, was asked why there have been no executions in Kansas in recent years. "Four words: the Kansas Supreme Court," he said.  "It's not that we don't use the death penalty in Kansas.  It's that the Kansas Supreme Court refuses to apply the law and allow a lawful sentence to be carried out."

Smith, whose daughter was murdered in Missouri in 2007, refuses to name death row inmates, instead invoking the names of victims when discussing cases.  "What we tend to forget is the people who do this had zero mercy for the people they killed," he said. "The people who are murdered go through hell.  After they're murdered, we forget about the victim. People say, let's not be inhumane, but what about the people they killed?" He said the drawn-out appeals process puts families of victims "right back into that emotional mess they were in when they loved ones were killed."

The state's top prosecutor, Attorney General Derek Schmidt, also supported the changes, saying the Supreme Court should review only the sentencing rather than the whole case and that defendants' ability to file successive, unnecessary motions clogs up the appellate system. "Attorney General Schmidt has a long record of supporting Kansas’ narrowly tailored death penalty," said his spokesman, Clint Baes.  "In addition, our office this year supported a legislative proposal which would have held the courts accountable to their own procedural rules.  A lack of adherence to these rules by our appellate courts has led to the long delays in death penalty appeals."

The state Supreme Court not only declared Kansas' death penalty statute unconstitutional in 2004 (a decision later reversed by the U.S. Supreme Court), it has overturned the death sentences in all five of the modern capital cases it has issued opinions on....

Some legal experts say the Supreme Court takes so much time reviewing death penalty cases because the law in its current form has only existed for 20 years....

Jeffrey Jackson, a Lawrence attorney and law professor at Washburn University, said he believes that the death penalty statute has a deterrent effect.  The state's murder rate has declined since capital punishment was reinstated, from 170 in 1994 to 84 in 2012, though that mirrors a similar drop in homicides across the country.

He also noted that as the state Supreme Court continues to work through the issues surrounding Kansas' death penalty statute, the appeals process will likely quicken.  "Unless the Legislature repeals the death penalty, I think there will eventually be an execution," he said. (A recent bill to abolish capital punishment in Kansas would not have applied to the nine men already on death row). "The more cases you have, the better the judges get at figuring out how to do these things.  They're still going to take a lot of time, but it's not going to increase. It's almost assured that we will have an execution as long as the statute is in place."

That execution, if it comes, probably won't be happening in the near future. Even if the Kansas' high court affirms a death sentence, it will then have make its way through the federal appeals system.  "The death penalty is by far the most complex set of laws there could be in criminal law," said Ron Wurtz, the former chief of the state's Death Penalty Defense Unit, who doesn't see a Kansas inmate being put to death anytime soon. "It's not even close right now. I'd say it's probably 10 more years out, at the very least."

June 1, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, May 31, 2014

Looking at some killers benefiting from SCOTUS Eighth Amendment ruling in Hall

As I noted earlier this week when the Supreme Court's handed down its ruling in Hall v. Florida (opinion here, basics here), the Justices' Eighth Amendment decision will be a big deal for the administration of capital punishment in those states with lots of murderers on death row and/or for those states that have been applying Atkins in restrictive ways.  Following up these themes, today's New York Times has this lengthy front-page article looking at some of the death row defendants likely to be grateful for the decision.  The piece is headlined "On Death Row With Low I.Q., and New Hope for a Reprieve,"  and here are excerpts: 

For Ted Herring, who has spent 32 years on Florida’s death row for murdering a store clerk, signs of intellectual disability arose early and piled up quickly: He repeated first grade and got D’s and F’s through fourth grade. He read like a fourth grader at 14 and did not know that summer followed spring....

His intellectual disability was even obvious to a Florida judge, who found him “mentally retarded” and took him off death row 18 years after his original sentence. At 19, in 1981, Mr. Herring murdered a Daytona Beach 7-Eleven clerk, robbed the store and walked away with $23.84. But because Mr. Herring’s I.Q. scores were 72 and 74, just over the “bright line” cutoff of 70 used by Florida to determine intellectual aptitude, the Florida Supreme Court returned him to death row.

When the Supreme Court ruled this week that states can no longer rely on a fixed I.Q. score cutoff to decide intellectual competency, it increased the likelihood that Mr. Herring and other death row inmates like him will have a chance to avoid execution. Fewer defendants are also less likely to wind up on death row in the future because their claims of intellectual disabilities will be not be as readily discounted by the courts.

The ruling affects roughly 30 death row inmates. The number is low because the vast majority of states follow modern standards of determining intellectual disabilities, going beyond using a single number to be considered disabled. But in those states that will be affected, death row inmates with low, but not low enough, I.Q. scores that have been previously rejected or never put forward can now seek to have their sentences reconsidered....

In Florida, 15 to 20 inmates — perhaps the largest number in the country — will probably seek to overturn their death sentences because of the decision... “Florida has the third largest death row in the country and was the state that was the leader in doing this — the bright-line cutoff,” said William Henniss III, who said he had two clients who would most likely seek redress. “Expect there to be more cases like this.”

In Kentucky, five of 34 death row inmates are also likely to ask for new hearings based on the decision, said David Barron, an assistant public advocate who handles post-conviction cases.

Some of them, like Thomas Bowling, who was sentenced to death after killing a married couple in 1990, are likely to explore what the new I.Q. range will be in Kentucky, where 70 has been the cutoff. Mr. Bowling, who claimed on appeal that he was intellectually disabled, repeated the ninth grade several times before dropping out. But the appeals court rejected his claim because his most recent scores, the ones they viewed as most reliable, were in the 80s....

In Virginia, Alfredo R. Prieto is likely to seek a hearing based on is low I.Q. scores, which ranged between 70 and 75, said his lawyer, Cary B. Bowen. Those scores, Mr. Bowen said, “kind of fall in line” with the I.Q. range described in the Supreme Court decision as the kind that should not be rejected simply because they do not meet a cutoff. Mr. Prieto, who is from El Salvador and whose lawyers argued that he was scarred by the violence he saw there during the country’s civil war, is on Virginia’s death row for the 1988 murders of two people. He faces the death penalty for a murder in California, as well, and has been linked to others.

Recent posts on Hall:

May 31, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, May 30, 2014

"Photos from a Botched Lethal Injection"

The title of this post is the headline of this notable lengthy new piece by Ben Crair in The New Republic which carried the subheadline "An exclusive look at what happens when an execution goes badly." Here is how the piece starts, including its "preamble":

Warning: This article contains graphic images from the autopsy of an executed prisoner.

On December 13, 2006, the state of Florida botched the lethal injection of Angel Diaz. The execution team pushed IV catheters straight through the veins in both his arms and into the underlying tissue.  As a result, Diaz, who was convicted of murder in 1986, required two full doses of the lethal drugs, and an execution scheduled to take only ten to 15 minutes lasted 34.  It was one of the worst botches since states began using lethal injection in the 1980s, and Jeb Bush, then the governor of Florida, responded with a moratorium on executions.

Other states hardly heeded Diaz’s death at all. Since he died, states have continued to botch lethal injections: A recent study by Austin Sarat at Amherst College estimated that at least 7 percent of all lethal injections have been visibly botched. The most controversial was in Oklahoma this past April, when the state executed a convicted murderer and rapist named Clayton Lockett using a three-drug protocol, like most other death-penalty states. The execution team struggled for 51 minutes to find a vein for IV access, eventually aiming for the femoral vein deep in Lockett’s groin. Something went wrong: Oklahoma first said the vein had “blown,” then “exploded,” and eventually just “collapsed,” all of which would be unusual for the thick femoral vein if an IV had been inserted correctly. Whatever it was, the drugs saturated the surrounding tissue rather than flowing into his bloodstream. The director of corrections called off the execution, at which point the lethal injection became a life-saving operation.  But it was too late for Lockett.  Ten minutes later, and a full hour-and-forty-seven minutes after Lockett entered the death chamber, a doctor pronounced him dead.

Witnesses to the execution say Lockett writhed, clenched his teeth, and mumbled throughout the procedure.  We won’t better understand what happened until Oklahoma releases an autopsy report some time this summer.  But we do know what happened to Angel Diaz, who died under similar conditions.  While the details of his execution have been known since 2006, The New Republic is publishing for the first time photographs of the injuries Diaz sustained from the lethal injection.  I discovered the photographs in the case file of Ian Lightbourne, a Florida death-row inmate whose lawyers submitted them as evidence that lethal injection poses an unconstitutional risk of cruel and unusual punishment.

May 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Wednesday, May 28, 2014

"Judge orders temporary moratorium on Ohio executions"

The title of this post is the headline of this notable capital news emerging in my local legal arena.  Here are the basics:

A federal judge has ordered a temporary moratorium on executions in Ohio while legal issues related to new lethal injection protocol are worked out. The order issued yesterday by U.S. District Judge Gregory L. Frost stops the scheduled July 2 execution of Ronald Phillips of Summit County and the Aug. 6 execution of William Montgomery of Lucas County. Two other executions scheduled later in the year are not affected for the time being, but Frost left his order open-ended.

Frost said an execution can be scheduled no earlier than Aug. 15. The delays are repercussions from the troubled execution of Dennis McGuire on Jan. 16. Witnesses observed that McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints for 10 minutes after the administration of two drugs, midazolam and hydromorphone, before being pronounced dead at the Southern Ohio Correctional Facility near Lucasville.

As a result, the Ohio Department of Rehabilitation and Correction announced April 28 that it would use the same drugs, but in higher doses in future executions.... Frost ordered the attorneys representing condemned inmates and the state to “work together to coordinate efforts so that the court can set necessary deadlines following expiration of the stay.”

May 28, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 27, 2014

"Intellectual disability is a condition, not a number. See DSM–5, at 37."

The title of this post is the sentence and cite that perhaps best summarized the work of the majority of the Supreme Court this morning in Hall v. Florida (opinion here, basics here).  In Hall, the Court rejects as violative of the Eighth Amendment Florida's use of a bright-line IQ test cut-off set at 70 for defining who is eligible for execution (while dodging whether a cut off set at 75 would be okay) based principally on the medical community's consensus view that IQ tests are just one factor in assessing intellectual disability and are necessarily imprecise.  Here are just a few excerpts from the majority opinion in Hall that highlight these themes:

That this Court, state courts, and state legislatures consult and are informed by the work of medical experts in determining intellectual disability is unsurprising.  Those professionals use their learning and skills to study and consider the consequences of the classification schemes they devise in the diagnosis of persons with mental or psychiatric disorders or disabilities.  Society relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue....

Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence.  It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise....

It is the Court’s duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework.  Atkins itself points to the diagnostic criteria employed by psychiatric professionals. And the professional community’s teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession....

This Court agrees with the medical experts that when a defendant’s IQ test score falls within the test’s acknowl­edged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disa­bility, including testimony regarding adaptive deficits.

Not surprisingly, the dissent in Hall recognizes and criticizes the majority's heavy reliance on the medical community's approach to determining intellectual disability.  Here is a snippet of this criticism from the dissent:

Under our modern Eighth Amendment cases, what counts are our society’s standards — which is to say, the standards of the American people — not the standards of professional associations, which at best represent the views of a small professional elite....

The Court’s reliance on the views of professional associ­ations will also lead to serious practical problems.

May 27, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Big criminal justice decision day for SCOTUS, including 8th Amendment reversal of Florida's Aktins approach

Clearly the Justices decided to celebrate the Memorial Day week by reminding everyone that the Bill of Rights has a lot of provisions concerning the administration of our criminal justice systems.  Returning from the long weekend, the Supreme Court handed down five opinions this morning (four in argued cases, one per curiam), and all but one of the rulings has a criminal justice element.  The big one for sentencing fans is the 5-4 Eighth Amendment ruling in Hall v. Florida, No. 12–10882 (S. Ct. May 27, 2014) (available here), which gets started this way: 

This Court has held that the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability. Atkins v. Virginia, 536 U. S. 304, 321 (2002).  Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is fore­ closed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.

The other criminal justice rulings in argued cases today concern police use of force and immunity, and the per curiam concerns when jeopardy attaches for the application of the Double Jeopardy clause. How Appealing has its always terrific review of all the essentials (with links) assembled here, and SCOTUSblog is sure to have a lot on all this action in coming posts.

Once I have a chance to read the Hall decision in full, I am sure I will have one or more substantive posts about the decision later today.

May 27, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, May 24, 2014

Is nitrogen gas the best modern execution alternative to lethal injection?

Liquid-nitrogen-250x250-250x250The question in the title of this post is prompted by this Slate commentary by Tom McNichol headlined "Death by Nitrogen; If lethal injection falls out of favor, death penalty states could turn to a new method: nitrogen gas." Here are excerpts:

The Supreme Court ruled in 2008 that Kentucky's three-drug protocol for carrying out lethal injections was constitutional, but there’s no question that the method looks grimly suspect in the wake of Clayton Lockett’s apparently painful, botched execution in Oklahoma last month. Not so long ago, though, this was the method that represented progress. Hanging. Firing squad. The guillotine. The electric chair. The gas chamber. Lethal injection. Every age seems to feature a new and improved method of capital punishment, billed as more efficient and humane. The spectacle of Lockett’s death, and the Supreme Court’s hesitation, shines a spotlight on the latest idea — death by nitrogen.

This new proposed method, known as nitrogen asphyxiation, seals the condemned in an airtight chamber pumped full of nitrogen gas, causing death by a lack of oxygen. Nitrogen gas has yet to be put to the test as a method of capital punishment — no country currently uses it for state-sanctioned executions. But people do die accidentally of nitrogen asphyxiation, and usually never know what hit them. (It’s even possible that death by nitrogen gas is mildly euphoric. Deep-sea divers exposed to an excess of nitrogen develop a narcosis, colorfully known as “raptures of the deep,” similar to drunkenness or nitrous oxide inhalation.)

In late April, Louisiana Department of Corrections Secretary James LeBlanc suggested to a state legislative committee that Louisiana should look into using nitrogen gas as a new method of execution, since lethal injection has become so contentious. “It’s become almost impossible to execute someone,” LeBlanc complained to the Louisiana House Administration of Criminal Justice Committee.

“Nitrogen is the big thing,” LeBlanc told the committee. “It’s a painless way to go. But more time needs to be spent [studying] that.” The committee instructed LeBlanc to do some research on the subject and report back. In the meantime, Louisiana has delayed a pending execution. “I’m not taking anything off the table,” says state Rep. Joseph P. Lopinto III, chairman of the state’s Administration of Criminal Justice Committee. “If someone says nitrogen gas is the way to go, then we can debate that and do it if need be.”

As long as 32 states have capital punishment on the books, there should be a less reliably cruel method of execution than lethal injection.  “If we’re going to take a life, then we should do it in the most humane, civilized manner as is possible,” says Lawrence Gist II, an attorney and professor of business and law at Mount St. Mary's College. “Right now, nitrogen is the best of the available options.”  Gist, a death penalty opponent, runs a website dedicated to promoting nitrogen asphyxiation for state-sanctioned executions....

Nitrogen gas, unlike the lethal drugs that states have relied on, is widely available.  The gas is used extensively in industrial settings, from aerospace to oil and gas production “Lethal injection is just fine if you can get the pentobarbital,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a group that favors capital punishment. “But if that’s not available, an alternative like nitrogen gas would work.”

In contrast to lethal injection, no medical expertise would be needed to introduce nitrogen gas into a sealed chamber.  The gas chamber itself is technology that has been around since the 1920s. In fact, three states — Arizona, Missouri, and Wyoming — still authorize lethal gas as a method of execution (depending on the choice of the inmate, the date of the execution or sentence or the possibility that lethal injection is held unconstitutional).

The last gas chamber execution in the U.S. was in 1999 — the method fell out of favor because hydrogen cyanide is a poison causing suffering that lasts 10 minutes or longer. Lethal injection, of course, was supposed to be painless and better.  What if it’s not? That’s the question the Supreme Court now finally seems to be returning to.  The history of capital punishment suggests that as long as there’s a will to kill criminals, someone will come up with an improved way.  The new tool in the executioner’s bag may turn out to be nitrogen, a better way to carry out a gruesome task.

If nitrogen gas is really an easy, effective and painless means for killing a condemned inmate, I hope Louisiana and other states might move to this method of execution in the near future. In recent years, the only folks truly well served by lethal injection are those who enjoy last-minute appellate litigation and the prospect of a painful execution. Moreover, as I have often said before, if Congress would have the good sense to care about helping both the feds and states find a better way to carry forth capital justice, perhaps they could consider having a hearing to explore what reasonable modern alternatives to lethal injection might be worth seriously considering.

A few recent related and older posts:

May 24, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (10) | TrackBack