Monday, October 13, 2014
Noting how politicians can be pro-life and pro-death (penalty) in Texas
This local story on modern Texas politics, headlined "Being pro-life in gov's race doesn't extend to death row," highlights what concerns about the sanctity of life real mean in the Lone Star State. Here are excerpts:
When Attorney General Greg Abbott talks about his opposition to abortion, he often mentions his Catholic faith. Not so when he talks about his support for the death penalty, whose abolition is advocated by Pope Francis.
“Catholic doctrine is not against the death penalty, and so there is no conflict there,” Abbott, the Republican nominee for governor, said when asked about that point in a meeting with the San Antonio Express-News Editorial Board. The Catholic catechism doesn't exclude the death penalty as an option if that's the only way to defend human lives from an offender, but it says that given current options, such cases “are very rare, if practically non-existent.”
Pope Francis, in reaffirming the church's call to abolish the death penalty last year, asked that such sentences be commuted to a lesser punishment allowing for the offender's reform, the National Catholic Register reported. “The difference, of course, is one between innocent life and those who have taken innocent lives,” Abbott said of his position on abortion versus the death penalty.
A different view on capital punishment would itself be seen as tantamount to a political death sentence in Texas. Abbott's Democratic opponent, Sen. Wendy Davis, also backs the death penalty — even though as a Fort Worth City Council member in 2000 she voted to impose a moratorium on it, and even though the Texas Democratic Party platform calls for substituting life in prison for capital punishment, saying the death penalty is applied disproportionately to the poor and persons of color.
The moratorium didn't pass, and Davis said that the questions prompting her to support it then have largely been answered through such means as advancement in the use of DNA evidence. “Obviously, before we mete out the most serious of punishments, we need to know we've done everything to assure that the person on the receiving end of that punishment is guilty,” Davis told the Express-News Editorial Board in a separate appearance Friday. “We have made some advances in that regard. ... Is there still work to do? Absolutely.”
Both candidates credited work by Sen. Rodney Ellis, D-Houston, on the issue. Abbott cited his efforts with Ellis on legislation to expand DNA testing in death penalty cases. “I know that the only way the death penalty will work is to ensure its absolute accuracy — that everyone who is given the death penalty is guilty of the crime for which they were accused and convicted of committing,” Abbott said.
Being sure can be difficult. In 2010, Anthony Graves became the 12th death-row inmate to be exonerated in Texas, absolved of the 1992 Burleson County murder for which he was convicted. Michael Morton, who served 25 years in his wife's Williamson County murder before being exonerated, told CNN, “I thank God this wasn't a capital case.”...
Abbott and Davis both said if elected, they'll also take care in presiding over executions. “I will ensure that before I ever allow an execution to occur, I will be 100 percent convinced that the person who is being sentenced to the death penalty is guilty of that crime,” Abbott said. Davis said, “As governor, I'll take that very seriously and make sure that before that punishment is meted out that we have done everything we can to answer the questions that need to be answered.”
Wednesday, October 08, 2014
Criticizing the tenure of AG Eric Holder based on the death penalty as a human rights issue
This extended New Republic commentary authored by Mugambi Jouet, somewhat inaccurately titled "What Eric Holder — and Most Americans — Don't Understand About the Death Penalty," takes shots at Holder's specific record on the death penalty:
Attorney General Eric Holder's recent resignation announcement prompted a flurry of assessments on his six years of service under President Obama. He let Wall Street off too easy. He was a hero to the poor. He compromised civil liberties in the name of national security—and defended civil rights better than any attorney general before him. But the debate over Holder’s record has overlooked one of the most important aspects of his legacy. Holder has been profoundly at odds with the rest of the Western world on one of the most significant human rights issues of our time: the death penalty.
All Western democracies except America have abolished capital punishment and consider it an inherent human rights violation. America further stands out as one of the countries that execute the most people. Thirty-nine prisoners were executed by the United States in 2013. While that figure marked a continuing decline in the annual number of U.S. executions, it still placed America fifth worldwide, right behind several authoritarian regimes: China, Iran, Iraq, and Saudi Arabia.
No federal prisoner has been executed since 2003, yet Holder’s decisions could ultimately lead this de facto moratorium to end, as he authorized federal prosecutors to pursue capital punishment in several dozen cases. "Even though I am personally opposed to the death penalty, as Attorney General I have to enforce federal law," Holder has argued. Prosecutors actually have the discretion not to pursue the death penalty at all — at the risk of losing popularity — since enforcing the law does not require pursuing capital punishment as opposed to incarceration....
Holder notably approved the decision to seek the death penalty in the federal trial of Dzhokhar Tsarnaev, who is accused of perpetrating the Boston Marathon bombings of 2013 — and whom a majority of Americans want to be executed. Nevertheless, the state of Massachusetts has abolished the death penalty and only 33 percent of Boston residents support executing Tsarnaev as opposed to sentencing him to life in prison without parole. However, Holder’s decisions supporting capital punishment have hardly been limited to terrorism cases. For example, he authorized the recent decision to seek the death penalty for Jessie Con-Ui, a Pennsylvania prisoner accused of murdering a federal correctional officer....
The death penalty is rarely framed as a human rights issue in America, unlike in other Western democracies. That's partly because the principle of human rights plays a very limited role overall in the legal and political debate in the U.S., where "human rights" commonly evoke foreign problems like abuses in Third World dictatorships — not problems at home.
The situation is different on the other side of the Atlantic, where the European Court of Human Rights tackles a broad range of problems facing European states, from freedom of speech to labor rights, discrimination, and criminal justice reform. National human rights commissions also exist in multiple countries, including Australia, Denmark, France, Germany, and New Zealand. These bodies focus mostly or exclusively on monitoring domestic compliance with human rights standards. On the other hand, the Tom Lantos Human Rights Commission, an arm of the U.S. Congress, focuses on the human rights records of foreign countries.
The relative absence of human rights as a principle in modern America is remarkable given how U.S. leaders actively promoted the concept in its infancy. President Franklin Delano Roosevelt invoked “human rights” in his “Four Freedoms Speech” of 1941. Eleanor Roosevelt was among the architects of the Universal Declaration of Human Rights of 1948. As the human rights movement progressed in later decades, Martin Luther King said in 1968 that “we have moved from the era of civil rights to the era of human rights.”
Even though Holder regards King as one of his models — and despite his proposals to make the U.S. penal system less punitive and discriminatory — the nation’s first black attorney general hardly put human rights at the center of his agenda.
The death penalty is far from the only human right issue where America stands apart from other Western democracies. America effectively has the world’s top incarceration rate, with 5 percent of the world’s population but 25 percent of its prisoners. America is likewise virtually alone worldwide in authorizing life imprisonment for juveniles. Its reliance on extremely lengthy periods of solitary confinement has been denounced by the U.N. Special Rapporteur on Torture. The extreme punishments regularly meted to U.S. prisoners are generally considered flagrant human rights violations in other Western countries. Nevertheless, Holder argued that America has “the greatest justice system the world has ever known.”
By the same token, no other modern Western democracy has gone as far as America in disregarding international human rights standards as part of anti-terrorism measures. This trend has been epitomized by indefinite detention at Guantanamo and the torture of alleged terrorists under the Bush administration. These practices have sharply divided U.S. public opinion but only a segment of Americans have depicted them as “human rights” abuses....
[T]he limited weight of human rights in the U.S. legal and political debate is not without consequences. Human rights are a far stronger basis to oppose practices like the death penalty or torture than the administrative arguments frequently invoked in America. The human rights argument against such practices is largely based on the premise that they violate human dignity....
Holder's narrow focus on problems with the administration of capital punishment suggests that he is among the many U.S. public officials and reformers who believe they have no duty to assess the “moral” issues regarding the death penalty. Whether this stance is justified or not, it seems quite exceptionally American in the modern Western world. Most contemporary European, Canadian, Australian, and New Zealander jurists probably would disagree with the notion that it is not their duty to assess whether executions violate human dignity.
Martin Luther King, who considered the death penalty an affront to human dignity, argued that “a genuine leader is not a searcher for consensus but a molder of consensus.” Perhaps Eric Holder — and his boss, Barack Obama — would have been willing to argue that the death penalty is dehumanizing if they did not fear losing popularity.
Tuesday, September 30, 2014
Ohio AG puts onus on Ohio legislature to reboot state's machinery of death
As reported in this local article, headlined "DeWine: Executions on hold until legislators change law," Ohio's Attorney General has now suggested that the state will not even seek to move forward with executions in 2015 unless and until Ohio's General Assembly passes legislation he thinks is needed to enable a constitutionally sound and effective execution protocol. Here are the details:
Ohio will not resume executions next year unless legislators enact two key changes in state law, Attorney General Mike DeWine said yesterday. “You’re not going to see a death penalty take place until the General Assembly takes action,” DeWine said during a joint meeting with David Pepper, his Democratic opponent in the Nov. 4 election. The session with Gannett newspaper editors in Ohio was streamed live on the Internet.
The execution issues deal with providing anonymity for “compounding pharmacies” and immunity protection for physicians who help the state with legal support for executions, DeWine spokesman Dan Tierney said. Tierney said DeWine thinks two pieces of legislation, not yet final, must be passed in order to meet stipulations set down by U.S. District Judge Gregory Frost. Frost halted all lethal injections in Ohio until early next year because of concerns about the drugs and how they are used.
Convicted killer Ronald Phillips is set to die on Feb. 15, followed by five other executions next year.
Ohio and most other states have exhausted their options for purchasing chemicals used in lethal injections, largely because manufacturers, many of them European, will not sell drugs for executions. States are now turning to compounding pharmacies, which combine materials into compounds on demand for customers. The proposal would allow the pharmacies to do that without being cited as the source, Tierney said.
Pepper spokesman Peter Koltak said Pepper agrees that Ohio’s death penalty should be “free from constitutional concerns.” He said, “Future legislation on Ohio’s death penalty should be given thorough and thoughtful consideration.”
Reviewing how death is different (but still being used) in Japan
This new piece from The Economist, headlined "The death penalty in Japan: Hanging tough," discusses the on-going debate over capital punishment in the Land of the Rising Sun. Here are excerpts:
It is one of the anomalies of Japan’s approach to the death penalty that a stricken conscience can bring the system grinding to a halt. At least two Japanese justice ministers have refused to sign execution orders, most recently Seiken Sugiura, a devout Buddhist who oversaw a 15-month moratorium from 2005 to 2006. But Japan’s new justice minister, Midori Matsushima, seems unburdened by such doubts.
Ms Matsushima, who took office this month, has swatted away demands to review the system. Japan is one of 22 nations and the only developed country — apart from America, where it is falling out of favour — that retains capital punishment. “I don’t think it deserves any immediate reform,” she said last week: in her view the gallows are needed “to punish certain very serious crimes”.
Calls for a review have grown since the release earlier this year of Iwao Hakamada, a 78-year-old who spent 45 years of his life in a toilet-sized cell awaiting execution. A Japanese court said the police evidence that put him behind bars in 1966 was probably fabricated. Mr Hakamada, dubbed the world’s longest-serving death-row prisoner, is awaiting a fresh verdict later this year. Prosecutors have lodged an appeal against his retrial.
Opponents are hoping that the state’s stubborn fight to wheel another elderly man back to the gallows (he is severely ill and suffers from advanced dementia) may trigger debate and a backlash. But critics face an uphill struggle. Japan’s media largely steers clear of the topic. Ms Matsushima points to public support of over 85% on carefully-worded surveys put out by the cabinet: respondents reply to whether execution is “unavoidable if the circumstance demands it”.
Mr Hakamada would not be the first elderly or infirm inmate to be hanged in Japan. On Christmas day in 2006, Fujinami Yoshio, aged 75, was brought to the gallows in the Tokyo Detention Centre in a wheelchair. Even the openly abolitionist Keiko Chiba, who was justice minister from 2009 to 2010, failed to make a dent in the system. In July 2010 she signed and attended two executions in a bid, she said, to start a public discussion that quickly petered out.
Saturday, September 27, 2014
Arizona poised to take second (costly) run at death sentence for Jodi Arias
As reported in this AP article, headlined "Life or Death? Arias Set for Sentencing Retrial," prosecutors in Arizona are about to take another run at convincing a jury that murderer Jodi Arias should be condemned to die for her crime. Here are the basics:
Jodi Arias' guilt has been determined. The only thing that remains is whether she dies for killing her ex-boyfriend. More than six years after his death, and more than a year after being convicted of murder, a second penalty phase to determine her punishment gets underway Monday with jury selection.
Arias acknowledged that she killed Travis Alexander in 2008 at his suburban Phoenix home but claimed it was self-defense. He suffered nearly 30 knife wounds, had his throat slit and was shot in the head. Prosecutors argued it was premeditated murder carried out in a jealous rage when Alexander wanted to end their affair.
The 34-year-old former waitress was found guilty last year, but jurors couldn't agree on a sentence. While Arias' murder conviction stands, prosecutors are putting on the second penalty phase with a new jury in another effort to secure the death penalty.
If the new jury fails to reach a unanimous decision, the judge will then sentence Arias to spend the rest of her life behind bars or to be eligible for release after 25 years. At least 300 prospective jurors will be called in the effort to seat an impartial panel, not an easy task in the case that has attracted so much attention....
One key difference in the second penalty phase is that there will be no live television coverage. Judge Sherry Stephens ruled that video cameras can record the proceedings, but nothing can be broadcast until after the verdict. Arias' five-month trial began in January 2013 and was broadcast live, providing endless cable TV and tabloid fodder, including a recorded phone sex call between Arias and the victim, nude photos, bloody crime-scene pictures and a defendant who described her life story in intimate detail over 18 days on the witness stand.
Arias' attorneys claimed the televised spectacle led to threats against one of her lawyers and defense witnesses who opted not to testify. Citing Arias' right to a fair trial, Stephens is erring on the side of caution this time around.
The retrial is expected to last until mid-December.
In this prior post, it was reported way back in January that "Jodi Arias' legal bills have topped $2 million." If this new penalty trial really extends a coupld of months, I suspect the tab for Arizona taxpayers will surely be nearly another million, and the imposition of a death sentence would also ensure many years of expensive appeals. Especially given the relatively low odds that Arias will actually ever be executed, I cannot help but wonder if all these Arizona taxpayer millions might have been better spent on a more productive cause.
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Jodi Arias now pleading for a life sentence before sentencing jury
- Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
Friday, September 26, 2014
"Hall v. Florida: The Death of Georgia's Beyond a Reasonable Doubt Standard"
The title of this post is the title of this new paper by Adam Lamparello now available on SSRN. Here is the abstract:
Welcome: We’re Glad Georgia is On Your Mind.
Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair.
Georgia’s standard for determining intellectual disability -- beyond a reasonable doubt -- is itself intellectually disabled. In 1986, Georgia became the first state to ban executions of the intellectually disabled. It should also be the next state to eliminate a standard that, as a practical matter, ensures execution of the intellectually disabled.
Ultimately, the Georgia legislature must explain why it chooses to execute defendants like Warren Hill, and the Georgia courts must explain why they allow it to happen. Intellectually disabled defendants do not appreciate or understand why they are being executed. Their crimes may be unspeakable, but the punishment is never proportional. Until Georgia provides an answer that extends beyond platitudes and biblically inspired notions of justice, the fact will remain that executing Warren Hill is as heinous as the crimes he committed. The only acceptable answer should come from the Supreme Court, holding that Georgia’s beyond a reasonable doubt standard violates the Eighth Amendment.
Thursday, September 25, 2014
Louisiana legislative commission looking closely at capital case costs
As this local article reports, the "Louisiana Legislature is looking into the cost associated with carrying out the death penalty in the state." Here is how:
State Sen. JP Morrell, D-New Orleans, is heading up a new Capital Punishment Fiscal Impact Commission. The group's first meeting was Wednesday morning. Louisiana doesn't have a well-researched estimate of how much it is spending on capital punishment trials and execution, according to Morrell. The commission's goal is to get an idea of what the overall price tag is for executions in the state.
The death penalty might be more expensive than the general public realizes. Inmates on death row are segregated from the main prison population and receive specialized care. Capital murder trials can also be much more expensive than regular murder cases.
Members of the commission include lawmakers, prosecutors, public defenders, law enforcement, an auditor and staff members from nonprofit organizations. The group has been broken down into three subcommittees -- prosecution expenses, defense expenses and general Department of Corrections expenses. The subcommittees will meet approximately once per month. The overall commission will meet once per quarter, according to Morrell. The group has to conclude its work by the end of 2015.
Louisiana's House Appropriations Committee experienced some sticker shock related to the death penalty last spring during the legislative session. The state's public defender told lawmakers he expected to spend $479,000 on legal work related to the murder of a Louisiana State Penitentiary guard. Louisiana has already spent $10 million on court proceedings for the defendants, known as the Angola 5.
Wednesday, September 24, 2014
"Why Are So Many People Getting Sentenced to Death in Houston?"
The title of this post is the headline of this new article in The National Journal. It gets started this way:
Just 10 U.S. counties — roughly 0.3 percent of the nation's total — account for more than a quarter of all the American executions that have been carried out since 1976.
Texas's Harris County, which includes Houston, is far and away the leader in executions during that period. That district has handed out 122 death sentences that were carried to completion, more than double the next highest. Harris County alone is responsible for more executions than any state besides Texas.
Dallas County, which includes the Dallas-Fort Worth area, comes in second at 53.
Monday, September 22, 2014
Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma
Whether one is a supporter or opponent of the death penalty, any and all fans of good government should be encouraged by this editorial from The Oklahoman headlined "Death penalty treated seriously in Oklahoma interim study." Here are excerpts:
Oklahoma was a trailblazer in the use of one form of execution — lethal injection. Could it play that role again with the use of nitrogen?
A legislative study requested by Rep. Mike Christian, R-Oklahoma City, reviewed the potential merits of using nitrogen to execute death row inmates in Oklahoma. To state lawmakers’ credit, this study was conducted with appropriate seriousness. There was reason to worry it might instead turn into a forum for grandstanding, partly because of Christian’s own past comments and actions.
In April, Christian called for the impeachment of Oklahoma Supreme Court justices who supported a temporary stay of execution for Clayton Derrell Lockett. “I realize this may sound harsh, but as a father and former lawman, I really don’t care if it’s by lethal injection, by the electric chair, firing squad, hanging, guillotine or being fed to the lions,” Christian, a former state trooper, said then. “I look forward to justice being served.”
Yet the problems that occurred during Lockett’s execution, once it did move forward, prompted renewed national debate about the death penalty and led Christian to request a review. When he filed that request in June, Christian said the study would explore the idea of giving condemned prisoners the option of death by firing squad, hanging or the electric chair, with firing squads made the primary, default option.....
Despite Christian’s past “fed to the lions” rhetoric, he appears to have put serious thought into this issue. At the House study, he shifted focus from using firing squads to using nitrogen for executions. Faculty members from East Central University discussed research on nitrogen hypoxia.
A 1961 study involving human volunteers who hyperventilated on nitrogen found that subjects lost consciousness after just 20 seconds and reported no physical discomfort. There is little sense of suffocation involved. Many euthanasia organizations reportedly support the use of nitrogen gas.
The use of nitrogen would eliminate the need to find execution drugs for lethal injection, which has become increasingly difficult. And the process of administering an execution would be much simpler.
Those are good selling points. Still, it’s reasonable to wonder: Why has no other state adopted this method of execution if it’s superior? In 1977, Oklahoma became the first state to adopt lethal injection as a means of execution, although Texas was ultimately the first state to employ the procedure. But that was a different era. Being the first state to authorize a new execution method today would undoubtedly prompt numerous legal challenges, increasing taxpayer costs and slowing executions once again.
This is a debate with no easy answers, no cure-all for logistical challenges, and no permanent consensus achievable regarding the ultimate morality of the death penalty and its practical application. But state lawmakers, Christian in particular, deserve credit for taking a serious, thoughtful approach to this ultimate application of government power.
A few recent related and older posts:
- Is nitrogen gas the best modern execution alternative to lethal injection?
- A worldly perspective on different execution methods
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- Should problems with lethal injection prompt return of other execution methods?
Thursday, September 18, 2014
Long-incarcerated mass murderer given right to end his life in Belgium
A helpful reader alerted me to this fascinating article from overseas headlined "Serial murderer and rapist, 50, given right to die under controversial Belgian euthanasia laws." Here are excerpts:
A serial murderer and rapist has been given the right to end his life under controversial Belgian euthanasia laws, it has emerged. Frank Van Den Bleeken, 50, has been behind bars for 30 years and has no hope of release because of his intensely violent urges. Now judges in Brussels have agreed that Van Den Bleeken can commit suicide with the help of medics.
Jos Vander Velpen, the prisoner’s lawyer, said: ‘Over recent years, he has been seen by several doctors and psychologists and their conclusion is that he is suffering, and suffering unbearably.’
It will be the first time that a Belgian legal ruling about euthanasia which specifically applies to a serving prisoner has been handed down. It was rubber stamped by the country’s Justice Ministry, which is ultimately responsible for everyone serving time in jail.
In all cases, patients must be conscious and have presented a ‘voluntary, considered and repeated’ request to die. Mr Vander Velpen said his client met all such conditions, and for the past four years had felt he ‘couldn’t stand to live like this any longer and could no longer accept the pain’.
Van Den Bleeken will be transferred from his prison in Bruges to a hospital, where he will be euthanised. Like every other country in the Union, Belgium does not have a death penalty, and technically doctors will only be helping Van Den Bleeken die.
Van Den Bleeken himself said in recent TV documentary: ‘If people commit a sexual crime, help them to deal with it. Just locking them up helps no one — neither the individual, society or the victims. ‘I am a human being, and regardless of what I’ve done, I remain a human being. So, yes, give me euthanasia.’
Despite being a mainly Roman Catholic country, Belgium has always been at the forefront of liberalising euthanasia laws. It made euthanasia legal in 2002, making it only the second country in the world to do so after Holland. Last year alone, Belgium euthanised a record 1,807 people.
Van Den Bleeken has only left prison once in the past three decades — to attend his mother’s funeral. A Belgian justice ministry spokesman said Van Den Bleeken would be euthanised ‘shortly’ at this own request.
Perhaps unsurprisingly, the decision to grant Van Den Bleeken a right to die, as evidenced by this companion commentary piece headlined "Why should our sister's killer be allowed to die with dignity when our suffering goes on?". Here is an excerpt of that piece providing some more context:
Van Den Bleeken is the first serving prisoner to be granted the right to die because of psychological torment. Another Belgian inmate was euthanised last year but he suffered from an incurable physical illness. But, as a direct result of the ruling, 15 other Belgian prisoners have already applied for euthanasia, even though the death penalty was abolished in 1996.
The case has renewed controversy about state-sanctioned suicide and raised serious ethical concerns. But it also calls into question the very nature of punishment and whether murderers and rapists should “suffer” for their heinous crimes or get treatment and rehabilitation.
Medics warn that euthanasia must not become an alternative to treatment while prison reformers insist it must not become a back-door return to the death penalty.
The country’s leading euthanasia advocate is also opposed to Van Den Bleeken’s death. Professor Wim Distelmans, chairman of the Belgian Board of Control for Euthanasia ... said: “It is wrong to allow him to end his life like this.” But Nikhil Roy, Director of Programmes at Penal Reform International, said: “While people are in prison it is the responsibility of the prison authorities to provide adequate care and opportunities for rehabilitation. This case highlights the lack of adequate therapy for prisoners and the fact that mental health issues are widespread in prisons around the world.”
September 18, 2014 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack
Tuesday, September 16, 2014
Texas poised to execute a second female murderer in one year
As reported in this local AP piece, headlined "Court Declines To Stop North Texas Woman’s Execution," it appears as though Texas is not facing any impediments to completing a notable execution on Wednesday. Here are the basics:
When paramedics responding to a 911 call arrived at a North Texas apartment, they found on the bathroom floor a dead boy clad only in bandages and a disposable diaper. He appeared to be 3 to 5 years old. Further investigation determined Davontae Williams actually was 9.
His emaciated body weighed only 36 pounds, about half of what a boy his age should weigh. Evidence showed he had been restrained repeatedly at his wrists and ankles. A pediatrician later would testify that he had more than 250 distinct injuries, including burns from cigarettes or cigars and scars from ligatures, and that a lack of food made him stop growing.
On Wednesday, Lisa Ann Coleman, the live-in girlfriend of Davontae’s mother, is set to be executed for the child’s July 2004 death in Arlington. Coleman’s trial lawyers said his death was an accident, that the boy had mental health issues, was difficult to handle and she and Marcella Williams, his mother, didn’t know how to deal with him in a positive manner.
Coleman, 38, would be the ninth Texas inmate to receive a lethal injection this year. She would be the sixth woman put to death in the nation’s busiest capital punishment state since executions resumed in Texas in 1982 and the second this year.
Nationally, she would be only the 15th woman executed since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, nearly 1,400 men have been executed.
After a Tarrant County jury in 2006 convicted Coleman and gave her a death sentence, Marcella Williams, facing similar charges, took a plea deal and accepted a life prison term. Now 33, she not eligible for parole until 2044.
Attorneys for Coleman argued in appeals that prosecutors improperly defined Davontae’s restraints and confinement in a closet as kidnapping to find an aggravating factor so Coleman could be eligible for the death penalty. They also argued that jurors who convicted her of capital murder did so because her trial lawyers were deficient. “It has never been Lisa Coleman’s position that she should not be punished for what she did,” attorney John Stickels said in an appeal the 5th U.S. Circuit Court of Appeals, which was rejected Tuesday....
Photos of Davontae shown to jurors were “horrendous” and illustrated his suffering, trial defense attorney Fred Cummings acknowledged, but he believed a life sentence also would have been appropriate for Coleman. “It just doesn’t seem that the system was fairly applied here,” Cummings said last week.
Evidence showed child welfare officials repeatedly investigated Marcella Williams but would lose track of her because she kept moving to evade them, fearing they would take away her son and two younger daughters.
The Death Penalty Information Center has this effective webpage that assembles information about the handful of women who have been executed in the modern death penalty era. That page reveals that it has been more than a decade since two female murderers were executed in the same calendar year. It also shows that Texas will still lag behind one other state for the most executions of women in a single year: in 2001, Oklahoma completed executions of three women.
Sunday, September 14, 2014
Claiming his innocence, convicted Florida murderer requests judge to impose death penalty
I have often told my sentencing classes that, if I was unlucky enough to be wrongly convicted of capital murder, I would likely request to be sentenced to death in the hope of bringing more attention to my case and cause. This local story from Florida, headlined "Defendant Dares Judge to Give Death Penalty," suggests that at least on Florida defendant has a similar philosophy. Here are the details:
A South Florida man convicted of murdering two people during a string of Dunkin’ Donuts robberies in 2008, dared a judge Friday to sentence him to death. “Honestly and truly, I’m not asking you to spare me,” James Herard said in Broward County courtroom on Friday. “Go ahead and do what you gonna do. I pretty much dare you to give me the death sentence because I’m innocent.”
Herard, 25, was convicted on 18 of 19 counts by the Fort Lauderdale jury in May. The same jury that convicted him has recommended the death penalty for Herard. Herard did not testify during the trial, so Friday was his last chance to speak in court before the judge hands down his sentence.
“I’m actually hoping you give me the death penalty because I know the Supreme Court won’t allow me to die for something I didn’t commit,” Herard said Friday.
Prosecutors say Herard didn’t pull the trigger in the 2008 murder of 39-year-old Eric Jean-Pierre. But, they say he, along with other members of a gang, were part of a “body count competition” and Herard pushed Tharod Bell to murder Jean-Pierre.
“They’re claiming I encouraged Tharod Bell to shoot someone, and how I did that, I don’t know,” Herard told the court....
Herard was previously convicted of the murder of 58-year-old Kiem Huynh in 2008. He received sentences of life imprisonment for Huynh’s death.
Saturday, September 13, 2014
Recent posts of special note from "Hercules and the Umpire"
I regularly read U.S. District Court Judge Richard Kopf's notable blog, "Hercules and the Umpire," an the last few weeks have brought more than the usual must-read posts from the judge on topics that should be of special interest to sentencing fans. Here are a couple of posts on a couple of topics that I thought meritted special mention:
On the death penalty and debates thereover:
On the recent domestic violence conviction of U.S. District Court Judge Mark Fuller:
Wednesday, September 10, 2014
Despite another round of drug-based appeals, Missouri and Texas both able to complete executions today
As reported in AP article here and here, both Missouri and Texas completed execution today. Here are the leads from the two AP piece:
From Mizzou: "A Missouri inmate was put to death Wednesday for killing two people during a restaurant robbery in 1998, the eighth execution in the state this year and the 10th since November. Earl Ringo Jr., 40, and an accomplice killed delivery driver Dennis Poyser and manager trainee JoAnna Baysinger at a Ruby Tuesday restaurant in Columbia in the early hours of July 4, 1998. Poyser and Baysinger were shot to death at point-blank range.
"The Department of Corrections said Ringo was executed at 12:22 a.m. by lethal injection and pronounced dead at 12:31 a.m. Courts and Gov. Jay Nixon had refused to halt the execution over concerns raised by Ringo's attorneys, who, among other things, questioned Missouri's use of a pre-execution sedative, midazolam. Attorneys argued that the drug could dull Ringo's senses and leave him unable to express any pain or suffering during the process."
From Texas: "A man convicted of gunning down his former common-law wife and her brother more than two decades ago in Houston was put to death by lethal injection Wednesday evening. Willie Trottie's execution was carried out about 90 minutes after the U.S. Supreme Court rejected his last-day appeals. He had contended he had poor legal help at his trial and questioned the potency of the execution drug."
Tuesday, September 09, 2014
Pitching argument to pitch death penalty as failed government policy
Daniel LaChance has this notable new op-ed in today's New York Times headlined "What Will Doom the Death Penalty: Capital Punishment, Another Failed Government Program?". Here are excerpts:
To opponents of the death penalty, recent accounts of botched executions and DNA-based exonerations of death-row prisoners have revived hope that judges and voters will finally see capital punishment for what it is: an intolerable affront to human dignity.
But while such optimism is understandable, it is misplaced....
[F]ederal oversight of capital cases ..., more than wrongful convictions and botched executions, is what is distinctive about the contemporary American death penalty. New layers of appeals and new issues to litigate at both the state and federal levels meant that inmates put to death in 2012 had waited an average of almost 16 years for their execution date. The deeply unsatisfying, decades-long limbo that follows a death sentence today is without precedent. The 3,054 men and women languishing on the nation’s death rows have become the unwitting cast of a never-ending production of “Waiting for Godot.”...
Efforts to remedy the problem by reforming the appellate process have been unsuccessful. In 1996, when the average stay on death row was approaching 11 years, Congress enacted legislation restricting death-row inmates’ access to federal courts, in order to speed up executions. But it didn’t work; since then, the time between sentencing and execution has grown by over 50 percent.
The problem, it turns out, isn’t foot-dragging by defense lawyers or bleeding-heart judges. It’s money. In California, for instance, the low wages paid by the state to qualified lawyers who take on indigent inmates’ appeals have meant that there aren’t enough lawyers willing to do the work. Inmates wait an average of three to five years after sentencing for a government-appointed lawyer to handle their appeal. And that’s just the beginning of a process — sometimes lasting 25 years or more — that a federal judge recently determined was so protracted that it made capital punishment in California unconstitutionally cruel and unusual....
As depressing as it may be to abolitionists driven by a commitment to human rights, Americans, most of whom are white and live above the poverty line, find it hard to sympathize with members of an indigent, mostly minority death-row population who have been convicted of horrible crimes. Preaching to the congregation rather than the choir, then, ought to focus on the failure of capital punishment to live up to the promise of retributive justice it once held.
Casual supporters of the death penalty can be made to recognize that the death penalty has become inextricably mired in the very bureaucracy and legalism it was once supposed to transcend, and that the only solutions to the problem — an elimination of appellate lawyers for death-row inmates or a financial bailout — are unlikely to be legal or feasible.
Resources for fighting the death penalty are scarce, and for too long, abolitionists have spent them appealing to the humanistic ideals they wished most Americans shared, instead of one they actually do: distrust of government. Arguing that the death penalty is an affront to human dignity just doesn’t work. But portraying it as another failed government program just might.
Monday, September 08, 2014
"The Dilemmas of Excessive Sentencing: Death May Be Different But How Different?"
The title of this post is the title of this essay by Michael Meltsner now available via SSRN. Here is the abstract:
This article is adapted from a speech given by the author in honor of Hugo Adams Bedau, inaugurating the Hugo Adam Bedau Memorial Lecture Series at Tufts University. The article explores the differences and substantial similarities of a prisoner being sentenced to death row versus being sentenced to life without parole.
The article strongly advocates granting parole eligibility to those with life sentences. It provides several examples detailing why this is so difficult politically, and highlights how Supreme Court rulings in Miller v. Alabama and Graham v. Florida, holding mandatory life without parole as unconstitutional for minors, implicate the same set of issues. The piece ends with a list of systemic reforms that would improve the criminal justice landscape.
Thursday, September 04, 2014
Oklahoma releases extensive report concerning problems with Lockett execution
As reported in this lengthy Tulsa World article, headlined "IV errors, lack of training cited in Oklahoma botched execution report," the Oklahoma Department of Public Safety released today this lengthy official report concerning the seemingly ugly execution of Clayton Lockett by the state back in April. Here is a rough summary of the report's findings via the news report:
Despite some problems, the execution drugs did what they were supposed to do, the Department of Public Safety said Thursday morning at a news conference on a report into Clayton Lockett's execution....
Lockett died April 29 at the Oklahoma State Penitentiary 43 minutes after his execution began. Witnesses watched as he writhed, strained and mumbled on the gurney inside the execution chamber....
The stress of two planned executions in one day, a lack of proper equipment and no backup plan hampered Clayton Lockett's execution, according to the DPS report released earlier today. The report also found that the Department of Corrections lacked a longer needle and other equipment that medical professionals requested to insert the IV. It also states that officials took no steps to revive Lockett after his execution went awry and the blinds were closed....
Gov. Mary Fallin’s staff began preparing a stay of execution for Lockett, but he died before it could be issued, the report states. “There was conversation inside the chamber about administering life-saving measures to Lockett, including transporting him to the emergency room, but no order was given,” the report states.
A paramedic who assisted in the execution also said he felt “stressed” because two executions had been scheduled on the same day. “It was apparent the stress level at OSP was raised because two executions had been scheduled on the same day,” the report states....
The report makes 10 recommendations for changes in the state’s execution process, including more training requirements and better communication between executioners and officials in the death chamber. “The current processes, including the use of color pencils and hand signals, could be used as a contingency if other modern methods fail,” the report states.
Executions should also not be scheduled within seven days of each other due to manpower limitations, the report recommends. DPS investigators interviewed more than 100 witnesses as part of the investigation, including a Tulsa World reporter who witnessed the execution....
The report states that problems with Lockett’s IV were the main reason the lethal drugs were not properly delivered into his bloodstream. “This investigation concluded the viability of the IV access point was the single greatest factor that contributed to the difficulty in administering the execution drugs,” the report concludes.
An autopsy cites evidence on Lockett’s body that the execution team had difficulty starting his IV, taking about 45 minutes. It notes at least 14 needle marks and incisions showing multiple attempts to start an IV in his elbows, groin, neck, jugular and foot.
Needles requested by the physician were not available at the prison, the report states. “The physician requested a longer needle/catheter for the femoral access … but none were readily available. The physician also asked for an intraosseous infusion needle, but was told the prison did not have those either,” the report states....
The execution was the first in Oklahoma to use midazolam, a sedative that has been linked to several botched executions in other states. Officials resorted to the drug after running out of pentobarbital, which had been used in previous executions. “This investigation could not make a determination as to the effectiveness of the drugs at the specified concentration and volume,” the report states. “They were independently tested and found to be the appropriate potency as prescribed. The IV failure complicated the ability to determine the effectiveness of the drugs.”...
Despite DOC claims that Lockett had “purposefully dehydrated himself,” an autopsy by the Dallas County Medical Examiner’s Office did not find that Lockett was dehydrated, the report notes.
The paramedic assisting with the execution had participated in nearly every Oklahoma execution, the report states. It does not explain why DOC documents repeatedly referred to the person as a phlebotomist, an occupation not required to be licensed in Oklahoma.
The physician overseeing the execution had only participated in one execution before Lockett’s, the report states. “This was his second execution with the first being four to five years earlier. The physician understood his duties were to assess Lockett to determine if he was unconscious and ultimately to pronounce his death,” the report states. “He was contacted two days prior to the execution date and asked to fill in for another physician that had a scheduling conflict.”...
Anita Trammell, warden at the Oklahoma State Penitentiary, and Patton told investigators that DOC employees received “inadequate” training before the execution. “Warden Trammell stated the only training she received was on-the-job training and that DOC had no formalized training procedures or processes concerning the duties of each specific position’s responsibility,” the report states.
“The warden and director both indicated DOC had no training protocols or contingency plans on how to proceed with an execution if complications occur during the process.” The report states that DOC lacks training requirements for medical professionals and executioners taking part in executions. “It was noted there was no formal training process involving the paramedic, the physician or the executioners and their specific roles. They were not involved in any pre-execution training or exercises to ensure they understood the overall process,” it states.
Notably, as the Tulsa World article highlights, this report and its recomendations could surely have some impact on Oklahoma's significant upcoming execution plans:
The state plans to review its protocols before the three executions it has scheduled. The execution of a second inmate, Warner, scheduled to be executed two hours after Lockett was stayed until Nov. 13.
Two additional executions have been scheduled after Warner’s execution. State officials have not said whether they will have enough time to implement any recommended changes in protocol in time for the next scheduled execution.
Legal challenges to the state’s process could also delay upcoming executions. Claiming the state is experimenting on “captive and unwilling human subjects,” 21 Oklahoma death-row prisoners filed a federal lawsuit in June challenging the state’s execution protocols.
Wednesday, September 03, 2014
New report that Missouri is using controversial execution drug despite claims to the contrary
A helpful readers altered me to this notable new NPR affilate story headlined "Missouri Swore It Wouldn’t Use A Controversial Execution Drug. It Did." Here is how the lengthy piece gets started:
In Ohio, the execution took 26 minutes, as the inmate gasped and snorted. In Oklahoma, it took 43 minutes until a conscious inmate died of what the state said was a heart attack. In Arizona, it took nearly two hours, with the inmate "gulping like a fish on land."
The three worst botched executions this year had at least one thing in common: The states all used a drug called Midazolam to sedate the inmate, with varying levels of success.
Botched executions in other states led to questions in Missouri, a state as secretive as the others. Top Missouri officials were asked about the state's methods. They defended their own protocol each time, pointing out that Missouri doesn’t use the same drugs as those other states.
But an investigation by St. Louis Public Radio shows that wasn't entirely true. According to documents we obtained, Missouri has used Midazolam in every execution since November of last year. In all nine executions since then, Missouri's execution team has injected the condemned with significant amounts of the sedative.
This is occurring in spite of the fact that Missouri's top corrections officials testified Midazolam would never be used in a Missouri execution.
Tuesday, September 02, 2014
Noting the halting of executions in Mississippi ... and nationwide in nearly all states
This local AP article, headlined "Mississippi may be on death row execution hiatus," reports on modern capital punishment practical realities that exist in the majority of US jurisdictions these days. Here are the details from the Magnolia State:
Mississippi hasn't had an execution in two years, and state Attorney General Jim Hood says he can't predict when another might occur. No Mississippi death row appeals are presently pending before the U.S. Supreme Court, he said.
"We usually make predictions on timing based on cases pending before that court," Hood told The Associated Press this past week. "There is no way to really know an exact timeline on any of these type cases," he said. "They are all making their way through the system at various paces. We have some nearing the end of their normal track of appeals, but there is just no way to know when we might have a case that would warrant the filing of a motion to set an execution date."...
The most recent execution in Mississippi was June 20, 2012. Gary Carl Simmons Jr., a former grocery store butcher, was executed for dismembering a man during a 1996 attack in which he also raped the man's female friend. Before that, Jan Michael Brawner was executed on June 12, 2012, for fatally shooting his 3-year-old daughter, his ex-wife and her parents in a crime in which authorities say he also stole his slain mother-in-law's wedding ring and used it to propose to his girlfriend. The Mississippi Supreme Court blocked executions in 2013 and 2014.
It appears Mississippi is headed for another execution hiatus, but one that may not last as long as in the 1990s. The U.S. Supreme Court ruled in 1990 in a Mississippi death penalty case that described a capital crime to juries as "especially heinous, atrocious or cruel" without further definition was unconstitutionally vague. The ruling resulted in nearly two dozen Mississippi death sentences being overturned. For the rest of the 1990s, no executions took place in the state. The July 2002 execution of Tracy Allen Hansen was Mississippi's first since 1989. Hansen was executed for gunning down a policeman in 1987.
From 1955 to 1964, Mississippi executed 31 men. Another four were put to death in the 1980s. Since 2002, including Hansen, 17 executions have taken place. Mississippi had 60 inmates on death row as of Friday....
[In the modern capital era,] 1,385 inmates have been executed in 34 states through August. More than a third of those were in Texas alone, and in recent years, only a handful of other states have carried out executions on a somewhat regular basis, among them Arizona, Florida, Georgia, Missouri, Ohio and Oklahoma. The number of death penalty prosecutions has been dropping, in large part because of the availability of lifetime prison sentences without parole.
Mississippi's longest serving inmates still have appeals moving through state and federal courts.... Richard Gerald Jordan, 68, has been on death row the longest -- 37 years calculated from his date of conviction, according to Department of Corrections' records. Jordan was convicted of capital murder committed in the course of a kidnapping. James Billiot, 53, has been on death row 31 years. He was convicted of using sledgehammer to kill his mother, stepfather and 14-year-old stepsister. Roger Thorson, 56, has been on death row 25 years. He was sentenced to die for killing a former girlfriend on the Mississippi Gulf Coast.
Intriguingly, at this page at the Death Penalty Information Center highlights, Mississippi had a pretty active execution chamber from 2010 to 2012. Indeed, sixteen different states had at least one execution during this period and eight states averaged two or more executions during these years. In notable contrast, over the last two years, only nine states have completed executions and only five have averaged two or more executions during this period. (And two of these "still active" execution states, Ohio and Oklahoma, have had their plans to conduct more executions halted due to ugly execution events earlier this year.)
Prior to the recent execution drug problems, I had come to think that the "death penalty is dying" narrative was losing steam, especially as the United States consistently averaged about four executions each month during the first term of the Obama era. But last year saw less than 40 executions nationwide, and there is a real possibility that this year will have fewest total executions in two decades.
Saturday, August 30, 2014
Could capital reprieve cost Colorado Gov his office?
The question in the title of this post is prompted by this lengthy Denver Post article, headlined "Colorado's pro-death penalty voters could make Hickenlooper pay." Here are excerpts:
The cold-blooded murders of three teenagers and a manager late one night in a Chuck E. Cheese restaurant in Aurora two decades ago has taken center stage in the political theater of this year's race for governor. Gov. John Hickenlooper has weathered political blows from the right since May 2013,when he granted the killer, Nathan Dunlap, a reprieve on his death sentence.
Hickenlooper's actions then reignited the hot topic over the weekend after Todd Shepherd of The Complete Colorado presented audio of Hickenlooper suggesting to a CNN film crew, in an interview for a segment of a documentary series set to air the evening of Sept. 7, that he could grant Dunlap clemency if he were to lose his re-election bid in November.
Besides reintroducing a wedge issue — capital punishment — that has a perception of marshaling Republican voters, the incumbent Democrat gave fresh life to Republicans' campaign narrative that Hickenloooper doesn't make forceful decisions. Republican nominee Bob Beauprez has repeatedly vowed on the campaign trail to execute Dunlap — an applause line for GOP voters....
Polling last April indicated Colorado voters support the death penalty 2-to-1. "This is a big issue," Owen Loftus, spokesman for the Colorado Republican Committee, said of the death penalty. "He's making it a bigger issue. The question of whether Gov. Hickenlooper is going to enforce justice or not — that gives people pause."...
When he ran for governor four years ago, Hickenlooper was vocal about being pro-capital punishment. His decision-making around the issue in 2013 has left some in his own party, and nearly everyone who opposes him, questioning his rationale.
The governor explained in his Dunlap decision that he believed Colorado's capital punishment system was "imperfect and inherently inequitable." The arguments began anew last weekend when news surfaced that Hickenlooper raised the possibility of clemency — which no Colorado governor has ever granted in a death penalty case. The governor reiterated his evolution on the issue this month when he told a television news reporter he opposes the death penalty....
Paul Teske, dean of the school of public affairs at the University of Colorado Denver, questioned whether Hickenlooper would lose any voters he might have had otherwise. "It could have a small influence, but the voters who are likely to be motivated by this issue probably weren't going to vote for Hickenlooper anyway," he said. But it could fit into a larger narrative. "I think Republicans will pair this with the gun issue to say that Hickenlooper is soft on public safety."
Denver pollster Floyd Ciruli said Hickenlooper can only blame himself for repeatedly reviving an issue that repeatedly hurts him. The issue was part of Hickenlooper's tipping point in 2013, Ciruli said, when he granted Dunlap the reprieve, helping drive down his approval ratings from results above and just below 60 percent to the low 40s.
"It was the first issue that clearly put him on the wrong side of the public," Ciruli said. "He had been a pretty popular governor up to that point in his first term, and it handed a very good issue to the Republicans to hammer him with. But it had kind of gone away. But now (since the CNN interview) he's reopened it."
By saying he might grant clemency if he loses, Hickenlooper didn't portray himself as a thoughtful leader, the pollster said. "Speaking in a hypothetical about what if he loses, what he might do, that comes across as politically manipulative," Ciruli said.
A Quinnipiac University poll in February indicated Coloradans by a 36 percent to 28 percent margin disapproved of Hickenlooper's handling of the Dunlap case. Meanwhile, 63 percent favored keeping the death penalty while 28 percent supported abolishing it. "There has been strong, unwavering support for the death penalty and a sense that the governor's 'not on my watch' position on the issue could hurt him on Election Day," said Tim Malloy, assistant director of the Quinnipiac's polling operation.
Colorado has three [defendants on death row]. Colorado has executed only one person in the last 47 years, kidnapper, rapist and murderer Gary Lee Davis, who was put to death in 1997.