Monday, January 13, 2014
A few 2014 headlines reflecting the state of, and debates over, the death penalty
I have not done too many death penalty posts lately because the subject (and the usual comments it generates) often gets tiresome for me, and lots and lots of other coverage is always provided by the MSM and new media outlet. But because I will be starting a death penalty until in my Sentencing Law course later this month, I have been reading more carefully my news feed on the topic lately. And here are a few recent reports and commentary pieces that may serve as a bit of a summary of some capital punishment topics making the papers in early 2014:
- Plan to speed Alabama death penalty appeals could mean innocent are executed, defense lawyers say
Tuesday, January 07, 2014
Another new legal challenge as Ohio prepares to conduct an execution with another new protocol
As reported in this AP piece, headlined "Attorneys cite 'agony and terror' in untried execution method," Ohio has an execution scheduled for next week that is generate a new round of litigation because of a new execution method. Here are the basics:
Ohio's untried execution method, the first of its kind in the nation, will cause the condemned killer of a pregnant woman "agony and terror" as he struggles to breathe, attorneys trying to stop the execution argued in federal court.
The two-drug combination won't sedate death row inmate Dennis McGuire properly, and he will experience a suffocation-like syndrome known as air hunger, the attorneys said in filings Monday and Tuesday. The drugs were chosen because of a shortage of other lethal injection drugs.
Lawyers had also asked Gov. John Kasich to spare McGuire on the grounds that a jury never got to hear the full details of his chaotic and abusive childhood and abuse. Kasich rejected that request without comment Tuesday. The governor typically does not give a reason when he turns down clemency requests by death row inmates.
McGuire, 53, is scheduled to die Jan. 16 for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. McGuire's lawyers asked federal judge Gregory Frost to delay the execution while they challenge the proposed lethal injection system. "McGuire will experience the agony and terror of air hunger as he struggles to breathe for five minutes after defendants intravenously inject him with the execution drugs," the inmate's attorneys said in a Monday court filing.
They also said McGuire exhibits several symptoms of sleep apnea, which could exacerbate the problem. The dose planned for McGuire isn't enough to properly sedate him, meaning he'll experience "the horrifying sensation" of being unable to breathe, Harvard anesthesiology professor David Waisel said in a Tuesday filing in support of the inmate.
A message was left with the Ohio attorney general's office, which was expected to oppose McGuire's filing. Frost scheduled a Friday hearing. Supplies of Ohio's former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions. It's a challenge facing other death penalty states as well.
Missouri gave up attempts to use propofol over concerns the move could create a shortage of the popular anesthetic if the European Union, which opposes the death penalty, restricted its export. In Georgia, the state's attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.
Instead, Ohio's Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.
That combination of drugs has never been used in a U.S. execution. They are included in Kentucky's backup execution method, while Florida uses midazolam as part of its three-drug injection process.
Regular readers know that there is a long history of notable developments in Ohio as a result of federal court litigation over new execution methods. It will be interesting to watch how this round of the litigation plays out.
Notable (and amusing?) account of an execution method gone to the dogs
In various settings, some folks are quick to point out that the United States is uniquely punitivie in its use of imprisonment compared to all other nations in the world and also that the United States is one of the few nations in the western world to make continued and somewhat regular use of the death penalty. And advocates for sentencing and corrections reform (myself included) sometimes contend that the US ought to try to learn from the policies and practices of other nations. These realities came to mind when I read this notable recent article sent my way by a helpful reader reporting on a recent high-profile sentencing and punishment in another part of the world:
The execution of Jang Song Thaek, the No. 2 man in North Korea, took Beijing by surprise and will adversely affect bilateral relations. Beijing's displeasure is expressed through the publication of a detailed account of Jang's brutal execution in Wen Wei Po, its official mouthpiece, in Hong Kong, on Dec 12.
According to the report, unlike previous executions of political prisoners which were carried out by firing squads with machine guns, Jang was stripped naked and thrown into a cage, along with his five closest aides. Then 120 hounds, starved for three days, were allowed to prey on them until they were completely eaten up. This is called "quan jue", or execution by dogs.
The report said the entire process lasted for an hour, with Mr Kim Jong Un, the supreme leader in North Korea, supervising it along with 300 senior officials. The horrifying report vividly depicted the brutality of the young North Korean leader. The fact that it appeared in a Beijing-controlled newspaper showed that China no longer cares about its relations with the Kim regime.
Amusingly, as this new Reuters piece reports, it now appears that the "international media frenzy over reports that North Korean leader Kim Jong Un's uncle had been executed by throwing him to a pack of dogs appears to have originated as satire on a Chinese microblogging website." Here is more:
One of the pitfalls of reporting on North Korea is that few independent media have offices there and visiting media are tightly controlled in a country which ranks among the lowest in global surveys of press freedom. Because of the lack of first hand information, many lurid stories about the country gain credence.
Trevor Powell, a Chicago-based software engineer, who first spotted the link to the Weibo post and reported it on his own blog said that analysts and experts were "still all missing the obvious fact that the original source of the Wen Wei Po story was a tweet from a known satirist or someone posing as him/her." Powell blogged about the post here.
Friday, January 03, 2014
Pennsylvania task force struggling through comprehensive review of state's death penalty
As reported in this local article, headlined "PA Task Force Delays Deadline For Possible Death Penalty Reforms," folks in the Keystone State are struggling through an effort to better understand the state's death penalty. Here are the details:
Thirty-two states, including Pennsylvania, have the death penalty. Since 1976 when the U.S. Supreme Court reinstated capital punishment, Rhode Island (1984), New York (2007), New Jersey (2007), New Mexico (2009) Connecticut (2012), and Maryland (2013) have abolished it. But the repeal in the last three states was not retroactive so they still have prisoners on death row. Massachusetts' death penalty statute was nullified in 1984 by court rulings.
Could Pennsylvania become the next state to abolish capital punishment? The Pennsylvania Task Force and Advisory Committee on Capital Punishment is nearing the end of a two-year comprehensive study of all aspects of the death penalty. “No one has ever done this before in Pennsylvania,” said state Sen. Stewart Greenleaf (R-Montgomery), whose legislation created the commission.
The Penn State Justice Center for Research, the Inter-branch Commission on Gender, Racial and Ethnic Fairness and the Joint State Government Commission are researching all aspects of capital punishment for the task force. They were supposed to report findings and make recommendations this month but have asked for an extension to spring to complete what Greenleaf calls a “very laborious and time-consuming” process, which involves examining death penalty cases in every county of the state.
Three prisoners have been executed in the commonwealth since 1976, two in 1995 and the other in 1999. During that same 37-year period, 1,352 prisoners were put to death in the U.S.
Greenleaf said the researchers are looking at policies, procedures and impact of the death penalty including whether it’s being applied disproportionately based on race. “They’re having primary concerns themselves with statutory aggravators and mitigators; they’re the factors that come into play when a jury decides whether they give the death penalty or not,” Greenleaf said.
Of the 189 inmates on Pennsylvania’s death row, 101 are black — 53 percent. Louisiana has the highest rate of blacks on death row at 70 percent. Nationwide, 41 percent of those awaiting execution are black. The task force is also looking at everything from intellectual disabilities of inmates to the appeals process, from the use of lethal injection to the impact of the process on victims’ families.
Greenleaf, a former prosecutor, said the panel could suggest eliminating the death penalty in Pennsylvania. “We have to look at the report, but, of course, it could result in abolishing it or it could result in some changes or modifications of the process, everything is on the table right now," he said. "We want to see what their recommendations are.”
He added that the commonwealth’s adoption of DNA testing several years ago, which resulted in the exoneration of one death row inmate, is a pivotal factor in the basic question. “Is it more important that we convict every guilty person and execute them or is it more important that we never execute an innocent person?" Greenleaf said. "Our founding fathers said that it’s better to acquit a few guilty people than it is to convict one innocent person.”
Monday, December 30, 2013
NY Times editorial talks of "Slow Demise of Capital Punishment"
The title of this new New York Times editorial, "The Slow Demise of Capital Punishment," is probably better viewed as wishful thinking rather than a sound prediction. Nevertheless, as excerpted below, the New York Times editorial board makes its most potent pitch against the death penalty in this piece:
More states are coming to recognize that the death penalty is arbitrary, racially biased and prone to catastrophic error. Even those that have not abolished capital punishment are no longer carrying it out in practice.
In 2013, Maryland became the sixth state to end capital punishment in the last six years. Eighteen states and the District of Columbia have abolished the penalty, and it is dormant in the federal system and the military. Thirty states have had no executions in the last five years.
As it becomes less frequent, the death penalty also becomes more limited to an extremely small slice of the country, and therefore all the more arbitrary in its application. All 80 death sentences in 2013 came from only about 2 percent of counties in the entire country, and all 39 executions — more than half occurred in Texas and Florida — took place in about 1 percent of all counties, according to a new report by the Death Penalty Information Center. Eighty-five percent of all counties have not had a single execution in more than 45 years.
Public support for the death penalty — an important factor in the Supreme Court’s consideration of its constitutionality — is at its lowest level in four decades, and 40 percent of people surveyed by Gallup say they do not believe it is administered fairly....
Of course none of this matters to, say, Troy Davis or Cameron Todd Willingham, both of whom were executed in recent years despite deep doubts about their guilt. Nor is it of much use to the 3,100 people still sitting on death row around the country.
The argument is not that all of these people are innocent, or that they deserve to be released. Most would be justly imprisoned for most if not all of their life. But the death penalty as applied in America now — so thoroughly dependent on where the defendant lives and how much money he can spend on his defense — violates the constitutional guarantees of due process and equal protection, and no longer can overcome the Eighth Amendment’s ban on cruel and unusual punishments.
The dishonor and shame of capital punishment are further highlighted by the current shortage of lethal-injection drugs, a “crisis” resulting from the refusal of European drug makers to provide them for executions. As a result, states that use lethal injection have turned to unregulated compounding pharmacies, and have even passed laws to hide the identity of those pharmacies and the chemical makeup of the drugs. This only underscores the fact that when it comes to the death penalty, the United States is virtually alone in the Western world.
Actually, all of these developments are in fact of great "use to the 3,100 people still sitting on death row around the country." Given that all these developments help explain why the US now averages less than 50 executions each year (and only a few dozen outside of Texas), the vast majority of murderers serving death sentences now should know that they are far more likely to die of old age in prison rather than in an execution chamber. (And, perhaps better yet for these murderers, their legal appeals are far more likely to get extra attention from lawyers and judges than the tens of thousands of defendants serving life sentences for lesser crimes.)
Monday, December 23, 2013
Reviewing the state of the death penalty in the Buckeye state
One of many reasons I am so very grateful to be able to teach and research sentencing law and policy at The Ohio State University Moritz College of Law is because Ohio is an especially interesting and dynamic state with respect to its application of the death penalty. And this local article, headlined "Ohio executes inmates more than most states: State is 4th among 32 with death penalty, while support, availability of drugs wane," provides an effective review of the state of the death penalty in the state these days. Here are excerpts:
Three ... executions occurred in Ohio [in 2013], which ranked fourth in executions behind Texas, Florida and Oklahoma.... Those executed were Frederick Treesh for the 1984 murder of Henry Dupree in Lake County; Steven T. Smith for the 1998 murder of Autumn Carter in Richland County; and Harry Mitts Jr. for the 1994 murders of John Bryant and Sgt. Dennis Glivar in Cuyahoga County. Billy Slagle was set to be executed this year for the 1988 murder of Mari Anne Pope in Cuyahoga County, but he committed suicide just days before the scheduled date.
Mitts was the last prisoner executed before the state’s supply of pentobarbital expired. Ohio’s new policy would use a never-tested combination of midazolam and hydromorphone if pentobarbital became unavailable.
Convicted murderer Ronald Phillips was scheduled to be the first recipient of the drug combination, but Gov. John Kasich delayed Phillips’ execution until July to see whether the inmate could donate his organs to ailing relatives.
Now, Dennis McGuire, who raped and fatally stabbed a pregnant woman, is set to be the first executed with the new combination. He is seeking a reprieve of his execution, which is scheduled for Jan. 16....
The number of inmates on Ohio’s death row, currently 140, has declined every year since 2003, according to December population counts from the state prison system.
A task force assembled by the Ohio Supreme Court and Ohio State Bar Association in 2011 to review Ohio’s use of the death penalty has made several suggestions for changes to state law. Those include eliminating the death penalty for inmates with serious mental illness during the time of the offense and standardizing pay for attorneys defending capital cases....
Several bills introduced this year address the death penalty, yet none has received a committee vote. One introduced by House Democrats would abolish the death penalty, whereas another backed by Senate Democrats would spare anyone sentenced to death because of race. A Cincinnati Republican wants to expand the death penalty to repeat sex offenders....
Ohio has executed 52 inmates since 1999 — all were men and nearly two-thirds were white. The highest number of executions in a year since Ohio reinstated the death penalty in 1981 was eight in 2010, according to the Ohio Department of Rehabilitation and Correction. Ohio has set six executions for 2014, six for 2015 and one for 2016.
Eleven prisoners have been executed during Kasich’s tenure compared with nine in the first three years of predecessor Gov. Ted Strickland, a Democrat, and two in the first three years of Republican Bob Taft’s tenure. Kasich has commuted four death row inmates’ sentences to life in prison without parole; Strickland commuted five death sentences over four years.
None of the states that surround Ohio executed a prisoner in 2013. Michigan and West Virginia are among the 18 states that do not have a death penalty.
Thursday, December 19, 2013
Death Penalty Information Center releases annual report on capital punishment developments in 2013
This morning, the Death Penalty Information Center released its annual report on death penalty developments under the sparkling title, "The Death Penalty in 2013: Year End Report." The eight-page report is available at this link, and here are its list of "key findings" followed by the first part of the report's conclusion:
There were 39 executions in 9 states: only the second time in 19 years there were fewer than 40 executions.
There were 80 death sentences in 2013, a slight increase from 2012, but near the lowest number since 1973.
Maryland abolished the death penalty in 2013, the 6th state in six years to do so.
Public support for the death penalty reached its lowest level in 40 years.....
The number of executions, the size of death row, and the number of death penalty states all declined in 2013. Death sentences were near their lowest level since the reinstatement of the death penalty in 1976. Even many southern states, including South Carolina, Virginia, Tennessee, and Louisiana, had no death sentences in 2013. With Maryland’s repeal of capital punishment, the number of states without the death penalty grew to 18. Public support for the death penalty is at a 40-year low.
It is likely these trends will continue as more state legislatures consider repealing what has become a very expensive and unpredictable punishment. Nevertheless, over 3,000 people remain on death row, and some states like Florida and North Carolina have taken measures to expand the use of the death penalty.
The problems of mistakes, unfairness, and even the method of execution have exasperated many supporters of the death penalty, contributing to less reliance on capital punishment. Death sentences in Texas have declined by almost 80% since 1999. When examined on a county basis, only 2% of U.S. counties are responsible for the majority of executions and prisoners on death row. Because of restrictions by drug manufacturers, states have been forced to try new combinations of lethal drugs, some obtained from questionable sources, to carry out executions.
Though the DPIC's work is always impacted by its anti-death-penalty perspectives, I am always impressed by and grateful for the various ways the group collected and disseminates important information about the application of the death penalty throughout the United States.
Tuesday, December 17, 2013
National Coalition to Abolish the Death Penalty lists top capital stories from 2013
Regular reasons may recall that I am a sucker for end-of-year lists and reports, and thus I was excited to see that the National Coalition to Abolish the Death Penalty has this extended blog post setting out a view of "important stories from 2013" concerning capital punishment in the United States. Here are the items on the list, and folks should click through to see the explanations provided by NCADP:
Maryland Repeals Death Penalty....
Death Penalty Support Drops....
New Report: 2% of Counties Responsible for Most Executions....
Reginald Griffin Exonerated....
Lethal Injection Drug Shortages Confound States....
Timely Justice Act Passes in Florida....
Texas Executes 500th Person....
Virginia Electrocutes Robert Gleason....
Delaware Senate Passes Repeal Bill....
U.N. Human Rights Council Passes Resolution on Behalf of Children of Death Row Prisoners....
I would add to this list the decision of the Supreme Court to finally take up the issue of permissible state procedures for implementing its Atkins Eighth Amendment ruling. But, since we will not get oral argument or a decision in this SCOTUS case until next year, I suppose this is more properly considered a 2014 story.
Sunday, December 15, 2013
In praise of sentencing and drug war coverage at The Atlantic and Reason.com
Thanks especially to columnists like Andrew Cohen and Jacob Sullum, sentencing fans need to make sure to make regular visits to The Atlantic and Reason.com. Below I provide just a sampling of what has appeared in these spaces over the last week.
From The Atlantic:
Friday, December 13, 2013
Splitting 5-4 along party lines, SCOTUS vacates stay to allow Mizzou to complete novel execution
Distracted by other stories yesterday, I only now discovered that the US Supreme Court issued late Wednesday night this order (which, as I will explain below, strikes me as a pretty big deal):
The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on December 9, 2013, presented to Justice Alito and by him referred to the Court, is granted.
Justice Ginsburg with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.
I would deny the application to vacate the stay of execution entered by the Court of Appeals. See Bowersox v. Williams, 517 U.S. 345, 347 (1996) (GINSBURG, J., dissenting) (“At the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Appeals’ [stay] order. Appreciation of our own fallibility, and respect for the judgment of an appellate tribunal closer to the scene than we are, as I see it, demand as much.”).
The start and end of this lengthy AP article about the execution which followed this SCOTUS ruling accounts for why I think this order is a pretty big deal:
Allen Nicklasson once recalled the "euphoria" he felt after fatally shooting a kindly businessman who stopped to help when he saw Nicklasson's car stalled on Interstate 70 near Kingdom City, Mo., in 1994.
Late Wednesday night, Nicklasson was put to death for Richard Drummond's killing — nearly 23 hours after he was originally scheduled to die. It was the second execution in Missouri in three weeks after a nearly three-year hiatus. Racist serial killer Joseph Paul Franklin was executed Nov. 20.
The executions also were the first since Missouri switched from a three-drug protocol to use of a single drug, pentobarbital. Nicklasson, 41, was pronounced dead at 10:52 p.m. Wednesday, eight minutes after the process began. His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about 2 minutes into the process. He offered no final words....
Nicklasson's execution was originally scheduled for 12:01 a.m. Wednesday. But an appeals court panel granted a stay of execution Monday, citing concerns about his counsel at trial and sentencing in 1996.
When the full appeals court refused to take up the case Tuesday, Missouri Attorney General Chris Koster appealed to the U.S. Supreme Court. It did not return its 5-4 decision to vacate the stay until 10:07 p.m. Wednesday, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting. Gov. Jay Nixon refused to grant clemency.
Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments. The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy — the Missouri Department of Corrections declines to say who makes the drug, or where.
My general sense and understanding is that it is relatively rare for the Supreme Court, especially at the last minute, to vacate a lower court's stay in a capital case, especially if and when that stay was entered by a circuit which does not have a long history of getting in the way of state executions. Moreover, in addition to the legal issues that led to the stay, I think the defendant here was also seeking a stay in order to be able to question and assail Missouri's new lethal injection drugs and method.
Given that the four more liberal Justices were obviously eager to allow the stay of this execution to remain in place, I find it notable and seemingly important that the more conservative Justices were able to get swing Justice Kennedy to vote to vacate the stay and enable the Mizzou execution to be carried out. Particularly given that, over the last few years, aggressive lower-court litigation has probably played more of a role in reducing the total number of executions than many other factors, I cannot help but wonder if this decision represents a kind of (indirect?) statement by a majority of the Supreme Court that, at least for brutal killers who've already gotten to live on death row for decades, enough is enough.
Especially because this SCOTUS order is only an order and has not generated much attention at all, I may be guilty of trying to make this decision more of a big deal than it is. Nevertheless, especially as another year filled with capital habeas litigation winds to a close, I cannot help be think this may be an interesting and telling sign of future SCOTUS capital rulings to come.
Thursday, December 12, 2013
Brave New Death Penalty World: brain scans used to defeat death sentence
This new Wired piece, headlined "Did Brain Scans Just Save a Convicted Murderer From the Death Penalty?" suggests that defense lawyers in a recent federal capital trial devised another clever way to encourage jurors not to return a death verdict. Here are the basic details:
John McCluskey escaped from an Arizona prison in July, 2010. A few days later, he and two accomplices — one of whom was both his cousin and fiancee — carjacked Linda and Gary Haas, a vacationing Oklahoma couple in their 60s. McCluskey shot the Haases inside the camping trailer they were towing behind their truck, and set the trailer on fire with their bodies still inside. McCluskey was convicted for the carjacking and two murders in federal court on Oct. 7.
Yesterday the jury charged with deciding his sentence announced that it had been unable to come to a unanimous decision on the death penalty. That means he’ll get life without parole.
Perhaps it’s little wonder the jury couldn’t agree — they’d been given a lot to consider. McCluskey’s defense team had tried to convince them that he has several brain defects that, combined with other factors, contributed to his crimes and should be considered mitigating circumstances. The defense presented the results of several types of brain scans and various psychological tests, as well as testimony from neurologists and other experts....
In the sentencing phase of the trial, McCluskey’s lawyers argued that, as a result of his brain abnormalities — as well as a slew of other unfortunate circumstances ranging from a breech birth, to abuse as a child, to drug and alcohol addiction — he was incapable of “a level of intent sufficient to allow consideration of the death penalty.” Essentially, they argued that his acts were impulsive, that he would have been incapable of planning such things.
Wednesday, December 11, 2013
Poland asks Connecticut not to send murderer to death row
I just saw this intriguing domestic death penalty story from Connecticut with a notable international spin. The piece is headlined "Poland's president challenges state's death penalty," and here are excerpts:
In what could spark an international incident, the president of Poland is demanding the state not execute a former Trumbull man for the terrifying 2006 murders of a city woman, her 9-year-old daughter and a Milford landscaper.
"We strongly believe the death penalty should not be imposed," Agniestka Torres, vice consul and head of the legal section for the Polish consulate general in New York, told Hearst Connecticut Newspapers. "It doesn't matter what crimes he committed."
The government of the Republic of Poland this week notified Gov. Malloy and the Chief State's Attorney Kevin Kane that it objects to Richard Roszkowski -- whose parents were Polish -- getting the death penalty. Torres said the appeal comes directly from their president, Bronislaw Komorowski, who recently signed a law banning the death penalty in all circumstances.
Roszkowski was born in the U.S., but both his parents, who are now dead, emigrated from Poland and Roszkowski visited Poland when he was a child. "As far as we are concerned Mr. Roszkowski is a Polish national and is covered by our laws," Torres said....
This latest development adds to an already controversial status for the state's death penalty. In the last 60 years only one person, convicted serial killer Michael Ross, has been executed in this state and that was in February 2005.
Last year Malloy, an opponent of the death penalty, signed a law abolishing it for any new crimes. However, the law left in place the 10 men currently on death row. That portion of the law is currently under appeal.
Last week jury selection was completed for the death penalty hearing against the 48-year-old Roszkowski. His hearing is set to begin Jan. 7.
In May 2009 a Bridgeport jury found Roszkowski guilty of two counts of capital felony, three counts of murder and one count of criminal possession of a firearm for the Sept. 7, 2006, shooting deaths of 39-year-old Holly Flannery, her daughter, Kylie, and 38-year-old Thomas Gaudet.
Although the same jury that convicted Roszkowski of the crime subsequently found he should get the death penalty, the verdict was overturned on a technicality and a new penalty hearing was ordered. At least one of the jurors selected for the new death penalty hearing appears to be of Polish heritage....
Roszkowski's lawyers did not deny he killed the victims but presented nationally recognized medical experts and death penalty opponents who testified Roszkowski has brain damage caused by earlier car crashes, hepatitis and long-term drug use. The families of the victims declined comment because they are expected to testify in the upcoming hearing.
Among other interesting questions raised by this story concerns whether and how the defense lawyers for this mass murderer ought to be able to bring up these international issues during the penalty trial. Could and should Roszkowski's lawyers be able to argue to the jurors that sentencing Roszkowski to death would cause an international incident and hurt US-Polish relations? Could and should Roszkowski's lawyers be able to have members of the Polish consulate general testify for the defense at the penalty trial?
Tuesday, December 10, 2013
Some final squabbling over some of the final executions slated for 2013
This new Reuters piece, headlined "Oklahoma to execute inmate; Missouri execution stayed," provides a run down of some of the final aspects of some of the final executions scheduled for 2013. Here are the details:
Oklahoma on Tuesday was scheduled to execute a man convicted of raping and murdering two elderly women in the 1980s, while a federal appeals court panel has stayed a Missouri execution planned for hours later.
Missouri appealed the 2-1 ruling by the Eighth Circuit U.S. Court of Appeals panel to stay the execution of Allen Nicklasson, 41, who was found guilty of killing a stranger who offered him roadside assistance. Nicklasson has raised claims that his trial and appeals counsel were ineffective. The full Eighth Circuit was expected to hear arguments and rule Tuesday morning on the state's request to lift the stay of Nicklasson's execution, which is set for early Wednesday at a Missouri prison.
The Missouri Department of Corrections is proceeding with its plans for the execution unless instructed differently by the state attorney general, spokesman Mike O'Connell said. Oklahoma is scheduled to execute Ronald Clinton Lott, 53, by lethal injection at a state prison after 6 p.m. Central Time (0000 GMT) on Tuesday.
If carried out, the executions of Lott and Nicklasson would be the 37th and 38th in the United States this year, according to the Death Penalty Information Center.
Lott was convicted of raping and killing Anna Laura Fowler, 83, in 1986 and Zelma Cutler, 90, in 1987 in their Oklahoma City homes after DNA evidence linked him to the crimes.... Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998.
Lott would be the fifth man executed in Oklahoma in 2013. The state is also scheduled to execute Johnny Dale Black, 48, on December 17 for his conviction in the 1998 stabbing death of Ringling, Oklahoma, horse trainer Bill Pogue.
In the Missouri case, Nicklasson was found guilty of murder for the August 1994 shooting of motorist Richard Drummond, who stopped on a highway to help Nicklasson and two other men whose car had broken down. The men had burglarized a home where they stole guns and ammunition before their vehicle broke down. When Drummond stopped to offer a ride, the men abducted him, took him to a wooded area and shot him in the head, according to court records. One of the men, Dennis Skillicorn, was executed in 2009. The other man, Tim DeGraffenreid, was 17 at the time. He pleaded guilty to second-degree murder and received a reduced sentence.
Nicklasson and Skillicorn were also convicted of killing an Arizona couple while they were on the run after killing Drummond. Nicklasson would be the second person executed in Missouri this year.
Nicklasson had been scheduled to die October 23, but Missouri Governor Jay Nixon halted the execution due to broad criticism over the state's planned use of the drug propofol, widely used as an anesthetic in medical procedures. The case is one of many caught up in a nationwide debate over what drugs can or should be used for executions as capital punishment opponents pressure pharmaceutical companies to cut off supplies of drugs for executions. Missouri in November used pentobarbital, a short-acting barbiturate, mixed by a compounding pharmacy to execute serial killer Joseph Paul Franklin.
Because the executions discussed in this piece are the only ones likely to be carried out this month, it appears very likely that there will be less than 40 executions in the United States in 2013. This is only the second time in nearly two decades in which there were less than two score execution throughout the nation, and the last time (in 2008) no executions had been carried out for the first three months of the year as everyone awaited a result in Baze concerning the constitutionality of lethal injection protocols.
Saturday, December 07, 2013
"How should states decide if someone convicted of a crime has an intellectual disability, when the answer means life or death?"
The title of this post is the first sentence of this lengthy USA Today article headlined "Supreme Court to revisit death penalty for mentally disabled." Here is more from an effective review of the challenging capital procedure issues now before SCOTUS:
In its 6-3 decision in Atkins v. Virginia, authored by Justice John Paul Stevens, the court prohibited states from executing anyone with "mental retardation." Mental health professionals define it as substantial limitations in intellectual functions such as reasoning or problem-solving, limitations in adaptive behavior or "street smarts," and evidence of the condition before age 18. (Mental retardation is the term used in law, but most clinicians and The Associated Press refer to the condition as intellectual disability.)
After the decision, most states stuck with the three-pronged clinical definition, but Florida, Georgia, Mississippi and Texas set their own standards. Under Florida's law, if you have an IQ over 70, you're eligible for execution regardless of intellectual function or adaptive behavior.
Freddie Lee Hall, who has been on Florida's death row for more than 30 years and scored in the mid-70s on IQ tests, is arguing the state's standard amounts to unconstitutional punishment. Most likely, the case won't result in a dramatic shift in national criminal justice policy, but will further clarify who should and should not be eligible for execution, said Ronald Tabak, an attorney who has represented multiple clients with intellectual disabilities and chairs the American Bar Association's death penalty committee....
The court's makeup has shifted since the 2002 Atkins decision. But if the justices split along ideological lines, the vote could favor Hall, assuming that swing vote Justice Anthony Kennedy sides with Hall, as he did with Atkins in 2002. Arguments are set for March 3.
Similar cases are percolating beyond Florida. In Georgia, death row inmate Warren Hill is fighting execution based on substantial evidence that he is intellectually disabled. In Texas, where the courts use an anecdotal seven-part test largely based on the characteristics of the fictional character Lennie from John Steinbeck's novel "Of Mice and Men" to determine intellectual disability, multiple prisoners have been executed in recent years even when they've scored well below 70 on IQ tests.
Last year, Texas executed Marvin Wilson, who was convicted of murder in 1994, even though he had an IQ of 61. In 2010, Virginia executed Teresa Lewis for her role in a murder-for-hire scheme, even though she had an IQ of 72 and her co-conspirators admitted Lewis did not plan the murder....
Still, the Atkins decision has had an impact on executions. At least 98 people have had their death sentence changed since 2002 by proving that they were intellectually disabled, according to data from the Death Penalty Information Center. By their count, in the 18 years before the Atkins decision, at least 44 people who likely suffered from intellectual disabilities were executed.
Sunday, December 01, 2013
"Death penalty for Boston bomber a complicated question"
The title of this post is the headline of this new piece from USA Today. Here are excerpts:
The high-security wing at the U.S. Penitentiary in Terre Haute, Ind., now represents an increasingly complicated backdrop for a decision Attorney General Eric Holder is set to make in the next several weeks on whether to pursue the death penalty in the federal government's prosecution of Boston Marathon bombing suspect Dzhokhar Tsarnaev.
There is little argument about the strength of the case against Tsarnaev, charged with 30 criminal counts in connection with the blasts that killed three and wounded more than 260 others. There are photographs of Tsarnaev allegedly planting explosives at the site of one of the bombings.
Yet the government's record in carrying out the death penalty is mixed at best, and there are conflicting views about whether the often-delayed penalty is an appropriate punishment if the 20-year-old defendant is convicted in the bombing case. Since the federal death penalty was reinstated in 1988, only three offenders have been executed and none in the past 10 years....
In the case of Tsarnaev, there are other potentially complicating factors at play for the federal government in Massachusetts, a state long opposed to the death penalty. In September, less than six months after the attack, a poll commissioned by The Boston Globe found that 57% of Boston residents favored Tsarnaev's facing life in prison without parole, while only 33% supported death. The opposition, in the city deeply scarred by the bombing, crossed political lines with Democrats overwhelmingly favoring life in prison at 61%-28% and Republicans more narrowly supporting prison over death at 49%-46%.
"It's one thing for the government to be willing to impose the death penalty; it will be a lot harder to find people in Massachusetts to serve on a jury who would vote for the death penalty," said Andrew Smith, director of the University of New Hampshire Survey Center, which conducted the poll. "It's not terribly surprising given that it is Massachusetts."
Aitan Goelman, a former federal prosecutor who assisted in the Oklahoma City prosecutions, said the federal government's rarely used execution chamber reflects a system "slanted against" execution. From the mandatory pre-prosecution review to determine whether to pursue the maximum punishment to the actual prosecution, Goelman said, there are required thresholds in the federal system that don't exist in most states....
"The system seems to bend over backwards not to have executions,'' said Goelman, though he said he believes that "at the end of the day," Holder will likely certify the Tsarnaev prosecution as a death penalty case. "If you put a bomb down in a crowd, it becomes one of those cases where you say, 'If not now, when do you ever certify a case as a death penalty case?'" Goelman said.
Richard Dieter, executive director of the Death Penalty Information Center, which advocates against the death penalty, said possible considerations that could work in Tsarnaev's favor are his relative youth and whether Tsarnaev's older brother, Tamerlan Tsarnaev, may have pushed him to take part in bombings.... "Justice might approve seeking the death penalty just to keep their options open," Dieter said, referring to a possible strategy to exact a guilty plea from the defendant.
Among those who have little doubt that death should be pursued against Tsarnaev is a former top Boston police official who worked closely on the investigation. "I don't believe in the death penalty in most cases," former Boston Police commissioner Ed Davis said. "I believe it is appropriate in this case. I would caution everyone to wait until all of the evidence comes out. … There is no explanation for what happened here."
I would be very surprised if AG Holder does not approve seeking the death penalty in this case, and I will be similarly surprised if the case is not ultimately resolved through a plea deal providing for an LWOP sentence.
Some prior related posts:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- Intriguing sparring over federal capital recommendation procedure in Boston bombing case
Friday, November 22, 2013
"High Court May Clarify Rule on Impairment and Death Penalty"
The title of this post is the headline of this notable new New York Times piece which astutely recognizes that the Supreme Court may (or may not) clear up the application of its landmark 2002 Atkins Eighth Amendment ruling in a (long-overdue) follow-up Hall case being heard this Term. Here are excerpts from the piece:
The United States Supreme Court’s ruling in a Florida death penalty case, in which an inmate argued that his intellectual disability made him exempt from execution, could help answer a decade-old question in Texas and other states about how to establish whether an inmate is too severely impaired to be subject to the death penalty. “This is the courts trying to play catch-up with where the mental health community is going,” said Shannon Edmonds, director of governmental affairs at the Texas District and County Attorneys Association.
The Supreme Court last month agreed to hear the case of Freddie L. Hall, who was sentenced to death for the 1978 rape and murder of a pregnant woman and the fatal shooting of a police officer. Oral arguments are expected in the spring.
Mr. Hall’s lawyers assert that his low I.Q., his deficits in adaptive behavior and a history of a lack of intellectual abilityrender him ineligible for execution. The high court is expected to decide whether Florida’s criteria for evaluating intellectual disability in death penalty cases — similar to those Texas uses — are adequate.
In Atkins v. Virginia (2002), the Supreme Court ruled that states could not execute the intellectually disabled. The court found that a lack of brain functioning made them less culpable and more susceptible to flaws in the justice system that could lead to wrongful convictions. But it was left up to states to determine how intellectual disability would be assessed. Both Texas and Florida rely on a three-pronged evaluation that requires the defendant to have a low I.Q. and reduced adaptive function and to have exhibited both before the age of 18....
Both prosecutors and defense lawyers in Texas are looking to the high court for clarity when it comes to evaluating intellectual disability. Texas lawmakers have been unable to pass a law creating a standard, so the existing criteria come from a 2004 decision from the state’s Court of Criminal Appeals in the case of Jose Garcia Briseño. The appeals court invoked, in part, an evaluation of Lennie from John Steinbeck’s 1937 novel “Of Mice and Men,” writing that "most Texas citizens would agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution. But does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"
Defense lawyers have called the standards unscientific, and they drew national attention ahead of the 2012 execution of Marvin Wilson, whose lawyers argued that he was intellectually disabled. Steinbeck’s son Thomas described the court’s reliance on the fictional character as “insulting, outrageous, ridiculous and profoundly tragic.”
Maurie Levin, a lawyer who represents several Texas death row inmates, said the Supreme Court’s decision could result in a more scientifically sound set of standards. “The acknowledgment or possibility that they will articulate a need for a respect for scientific principles has the potential for bringing states like Texas back in line,” Ms. Levin said.
For prosecutors, Mr. Edmonds said, guidance from the high court would help them confront cases involving mental health in which the science used to assess conditions is constantly changing. “It’s like trying to nail Jell-O to the wall,” Mr. Edmonds said. “You can never get a handle on it.”
Thursday, November 21, 2013
Split Texas appeals court refuses to allow additional habeas action for death row defendant complaining about racialized testimony
As reported in this local article from Texas, that "state’s highest criminal court Wednesday dismissed an appeal by death row inmate Duane Buck, who claims his sentence is improper because it was based, in part, on a psychologist’s finding that he presents a greater danger to society because he is black." Here is more about the ruling and its context:
In a 6-3 ruling, the Court of Criminal Appeals said that Buck had already filed his one guaranteed appeal, known as a petition for writ of habeas corpus, in 1999 and wasn’t legally entitled to another.
But the court’s newest member, Judge Elsa Alcala, submitted a blistering dissent that said Buck had been ill-served by previous lawyers and the court system. “The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness,” Alcala wrote in a dissenting statement joined by Judges Tom Price and Cheryl Johnson.
The upshot, Alcala said, is that no state or federal court has examined, let alone ruled on, Buck’s claim that his constitutional rights had been violated by the inclusion of inappropriate racial testimony and by the incompetence of previous lawyers. “This cannot be what the Legislature intended when it (voted in 1995 to provide) capital habeas litigants ‘one full and fair opportunity to present all claims in a single, comprehensive post-conviction writ of habeas corpus,’” Alcala wrote.
Though there is no question about Buck’s guilt — he gunned down a former girlfriend and her male friend, shot his stepsister and targeted a fourth adult in Houston — his case has become a rallying point for judicial reformers and civil rights advocates, largely because of its racial overtones at trial.
The controversy centers on punishment-phase testimony by psychologist Walter Quijano, a defense expert who told jurors that Buck was less likely to pose a future danger — and therefore not eligible for the death penalty — because the crime wasn’t a random act of violence. But Quijano also testified, unprompted, that “Hispanics and black people are overrepresented in the criminal justice system.” On cross-examination, a prosecutor followed up by asking Quijano if race, particularly being black, increases a defendant’s future dangerousness “for various complicated reasons.” Quijano replied, “Yes.”
Buck was sentenced to death in 1997. Three years later, however, then-state Attorney General John Cornyn, now a U.S. senator, acknowledged that seven death penalty convictions — including Buck’s — had been improperly influenced by Quijano’s testimony linking race to dangerousness. The attorney general’s office did not oppose new punishment trials for the other six inmates to cure the constitutional defect.
State lawyers later decided, however, to oppose a new trial for Buck, arguing that his case was “strikingly different” because Quijano was a defense expert whose questionable testimony was elicited by a defense lawyer. Instead, lawyers for Texas argued that Buck should have objected to the racial testimony in his 1999 habeas petition. Because he didn’t, Buck lost his chance to appeal the matter, they argued.
On Wednesday, the Court of Criminal Appeals agreed, dismissing Buck’s latest habeas petition as improper. In her dissent, Alcala said she would have accepted the new petition because Buck’s 1999 appeal was so poorly done that it amounted to no defense at all, depriving a death row inmate of a full review of constitutional claims before his execution.
Wednesday, November 20, 2013
Missouri mass murderer gets two last-minute execution stays from two federal judges... UPDATE: stays reversed, execution completed
As reported in this new Reuters article, "[t]wo federal judges granted a serial killer stays of execution on Tuesday hours before he was to be put to death, allowing him to challenge Missouri's new lethal drug protocol and his mental competence, and the state immediately appealed the rulings." Here is more:
Joseph Paul Franklin, an avowed white supremacist, was convicted and sentenced to death for killing one man and wounding two outside a St. Louis-area synagogue in 1977. He was scheduled to be executed early on Wednesday at a Missouri prison.
Franklin, 63, has been linked to the deaths of at least 18 other people. He was convicted of killing eight in the late 1970s and 1980s in racially motivated attacks around the country. The victims included two African-American men in Utah, two African-American teenagers in Ohio and an interracial couple in Wisconsin.
Franklin also has admitted to shooting Hustler magazine publisher Larry Flynt in 1978, paralyzing him. Flynt has argued that Franklin should serve life in prison and not be executed.
In October, Missouri changed its official protocols to allow for a compounded pentobarbital, a short-acting barbiturate, to be used in a lethal dose. The state also said it would make the compounding pharmacy mixing the drug a member of its official "execution team," which could allow the pharmacy's identity to be kept secret.
In granting the stay, U.S. District Judge Nanette Laughrey noted that Missouri had issued three different protocols in the three months preceding Franklin's execution date and as recently as five days before. "Franklin has been afforded no time to research the risk of pain associated with the department's new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital," Laughrey wrote in the stay order entered in federal court in Jefferson City, Missouri....
In the second case, U.S. District Judge Carol Jackson in St. Louis ordered Franklin's execution stayed, concluding that a delay was required to permit a meaningful review of his claim that he is mentally incompetent and cannot be executed.
The Missouri Attorney General's office asked the U.S. Court of Appeals for the Eighth Circuit to lift the stays.
Missouri Governor Jay Nixon denied Franklin clemency on Monday. Franklin is one of 21 plaintiffs challenging the constitutionality of the execution protocol issued by the Missouri Department of Corrections.
UPDATE: As the commentors to this post noted before I got back on-line, Franklin was executed by Missouri after the Eighth Circuit reversed both the stays he received. Here is an AP report on the execution:
Joseph Paul Franklin, a white supremacist who targeted blacks and Jews in a cross-country killing spree from 1977 to 1980, was put to death Wednesday in Missouri, the state's first execution in nearly three years.
Franklin, 63, was executed at the state prison in Bonne Terre for killing Gerald Gordon in a sniper shooting at a suburban St. Louis synagogue in 1977. Franklin was convicted of seven other murders and claimed responsibility for up to 20, but the Missouri case was the only one that brought a death sentence.
Mike O'Connell, a spokesman for the Missouri Department of Corrections, said Franklin was pronounced dead at 6:17 a.m. The execution began more than six hours later than intended, and it took just 10 minutes....
Franklin's lawyer had launched three separate appeals: One claiming his life should be spared because he was mentally ill; one claiming faulty jury instruction when he was given the death penalty; and one raising concerns about Missouri's first-ever use of the single drug pentobarbital for the execution.
But his fate was sealed early Wednesday when the U.S. Supreme Court upheld a federal appeals court ruling that overturned two stays granted Tuesday evening by district court judges in Missouri. The rulings lifting the stay were issued without comment.
"Death Meted Out by Politicians in Robes"
The title of this post is the headline of this New York Times editorial, which riffs off of Justice Sotomayor's dissent from the denial of cert concerning Alabama’s death sentencing scheme (discussed here). Here are excerpts:
In nearly all of the 32 states that permit capital punishment, a jury makes the final decision on whether a defendant will live or die. Not so in Alabama, where elected judges may override a jury verdict of life in prison and unilaterally impose a death sentence....
On Monday, the Supreme Court declined to hear a challenge to this law, which appears to violate a 2002 ruling that capital defendants “are entitled to a jury determination of any fact” necessary to sentence them to death.
Justice Sonia Sotomayor wrote a 12-page opinion, joined partly by Justice Stephen Breyer, dissenting from the court’s decision not to hear the current case, Woodward v. Alabama. While the court previously upheld the Alabama law in 1995, she noted, the state is now alone in overriding jury verdicts of life. Because it undermines “the sanctity of the jury’s role in our system of criminal justice,” Justice Sotomayor wrote, the Alabama law is “constitutionally suspect.”
Justice Sotomayor rightly identified the reason Alabama’s judges impose more death sentences per capita than any other state. The judges, she wrote, “who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”...
In his dissent from the 1995 ruling upholding the Alabama law, former Justice John Paul Stevens wrote that allowing a judge to override a jury verdict in this way severs “the death penalty from its only legitimate mooring.”
The death penalty should have no legitimate mooring at all in modern American society, and it certainly should not be imposed by a judge who is worried about keeping his job.
Monday, November 18, 2013
Florida Supreme Court delays execution to hear about new drug used in injection protocol
Concerns about new lethal injection drugs has bought at least a few more weeks of life for a Florida death row defendant. This Miami Herald update, headlined "Miami killer's execution delayed amid questions about new drug," explains:
In a 5-2 decision, the Florida Supreme Court on Monday ordered that Thomas Knight's scheduled execution be delayed so he can argue that a new drug used to anesthetize a prisoner at the start of a lethal injection could subject him to "serious harm." Knight, also known as Askari Abdullah Muhammad, had been scheduled to die at Florida State Prison on Dec. 3.
Florida is the only state in the U.S. that uses midazolam hydrochloride as an anesthetic in the first stage of a three-drug lethal injection mixture. The new drug replaced pentobarbital after the state Department of Corrections exhausted its supply.
The state's high court stayed Knight's execution until at least Dec. 27 and sent his case back the state's Eighth Judicial Circuit, which includes Bradford County, where he is imprisoned. A circuit court judge must hold a hearing on the inmate's claims and issue a ruling no later than 2 p.m. Nov. 26, two days before Thanksgiving, after which time both sides can file additional arguments.
Knight has been on Death Row since 1975 for the murders of a Miami couple. While in prison he stabbed a correctional officer, Richard Burke, to death. It is that killing for which he is condemned to die.
In its order, the court said: "The Court has determined that Muhammad’s claim as to the use of midazolam hydrochloride as an anesthetic in the amount prescribed by Florida’s protocol warrants an evidentiary hearing. We conclude based on the allegations in Muhammad’s 3.851 motion that he has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam hydrochloride in Florida’s lethal injection protocol will subject him to a 'substantial risk of serious harm.'
"We further direct the DOC (Department of Corrections) to produce correspondence and documents it has received from the manufacturer of midazolam hydrochloride concerning the drug’s use in executions or otherwise, including those addressing any safety and efficacy issues," the court ordered.