Saturday, February 21, 2015
New Oregon Gov pledges to continue curious capital moratorium created by her corrupt predecessor
As reported in this new Reuters piece, headlined "New Oregon Governor Kate Brown to extend death penalty moratorium," a change in leadership at the top of the executive branch in the Beaver State is apparently not going to bring any change to the state's current peculiar death penalty practices. Here are the details:
Oregon's new Democratic Governor Kate Brown said on Friday she planned to extend a moratorium on executions that her predecessor enacted in 2011, well before an influence-peddling scandal forced him from office earlier this week.
But like fellow Democrat John Kitzhaber, Brown stopped short of formally commuting death sentences for the 34 inmates currently awaiting execution in the state, which has executed only two people in the past half century, both in the 1990s. “There needs to be a broader discussion about fixing the system," Brown said in her first press briefing since she took Oregon's helm on Wednesday. "Until that discussion, I'm upholding the moratorium imposed by Kitzhaber.”
In a major salvo in the nation's long-running battle over capital punishment, Kitzhaber imposed a blanket reprieve on all Oregon death row inmates in 2011, saying he believed the death penalty was morally wrong. He had faced growing calls in the waning days of his administration to commute all Oregon death sentences to life in prison before leaving office following an ethics scandal over accusations his fiancée used her role in his office for personal gain.
But Kitzhaber, who has not been seen publicly since announcing his resignation last week, remained silent on that issue, although he did commute the prison sentence of a young man serving time for attempted murder in a non-capital case.
Brown, who had been Oregon's secretary of state before this week, said she met with Kitzhaber on Monday and he advised her of his legislative priorities and recommendations. In addition to her death penalty plans, Brown told reporters she supports raising the minimum wage, increasing transparency and improving access to public records.
Four years seems to me like plenty of time for the policy-makers and the public in Oregon to have a "broader discussion about fixing the system" used for administering the death penalty in the state. Notably, since Kitzhaber put the moratorium in place, I believe the Oregon legislature has enacted other forms of sentencing reform dealing with prison sentences as well as significant state health-care reforms. In addition, Oregon public policy groups placed on the ballot in both 2012 and 2014 significant legal reform intended to "fix" perceived problems with marijuana laws and policies in the state. If the last four years (and a number of election cycles) have not provided sufficient time for Oregonians to have a "broader discussion about fixing the system," I have a hard time imagining that the next few years are likely to engender such a discussion.
In the end, I seriously doubt that the new Oregon governor (or many others in the state) are really looking forward to having a "broader discussion about fixing the system" used for administering the death penalty in the state. Rather, I think this phrase was the one that the new gov thought would best allow her to duck a controversial, high-profile issue for the time being (and maybe even for the full duration of her term). For a handful of advocates, death penalty policy and practices in any state are very important, but for most citizens and voters the death penalty is a high-salience but low-significance concern. Keeping Kitzhaber's execution moratorium in place allows the new gov to focus on other issues without the distorting distractions that death penalty politics can often create.
Some recent related posts:
- Oregon Governor halts upcoming execution, declares moratorium, and pushes for state repeal
- Oregon murderer seeks to reject and escape Governor's execution reprieve
- Might some death penalty supporters be pleased Oregon's Governor blocked Gary Haugen's execution?
- Fascinating fight over death penalty realities and clemency rights gets to Oregon Supreme Court
- Oregon Supreme Court rejects effort by death row inmate to reject execution reprieve from Governor
- Would you urge out-going (and apparently corrupt) Oregon Gov Kitzhaber to commute all death sentences?
Friday, February 20, 2015
Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"
As reported in this local article, "Philadelphia District Attorney Seth Williams has sued Gov. Tom Wolf over the death penalty moratorium he imposed last week." Here the basics:
In a lawsuit filed Wednesday, Williams asks the state Supreme Court to rule Wolf's move a "lawless act," claiming the governor had no legal right to grant a reprieve to convicted murderer Terrance Williams....
The lawsuit filed by the city's Democratic district attorney is the second one the Democratic governor has faced since he was sworn in to office Jan. 20. The Republican-controlled Senate sued Wolf in Commonwealth Court over his decision to fire the executive director of the Open Records Office, which the Legislature created when it updated the state's Right-to-Know Law in 2008.
Wolf's death penalty moratorium, announced Friday, fulfilled a campaign promise. It was criticized by district attorneys, law enforcement and some lawmakers. Some religious leaders and other lawmakers praised it....
Wolf said he will grant a reprieve each time a death row inmate is scheduled for execution but keep the inmates' death sentences intact, which was what he did in the case of Terrance Williams. Williams was scheduled to be executed March 4 for the 1984 robbing and fatal tire-iron beating of another man in Philadelphia.
"The governor took the action to place a moratorium on the death penalty because Pennsylvania's capital punishment system is flawed — it's ineffective, expensive, and many times unjust," Wolf spokesman Jeff Sheridan said Wednesday. "As he stated Friday, the governor will wait for the report being produced by the bipartisan Pennsylvania Task Force and Advisory Commission on Capital Punishment, established by the state Senate, and the recommendations within the report are addressed satisfactorily."
Wolf was within his legal right to grant a reprieve under Article 4, Section 9 of the state constitution, Sheridan added. That section also gives the governor the power to commute sentences and issue pardons.
In his lawsuit, Williams says the governor can grant reprieves only as a temporary measure to allow a defendant to pursue "an available legal remedy." The governor cannot grant open-ended reprieves in cases where there are no legal questions surrounding guilt, the suit states. "Merely characterizing conduct by the governor as a reprieve does not make it so," Williams wrote, citing a successful 1994 lawsuit Northampton County District Attorney John Morganelli filed against Gov. Robert P. Casey to enforce the death penalty against Martin D. Appel and Josoph Henry....
"The scope of the reprieve power is not mysterious or vague, and it is limited," Williams' lawsuit states. "Unlike some states, Pennsylvania does not grant the governor an unlimited at-will power of clemency, without which it is not even possible to posit an arguable ability to impose a moratorium."
The filing by Philadelphia DA Williams, which is styled an&"Emergency Commonwealth Petition For Extraordinary Relief Under King's Bench Jurisdiction," was filed in the Supreme Court of Pennsylvania and is available at this link. I find the filing quite effective and compelling, and I thought these passages were especially notable:
On February 13, 2015, the Governor issued a purported reprieve in connection with his publicly-announced assumption of a constitutionally-nonexistent power to declare a “moratorium” on death sentences in Pennsylvania.
This lawless act by the Governor, improperly and inaccurately characterized as a reprieve — for the act issued in this case is not, in fact, a reprieve — is not within the constitutional powers of the Governor, usurps judicial review of criminal judgments, and is in direct violation of his duty to faithfully execute Pennsylvania law under Article IV, § 2. It is unconstitutional, illegal, and should be declared null and void by this Court....
The alleged reprieve, which is not a reprieve at all, violates the constitutional separation of powers. The constitution requires due process, not the Governor’s personal standard of absolute perfection; and the task of assuring that criminal judgments meet that correct standard is assigned to the judiciary, not the executive.Exercise, by another branch, of an extra-constitutional attempt to disturb settled judgments in criminal cases is an impermissible usurpation of the exclusive function of the judiciary....
In law and in reality, therefore, the Governor seeks to nullify valid, final judgments of sentence in usurpation of the judicial function, and seeks to subject the law governing capital sentencing to the test of his personal standard of satisfaction,which in this instance happens to be a test of infallibility that is impossible for mere mortals to satisfy. This is not permissible in a government that is founded on the principle that the people are to be ruled by laws enacted by their representatives in the legislative process, and not the personal whims of a king or dictator. The constitutional role of the Governor is to execute the law, not sabotage it.
Wednesday, February 18, 2015
AP report details that, functionally, California kills many more sex offenders than murderers
Formally, California sends many more murderers to its death row than any other state and it has more condemned capital prisoners than two dozen other US death penalty states combined. But California has only managed to actually execute fourteen of those sentenced to die and nobody has been executed by the state in nearly a decade. Meanwhile, as this new AP report details, over the last eight years, while California has not moved forward with an execution of a single condemned murderer, a total of 78 sex offenders have been slaughtered inside California's prisons. Here are the basics:
California state prisoners are killed at a rate that is double the national average — and sex offenders ... account for a disproportionate number of victims, according to an Associated Press analysis of corrections records.
Male sex offenders made up about 15 percent of the prison population but accounted for nearly 30 percent of homicide victims, the AP found in cataloging all 78 killings that corrections officials reported since 2007, when they started releasing slain inmates' identities and crimes.
The deaths — 23 out of 78 — come despite the state's creation more than a decade ago of special housing units designed to protect the most vulnerable inmates, including sex offenders, often marked men behind bars because of the nature of their crimes.
In some cases, they have been killed among the general prison population and, in others, within the special units by violence-prone cellmates. Officials acknowledge that those units, which also house inmates trying to quit gangs, have spawned their own gangs.
Corrections officials blamed a rise in the prison homicide rate on an overhaul meant to reduce crowding. As part of the effort, the state in 2011 began keeping lower-level offenders in county lockups, leaving prisons with a higher percentage of sex offenders and violent gang members....
The problem is most acute with sex offenders. Last fall, the corrections department's inspector general reported that so many homicides occurred in the "increasingly violent" special housing units reserved for vulnerable inmates that the department could no longer assume that inmates there could peacefully co-exist. The report looked at 11 homicide cases that were closed in the first half of 2014 and found that 10 victims were sensitive-needs inmates. Using corrections records, the AP found that eight of them were sex offenders.
For a variety of reasons, most states have special facilities incorporated into their "death row," and condemned prisoners on death row are often eager to be well behaved in the hope of increasing their odds of getting out from under a death sentences eventually. Consequently, it can often be much safer for certain prisoners to be condemned and confined to death than to be in the general population. And this new AP report reinforces my sense that a serious California criminal likely would lead a more peaceful and safe life in prison if and when he murders and gets condemned to death than if he just commits a sex offense. (In addition to being a disturbing practical reality, these dynamics might perhaps prompt and incentivize a "rational rapist" in California to murder one or more his victims in order to ensure he can potentially avoid the dangers of the general prison population and live out his life peacefully pursuing appeal after appeal while safe and secure on death row.)
Tuesday, February 17, 2015
Florida Supreme Court stays lethal injection pending SCOTUS case, and AG Holder urges national execution halt
As reported in this Reuters piece, "Florida’s highest court put executions on hold Tuesday while the U.S. Supreme Court decides whether use of a controversial general anesthetic constitutes “cruel and unusual” punishment of condemned killers." Here is more:
The state Supreme Court stopped the execution of Jerry William Correll next week because the Supreme Court recently agreed to hear a challenge some Oklahoma inmates brought against use of midazolam hydrochloride as the first of three drugs used in lethal injections. Florida uses essentially the same formula, the court said in a 5-2 ruling.
The state switched to midazolam as an anesthetic in 2013 when some foreign drug manufacturers quit supplying other drugs previously used in executions. The Department of Corrections said 11 lethal injections have been carried out with midazolam in Florida since then. Florida courts have approved midazolam, but the nation’s highest court agreed Jan. 23 to hear an appeal by 21 Oklahoma inmates in a case citing prolonged executions and signs of pain reported in that state, Arizona and Ohio.
Chief Justice Jorge Labarga wrote that if the nation’s highest court rules in favor of the prisoners, “then Florida’s precedent approving the use of midazolam and the current Florida three-drug protocol will be subject to serious doubt as to its continued viability.”
Justices Charles Canady and Ricky Polston dissented, saying Florida should proceed with Correll’s execution unless the U.S. Supreme Court stays it. Canady wrote that a stay in another state does not automatically require one in Florida, and that agreeing to review Oklahoma’s use of the drug means the justices will forbid it.
Meanwhile, as reported in this piece in The Hill, US Attorney General Eric Holder suggested today that all states ought to follow Florida's lead while the Supreme Court lethal injection case is pending:
Attorney General Eric Holder called Tuesday for a national moratorium on the death penalty until the Supreme Court weighs in on the issue later this year...
Late last month, the Supreme Court agreed to hear an appeal the from death row inmates in Oklahoma who are challenging the state’s procedures for lethal injections. "I think a moratorium until the Supreme Court makes that decision would be appropriate," Holder said.
Would you urge out-going (and apparently corrupt) Oregon Gov Kitzhaber to commute all death sentences?
The question in the title of this post is prompted by this notable new commentary authored by Frank Thompson, a retired assistant director of institutions and superintendent of the Oregon State Penitentiary. Here are excerpts:
I know what it is like to execute someone. I am a retired prison superintendent who conducted the only two executions that have taken place in Oregon in the past 53 years.
The death penalty in Oregon comes at a high cost to our state in both human and fiscal resources. I call on Gov. Kitzhaber to convert 35 death sentences to life without the possibility of release before he leaves office at mid-morning on Wednesday.
Based on my experiences as a correctional professional, capital punishment is a failed public policy — especially in Oregon where we have funded a death penalty system for over 30 years, yet only put to death two inmates who volunteered themselves for execution by abandoning their appeals. No other corrections program exemplifies such a complete failure rate.
During my more than two decades of running correctional facilities, I saw the population of those who are capable of extreme violence up close. I have no doubts at all that these offenders did not think about the death penalty for one second before committing their violent acts. Instead, research has been shown that public safety is greatly improved when our limited tax dollars are redirected to law enforcement agencies to solve cases and prevent crimes.
I understand exactly what is being asked of public employees whose jobs include carrying out the lawful orders of the judiciary to end another person's life. The burden weighs especially heavily on my conscience because I know firsthand that the death penalty is not applied fairly or equally in Oregon. I have known hundreds of inmates who are guilty of similar crimes yet did not get the death penalty because they reached a plea bargain of life without parole simply because they had the means for professional legal assistance.
I also understand, from my experiences in corrections, the potential awful and lifelong repercussions that can come from participating in the execution of prisoners. Living with the nightmares is something that some of us experience. This is particularly the case with those of us who have had more hands-on experience with the flawed capital punishment process, and/or where an execution under our supervision did not go smoothly.
I am never troubled when people make a forceful argument that "capital punishment is a failed public policy." But I find it troubling that this argument is being made now to a disgraced (apparently corrupt) out-going governor rather than to the new incoming governor and other public-policy officials who are going to be staying in their jobs and would need to deal with the administrative and political implications and consequences of their actions.
Notably, it is not just Oregonians urging out-going Gov Kitzhaber to clear the state's death row. Professors Charles Ogletree and Rob Smith have this new Huffington Post commentary headlined "Gov. Kitzhaber: Your Job Is Not Yet Done." here is how it concludes:
Governor Kitzhaber declared a moratorium on the death penalty back in 2011. He labeled the State's practice of imposing death sentences "neither fair nor just" and concluded that a "compromised and inequitable" capital punishment system is not befitting of Oregon. Nothing has changed and nothing will: the death penalty in Oregon is too broken to fix.
In his resignation letter, Governor Kitzhaber told us that he was proud to not have presided over any executions. Yet, as Governor, he presided over a state that has sentenced people to death under the same unjust system that led him to impose the moratorium. The Governor has the power to leave the troubled history of this disreputable death penalty system in Oregon's rearview mirror; and doing so would enhance the integrity of the criminal justice system without compromising public safety.
Governor Kitzhaber: You lit the torch in 2011; and now, in these few remaining hours, please carry that torch across the finish line.
Monday, February 16, 2015
"The United States Execution Drug Shortage: A Consequence of Our Values"
The title of this post is the title of this commentary authored by Ty Alper available via SSRN. Here is the abstract:
The recent inability of states to obtain drugs for use in executions has led to de facto moratoria in a number of states, as well as gruesomely botched executions in states that have resorted to dangerous and unreliable means to obtain these drugs. The refusal of some pharmaceutical companies to provide drugs to U.S. prisons has significantly impeded the imposition of the death penalty in a number of states. Despite this, it is the anti-death penalty activists who tend to draw the attention of the media, state officials, and politicians charged with carrying out executions. The media focuses particular attention on advocates in Europe who have campaigned to pressure European drug companies to stop distribution of their products to U.S. prisons for use in executions.
This paper challenges that narrative and posits instead that it is the drug companies that have long sought to avoid the use of their products in executions, for moral and financial reasons, as well as to comply with European law. When we look back on the fourth decade of the modern era of capital punishment in the United States, we may consider it the decade that marked the beginning of the end. If so, it will not be the result of a handful of activists successfully thwarting the administration of capital punishment. Rather, it will be the consequence of U.S. states imposing the death penalty in the context of a modern world that generally abhors the practice, using a method of execution that is very much dependent on major players in that world.
Tennessee Supreme Court to consider electric chair as back-up execution method
I am pleased and intrigued to see, via this local article, that the "Tennessee Supreme Court will decide whether a death row inmate can challenge the state's back-up method of execution: the electric chair." Here is more about this notable litigation:
The court agreed to take the case — which stems from a Davidson County Chancery Court battle — on Friday. Arguments are set for May 6 in Knoxville. The state says that inmates who are challenging the electric chair as unconstitutional cannot do so because none of the inmates is facing that method of execution.
A group of 34 inmates previously challenged the state's primary protocol, lethal injection, and then added a challenge to the electric chair when it was deemed a back-up method.
The appeal to the Supreme Court, as well as another seeking the release of names of people involved in the execution process, come from the pending chancery court case. Once the Supreme Court decides the issues, the chancery court case will be able to move forward.
I fear that this case might resolve only whether and when a Tennessee defendant can challenge a back-up method of execution. Nevertheless, I find it notable and potential important that a state supreme court is now going to consider in any way an execution method other than lethal injection.
Friday, February 13, 2015
Pennsylvania Gov declares moratorium on state death penalty
As reported in this local piece, headlined "Gov. Tom Wolf declares moratorium on death penalty in Pa.," there is some headline-making news about capital punishment administration emerging from the Keystone State:
Gov. Tom Wolf declared a moratorium Friday on the death penalty in Pennsylvania, potentially halting the process for 186 prisoners who've received a death sentence. Since 1693, the commonwealth has executed 1,043 prisoners, the last of which was Philadelphia torture killer Gary Heidnik in 1999. That execution took place, in large part, because Heidnik gave up his right to appeal.
In a statement released Friday, Wolf said the state's current death penalty is "a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive."...
Wolf's first action was a temporary reprieve to Terrance Williams, who was scheduled to be executed on March 4. Williams was convicted of two murders he committed as a teenager in 1984. "Today's action comes after significant consideration and reflection," Wolf said. "This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes."
Shortly after Wolf's announcement, Sen. Daylin Leach, D-Montgomery, said he reintroduced his bill Friday to abolish the death penalty altogether. "I am extremely grateful that our governor will stop spending our tax dollars to, in the words of former US Supreme Court Justice Harry Blackmun, tinker with the machinery of death," he said, in a written statement.
Gov. Wolf's detailed four-page statement justifying his decision today is a fascinating read (which I am going to make my sentencing students read and re-read). The full statement is available at this link, and here are excerpts:
Pursuant to authority granted in Article IV, § 9 of the Constitution of Pennsylvania, I am today exercising my power as Governor to grant a temporary reprieve to inmate Terrence Williams. A death warrant for this case was signed on January 13, 2015 by my predecessor, acting pursuant to Section 4302 of the Pennsylvania Prisons and Parole Code. The execution was scheduled for March 4, 2015.
The reprieve announced today shall remain in effect until I have received and reviewed the forthcoming report of the Pennsylvania Task Force and Advisory Committee on Capital Punishment (established under Senate Resolution 6 of 2011), and any recommendations contained therein are satisfactorily addressed. In addition, it is my intention to grant a reprieve in each future instance in which an execution is scheduled, until this condition is met....
There are currently 186 individuals on Pennsylvania’s death row. Despite having the fifth largest death row in the nation, the death penalty has rarely been imposed in modern times. In the nearly forty years since the Pennsylvania General Assembly reinstated the death penalty, the Commonwealth has executed three people, all of whom voluntarily abandoned their right to further due process.
In that same period, Governors have signed 434 death warrants. All but the three noted above have subsequently been stayed by a court. One inmate has been scheduled for execution six times, each of which has been cancelled due to a state or federal appeal. Two inmates have remained on death row for more than three decades. This unending cycle of death warrants and appeals diverts resources from the judicial system and forces the families and loved ones of victims to relive their tragedies each time a new round of warrants and appeals commences. The only certainty in the current system is that the process will be drawn out, expensive, and painful for all involved.
While the pace of the process frustrates some, the fail-safes of appellate review are essential in avoiding a catastrophic miscarriage of justice. Since reinstatement of the death penalty, 150 people have been exonerated from death row nationwide, including six men in Pennsylvania....
If the Commonwealth of Pennsylvania is going to take the irrevocable step of executing a human being, its capital sentencing system must be infallible. Pennsylvania’s sy stem is riddled with flaws, making it error prone, expensive, and anything but infallible....
[A]administering the death penalty, with all the necessary legal appeals and safeguards as well as extra security and individual cells on death row, is extremely expensive. A recent analysis conducted by the Reading Eagle estimates that the capital justice apparatus has cost taxpayers at least $315 million, but noted that this figure was very likely low. Other estimates have suggested the cost to be $600 million or more. The Commonwealth has received very little, if any, benefit from this massive expenditure.
Thursday, February 12, 2015
Spotlighting the administrative challenges posed by high-profile capital cases
This New York Times article, headlined "Jury Pool for Trial in Aurora Shooting Is Pressed on Death Penalty," highlights the various administrative difficulties a high-profile capital case formally gets underway in Colorado. Here are excerpts:
Lawyers on Wednesday began questioning potential jurors for the trial of the man accused of killing 12 people and wounding 70 during a showing of a Batman film in a packed Colorado movie theater in 2012.
The defendant, James E. Holmes, has pleaded not guilty by reason of insanity, though his lawyers admit he was the gunman. The district attorney is seeking the death penalty, and prosecutors and defense lawyers focused most of their questioning on how prospective jurors feel about that sentence....
Officials sent jury summonses to 9,000 people here — a number that dwarfs even the 1,300 or so potential jurors who filled out questionnaires in the trial of the man accused in the Boston Marathon bombings. The pool of potential jurors has since been whittled to about 2,000. Questioning of those people is expected to take 16 weeks, during which the pool will be reduced to 120, who will receive further questioning, and finally to 12 jurors and 12 alternates.
The trial, to be held in this Denver suburb, could last from early spring to October, with testimony expected from police officers, crime scene experts, witnesses and mental health experts. The shooting took place July 20, 2012, at a movie theater in the Denver suburb of Aurora, where about 400 people were attending a screening of “The Dark Knight Rises.”...
Two and a half years later, the effects of the massacre continue to ripple through the region, with victims and their families grappling with depression and posttraumatic stress disorder and divided over the prosecution’s decision to seek the death penalty. Some have argued that it is the only way to ensure justice; others have said it will cause years of appeals, an excruciating prospect for those seeking a degree of closure.
Recent and older related posts (with lots of comments):
- Largest mass shooting in US history surely to become a capital case
- Offense/offender distinctions in first-cut punishment reactions to Batman mass murder
- "For James Holmes, Death Penalty is Far from a Certainty"
- You be the prosecutor: will you accept Aurora theater shooter's plea offer and drop pursuit of the death penalty?
- "James Holmes' Victims Applaud Death Penalty Plan: 'I Want Him Dead'"
- Highlighting (already extraordinary) costs of seeking to put Aurora killer on death row
Wednesday, February 11, 2015
Update on a decade-long (lack of) effort (not) to fix lethal injection in California
California has long been a state leader in spending lots of time, energy and money on the death penalty without achieving much. This commentary by Debra Saunders, headlined "Yes, California, there is a death penalty," provides a critical review of the lethal injection part of this story that has played out over the last decade. Here are excerpts:
What happened to California’s death penalty? There has not been an execution since 2006, when a federal judge ruled against the state’s three-drug lethal injection protocol. In 2008, the U.S. Supreme Court upheld three-drug executions. It didn’t matter. Gov. Jerry Brown and Attorney General Kamala Harris both personally oppose capital punishment, but as candidates promised to uphold the law. In real life, they’ve let things slide. Fed up, two men related to murder victims have filed suit to push the state to carry out the law.
Kermit Alexander wants to see the law work on Tiequon Cox, convicted of killing the former football player’s mother, sister and two nephews in 1984 — Cox went to the wrong address for a $3,500 contract killing. Bradley Winchell is sick of waiting for the execution of Michael Morales, who raped, hammered, strangled and stabbed to death his 17-year-old sister, Terri, in 1981. Sacramento Superior Court Judge Shellyanne Chang ruled in their favor Friday after Harris challenged them on the dubious grounds that crime victims and the general public “lack standing” to sue the state.
Brown had directed the state Department of Corrections and Rehabilitation in April 2012 to develop rules that should pass court muster. What’s taking so long? Spokesman Jeffrey Callison answered that his department has been working on “a single drug protocol” but “nationwide, there is a problem with access to execution drugs and that is complicating efforts.”
California has used lethal injection since 1996 to spare condemned inmates unnecessary pain. Even still, U.S. District Judge Jeremy Fogel stayed Morales’ execution as the judge perceived a 0.001 percent chance the convicted killer might feel pain.
In other states not headed by Hamlets, leaders have found ways to anticipate court sensibilities and keep faith with voters. Many adopted one-drug protocols. Death penalty foes responded by using their considerable muscle to bar importation and choke the supply of lethal-injection drugs. Flat-footed Sacramento stuck with the unused three-drug protocol for too long. While Brown’s Corrections Department was working on a one-drug rule, Texas executed 38 killers with pentobarbital. The next time you hear the cerebral governor argue that high-speed rail is doable, remember that he couldn’t pull off a legal procedure that didn’t daunt former Texas Gov. Rick Perry....
In 2012, California voters rejected a ballot measure to get rid of capital punishment. Alexander and Winchell shouldn’t have to sue their government to enforce the law.
As the title of this post is meant to suggest, I do not think officials in California have any real interest in fixing its execution protocol.
Tuesday, February 10, 2015
As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber
As this AP article reports, now that "executions in Oklahoma [are] on hold amid a constitutional review of its lethal injection formula, Republican legislators are pushing to make Oklahoma the first state in the nation to allow the use of nitrogen gas to execute death row inmates." Here is more:
Two separate bills scheduled for hearings this week in legislative committees would make death by "nitrogen hypoxia" a backup method of execution if the state's current lethal injection process is found to be unconstitutional.
"You wouldn't need a medical doctor to do it. It's a lot more practical. It's efficient," said Rep. Mike Christian, an Oklahoma City Republican and former Oklahoma Highway patrolman who conducted a hearing last summer on hypoxia, or the depletion of oxygen in the bloodstream.
The U.S. Supreme Court currently is reviewing Oklahoma's three-drug method in a challenge sparked by a botched lethal injection last spring in which an inmate groaned and writhed on the gurney before a problem was discovered with an intravenous line. The case centers on whether the sedative midazolam properly renders an inmate unconscious before the second and third drugs are administered. Three scheduled lethal injections in Oklahoma have been delayed pending the high court's review.
Oklahoma officials concede midazolam is not the preferred drug for executions, but death penalty states have been forced to explore alternatives as manufacturers of more effective drugs refuse to sell them for use in lethal injections. Tennessee passed a law last year to reinstate the electric chair if it can't get lethal drugs, and Utah is considering bringing back the firing squad. Oklahoma Attorney General Scott Pruitt has urged legislators to consider the creation of a state compounding pharmacy to produce the drugs itself.
A fiscal analysis of the Oklahoma bill projects it would cost about $300,000 to build a gas chamber at the Oklahoma State Penitentiary in McAlester. A similar bill is pending in the Oklahoma Senate. Christian said unlike traditional gas chambers that used drugs like cyanide that caused a buildup of carbon dioxide in the blood, breathing nitrogen would be painless because it leads to hypoxia, a gradual lack of oxygen in the blood, similar to what can happen to pilots at high altitudes.
Four states currently allow the use of lethal gas — Arizona, California, Missouri, and Wyoming — but all have lethal injection as the primary method, according to the Death Penalty Information Center. No state has ever used nitrogen gas or inert gas hypoxia to execute an inmate. The last U.S. inmate executed in a gas chamber was Walter LaGrand in Arizona in 1999.
A few recent and older related posts:
- Is nitrogen gas the best modern execution alternative to lethal injection?
- Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma
- 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
- A worldly perspective on different execution methods
- Should problems with lethal injection prompt return of other execution methods?
Monday, February 09, 2015
"In praise of the firing squad"
The title of this post is the headline of this recent Washington Post commentary by Radley Balko. Here are excerpts:
[F]rankly, if we insist on executing people, the firing squad may be the best option. Before I explain why, I’ll first disclose that I’m opposed to the death penalty, and I have no doubt that my opposition to state-sanctioned killing influences my opinions on which method of execution we ought to use. So read the rest of this post with that in mind.
If you support the death penalty, the most obvious benefit of the firing squad is that unlike lethal injection drugs, correctional institutions are never going to run out of bullets. And if they do, more bullets won’t be very difficult to find. Ammunition companies aren’t susceptible to pressure from anti-death penalty activists, at least not to the degree a pharmaceutical company might be. This would actually remove a barrier to more efficient executions. As someone who would like to see executions eliminated entirely, I don’t personally see this as a benefit. But death penalty supporters might. And there are other benefits to the firing squad, benefits that I think people on both sides of the issue can appreciate.
Traditional lethal injection is more humane if you consider the humanity of the procedure from the perspective of everyone except the person being executed. There is now a storm of controversy about the procedure because those botched executions last year produced some really gruesome images, which were then relayed to the public by witnesses. Had the condemned men in Oklahoma, Ohio and Arizona suffered the same pain and agony, but under the cloak of a more thorough paralytic, we probably wouldn’t be having this discussion. We consider a method of execution humane if it doesn’t make us uncomfortable to hear or read about it. What the condemned actually experience during the procedure is largely irrelevant. The lethal injection likely became the most common form of execution in the United States because it makes a state killing resemble a medical procedure. Not only doesn’t it weird us out, it’s almost comforting.
By contrast, the firing squad is violent and archaic, and judging by the reaction to the bills in Utah and Wyoming, it most certainly does weird a lot of people out. And yet in only the way that should matter, the firing squad is likely more humane than the lethal injection....
This sets up a final argument in favor of the firing squad: There is no mistaking what it is. There are no IVs, needles, cotton swabs or other accoutrements more commonly associated with healing. When we hear about an execution on the news, we won’t hear about an inmate slowly drifting off to sleep. We’ll hear about guns and bullets. Killing is an act of violence. That’s what witnesses will see, and that’s what the reports will tell us has happened. If we’re going to permit the government to kill on our behalf, we should own what we’re doing.
This is where a critic might argue that as a death penalty opponent, I’m merely arguing for the method of execution that I think is most likely to turn people off to the death penalty. I’ll be honest: I hope that’s what will happen. I hope that when confronted with a method of execution that’s less opaque about what’s actually transpiring, more of us will come to realize that we no longer need capital punishment. But I’m not particularly optimistic that will happen. I suspect that there’s a strong segment of the public (and probably a majority) that will support the death penalty no matter how we carry out executions.
Regardless of its impact on the death penalty debate, if we must continue to execute people, the firing squad has a lot to offer. It isn’t just the most humane form of execution now realistically under consideration, it is the most humane from the correct perspective — the experience of the condemned. It brings no concerns about the supply of execution materials. It raises no issues about medical ethics — it doesn’t blur the lines between healing and hurting. It’s honest. It’s transparent. And it is appropriately violent.
Thursday, February 05, 2015
More than three decades after crime, SCOTUS decides it still needs to stay Texas mass murderer execution
As reported in this AP piece (with my emphasis added), a "Texas inmate set to be executed next week for fatally shooting four men at an airplane hangar more than 30 years ago won a reprieve Thursday from the U.S. Supreme Court." Here are the details:
Lester Bower Jr., 67, among the longest-serving Texas death row inmates, had been scheduled for lethal injection Tuesday. The justices gave no reason for the reprieve, saying only that it would be lifted automatically if they deny an appeal or act on it.
Bower was convicted in the October 1983 deaths at a Grayson County ranch about 60 miles north of Dallas. Authorities found parts from a small ultralight airplane at the hangar at his home in Arlington, a Dallas suburb. Prosecutors also tied unusual Italian-made .22-caliber bullets used in the slayings to similar ammunition purchased by Bower, a federally licensed gun dealer.
In their appeal to the high court, Bower's lawyers said jurors who decided on his death sentence had faulty instructions that didn't allow them to consider mitigating circumstances that he had no criminal record, was a married father of two, college educated and employed as a chemical salesman.
Since his 1984 trial, court rulings have refined instructions to Texas capital murder trial juries to account for mitigating circumstances. Several condemned inmates from that era - but not Bower - have received new court-ordered punishment trials. Bower's attorneys also contended that prosecutors misstated the rarity of the fatal bullets, and that his long time on death row and numerous rescheduled execution dates amount to unconstitutional suffering.
State attorneys argued that courts have rejected appeals about the jury instructions, that information about the bullets was available at the time of his trial and that Bower's lawyers' persistent appeals account for the lengthy case. "Any delay is purely of his own making," Stephen Hoffman, an assistant Texas attorney general, told the justices in a filing this week....
Those killed were building contractor Bob Tate, 51; Grayson County Sheriff's Deputy Philip Good, 29; Jerry Brown, 52, an interior designer; and Ronald Mayes, 39, a former Sherman police officer. Good's wife, Marlene Bushard, said the delay was "very frustrating since we were so close."
"I am hoping once this is done he will be out of options, we can get another death warrant and end this," she said in an email.
As this timeline of products reveals, over the last 30 years Apple has been able to go from its Apple IIe personal computer to a modern (multi-generation) iPhone and iPad and iMac, and the latest Apple machines now put more computing power into our hands than NASA had at its disposal in the early 1980s. Meanwhile during this same period, our legal system has been unable to conclusively determine whether a Texas mass murderer was lawfully sentenced to death. Hmmm.
Highlighting (already extraordinary) costs of seeking to put Aurora killer on death row
This lengthy new Yahoo News article, headlined "Cost of Colorado theater shooting case exceeds $5 million months before opening arguments," details how much Colorado taxpayers are paying for prosecutors' efforts to get James Holmes on death row. Here are some of the details:
The criminal court case against Colorado theater gunman James Holmes has already absorbed at least $5.5 million in public monies, according to records obtained by Yahoo News. That’s $2 million more than the estimated average cost of a completed Colorado death penalty trial — and the contentious Holmes proceeding is still months away from opening arguments....
Holmes first appeared in court on July 23, 2012, three days after police say he assailed a packed suburban Denver movie theater, killing 12 people and injuring 70, as they were watching a midnight showing of the Batman film “The Dark Knight Rises.” In the two and a half years since that initial court appearance, primary personnel involved with the case — prosecutors, defense attorneys, the judge, court reporter, trial investigators and victims’ advocates for the district attorney — have been paid approximately $4.5 million.
A spokeswoman for the Arapahoe County district attorney said only one prosecutor has been dedicated to the Holmes case full time. But legal observers say a proceeding already involving nearly 1,700 motions, orders and hearings — with possibly hundreds of witnesses expected to testify at trial — would require the undivided attention of a team of lawyers.
Other top expenses so far include $463,000 on additional security from July 2012 through the end of 2014. Experts hired by the prosecution have received more than $220,000 to date. More than $90,000 was used to install a closed-circuit television system in the courtroom. It cost $20,000 to print 9,000 juror notices and questionnaires....
Holmes has pleaded not guilty by reason of insanity — his lawyers say he was in the throes of a psychotic episode at the time. Twice the judge has ordered him to be transferred to a state hospital for testing to determine if he was mentally capable of understanding the crime he committed. A court spokesman said invoices for the exams have not been received....
Holmes offered to forfeit the costly trial in March 2013 for life in prison without parole if he could avoid the death penalty. Prosecutors, however, strongly rejected any notion of a pending deal, saying the defense had refused to give them the information they wanted to evaluate the plea agreement.
“It is my determination and my intention that in this case, for James Eagan Holmes, justice is death,” Arapahoe County District Attorney George Brauchler said in court.
Holmes is charged with 166 counts of first-degree murder, attempted murder and weapons charges. Opening arguments through sentencing could last four to six months — which itself will cost the court $137,000 to $205,000 in juror pay (the 24, including alternates, earn $50 a day)....
As for Holmes, his heavily redacted application for a public defender was approved the same day as the massacre. It was signed by Daniel King, one of his lead attorneys, who currently earns $165,756 and may be eligible for a raise just as the trial gets going. Under state law, Holmes could be ordered to pay a $25 processing fee after the verdict.
Sunday, February 01, 2015
"Should Veterans With PTSD Be Exempt From the Death Penalty?"
The title of this post is the headline of this lengthy piece from The Atlantic. Here are excerpts:
PTSD is a severe mental disorder that can affect intellectual and adaptive functioning, trigger flashbacks to traumatic events, and impair one's judgment. As its name implies, it can develop after exposure to a life-threatening event.... About 20 percent of military personnel who served in war zones in Iraq and Afghanistan and up to 30 percent of Vietnam War veterans have experienced it in their lifetimes, according to National Center for PTSD statistics....
Despite the stigma attached to PTSD, the Department of Veterans Affairs emphasizes that most veterans suffering from the condition are not violent.... “Rambo is not the face of PTSD,” Paula Schnurr, executive director of the VA's National Center for PTSD, said in an interview with The Desert Sun. “It's extremely important that we recognize that the majority of people with PTSD don't engage in criminal and violent actions.”
The risk of criminal behavior isn’t necessarily higher among combat veterans than with civilians, according to mental health experts. "I am unaware of data showing that people with PTSD are more violent than other people," Richard McNally, the director of clinical training in Harvard University's psychology department, told Reuters.
But some legal scholars and mental health experts suggest the criminal justice system should treat convicted veterans suffering from war trauma differently than other criminals. In a 2009 Fordham Law Review article, Anthony Giardino, an attorney and former Marine, argued that veterans suffering from service-related PTSD and traumatic brain injuries should receive a categorical exemption from the death penalty. "If the death penalty is truly only for the worst offenders, justice requires that combat veterans suffering at the time of their offenses from service-related PTSD or TBI [traumatic brain injuries] not be executed or sentenced to death," he wrote....
Giardino isn’t alone in making this argument. Mental-health experts Hal S. Wortzel and David B. Arciniegas made a similar case for exempting veterans affected by war trauma from the death penalty. Military training and combat, combined with traumatic experiences, may have an impact on aggression and behavioral control, the authors said in a 2010 article....
It's difficult for the legal system to truly grasp what veterans with PTSD have experienced. This lack of empathy is a key obstacle to change.... Until society realizes how combat can change service members, the fate of capital defendants with combat PTSD will remain an open question.
Saturday, January 31, 2015
After adopting new execution drug laws, Ohio delays all executions for additional year
As explained in this AP article, a full year after Ohio had difficulties executing Dennis McGuire and a month after the state enacted new execution laws, Ohio officials decided to kick the execution can another year down the road by rescheduling all 2015 scheduled executions. Here are the details:
The state on Friday rescheduled executions for seven death row inmates as it tries to find new lethal drugs, meaning no inmate will be put to death in Ohio in 2015. The announcement affects six executions this year, including one set for Feb. 11 for condemned child killer Ronald Phillips, and one previously scheduled for 2016 that was pushed farther back.
The move, which was expected, follows a federal judge's previous order delaying executions while the state puts a new execution policy in place, the state said. The delays also allow the state time to find supplies of new drugs, according to the Department of Rehabilitation and Correction. The new execution policy calls for Ohio to use drugs it doesn't have and has had difficulty obtaining in the past.
The delays mean that for the first time Ohio won't execute anyone in a calendar year since the state resumed putting inmates to death in 1999. The state put one inmate to death last year and three in 2013. A total of 11 executions are scheduled for 2016. Under the revised schedule, the next execution is Jan. 21, 2016, when Phillips is scheduled to die for the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.
Tim Young, the state public defender, applauded the move, saying there was no need for executions "until we have answers to the numerous legal and medical questions posed by lethal injection."
Earlier this month, the state ditched its two-drug method after problematic executions in Ohio a year ago and Arizona in July. Ohio's supplies of those drugs, midazolam, a sedative, and hydromorphone, a painkiller, were already set to expire this year. Underscoring concerns about midazolam, the U.S. Supreme Court earlier this week ordered Oklahoma to postpone lethal injections executions using the drug until the court rules in a challenge involving midazolam.
Ohio's execution policy now calls for it to use versions of thiopental sodium or compounded pentobarbital, neither of which it has. Death penalty experts question where Ohio would find supplies of thiopental sodium, saying it's no longer available in the U.S. and overseas imports would run afoul of importing bans.
Notably, before Ohio started having major problems with lethal injection protocols, the state had become one of the most active and effective states carrying out death sentences. The state completed nearly 50 executions from 2002 through 2012, and a few years in that period it was second only Texas in the number of executions completed. But lethal injection difficulties and litigation entailed that the state could carry out only three executions in 2013, only one in 2014 and now there will be none in 2015.
I expect that Ohio officials will be try pretty hard to get its machinery of death up and running again in 2016, and it is possible a Supreme Court decision about lethal injection protocols in Oklahoma might actually end up helping the state get its execution chamber back on line. But the 140 men and one woman now on Ohio's death row (and their lawyers) should be breathing a little easier today. And it now seems that much more likely that the majority of these murders will end up just dying in prison rather than be subject to an affirmative state killing.
Thursday, January 29, 2015
With overwhelming public support, Japanese Justice Minister continues with capital punishment
As reported in this news article, "Japan is to continue applying the death penalty after over 80 percent of the country's population expressed their support for the measure, media Thursday cited Justice Minister Yoko Kamikawa as saying." Here is more:
A recent government survey revealed that 80.3 percent of respondents backed the death penalty, while 9.7 percent felt that it should be abolished. Kamikawa termed the results as positive and said strict and careful measures would continue in this regard.
She said there was no intention of revising the current policy in the short term, despite having hinted at times the possibility of introducing life sentences for capital crimes. "Most people believe it is unavoidable for those who committed extremely malicious crimes to face (execution)," Kamikawa said, according to the Asahi daily newspaper.
Kamikawa also made a reference to the global trend against the death penalty and the petition by activists for Japan to end capital punishment. "It is a problem associated with what country Japan should be, and it is (the Japanese people's) business," she said.
Eleven convicts have been executed since the current government took office in December 2012. Japan, along with the US, is the only developed and democratic country that still imposes the death penalty.
I tend also to include India on a list of "developed and democratic country that still imposes the death penalty," but maybe some would dispute characterizing India as developed.
Tuesday, January 27, 2015
"The Humane Death Penalty Charade"
The title of this post is the headline of this New York Times editorial. Here are excerpts:
When the United States at last abandons the abhorrent practice of capital punishment, the early years of the 21st century will stand out as a peculiar period during which otherwise reasonable people hotly debated how to kill other people while inflicting the least amount of constitutionally acceptable pain.
The Supreme Court stepped back into this maelstrom on Friday, when it agreed to hear Warner v. Gross, a lawsuit brought by four Oklahoma deathrow inmates alleging that the state’s lethalinjection drug protocol puts them at risk of significant pain and suffering.
In accepting the case, the justices had to change its name. The lead plaintiff, Charles Warner, was executed on Jan. 15 after the court, by a vote of 5-to-4, denied him a lastminute stay. That may sound strange until you consider that while it takes only four justices to accept a case for argument, it takes five to stay an execution. The case is now named for another inmate, Richard Glossip. (On Monday, the Oklahoma attorney general requested temporary stays of the impending executions of Mr. Glossip and the other two plaintiffs.)...
The justices have been here before. They upheld the constitutionality of lethal injection in 2008. But, since then, the battles over the practice have grown more warped. Many drug makers now refuse to supply their products for killing, leaving states to experiment on their inmates with other drugs, often acquired under cover of official secrecy and administered by authorities with no medical training. During a hearing last month on Oklahoma’s protocol, a state witness who testified that midazolam is effective appeared to rely on the website drugs.com, not scientific studies. It would all be a laughable farce if it didn’t involve killing people.
There is disingenuousness on both sides. Many who oppose the death penalty, this page included, are obviously not interested in identifying more “humane” methods of execution; the idea itself is a contradiction in terms. Nor are many capital punishment supporters concerned with how much suffering a condemned person might endure in his final moments. In the middle sit the armchair executioners who engage in macabre debates about the relative efficiency of, say, nitrogen gas.
It is time to dispense with the pretense of a painfree death. The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable. When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.
I love the phrase "armchair executioners," even though I could not help reacting with a classic "Taxi Driver" response.
Recent related posts:
- Oklahoma geared up to restart its machinery of death nine months after ugly execution
- Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)
- Seven years after Baze, Supreme Court takes up another lethal injection challenge
- The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"
Monday, January 26, 2015
The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"
The title of this post is drawn from the headline of this New York Times piece by Adam Liptak that highlights why the Supreme Court's decision on Friday to grant cert to review Oklahoma's execution protocol is so interesting and creates much death penalty drama for this coming week and the months ahead. Here is how the piece starts:
There are nine justices on the Supreme Court. It takes four votes to hear a case, but it takes five to stay an execution.
That can leave a lethal gap. A death penalty case can be important enough to claim a spot on the court’s docket of perhaps 75 cases a year. But the prisoner who brought it may not live to see the decision.
In agreeing on Friday to hear a challenge to the chemicals Oklahoma uses to execute condemned prisoners, the court brought fresh attention to the life-or-death importance of a single vote. The lead petitioner in Friday’s case, Charles F. Warner, was already dead. He was executed eight days earlier, after the Supreme Court refused to stay his execution. The vote was 5 to 4.
“What happened to Charles Warner was not an isolated glitch,” said Eric M. Freedman, a law professor at Hofstra University and the author of a new article on the court’s voting procedures in capital cases. “It was a typical, if high-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.”
The case the court agreed to hear used to be called Warner v. Gross, No. 147955. On Friday, taking account of Mr. Warner’s death, the court changed it to Glossip v. Gross, No. 147955. It may change again. The new lead petitioner, Richard Glossip, is scheduled to be executed on Thursday. The other two petitioners in the case also have execution dates in coming weeks, all of them well before the court is expected to hear arguments in the case, in April.
The Supreme Court did not say on Friday whether it would stay the other three executions. In a statement, Scott Pruitt, Oklahoma’s attorney general, made a pointed reference to the fact that it took only four votes to grant review. He seemed to indicate that the state was prepared to proceed with the executions.
The petitioners’ lawyers will doubtless seek stays. In Mr. Glossip’s case, they will have to act quickly. How the court responds will illuminate the current vitality of its fitful commitment to a procedure it sometimes uses to bridge the voting gap: the “courtesy fifth” vote to stay executions. Such votes are said to be available once the court makes a formal decision to grant review of a condemned prisoner’s case.
Recent related posts:
- Oklahoma geared up to restart its machinery of death nine months after ugly execution
- Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)
- Seven years after Baze, Supreme Court takes up another lethal injection challenge
High-profile capital trials put spotlight on dynamics of death-qualification of jurors
This new AP story, headlined "Death-qualified' juror search slows marathon, theater cases," effectively reviews the distinct notable realities that attend jury selection in a capital case. Here are some excerpts:
One prospective juror was brutally frank when asked whether he could consider a sentence of life in prison for the man accused of bombing the Boston Marathon. "I would sentence him to death," he said, then added: "I can't imagine any evidence that would change how I feel about what happened." Another prospective juror said he couldn't even consider the death penalty, telling the court, "I just can't kill another person."
The two men are on opposite sides of the capital punishment debate, but both unlikely to make it on the jury for the trial of Dzhokhar Tsarnaev: to be seated for a death penalty case a juror must be willing — but not eager — to hand down a sentence of either life or death.
The process of finding "death qualified" jurors has slowed down jury selection in federal case against Tsarnaev, who is charged with setting off two bombs that killed three people and injured more than 260 during the 2013 marathon. It is expected to do the same in the state trial of James Holmes, the man accused of killing 12 people and injuring 70 others in a suburban Denver movie theater in 2012.
The process is designed to weed out jurors who have strong feelings for or against the death penalty. A 1985 ruling from the U.S. Supreme Court said a juror can lawfully be excused if his views on the death penalty are so strong that they would prevent or substantially impair his ability to follow the law.
But death penalty opponents have long said the process is fundamentally unfair. They argue that death-qualified juries do not represent a true cross-section of the community and are less likely to be sympathetic to the defense. "You end up with a jury with less women, less blacks, less Democrats ... you end up with a jury that is skewed in ways that make it probably more conservative, more accepting of prosecution arguments, of state authority," said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization that opposes executions.
The Capital Jury Project, a consortium of university researchers, interviewed about 1,200 jurors in 353 capital trials in 14 states beginning in the early 1990s. The group's research has shown that death penalty juries are more likely to convict and that jurors often make up their minds about what punishment to hand down long before they're supposed to, said William Bowers, director of the project....
Death penalty opponents have argued that to get around this kind of pre-judgment, separate juries should be chosen to hear evidence in the guilt phase and the punishment phase. But that idea has not gained traction....
In the Holmes case, an unprecedented 9,000 jury summonses were mailed. As of Friday, 210 prospective jurors had been excused over four days. Individual questioning is set to begin next month. In the marathon bombing case, 1,373 people filled out juror questionnaires. Individual questioning of prospective jurors has been slowed as the judge has probed people at length about their feelings on the death penalty. The judge had originally said he hoped to question 40 jurors each day, but during the first five days only averaged about 15.
Capital punishment supporters say the current system of screening out strong pro- and anti-death penalty jurors is the only fair way to choose juries in death penalty cases. "The process simply says that jurors must be willing to abide by the law," said John McAdams, a Marquette University professor who supports the death penalty.