Monday, April 13, 2015

Tennessee Supreme Court postpones all scheduled executions while considering execution protocol

As reported in this AP piece, the "Tennessee Supreme Court postponed execution dates for four inmates, effectively halting all executions while the courts decide whether current protocols for putting people to death are constitutional." Here is more:

Tennessee last executed a prisoner in 2009. Since then, legal challenges and problems obtaining lethal injection drugs have stalled new executions. In 2013 and 2014, the state tried to jump-start the process with a new one-drug lethal injection method and the reinstatement of the electric chair as a backup.

Beginning in December 2013, the court set new execution dates for 11 inmates. One inmate died in prison, and the execution dates for the others have been postponed as they approach because of legal challenges to the new methods. On Friday, the court postponed the last of the scheduled execution dates. It will set new dates after the legal questions are settled....

Death row inmates challenging Tennessee's lethal injection method recently submitted an affidavit from University of Utah College of Pharmacy professor James H. Ruble that questions whether even a willing compounding pharmacist could provide the pentobarbital that Tennessee and several other states need for executions. Ruble says in the affidavit that the main ingredient for pentobarbital is unavailable from the six primary commercial sources that compounding pharmacists buy their ingredients from.

Tennessee last year reinstated electrocution as an alternative if lethal injection drugs are unavailable or a court rules the procedure unconstitutional. But that change has brought yet another legal challenge.

April 13, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Sunday, April 12, 2015

"Ending the Death Lottery"

The title of this post is the headline of this notable new article by William Berry III now available via SSRN. Here is the abstract:

When the Supreme Court reinstated the death penalty in 1976, it did so under the assumption that certain safeguards would remedy the arbitrariness of capital sentencing. Comparative proportionality review, in which the state supreme court would review jury sentences to ensure a modicum of consistency, was a central part of many states’ attempts to comply with the Eighth Amendment.  In Ohio, however, this safeguard is illusory; the state supreme court has never reversed a capital case on proportionality grounds, despite reviewing almost three hundred cases.

This Article explores this unfortunate phenomenon.  Using a quantitative methodology, this Article assesses the degree to which Ohio capital cases sentenced after the adoption of life-without-parole (between 1996-2011) are comparatively proportionate.

After finding that over forty percent of Ohio’s capital cases during that period were comparatively excessive, the Article argues that Ohio’s current use of the death penalty contravenes the Eighth Amendment and is therefore unconstitutional.  The Article then proposes two alternative remedies to solve this problem: (1) institute meaningful proportionality review with the aid of social science or (2) abolish the death penalty. Finally, the Article considers the consequences of this study for the almost two-thirds of death penalty states that use comparative proportionality review.

Part II of the paper briefly traces the requirements of the Eighth Amendment and the origins of proportionality review.  Part III describes Ohio’s use of proportionality review and explains why it is largely a matter of form over substance. Part IV presents the empirical study of Ohio’s capital cases from 1996-2011 and highlights its central conclusions.  Part V argues that these results show that Ohio’s capital system violates the Eighth Amendment.  Next, Part VI proposes ways to remedy the constitutional shortcoming.  Finally, Part VII explores the applicability of the study to the large majority of death penalty jurisdictions that currently use proportionality review.

April 12, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, April 11, 2015

Reviewing Massachusetts' "long and tortured history" with the death penalty

The AP has this notable new piece headlined "in Massachusetts, a Long and Tortured Death Penalty History." Here are excerpts:

Massachusetts hasn't executed anyone since 1947, but during most of its history it allowed capital punishment for crimes ranging from murder to witchcraft.  Jurors weighing whether Boston Marathon bomber Dzhokhar Tsarnaev should die under the federal death penalty statute or spend the rest of his life behind bars are the latest to do so in a state with a long and tortured history with execution:

Using death as a punishment was common in the state's earliest days.  In one notable case, Mary Dyer, was put to death in Boston in 1660 after she was banned by the Puritan leaders of the Massachusetts Bay Colony for being a Quaker. Dyer returned several times in defiance of anti-Quaker laws and was eventually hanged. A statue of Dyer sits in front of the Statehouse as a caution against religious intolerance.  Capital punishment reached a new fervor a few decades later, when 19 people were hanged and one person crushed to death during the 1692 Salem witch trials.

Perhaps the most infamous Massachusetts death penalty case of the 20th century focused on Italian immigrants and committed anarchists Nicola Sacco and Bartolomeo Vanzetti. The two were arrested several weeks after a payroll clerk and a security guard were shot and killed during an armed robbery at a Braintree shoe factory.  The 1921 trial drew international attention.  After they were convicted and sentenced to die in the electric chair, political dissidents, unionists, Italian immigrants and other supporters ... demonstrated across the United States and Europe arguing the two were targeted for their political beliefs and immigrant status.  They were executed in 1927.  The case still remains contentious....

In the decades after the Sacco and Vanzetti trial, the appetite for capital punishment began to wane in Massachusetts.  In 1947, the state carried out its last executions, putting convicted murderers Philip Bellino and Edward Gertson to death in the electric chair at Charlestown State Prison.  Although capital punishment remained legal, governors refused to sign death warrants over concerns that the penalty offered no more safety for the community than life in prison....

In 1975, the Massachusetts Supreme Judicial Court curtailed capital punishment, holding that a mandatory death sentence for rape-murder constituted cruel or unusual punishment in violation of the state constitution's Declaration of Rights.  In 1982, voters approved a constitutional amendment that would have restored the death penalty and the governor signed a new law also reinstating capital punishment in certain cases.  In 1984, the court ruled that law unconstitutional saying it impermissibly burdened a defendant's right against self-incrimination and trial by jury.  The ruling effectively banned the death penalty.

In the 1990s there was a new push to revive the death penalty spearheaded by a series of Republican governors.  The effort gained momentum following the 1997 abduction and murder of 10-year-old Jeffrey Curley by two men who later received life sentences.  A death penalty bill filed in the wake of Curley's murder failed after a single lawmaker switched his vote during reconsideration.

In 2005 former Gov. Mitt Romney unveiled what he called the "gold standard for the death penalty in the modern scientific age" that would bring back capital punishment for people convicted of terrorism, multiple murders and killing law enforcement officers, using conclusive scientific evidence to ensure only the guilty were executed.  The bill failed.

April 11, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, April 10, 2015

Penalty phase in Boston Marathon bombing capital trial scheduled to start April 21

As reported in this NBC News piece, the "penalty phase in the federal trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev will begin on April 21, a judge ordered Friday." Here is more:

The jury has been asked to come to court next week — on April 14 — to receive a brief set of instructions. This year's Boston Marathon will be held on April 20. "The defendant has requested that the penalty phase commence in approximately two weeks so as to, among other things, allow the defendant additional time to resolve outstanding logistical issues with a number of potential witnesses. It is not uncommon for there to be a brief recess between phases in a capital case," Judge George O'Toole said in the order.

Tsarnaev, 21, was convicted for his role in the April 15, 2013, twin bombings that killed three people and injured 260 others at the Boston Marathon — the worst terror attacks on American soil since 9/11. A jury found him guilty Wednesday on all 30 criminal counts. Seventeen of the 30 counts carry the possibility of the death penalty.

This related NBC News piece has some interesting poll data reported under the headline "Americans Divided Over Death For Boston Bomber Dzhokhar Tsarnaev, Poll Finds."

Recent related post:

April 10, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, April 08, 2015

Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"

The quoted portion of the title of this post is the headline of this New York Times report on the outcome of the guilt phase of the on-going capital trial of the Boston Marathon Bomber, and the preamble to that quote is my (pithy?) commentary about what this means. Here are the basics on what has happened so far and what is still forthcoming:

In the silent well of Courtroom Nine, a clerk read out the verdicts: Guilty. Guilty. Guilty. The word echoed in the courtroom as the clerk pronounced it 30 times, once for each of 30 counts.

By the end of the 25­minute roll call of charges, a federal jury here had left no doubt how thoroughly it sided with the government against Dzhokhar Tsarnaev in connection with the 2013 bombings at the Boston Marathon. Mr. Tsarnaev, 21, a failing college student and the youngest child in a dispersed immigrant family, stood without expression, his arms folded in front of him, flanked by his lawyers.

The verdicts set the stage for a second, more contentious phase of the trial in which the same jury will decide whether to sentence Mr. Tsarnaev to life in prison or death....

There was little doubt that the jury would find Mr. Tsarnaev guilty of most charges; his lawyers have admitted that he had been involved in the bombings, and they put on a minimal defense, calling four witnesses who testified for five hours. The government, by contrast, called 92 witnesses over 15 days. Still, in the first phase of the trial, the defense laid the groundwork for the sentencing phase, casting their client as subordinate to his older brother, Tamerlan, and less culpable for the crimes. The defense team’s goal now is to explain mitigating factors in hopes that jurors will sentence Mr. Tsarnaev to life in prison.

After the verdict was read, the judge, George A. O’Toole Jr. of Federal District Court here, told the jurors that the case would proceed to a second, penalty phase that could begin as early as next week. He cautioned the jurors that they were still “an active jury, subject to your oath,” and to not discuss the case with anyone....

The defense hopes to present mitigating circumstances that show him as less culpable than his brother. It will flesh out details of Mr. Tsarnaev’s life and family history, which includes his forebears being expelled by Stalin from Chechnya in 1944 and ending up in Kyrgyzstan. His family settled in Cambridge, Mass., in 2002. As his parents divorced and returned to Russia, Mr. Tsarnaev, who became an American citizen on Sept. 11, 2012, fell increasingly under the sway of his older brother.

Just as defense lawyers seek to impress the jurors with the reasons they should spare Mr. Tsarnaev’s life, the prosecution will impress upon them the consequences of his murderous actions. Survivors of the blasts and the families of victims are expected to testify in this next phase, as they did in the first, this time detailing the physical and emotional effects of the bomb blasts on their lives. Others are expected to discuss how the crime gripped the Boston area in fear for five days.

This news broke as I was teaching my sentencing class this afternoon, and I predicted that defense attorneys may urge that the penalty phase of the trial not begin until May, at the earliest, partially because next week will mark the two-year anniversary of the bombing and the following week is when next Boston Marathon is schedules. I suspect the defense will contend that these realities create too much of a prejudice risk if the penalty phase starts ASAP, and I think it is possible federal prosecutors might not oppose any requested delay in order to avoid creating another possible appellate issue if the jury returns a death verdict.

April 8, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Larry Flynt hustles his way into Missouri litigation over lethal injection

As reported in this local article, headlined "Larry Flynt can intervene in lawsuit to unseal execution protocol records, appeals court rules," a notable publisher is now able to be a player in on-going Missouri lethal injection litigation. Here are the details:

A three-judge U.S. appeals court panel ruled Tuesday that pornographic magazine publisher Larry Flynt has a right to join death row inmates in lawsuits seeking to reveal the state of Missouri’s execution protocols. Several media and consumer watchdog groups interested in lawsuits with potential consequences for government transparency had filed briefs to support him.

Flynt, the iconic publisher of the magazine Hustler, invoked a First Amendment right to view sealed documents that might identify an anesthesiologist on the state execution team. That information is confidential under Missouri law. In a separate case, he also asserted a right to view docket entries that were sealed without explanation in a suit challenging the legality of Missouri’s execution protocol. Both lawsuits failed, but if Flynt wins his bid to unseal the documents, the public can get a look at the factors considered by the federal courts.

Flynt argued he had an interest because he was one of the victims of white supremacist Joseph Paul Franklin. Missouri executed Franklin in November 2013 for the 1977 sniper killing of Gerald Gordon, 42, outside a Richmond Heights synagogue. Franklin, upset that Hustler published pornographic images of an interracial couple, also shot Flynt on the steps of a Georgia courthouse in 1978, paralyzing him. Flynt had advocated that Franklin be punished by spending the remainder of his life in prison, rather than be killed by the state and put out of his misery.

Nanette Laughrey, a judge in the Western District of Missouri, had denied Flynt’s petition with a one-sentence order: “A generalized interest in a subject of litigation does not justify intervention.” But the appeals court panel ruled the lower court had applied an incorrect legal standard in denying Flynt. It sent the case back to U.S. District Court to consider Flynt’s bid to unseal records....

Organizations signing briefs in support of Flynt’s intervention included the New York Times, the Washington Post, Politico and the Missouri Press Association, whose members include 250 newspapers, including the Post-Dispatch. Public Citizen, a consumer watchdog group founded by Ralph Nader, also added its support....

“The public needs to know what is being done in its name and these judicial records will answer a lot of questions that we and members of the media have been asking,” Tony Rothert, legal director of the ACLU of Missouri, said in a prepared statement.

April 8, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, April 06, 2015

"Does the Death Penalty Require Death Row? The Harm of Legislative Silence"

The title of this post is the title of this interesting new article by Marah Stith McLeod now available via SSRN. Here is the abstract:

This Article exposes two flawed assumptions about death row in leading scholarship and judicial opinions.  The first flawed assumption is that death row is an inevitable consequence of a death sentence.  The second flawed assumption is that prison administrators should be entrusted with the decision whether to retain death row.

The Article will show that death row cannot be justified on prison security grounds, but, contrary to the claims of some scholars, it may be justified for other punishment purposes. Using extensive state-by-state research, the Article shows that in most jurisdictions, harsh death row conditions result not from statutory commands, but from discretionary administrative policies.  This Article argues that legislatures, not prison administrators, should decide whether death row is a necessary aspect of capital punishment, for two reasons.  Prison administrators may not be able to assess objectively whether death row serves legitimate purposes, because of their roles in the execution process.  More importantly, legislatures and not prison administrators have the duty to decide whether punishment is just.

If death row is to be tethered by law to a death sentence, then this legal tether should be drawn by statute, after public deliberation and debate, and not by administrative fiat.  If legislatures conclude that the death penalty does not require death row, then they must forbid prison administrators from so augmenting the sentence for a capital crime.

April 6, 2015 in Death Penalty Reforms, Prisons and prisoners, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, April 02, 2015

Amnesty International reports on death penalty administration around the world

Via this webpage, Amnesty International provides a report in multiple languages on what it can confirm about the use of the death penalty throughout the world in 2014.  This AI blog posting, headlined "Death Penalty: 607 executions – the story behind the numbers," provides some highlights from the report and some backstory:

The numbers behind our latest overview of the global use of the death penalty, released today, tell a chilling story: 607 people were executed in 22 countries and at least 2,466 men and women were sentenced to death in 55 countries in 2014 alone. But, alarming as they are, the figures paint a partial picture of the true extent to which people are hanged, shot or given the lethal injection across the world.

The reality is likely to be much gloomier but many governments refuse to come clean about how many people they kill each year. In countries such as Eritrea, Malaysia, North Korea and Syria, very little information about the use of the death penalty is available due to restrictive state practice or political instability.

In others, such as Japan, executions are carried out without notice, and prisoners are left waiting on death row every day wondering if it will be their last. In Belarus, the only country in Europe to still use the death penalty, family members of executed prisoners usually only find out the fate of their loved ones when they visit them at the prison only to be told their relative is no longer there.

China, the country believed to execute more individuals than the rest of the world put together, considers information about the death penalty a “state secret”, just like Vietnam. The Chinese authorities have claimed that the number of executions in the country has decreased since the Supreme People’s Court began reviewing all death penalty cases in 2007. Unfortunately, this claim is impossible to corroborate....

That is the “glass half empty”. But the story does not end there. Despite the alarming number of people sentenced to death and executed, most of the world is moving in the right direction - away from the ultimate punishment.

In 2014, the number of recorded executions dropped by almost 22% in comparison to 2013. Fewer executions were recorded in all regions, except Europe and Central Asia, in 2014 than in 2013.

In 1945, when the United Nations was founded, only eight countries had abolished the death penalty. Today 140 states are abolitionist in law or practice.

April 2, 2015 in Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, April 01, 2015

Should the Supreme Court reflect the country's "disenchantment with capital punishment"?

The question in the title of this post is prompted by this notable new New York Times commentary by Linda Greenhouse headlined "The Supreme Court's Death Trap."  Here are excerpts:

You wouldn’t know it from the death penalty proceeding about to take place in the Boston Marathon case, or from Utah’s reauthorization of the firing squad, or the spate of botched lethal injections, but capital punishment in the United States is becoming vestigial.

The number of death sentences imposed last year, 72, was the lowest in 40 years. The number of executions, 35, was the lowest since 1994, less than half the modern peak of 98, reached in 1999.  Seven states, the fewest in 25 years, carried out executions.

California has the country’s biggest death row, with more than 700 inmates.  Many more of them die of natural causes — two since mid-­March — than by execution.  Last July, a federal district judge, Cormac J. Carney, concluding that California’s death penalty had become “dysfunctional,” “random” and devoid of “penological purpose,” declared it unconstitutional; the state is appealing.

But if there’s one place that seems to stand apart from the tide of disenchantment with capital punishment, it’s the Supreme Court....

Adam Liptak, the Supreme Court correspondent for The Times, has highlighted the disturbing way the court handled a challenge to Missouri’s lethal­-injection protocol back in January: first, over four dissenting votes, permitting the state to execute Charles F. Warner, one of four inmates who had filed appeals, only to agree a week later to hear the appeals of three identically situated inmates.  The court then granted stays of execution to the three and will hear their case, Glossip v. Gross, on April 29....

A Texas death­-row inmate, Lester Leroy Bower Jr., managed to win a stay of execution in February to enable the justices to decide whether to hear his challenge to the state courts’ handling of his mitigating evidence.  Last week, the Supreme Court turned down his appeal, thus dissolving the stay, over the dissenting votes of Justices Breyer, Ginsburg and Sotomayor; Justice Breyer, not given to overstatement, wrote that “the error here is glaring.” Since at least two others must have voted for the stay, where were they? Perhaps after carefully considering the merits of Mr. Bower’s appeal, they found itinsufficient. Fair enough. But shouldn’t they have felt moved to tell us something — anything?

An argument on Monday was simply dispiriting. A Louisiana inmate, Kevan Brumfield, with an I.Q. of 75, was sentenced to death before the Atkins decision barred the execution of mentally disabled people.  At trial, his lawyer had presented some evidence of his disability, but not in the detail a court would expect in the post-­Atkins world.  The question for the justices in Brumfield v. Cain was whether he should have received a new hearing. The obvious answer would seem to be: Of course, why on earth not?  But the justices seemed more concerned about whether Mr. Brumfield and his lawyer were trying to game the system.

In 2008, two years before he retired, Justice John Paul Stevens renounced the death penalty.  His nuanced opinion in Baze v. Rees rewards rereading.  No current justice has taken up the call. I’m not so naïve as to predict that a majority of the Supreme Court will declare the death penalty unconstitutional anytime soon.  But the voice of even one member of the court could set a clarifying marker to which others would have to respond. And it just might over time point the way to freeing the court — and the rest of us — from the machinery of death.

April 1, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, March 31, 2015

Another pharmacy group expresses opposition to involvement in executions

As noted in this prior post, last week a trade group for compound pharmacists has discouraged its members from preparing or dispensing drugs for executions.  Now, as reported in this new NBC News article, the "American Pharmacists Association voted Monday to oppose participation in executions, declaring that helping put prisoners to death violates the goals and oath of the profession." Here is more about these developments:

Neither policy is binding, but they could dissuade specialty pharmacists — now the only source for lethal injections in many states — from selling their products to prisons for executions. "It adds to the difficulty," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports capital punishment. "It's unfortunate that groups such as this would allow themselves to be dragged into a political dispute."

But Corinna Lain, a professor at the Richmond School of Law, said it has more to do with the bottom line. With just 35 executions across the country last year, lethal injections are not a big profit center. "The cost of these drugs has skyrocketed from something like $83 a vial to $1,200 to $1,500 a vial. But that's still a drop in the bucket for a pharmacy's total sales. And look at the downside — the negative publicity is tremendous. Executions are bad for business for compounding pharmacies for the same reason they were bad for business for the pharmaceutical companies."...

Scheidgger said he hopes that at least a few compounding pharmacies will buck the trade groups and continue to sell their products to prisons until a new source is found. "I expect states will eventually find a supply and this problem will go away," he said.

March 31, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, March 30, 2015

California and Ohio facing capital congestion without a functioning execution chamber

Theses two local stories concerning death row realities in two states strike a similar note:

From California here, "California's death row, with no executions in sight, runs out of room." This story starts this way:

With no executions in nearly a decade and newly condemned men arriving each month, the nation's largest death row has run out of room.  Warning that there is little time to lose, Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison.  The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.

California's death penalty has been the subject of a decade of litigation. One case led to a halt to executions in 2006. Another resulted in a federal judge's ruling last July that the state's interminably slow capital appeals system is unconstitutionally cruel.  Through it all, the death row population has grown from 646 in 2006 to 751 today.

From Ohio here, "Backup of killers awaiting execution is building."  This story starts this way:

Midway through Ohio’s two-year death penalty moratorium, a backup of men awaiting execution is building.  There are 20 inmates either scheduled for execution or for whom prosecutors are seeking execution dates from the Ohio Supreme Court, according to the Capital Crimes Annual Report released today by Attorney General Mike DeWine. [The report also indicates 145 murderers are on Ohio's death row now.]

Especially because no state other than Texas ever shown a consistent ability to conduct more than 10 executions in any given year, these data necessarily mean many years (and likely many decades) will be needed to actually carry out a significant number of imposed capital punishments in these states when (if?) these states get their death machineries operating again.

March 30, 2015 in Baze lethal injection case, Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

SCOTUS grants cert on collection of capital cases from Kansas

The state of Kansas has not carried out a death sentence since 1965.  But even though the Sunflower state has not truly utilized its system of capital punishment for a full half-century, the Supreme Court apparently believes it is important to review three capital cases from the state as evidenced by its cert grants this morning in Kansas v. Jonathan Carr, Kansas v. Reginald Carr and Kansas v. Sidney Gleason.

This AP article provides this summary of the underlying crimes and defendants whose cases are now before the Justices:

The Supreme Court agreed Monday to hear Kansas' appeal to reinstate death sentences for two brothers in the fatal shootings of four people and for another man convicted of killing a couple.

The justices said they will review rulings by the Kansas Supreme Court that threw out the sentences of Jonathan and Reginald Carr and Sidney Gleason. The Kansas court hasn't upheld a death sentence since the state enacted a new capital punishment law in 1994. The state's last executions, by hanging, took place in 1965.

The Carr brothers were sentenced to death for the four killings, which occurred in Wichita in December 2000 and followed dozens of other crimes, including robbery and rape. Gleason was sentenced to die over the couple's deaths, in the central Kansas town of Great Bend in February 2004.

March 30, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, March 29, 2015

Previewing the little SCOTUS capital case examining what procedure Atkins may require

On the last Monday of March 2015, the only case being heard by the U.S. Supreme Court is a quirky capital case from Louisiana, Brumfield v. Cain, which appears only to concern the process by which a state rejects a defendant's claim that he is intellectually disabled and thus prohibited from execution after Atkins.  Here are the questions presented:

(1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Lyle Denniston provides this SCOTUSblog preview, which notes that the lone amicus brief filed in this case highlights that Louisiana's "state courts have now established procedures for fully evaluating a mental disability claim, making Brumfield’s case an aberration."  In short, it seems unlikely that the Brumfield case will be of great consequence for anyone other than killer Kevin Brumfield. But one never knows what the Justices will do with a capital case.

March 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, March 28, 2015

Should states try harder to condemn and execute women to overcome death penalty's sexism?

The question in the title of this post is prompted by this notable new commentary about the Jodi Arias case headlined "Why the death penalty in America is sexist." Here are excerpts:

It took only one juror to spare Jodi Arias the death penalty for the brutal murder of her ex-boyfriend Travis Alexander in 2008. Considering the United States has executed only 13 women in the last 40 years, a death sentence would have been highly unusual.

Women committed less than 10% of all murders in America between 2000 and 2010, a Wall Street Journal analysis of crime data found. Women defendants, however, only make up 2% of death row, according to a recent report by the NAACP.

Even fewer women actually get executed, Death Penalty Information Center executive director Richard Dieter told Business Insider. "There's just less enforcement of the death penalty at almost every stage for females," he said.

Two major factors contribute to the low number of women who get capital punishment: the nature of the crime and how juries view women in general. The death penalty is often used for killers who also commit other felonies like robbery or rape, law professor Victor Streib has previously told the LA Times. Many of the murders women commit, on the other hand, involve people they're related to.

While women commit about 10% of murders, they were responsible for 35% of murders of intimate partners between 1980 and 2008. Most juries consider these crimes of passion arising from disputes — one-time offenses, Dieter said. Because of the high rate of domestic violence against women, though, juries don't give men the same benefit of the doubt.

On the other hand, most states consider killing a child an aggravating factor, or a reason for prosecutors to seek the death penalty. Hiring someone to do the work could also land a woman on death row. "If a woman hires someone, there's a coldness, a calculation. It's different than something that arises out of an argument," Dieter said. Teresa Lewis, for example, plotted to kill her husband and stepson for the insurance money. "Instead of pulling a trigger on a gun, she pulled a couple of young men in to pull the trigger for her," prosecutor David Grimes told a judge at the time, The Washington Post reported. She was the first woman Virginia sentenced to die in more than 100 years.

But the second factor — the jury's perception of the "fragile" female psyche — can overpower aggravating factors. "It's just easier to convince a jury that women suffer emotional distress or other emotional problems more than men," Streib told the LA Times....

"These 12 people [the jury] are asked to see if this person has any redeeming qualities. And they often see their own mother or wife or grandmother, not someone who will continue to be a threat to society," Dieter said. "Jurors just see women differently than men."

Of course, most women aren't going to argue for gender parity in the death penalty, Dahlia Lithwick has written in Slate. Only 59% of women favor the death penalty compared to 67% of men, according to a 2013 Gallup poll. "For equality's sake, you think that women would want the death penalty pursued more often," Dieter said. "But of course, they don't."

March 28, 2015 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, March 27, 2015

Has modern "death penalty politics radically, shockingly changed"?

The question in the title of this post is prompted by this new Salon piece which carries this full headline: "'We’re seeing it among Evangelicals': How death penalty politics radically, shockingly changed." The piece reports on an interview with National Coalition to Abolish the Death Penalty executive director Diann Rust-Tierney, and here is how the Q&A is introduced:

The recent release of Debra Milke, an Arizona woman who spent 23 years on death row for a crime she did not commit, is first and foremost a tragic story of injustice. But it’s something else, too: another arresting example of how the reality of the criminal justice system in the U.S., which has come under increasing scrutiny in recent years, falls well short of its supposed intentions. As Supreme Court Justice Anthony Kennedy, who was appointed by law-and-order drug warrior Ronald Reagan, told Congress earlier this week, the system is, “[i]n many respects … broken.”

Politicians on both sides of the aisle are more willing to discuss making serious changes to American justice than they have been in more than a decade, but one of the most stark and disturbing manifestations of the system’s flaws still often goes unmentioned. We’re thinking, of course, about the death penalty. But if one considers the great attention paid by the media and the public to recent botched executions in Oklahoma and Arizona — as well as Utah’s decision to bring back firing squads — there’s reason to think that, too, may soon change.

Recently, Salon spoke over the phone with National Coalition to Abolish the Death Penalty executive director Diann Rust-Tierney about her group’s work and the changing politics of capital punishment.

March 27, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, March 25, 2015

Are compounding pharmacies likely to cut off drug dealing to states for executions?

The question in the title of this post is prompted by this notable Wall Street Journal article headlined "Compound Pharmacists Trade Group Discourages Supplying Execution Meds." Here are excerpts:

As more states turn to compounding pharmacies to supply medicines for executions, the leading trade group for compound pharmacists is now discouraging its members from preparing or dispensing drugs for this purpose.

The move reflects growing concern among some compound pharmacists that some states – in response to ongoing controversy over the supply of drugs for lethal injections – may decide to alter regulations in ways that would cause pharmacists to face legal problems, according to the International Academy of Compounding Pharmacists. “We have concerns about what may occur,” says David Miller, the IACP chief executive. The trade group represents approximately 3,700 pharmacists who compound medicines, a process that involves customizing ingredients for a specific use.

Separately, the American Pharmacists Association will also consider adopting a similar position at a meeting that begins later this week, according to an official of the trade group, which represents about 62,000 pharmacists nationwide. The vast majority of APA members work for traditional pharmacies that dispense medicines manufactured by drug makers.

Until now, the IACP had not taken any position on supplying drugs for executions, but adopted this new stance after a growing number of drug makers began restricting the use of their medicines for executions. At least nine drug makers have formally taken this step, according to Reprieve, an advocacy group in the U.K. that has been pressuring companies to withhold their medicines for executions.

As a result, more states have gradually turned to compound pharmacies to supply drugs for lethal injections. To date, nine states have either used or indicated they intend to use compounded medicines for lethal injections, according to the Death Penalty Information Center....

Currently, pharmacists are permitted by law to dispense medications for executions if a licensed doctor writes a legitimate prescription, says Carmen Catizone, the executive director of the National Association of Boards of Pharmacy, which represents the state boards, the government agencies that regulate pharmacy practice. At the moment, he says there is no indication that any state legislature is considering a change to its regulations that might pose legal problems for pharmacists.

However, he explains that new policy statements may attract attention from state boards, especially given ongoing controversy over executions and the availability of medicines. “For any change in regulations or rule, the state boards would have to take action.” says Catizone, “But a change in policy can be significant because it may prompt our members to take a closer look at an issue.”

For his part, Miller says the IACP is concerned that state boards may decide to consider such action and, as a result, its members could eventually face legal action. “We definitely think it’s a possibility,” he says. At the same time, the trade group also worries pharmacists who supply drugs may face harassment if their identities become known. The IACP points to a recent episode in Tennessee where the name of a compound pharmacist was inadvertently disclosed. The IACP notes that nearly a dozen states are considering legislation to provide confidentiality.

March 25, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 24, 2015

"The Executioners' Dilemmas"

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

Despite several prominent recent botched executions, states usually resist external pressure to improve their lethal injection procedures. This symposium contribution explores why states fail to address lethal injection’s systemic risks and, relatedly, why they so vigorously resist requests to disclose execution procedure details.

This analysis is necessarily speculative; it is impossible to know for certain what drives states’ behavior in this area, and motivations likely differ from state to state and from official to official. That said, a constellation of epistemic, structural, strategic, and political factors likely shape much official behavior in this area.

Examining those factors more closely can help us better understand why so many states have acted so irresponsibly in designing and implementing their lethal injection procedures. Of course, these explanations hardly excuse states’ frequent indifference to the risk of pain their execution procedures create. Collectively, however, they help shine important light more generally on why state officials sometimes seem insensitive to constitutional values.

March 24, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, March 23, 2015

"WBUR Poll: Most In Boston Think Tsarnaev Should Get Life In Prison Over Death Penalty"

0323_dems-copy-620x363The title of this post is the headline of this intriguing new press report on an intriguing new poll about an on-going federal capital case.  Here are the basics: 

As the trial of Dzhokhar Tsarnaev moves ahead, a new WBUR poll (topline, crosstabs) finds most Boston residents believe the admitted Boston Marathon bomber should receive life in prison instead of the death penalty if convicted.

In a survey of 229 registered Boston voters, 62 percent said Tsarnaev should be sentenced to life in prison without the possibility of parole, while 27 percent said he should receive the death penalty. That preference held true for the broader Boston area, defined as communities inside and along Route 128 — but the margin is slimmer. Of 504 registered Boston area voters surveyed by telephone March 16-18, 49 percent think Tsarnaev should get life in prison, while 38 percent feel he should be sentenced to death....

Across different demographics, the preference for punishment varied a bit more. Men were more in favor of the death penalty in this case than life in prison, while women more strongly favored life in prison over the death penalty. Across all age groups, more people felt Tsarnaev should be sentenced to life in prison rather than the death penalty — but the widest margin was among young people ages 18 to 29, where 55 percent chose life in prison and 32 percent chose the death penalty.

Among minorities, there was also a wide margin — 64 percent believe Tsarnaev should be sentenced to life in prison, while 25 percent think he should get the death penalty. Among whites, 46 percent chose life in prison and 41 percent chose the death penalty.

Kozcela said the findings across demographics are also in line with partisan views on the death penalty. “The groups that tend to lean more Democrat also tend to be more opposed to the death penalty,” he said.

Ultimately, Tsarnaev’s fate will be decided by a jury. But the demographics of that jury is an issue defense attorneys raised in February, in their second attempt to get the case dismissed. Tsarnaev’s lawyer’s argued that the jury — which is all white and made up of eight men and 10 women — wasn’t diverse enough. (Twelve of those jurors will determine the final verdict.) Defense attorneys took issue with the way potential jurors were reordered when the final jury pool was summoned to fill out questionnaires. The defense argued the renumbering pushed African-Americans, young people and Boston residents — groups our poll shows favor life in prison over the death penalty — down the list of potential jurors, decreasing their chances of being seated on the jury.

Judge George O’Toole Jr. denied the defense’s motion in early March. The defense also tried unsuccessfully four times to get the trial moved out of Boston, arguing they could not get a fair trial here. However, as our poll shows, most Boston residents prefer to give Tsarnaev life in prison — a position the defense hopes the jury will take....

So far in the trial, the prosecution has been laying out its case against Tsarnaev with graphic videos and photos, emotional victim testimony and evidence gathered from Watertown and the Tsarnaevs’ residences. Once the prosecution wraps up its case, the defense will present its case. The defense already admitted Tsarnaev carried out the bombing, but they are trying to save his life by convincing the jury he was influenced by his older brother.

March 23, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Three Justices lament SCOTUS failure to do death-penalty error correction in Texas case

Though the big Supreme Court sentencing news today is the cert grant in another Miller retroactivity case from Louisiana (basics here), also notable for sentencing fans is this dissent from the denial of certiorari in a Texas capital case authored by Justice Breyer (joined by Justices Ginsburg and Justice Sotomayor). Here are snippets from the start and end of the opinion:

On April 28, 1984, petitioner Lester Leroy Bower was convicted in a Texas court of murdering four men. Each of the four men had been shot multiple times. Their bodies were left in an airplane hangar, and an ultralight aircraft was missing.

The State sought the death penalty. Bower introduced evidence that was, in his view, mitigating. He noted that he was 36 years old, married, employed full-time, and a father of two. He had no prior criminal record. Through the testimony of Bower’s family members and friends, the jury also heard about Bower’s religious devotion, his commitment to his family, his community service, his concern for others, his even temperament, and his lack of any previous violent (or criminal) behavior.

At the time of Bower’s sentencing, Texas law permitted the jury to consider this mitigating evidence only insofar as it was relevant to three “special issues”...

[The] Texas Court of Criminal Appeals believed that the use of the special issues proceeding in Bower’s sentencing proceeding did not constitutionally entitle him to resentencing.

Bower now asks us to grant certiorari and to reverse the Texas Court of Criminal Appeals. In my view, we should do so. Penry’s holding rested on the fact that Texas’ former special issues did not tell the jury “what ‘to do if it decided that [the defendant] . . . should not be executed’” because of his mitigating evidence. Abdul-Kabir v. Quarterman, 550 U.S. 233, 256 (2007) (quoting Penry, supra, at 324). Bower’s sentencing procedure suffered from this defect just as Penry’s did. The distinction that the Texas court drew between Penry’s and Bower’s evidence is irrelevant. Indeed, we have expressly made “clear that Penry . . . applies in cases involving evidence that is neither double edged nor purely aggravating, because in some cases a defendant’s evidence may have mitigating effect beyond its ability to negate the special issues.” 550 U.S., at 255, n. 16. The trial court and the Fifth Circuit both recognized that Bower’s Penry claim was improperly rejected on that basis.

The Constitution accordingly entitles Bower to a new sentencing proceeding.  I recognize that we do not often intervene only to correct a case-specific legal error.  But the error here is glaring, and its consequence may well be death.  After all, because Bower already filed an application for federal habeas relief raising his Penry claim, the law may bar him from filing another application raising this same issue.  See 28 U.S.C. §2254(b)(1). In these circumstances, I believe we should act and act now.  I would grant the petition and summarily reverse the judgment below.  I dissent from the Court’s decision not to do so.

March 23, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, March 22, 2015

Pope Francis categorically condemns death penalty as "inadmissible" in today's world

As reported in this piece from Vatican Radio, which describes itself the "voice of the Pope and the Church in dialogue with the World," Pope Francis spoke about capital punishment during a meeting with members of an international anti-death penalty group. Here are details:

Capital punishment is cruel, inhuman and an offense to the dignity of human life. In today's world, the death penalty is "inadmissible, however serious the crime" that has been committed. That was Pope Francis’ unequivocal message to members of the International Commission against the death penalty who met with him on Friday morning in the Vatican.

In a lengthy letter written in Spanish and addressed to the president of the International Commission against the death penalty, Pope Francis thanks those who work tirelessly for a universal moratorium, with the goal of abolishing the use of capital punishment in countries right across the globe.

Pope Francis makes clear that justice can never be done by killing another human being and he stresses there can be no humane way of carrying out a death sentence. For Christians, he says, all life is sacred because every one of us is created by God, who does not want to punish one murder with another, but rather wishes to see the murderer repent. Even murderers, he went on, do not lose their human dignity and God himself is the guarantor.

Capital punishment, Pope Francis says, is the opposite of divine mercy, which should be the model for our man-made legal systems. Death sentences, he insists, imply cruel and degrading treatment, as well as the torturous anguish of a lengthy waiting period before the execution, which often leads to sickness or insanity.

The Pope ... makes quite clear that the use of capital punishment signifies “a failure” on the part of any State. However serious the crime, he says, an execution “does not bring justice to the victims, but rather encourages revenge” and denies any hope of repentence or reparation for the crime that has been committed.

March 22, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (6) | TrackBack