Wednesday, April 22, 2015

Is there a "growing movement against death penalty – on the right"?

The question in the title of this post is prompted by this notable new press article with this full headline: "Nebraska highlights growing movement against death penalty – on the right: Seventeen Republican lawmakers seek abolition of capital punishment in the state as Christians, conservatives and libertarians band together for change." Here are excerpts:

A growing coalition of Christian, fiscally conservative and libertarian lawmakers are pushing to repeal the death penalty in some of America’s reddest states. And after years of working against state-sponsored executions, historically a Democratic platform, some conservatives say they believe the efforts are gaining traction.

The push for reform was on full display last week in Nebraska, as 17 Republican lawmakers in the one-house legislature advocated for passage of abolition bill LB268. “I know many of you, when you went door to door, you said to the constituent you talked to: ‘You send me to Lincoln, [Nebraska,] and when I get down there I’m going to find government programs that don’t work, and I’m going to get rid of them,’” Senator Colby Coash told fellow lawmakers. “And that’s exactly what LB268 does … We can get justice without this method.”

The bill passed its first hurdle with a 30 to 12 vote in favor of repeal, potentially enough to override Republican governor Pete Ricketts’ veto threat. Two more successful votes are needed to send the bill to the governor’s desk, and there is strong opposition, including filibuster threats, to overcome. Still, conservative advocates said they believe it is one of the most promising developments in decades.

“We’re probably in the best position we’ve been in since the bill passed in 1979,” said Stacy Anderson, the conservative executive director of Nebraskans for Alternatives to the Death Penalty, about the last time the state’s legislature passed an abolition bill. “From the conservative standpoint, the death penalty fails on all of our core values.”...

Republicans are still the most likely group to support capital punishment, with 77% in support of the death penalty. Still, conservative activists point to the 10% decrease in Republican support over 20 years, growing support for life without parole as an alternative to the death penalty, and the issue’s low priority ranking among voters.

The most widely cited reasons for opposing the death penalty seem in line with some of the most fervent strains of American Republicanism: fiscal conservatism, pro-life principles and small government ideals. And with increasing scrutiny on states that continue to execute prisoners despite a shortage of lethal injection drugs, the issue appears poised to continue to attract attention.

“It’s a government program that risks innocent life, costs more than the alternative, and is certainly not about limited government,” said Marc Hyden, an outreach specialist with Conservatives Concerned About the Death Penalty. “When I’m first speaking, I think conservatives give me kind of a weird look,” said Hyden. “But about halfway through the presentation, it starts clicking with them – that this is a program that just doesn’t mesh with conservative ideals.”

The campaign has seen growing interest in red states such as Georgia, Kentucky, Kansas and Tennessee, both Hyden and abolitionists said.

In Montana, a fiercely conservative state, a death penalty abolition bill made it out of the House judiciary committee for the first time perhaps ever, according to death penalty abolition advocates there. “I was shocked,” Moore told the Missoulian. “I didn’t expect it to come out of committee.” At the time that the bill passed to the floor, a stunned Moore described it as having “a tiger by the tail”. The abolition bill failed in a vote on the house floor, but many see its progress out of the judiciary committee as nothing short of stunning. “We were very excited,” said Jennifer Kirby about the bill’s progress. “It’s about time.”

April 22, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, April 20, 2015

Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?

As highlighted by this new AP article, headlined "Bombing trial enters penalty phase amid life or death debate,"the real legal intrigue surrounding the capital trial of the Boston Marathon bombing is about to begin:

The guilt phase of Boston Marathon bomber Dzhokhar Tsarnaev's trial was considered a slam dunk for prosecutors, especially after his lawyers bluntly admitted during opening statements that he participated in the deadly 2013 attack. But the outcome of the next phase of the trial is much more difficult to predict. The same jury must decide whether Tsarnaev, 21, should be put to death or spend the rest of his life in prison. The penalty phase begins Tuesday in U.S. District Court.

Debate over whether Tsarnaev should get the death penalty intensified recently after the parents of Martin Richard, an 8-year-old boy who was killed in the bombings, urged federal authorities to consider taking death off the table in exchange for Tsarnaev spending the rest of his life in prison and giving up his rights to appeal....

A married couple who lost limbs in the attack also asked the U.S. Justice Department not to pursue the death penalty. "If there is anyone who deserves the ultimate punishment, it is the defendant. However, we must overcome the impulse for vengeance," Jessica Kensky and Patrick Downes said in a statement to the Globe Sunday....

Others have said they favor the death penalty for Tsarnaev. Liz Norden, whose two adult sons each lost a leg in the bombings, said nothing short of execution is warranted. "He destroyed so many families that day," she said. "I want the ultimate justice."

Legal experts differ on whether the pleas from victims will persuade the federal government to drop its bid for the death penalty. "If the Justice Department seriously takes into consideration the feelings of the family members in this case, they have every justification to take death off the table," said Robert Dunham, executive director of the Death Penalty Information Center.

But New York Law School professor Robert Blecker said the Justice Department has to consider the larger question of denouncing terrorism. "They'll go forward with it. It will not change the decision. Denunciation is a legitimate purpose," Blecker said....

During the penalty phase, the defense will continue to portray Tsarnaev's brother, Tamerlan, 26, as a domineering follower of radical Islam who convinced his then 19-year-old brother that America had to be punished for its wars in Muslim countries. Tamerlan died four days after the bombings when he was shot during a firefight with police and run over by Dzhokhar during a getaway attempt.

Prosecutors are expected to emphasize the brutality of the bombings by calling more survivors to testify. During the first phase, several survivors testified about devastating injuries, including lost limbs....

If even one juror votes against the death penalty, Tsarnaev will get a life sentence.

April 20, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (7) | TrackBack

Saturday, April 18, 2015

Oklahoma now able to use nitrogen gas as execution method if needed

As reported in this CNN piece, headlined "Oklahoma approves nitrogen gas as backup execution method," the Sooner State is now officially able to use a novel execution method sooner or later. Here are the details:

Oklahoma Gov. Mary Fallin signed a bill on Friday that would allow the state to perform executions with nitrogen gas if lethal injection is ruled unconstitutional or becomes unavailable. Nitrogen causes a quick loss of consciousness and then death from lack of oxygen, Fallin's office said in a press release.

CNN affiliate KFOR says it's never been used in an execution in the United States. "The person will become unconscious within eight to 10 seconds and death a few minutes later. In other words, a humane, quick and painless death," said Rep. Mike Christian, one of the bill's authors, according to KFOR....

Oklahoma's executions have been put on hold while the U.S. Supreme Court reviews its use of lethal injections. Last year, the state came under scrutiny when it took 43 minutes to kill convicted killer Clayton Lockett.

Fallin reaffirmed her support for the death penalty. "Oklahoma executes murderers whose crimes are especially heinous," Fallin said. "I support that policy, and I believe capital punishment must be performed effectively and without cruelty. The bill I signed today gives the state of Oklahoma another death penalty option that meets that standard." The governor's office said the first alternative for execution is lethal injection, followed by nitrogen gas, the electric chair and the firing squad.

A few recent and older related posts:

April 18, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, April 17, 2015

Parent of Boston bombers' young victims: "To end the anguish, drop the death penalty"

Richard-right1The title of this post is drawn from the headline of this remarkable new Boston Globe commentary authored by Bill and Denise Richard, parents of 8-year-old Martin who was one of three people killed in the April 2013 explosions at the marathon's finish line. The full piece is a must read, and I will quote it all here to help ensure these victims' voices get heard in full:

The past two years have been the most trying of our lives. Our family has grieved, buried our young son, battled injuries, and endured numerous surgeries — all while trying to rebuild lives that will never be the same. We sat in the courtroom, day after day, bearing witness to overwhelming evidence that included graphic video and photographs, replicated bombs, and even the clothes our son wore his last day alive. We are eternally grateful for the courage and life-saving measures of first responders, Boston Police, the Boston Fire Department, and good Samaritans on April 15, 2013. We also thank the FBI and other law enforcement agencies, the Department of Justice, and the Massachusetts US Attorney’s Office for leaving no stone unturned during the investigation and trial.

But now that the tireless and committed prosecution team has ensured that justice will be served, we urge the Department of Justice to bring the case to a close. We are in favor of and would support the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal.

We understand all too well the heinousness and brutality of the crimes committed. We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul. We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.

For us, the story of Marathon Monday 2013 should not be defined by the actions or beliefs of the defendant, but by the resiliency of the human spirit and the rallying cries of this great city. We can never replace what was taken from us, but we can continue to get up every morning and fight another day. As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.

This is a deeply personal issue and we can speak only for ourselves. However, it is clear that peace of mind was taken not just from us, but from all Americans. We honor those who were lost and wish continued strength for all those who were injured. We believe that now is the time to turn the page, end the anguish, and look toward a better future — for us, for Boston, and for the country.

April 17, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, April 16, 2015

Latest Pew survey data on death penalty opinions

4-16-2015_01This new Pew Research Center report carries the headline "Less Support for Death Penalty, Especially Among Democrats: Supporters, Opponents See Risk of Executing the Innocent." Here are some specifics from the report:

A majority of Americans favor the death penalty for those convicted of murder, but support for the death penalty is as low as it has been in the past 40 years. A new Pew Research Center survey finds 56% favor the death penalty for people convicted of murder, while 38% are opposed.

The share supporting the death penalty has declined six percentage points, from 62%, since 2011. Throughout much of the 1980s and 90s, support for the death penalty often surpassed 70%. In a 1996 survey, 78% favored the death penalty, while just 18% were opposed.

Much of the decline in support over the past two decades has come among Democrats. Currently, just 40% of Democrats favor the death penalty, while 56% are opposed. In 1996, Democrats favored capital punishment by a wide margin (71% to 25%). There has been much less change in opinions among Republicans: 77% favor the death penalty, down from 87% in 1996. The share of independents who favor the death penalty has fallen 22 points over this period, from 79% to 57%.

The latest national survey by the Pew Research Center, conducted Mar. 25-29 among 1,500 adults, finds widespread doubts about how the death penalty is applied and whether it deters serious crime. Yet a majority (63%) says that when someone commits a crime like murder, the death penalty is morally justified; just 31% say it is morally wrong, even in cases of murder.

At the same time, 71% of Americans say there is some risk that an innocent person will be put to death. Only about a quarter (26%) say there are adequate safeguards in place to make sure that does not happen. About six-in-ten (61%) say the death penalty does not deter people from committing serious crimes; 35% say it does deter serious crime.

And about half (52%) say that minorities are more likely than whites to be sentenced to death for similar crimes; fewer (41%) think that whites and minorities are equally likely to be sentenced for similar .

The survey also finds that Americans are relatively unaware about whether the number of death penalty executions taking place in the U.S. has changed in recent years....

The share of women who favor the death penalty has fallen 10 points since 2011, while men’s views have shown virtually no change. Men are now 15 points more likely than women to favor the death penalty (64% vs. 49%). Four years ago, the gender difference was much more modest (65% of men favored the death penalty, as did 59% of women)....

Support for the death penalty has edged down among whites, blacks and Hispanics since 2011, but wide racial differences persist. About six-in-ten whites (63%) favor the death penalty, compared with 34% of blacks and 45% of Hispanics.

Age differences in views of the death penalty continue to be modest. About half (51%) of those under 30 favor the death penalty, as do 57% of those 30 to 49, 61% of those 50 to 64 and 54% of those 65 and older.

Among religious groups, sizable majorities of white evangelical Protestants (71%), white mainline Protestants (66%) and white Catholics (63%) favor the death penalty. But those who are religiously unaffiliated are divided (48% favor, 45% oppose). In 2011, the religiously unaffiliated supported the death penalty by a wide margin (57% to 36%).

As with overall views of the death penalty, there are demographic and partisan differences in attitudes about capital punishment. The sharpest disagreements are in views of whether minorities are more likely than whites to face the death penalty.

Fully 77% of blacks say minorities are more likely than whites to receive the death penalty for similar crimes. Whites are evenly divided: 46% say minorities are disproportionately sentenced to death, while an identical percentage sees no racial disparities. More than twice as many Democrats (70%) as Republicans (31%) say minorities are more likely than whites to receive the death penalty for similar crimes.

There also are educational differences in these opinions: 60% of college graduates say minorities are more apt to receive the death penalty than are whites, as do 55% of those with some college experience. But among those with no more than a high school education, 44% say minorities are disproportionately sentenced to death; 48% say whites and minorities are equally likely to receive the death penalty for similar crimes.

April 16, 2015 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 14, 2015

Interesting recent Buckeye death penalty headlines (despite extended extended moratorium)

After Ohio Governor (and future GOP Prez candidate?) John Kasich and other executive officials put off all Ohio executions for the entire 2015 calendar year, I figured Ohio would not be make all that much death penalty news until at least 2016.  But, as these recent local headlines help highlight, an executive branch moratorium on executions does not stop others from taking about the death penalty in the Buckeye state:

April 14, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, April 13, 2015

"Sister of slain MIT officer opposes death penalty for Tsarnaev"

The title of this post is the headline of this notable new Boston Globe article, which gets started this way:

The sister of murdered MIT Police Officer Sean A. Collier opposes the death penalty against one of the men responsible for his death, Boston Marathon bomber Dzhokhar Tsarnaev, because it would not bring “peace or justice” to her.

In a posting on Facebook and on her Twitter account, Jennifer L. Lemmerman wrote that she continues to mourn the loss of her younger brother, who was widely hailed after his murder as a person of integrity, compassion, and curiosity who was dear to the MIT community.

Lemmerman, a graduate of Boston College School of Social Work and an alderman in Melrose, wrote that she will never forgive Tsarnaev for ending her brother’s life. But, she also wrote, she does not believe in the death penalty even after what has happened to her and her family. “Whenever someone speaks out against the death penalty, they are challenged to imagine how they would feel if someone they love were killed. I’ve been given that horrible perspective and I can say that my position has only strengthened,’’ she wrote on her Facebook account.

“It has nothing to do with some pursuit of forgiveness. I can’t imagine I’ll ever forgive him for what he did to my brother, to my family, and I’ll have to live with that for the rest of my life, whether he is on this earth or not,’’ Lemmerman wrote of Tsarnaev.

She added, “But I also can’t imagine that killing in response to killing would ever bring me peace or justice. Just my perspective, but enough is enough. I choose to remember Sean for the light that he brought. No more darkness.’’

April 13, 2015 in Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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

Saturday, March 21, 2015

Effective discussion of nitrogen gas as execution method alternative

Images (1)This new Atlantic article, headlined "Can Executions Be More Humane?: A law professor suggests an untested procedure as an alternative to lethal injection," provides an interesting account of the person and story behind a novel execution method proposal.  Here are excerpts:

Michael Copeland has a unique resume: former Assistant Attorney General of the tiny Pacific island nation of Palau, professor of criminal justice at East Central University in Ada, Oklahoma — and now, the proponent of a new execution method he claims would be more humane than lethal injection.

Copeland is one of the brains behind House Bill 1879 proposed by Oklahoma State Representative Mike Christian.  The bill, passed by the Oklahoma House last week, would make “nitrogen hypoxia” a secondary method to lethal injection.  Oklahoma State Senator Anthony Sykes will be introducing it to the senate shortly.

Copeland explained the execution method last September to the Oklahoma House Judiciary Committee at Christian’s invitation.  Copeland says that Christian had been suggesting the firing squad, but Copeland thought there might be a better way.  Along with two other professors from East Central University, Christine C. Pappas and Thomas M. Parr, he is drafting a white paper about the benefits of nitrogen-induced hypoxia over lethal injection....

Hypoxia occurs when a person lacks an adequate supply of oxygen.  “Normally, the air we breathe is 79 percent nitrogen and 21 percent oxygen,” Copeland explains. Nitrogen hypoxia during an execution “would be induced by having the offender breathing a gas mixture of pure nitrogen.” Copeland points out that “nitrogen is an inert gas, and therefore doesn’t actually cause the death.  It is the lack of oxygen that causes death.”

According to Copeland, death from nitrogen hypoxia is painless. “In industrial accidents, it often happens because the victim does not know they are in a hypoxic environment,” he said.  “That suffocating feeling of anxiety and discomfort is not associated with hypoxic deaths.”  He says nitrogen-induced hypoxia is well-researched, although the ideal delivery system for an execution has not yet been established.  Two ideas include a medical-grade oxygen tent around the head or a facemask similar to those used by firefighters.

The condemned person might not even know when the “the switch to pure nitrogen occurs, instead he would simply lose consciousness about fifteen seconds after the switch was made,” he added.  “Approximately thirty seconds later, he would stop producing brain waves, and the heart would stop beating about two to three minutes after that.”...

Copeland says that conditions for lethal-injection executions will only get worse.  States are scrambling to find the drugs and the health professionals to use them, and both are required for lethal injection to take place.  “You have anti-death penalty zealots around the globe that protest, that bring attention to the manufacturers of these drugs,” Oklahoma Attorney General Scott Pruitt told a local chamber of commerce last summer. Pruitt said that as long as activists pressure manufacturers, there will be supply issues....

From its first use in the execution of Gee Jon in Nevada in 1924 to its link to Nazi gas chambers, lethal gas as method of execution has a problematic history.  American lethal-gas executions typically used hydrogen cyanide as the mechanism of death.  Inmates were strapped to chairs in gas chambers and the ensuing chemical reaction would cause visible signs of pain and discomfort: skin discoloration, drooling, and writhing.

But nitrogen hypoxia would likely not produce the gruesome deaths that resulted from cyanide gas executions. Copeland says that “you don’t have to worry about someone reacting differently.” The condemned person would feel slightly intoxicated before losing consciousness and ultimately dying.

Other death-penalty experts are more skeptical.  “It’s only been partially vetted, superficially researched, and has never been tried,” said Richard Dieter, executive director of the Death Penalty Information Center.  “Using it would be an experiment on human subjects.” State death rows would be strapping someone down without any idea what would happen next, he feared.  “We’d need testimony from the best experts on this,” Dieter says. “Right now, this is sailing through a legislature and not a peer-review process. I’m no doctor, but let’s hear from them.  I don’t completely dismiss the idea that this could become approved or that it’s as good as they say because lethal injection is in a bind.”

If the bill becomes law and Oklahoma successfully executes someone using this method, it could spread from to state very quickly, Dieter says.  Older methods like firing squads are a little too brutal for the American public, but something new could be accepted. If so, he says, “it could lead to an awkward spurt of executions.”  Copeland says he is not a death penalty absolutist. “I think the state has a unique obligation for justice — it’s the state’s obligation,” he explains.  “But I don’t think the death penalty is a deterrent compared to life without parole.”  If we must have the death penalty, he argues, it should be humane.

Copeland thinks that it is death penalty abolitionists who have made executions inhumane by restricting access to drugs.  It will only get worse.  Some corrections officials at the Louisiana Department of Public Safety and Corrections agree.  On February 18, they submitted a report to the state House of Representatives proposing the use of nitrogen-induced hypoxia and cited Copeland’s forthcoming paper.

Copeland says that it’s a logical and humane next step. “Nitrogen is ubiquitous. The process is humane, it doesn’t require expertise, and it’s cheap,” he explained. “I think of it as a harm-reduction thing — like you’d rather people not use heroin, but if they do, you want them to use clean needles.”

A few recent and older related posts:

March 21, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, March 20, 2015

"Victim's wife: Keep me out of death penalty fight"

The title of this post is the headline of this notable new article out of Philadelphia which highlights how victims often can and will get victimized again by the political debates over the death penalty.  Here is how the piece starts:

Since Gov. Wolf declared his moratorium on the death penalty last month, proponents of capital punishment have rallied around one case to push their cause - the scuttled execution of Terrance Williams, a Philadelphia man sentenced to die in 1986 for the beating death of a Germantown church volunteer.

But on Thursday, the widow of Williams' victim had a message for critics of the governor's action: Leave me out of it. In a publicly circulated letter, Mamie Norwood, whose husband, Amos, was killed by Williams in 1984, accused State Rep. Mike Vereb (R., Montgomery) and Philadelphia District Attorney Seth Williams of using her husband's slaying for political gain.

"You have never spoken to me and do not speak for me," Norwood wrote, adding that she had forgiven Terrance Williams long ago and did not want to see him put to death. She added: "Please don't use me . . . to get your name in the news. You should be truly ashamed of yourselves."

Norwood's letter was distributed by a group of Terrance Williams' supporters who run the website www.terrywilliamsclemency.com.

Norwood's letter is available at this link.

March 20, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, March 18, 2015

Death penalty symbolism and Robert Durst

Everyone interested in pop culture criminal law is now busy talking about the seeming confession of infamous real estate figure Robert Durst during the final episode of the HBO documentary series "The Jinx: The Life and Deaths of Robert Durst." Though I find interesting the debate over the potential meaning and use of Durst's statement that he "killed them all," as a sentencing fan I find even more notable this headline about these headlines about case:

Because Durst is aged 71 and California has not executed anyone in nearly a decade, the odds that Durst would be sentenced to death and executed before he dies of natural causes are about the same as the odds that a 16 seed will win the NCAA basketball tournament. But, as in true in so many cases, here a death penalty penalty charge is not really about seeks a true punishment but rather about symbolically sending a message that Durst is among the worst of the worst criminals.

I am always ambivalent about the value of state actors spending lots of time, money and energy on seeking a form of punishment that will never actually be carried out. But the Durst case serves as a great example of why the death penalty (and sometimes other punishments like Bernie Madoff getting 150 years in prison) is often much more about criminal justice symbolism than punishment reality.

March 18, 2015 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Might Utah's gov veto the effort to provide for a firing squad execution back-up plan?

The question in the title of this post is prompted by this AP piece headlined "Death Penalty Opponents Urge Veto of Utah Firing Squad Bill." Here are the basics:

Death penalty opponents are urging Utah Gov. Gary Herbert to veto a bill allowing execution by firing squad if the state cannot obtain lethal injection drugs. Ralph Dellapiana of Utahns for Alternatives to the Death Penalty delivered a petition and a letter to Herbert's office Tuesday. Dellapiana calls firing squads archaic and barbaric.

Herbert, a Republican, has declined to say if he will sign the proposal but says it could offer Utah a backup if it cannot get execution drugs. Utah lawmakers passed the bill last week as states struggle to obtain lethal injection drugs amid a nationwide shortage.

Republican Rep. Paul Ray of Clearfield sponsored the proposal and says a team of trained marksmen is faster and more humane than the drawn-out deaths that occur when lethal injections are botched.

March 18, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 17, 2015

Notable empirical review of what happens to most death sentences

This new Washington Post piece by two researchers provides an interesting review of the state and fate of most modern death sentences. The piece is headlined "Most death penalty sentences are overturned. Here’s why that matters," and here are excerpts:

If a person is given a death sentence, what is his or her chance of actually being executed? Based on a review of every death sentence in the United States since 1973, the beginning of the modern era of the death penalty, we have found that the most likely outcome isn’t being executed or even remaining on death row as an appeal makes its way through the courts.  In fact, the most common circumstance is that the death sentence will be overturned....

From 1973 to 2013, 8,466 sentences of death were handed down by U.S. courts, and 1,359 individuals were executed — only 16 percent.  Even excluding those who remained on death row as of 2013, only about 24 percent of condemned inmates have been executed. Those sentenced to death are almost three times as likely to see their death sentence overturned on appeal and to be resentenced to a lesser penalty than they are to be executed.  Here is a summary of the outcomes:

  • 8,466 death sentences were imposed across the United States from 1973 through 2013.
  • 3,194 were overturned on appeal, composed as follows. For 523, the underlying statute was declared unconstitutional. For 890, the conviction was overturned. For 1,781, the death penalty was overturned, but guilt was sustained.
  • 2,979 remain on death row as of Dec. 31, 2013.
  • 1,359 were executed.
  • 509 died on death row from suicide or natural causes.
  • 392 had their sentence commuted by the governor to life in prison.
  • 33 had some other outcome or a miscellaneous reason for being removed from death row.

Execution is in fact the third most likely outcome following a death sentence. Much more likely is the inmate to have their sentence reversed, or to remain for decades on death row....

In the early years of the modern death penalty, many were removed from death row because the underlying statute under which they were condemned was ruled unconstitutional. In fact, of 721 individuals sentenced between 1973 and 1976, just 33 were eventually executed.  Other reversals have come because inmates’ individual convictions were overturned, and some were exonerated entirely.

But by far the most likely outcome of a U.S. death sentence is that it will eventually be reversed and the inmate will remain in prison with a different form of death sentence: life without the possibility of parole.

Why would reversal of the sentence be the single most common outcome of a death sentence? Capital trials have many unusual characteristics, but a key one is that there is an automatic (or “direct”) appeal through the state appellate courts and, if the death sentence is not overturned by the state appellate or supreme court, a review by a federal judge....

States differ greatly in the degree to which they carry out their legal promise of death, but most operate systems consistent with the trends above: They sentence far more inmates to death than they actually execute....

The average state has a 13 percent likelihood of carrying out a death sentence. Some states — such as Texas, South Dakota, Missouri, and Oklahoma — significantly higher rates, though none of these states reaches a level of 50 percent. In fact, only one state, Virginia, has executed more than half of the inmates it has condemned....

Texas, Florida, and California have all condemned more than 1,000 individuals to death in the modern period. However, the numbers of executions in these states are 508, 81, and 13, respectively. Virginia has sentenced 152 individuals to die, and 110 have been put to death.

I find these numbers notable and interesting, but I find not at all compelling the reasons stated in this commentary (and left out of the excerpt above) for why we should find these numbers troubling. If lawmakers and voters want to have a death penalty system that works very hard to ensure only the worst of the worst get executed after providing the accused with a form of super due process, it makes sense that the system will, through checking and double checking of every death verdict, screen out any and all suspect cases. This is a costly and time-consuming process for all involved, but so is every aspect of American government if and when we devote extraordinary resources to making sure everything has been done just right.

In addition, it bears noting that there were roughly 800,000 murders in the United States from 1973 to 2013.  Thus, arguably far more remarkable than the relatively few executed from among those given a death sentence is the amazingly few murderers given a death sentence during this period.  Because only a little over 1% of all murderers were given death sentences, I am not sure why I should be especially troubled that only a portion of these condemned actual were executed.

March 17, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Sentences Reconsidered | Permalink | Comments (15) | TrackBack

Monday, March 16, 2015

"The free-market case for opposing the death penalty"

The title of this post is the headline of this new piece from The Week magazine.  Here are excerpts:

There are lots of ways to execute a prisoner. But in the U.S., at least, the 32 states that still execute prisoners have decided on lethal injection. On its face, lethal injection seems like a clinical, modern, hopefully low-pain, and usually low-key way to kill somebody. Except when it isn't, as we saw in last year's crop of botched executions.

The prolonged, evidently painful deaths of Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Dennis McGuire in Ohio were tied to experimental drug cocktails necessitated by a shortage of traditional death drugs. This shortage is due largely to a ban by European countries on exporting certain drugs to U.S. states that practice capital punishment. The free market is making a case against capital punishment. So far, the states that actively execute prisoners have been willfully plugging their ears....

With just a single dose of pentobarbital left and 317 inmates on death row, Texas is stocking up on midazolam. It's not clear if Texas can't get pentobarbital because the compounding pharmacies are refusing to sell it to them, or because they can't get the raw ingredients — the Professional Compounding Centers of America told The Texas Tribune that it stopped providing pentobarbital ingredients to its customers in January 2014.

Most compounding pharmacies aren't regulated by the Food and Drug Administration, and their products are uneven. Which compounding pharmacies are Texas, Oklahoma, Ohio, Georgia, Missouri, and other states buying drugs from? They're not saying. Why not? "Disclosing the identity of the pharmacy would result in the harassment of the business and would raise serious safety concerns for the business and its employees," Texas Department of Criminal Justice spokesman Jason Clark explained to The Texas Tribune last month....

Providing lethal injection drugs to state prisons is so toxic that no European country will do it and no American company is willing to do it openly. Gunmakers and abortion clinics advertise their services, but pharmacies and drugmakers won't publicly associate with a form of punishment approved of by 63 percent of Americans. That's the market talking, and it's saying it wants no part of this.

March 16, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (13) | TrackBack

New York Times editorial assails death decided "by a single vote" in Alabama and Florida

This new New York Times editorial, headlined "Death Sentences, With or Without a Jury," uses the recent Supreme Court cert grant in Hurst to assail a capital punishment system it views as "warped by injustice and absurdity." Here are excerpts:

In Florida and Alabama, death row inmates are challenging perverse state laws on the jury’s role in capital trials. The Supreme Court, which has been intervening more often in death penalty cases, last week agreed to review the Florida law.

In death penalty trials, juries that reach a guilty verdict are usually required in the trial’s subsequent penalty phase to make factual findings, such as whether the crime was especially heinous, that will determine whether the defendant is sentenced to death.

But Florida lets the judge make these findings, and does not require that the jury be unanimous in voting for a death sentence. After Timothy Lee Hurst was found guilty of a 1998 murder of a co­worker in Pensacola, his jury split 7 to 5 in favor of executing him, with no record of whether the majority even agreed on the reason. (Mr. Hurst claims he is intellectually disabled and thus ineligible to be executed.) In other words, Mr. Hurst was effectively condemned by a single vote by an unidentified juror.

Alabama also allows death to be decided by a single vote: that of the judge, who may override a jury verdict of life in prison and replace it with a death sentence, relegating the jury’s status to that of an advisory body. The Supreme Court declined to hear a challenge to the Alabama law in 2013, prompting a sharp dissent from Justice Sonia Sotomayor. She concluded that the state’s judges, who are elected — and who have unilaterally imposed death sentences 101 times after the jury voted for life — “appear to have succumbed to electoral pressures.”

The Alabama law, Justice Sotomayor wrote, undermines “the sanctity of the jury’s role in our system of criminal justice,” and very likely violates the court’s own rulings requiring juries, not judges, to find any fact that would increase a defendant’s sentence. Two new challenges to that law are before the court — one involving a death sentence imposed by a judge after a jury voted 12 to 0 for life — but it hasn’t decided whether to take them up.

This disregard for the jury’s role is all the more offensive given the Supreme Court’s reliance on jury verdicts as a key measure of America’s “evolving standards of decency,” the test it uses to decide whether a punishment is so cruel and unusual that it violates the Constitution. How can those “evolving standards” be accurately measured if the “verdicts” for death are so deeply divided or are in fact imposed by a judge who is rejecting the jury’s call to spare a life?

The Florida and Alabama jury laws are only more proof of the moral disgrace of capital punishment in this country. In Georgia, officials hide their lethal-­injection drug protocol behind state-­secret laws. Missouri has executed an inmate before the Supreme Court ruled on his final appeal. Texas has been trying for years to kill a man suffering from paranoid schizophrenia.

Prior related posts:

March 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, March 14, 2015

"Death of the death penalty by lethal injection shortage?"

The question in the title of this post is the headline of this notable recent Chicago Tribune column.  Here is how it starts:

A reliable supply line is crucial to any business. That's no less true when the business is death. States can't carry out death sentences if their prisons can't stock the lethal sedatives needed for court-sanctioned lethal injections. And that has become a serious problem of late.

Pharmaceutical companies such as Lake Forest-based Hospira in recent years have moved — pushed by activists and overseas regulators — to keep their drugs from being co-opted in the executioners' cocktails. The well is running dry.

Just in the last week:

•  Texas' pantry is quite nearly bare. The state reportedly is left with a single dose of pentobarbital because European manufacturers of the anesthetic are prohibited from allowing it to be used by prisons.

•  Georgia postponed its first execution of a woman in 70 years because the blend to be injected appeared unusually cloudy.

•  And Utah's legislature sent the governor a bill that would authorize the return of firing squads when the state can't get its hands on the requisite toxins.

March 14, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Friday, March 13, 2015

"Jones, Lackey, and Teague"

The title of this post is the title of this notable new article by J. Richard Broughton now available via SSRN. Here is the abstract:

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane.

By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making the case for applying the bar, this paper adds to, and challenges, the existing literature on capital punishment, Lackey claims, and Teague doctrine. This paper dissects the Jones ruling on the application of Teague, examining the Supreme Court’s “new rule” case law and concluding that Lackey claims, when viewed at the appropriate level of generality, propose a new rule. It then addresses the more complicated aspect of applying Teague in this context, recognizing that the first Teague exception poses the most likely basis for avoiding the Teague bar on a Lackey claim. At a minimum, Lackey claims (like Miller v. Alabama claims, now the subject of substantial Eighth Amendment litigation on collateral review) sit at the intersection of procedural and substantive rules. Nonetheless, this paper makes the case for viewing the claim as procedural and therefore Teague-barred. Ultimately, then, this paper emphasizes a point that could substantially influence existing litigation: litigators and federal judges should take the Teague bar more seriously when considering Lackey claims on federal habeas review, particularly when viewed in light of modern habeas rules and doctrine that limit relief and protect the interests of the states. But the paper also emphasizes an important point about death penalty policy and politics: if the state is to have a death penalty at all, it should be prepared, and willing, to ensure that death sentences are actually carried out.

March 13, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, March 11, 2015

Colson Task Force highlights " biggest driver of growth in the prison population is in federally sentenced drug offenders"

Images (2)As reported in this Crime Report piece, the Charles Colson Federal Corrections Task Force has just released this notable new research brief titled "Drivers of Growth in the Federal Prison Population." Here are excerpts from the document (with emphasis in original):

The federal prison population has grown by 750 percent since 1980, resulting in rapidly increasing expenditures for incarceration and dangerous overcrowding.  In response, Congress created the Charles Colson Task Force on Federal Corrections to examine trends in correctional growth and develop practical, data-driven policy responses.  Following the example of many states that have recently engaged in criminal justice reform, the first step for the Task Force is to understand the underlying drivers of growth in the prison population.

The biggest driver of growth in the prison population is in federally sentenced drug offenders, almost all of whom were convicted of drug trafficking.  In fiscal year (FY) 2013, there were almost 50,000 more drug offenders in federal prisons than there were in FY 1994.  Incarceration for drug offenses disproportionately affects nonwhite offenders: in FY 2013, over 75 percent of all drug offenders in federal prison were black or Hispanic....

The population growth is driven by both the number of people who are admitted to prison for drug crimes every year and the length of their sentences.   In FY 2013, more people were admitted to federal prison for drug crimes than any other crime type, and the average sentence for those entering prison was almost six years.  Every year, about 95 percent of federally sentenced drug offenders receive a term of incarceration as part of their sentence, up from about 76 percent in the year before the passage of the Anti-Drug Abuse Act in 1986, which established mandatory minimum penalties for certain drug offenses.

In particular, length of stay for drug offenders, often dictated by statutory mandatory minimum penalties, has driven most of the recent growth.  Though the number of admissions has remained largely constant over time, the number of drug offenders in federal prison has increased because of people serving longer sentences.

March 11, 2015 in Death Penalty Reforms, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Mizzou lawyers spotlight problems poised by rapid pace of executions

As reported in this Kansas City Star article, headlined "Attorneys struggle to keep up with Missouri’s execution pace," the Show Me State's recent pattern of showing condemned inmates to the execution chamber on a regular basis has prompted a notable expression of concern from lawyers. Here are the details:

[F]or the small group of lawyers who take on the burdens of defending inmates on the cusp of execution in Missouri, the sheer volume of cases is overwhelming their ability to do that work.

That’s the message four law professors and lawyers delivered to the Missouri Supreme Court this week as they called for execution procedure changes that would give lawyers more time for each client. “These amendments are necessary because the capital defense bar is in crisis because of its recent workload,” the group wrote.

Since November 2013, Missouri has executed 13 men. A handful of lawyers who specialize in capital litigation have represented most of them. They also represent most of Missouri’s other defendants with a pending execution date or who soon are expected to see one set.

The state’s fast execution pace — Missouri tied Texas for most in the country last year with 10 — has left those lawyers struggling to meet their legal obligations to multiple clients at the same time, according to the letter by members of an American Bar Association death penalty assessment team that recently studied Missouri’s execution system. “The legal proceedings in death penalty cases are notoriously lengthy and complex,” they wrote. “Establishing a detailed understanding of those proceedings is a time consuming task and a basic prerequisite to competent performance.”

In addition, the cases take an intense emotional toll on attorneys who get to know the clients intimately before watching them die, the letter said. “No matter how professional the relationship between a death-sentenced client and his counsel, having a client executed is a uniquely taxing professional experience,” the letter stated. One attorney has represented five of the last nine men executed and has two other clients with an “imminent risk of execution,” the letter noted....

The four members of the assessment team who sent the letter to the Supreme Court — University of Missouri law professor Paul Litton, St. Louis University law professor Stephen Thaman, retired Missouri Court of Appeals Judge Hal Lowenstein and Douglas Copeland, a partner in a St. Louis law firm — recommended three amendments to the state’s rules.

The first would limit any one lawyer from representing a client who has an execution date set within six months of any of the lawyer’s other clients. Second, they also ask that a minimum notice of six months be given before an execution can be carried out. The third proposal would allow lawyers to prioritize caseloads to concentrate on cases with pending execution dates while being granted more time to deal with other clients’ cases.

“These are common-sense solutions to a serious problem affecting virtually every scheduled execution,” according to the letter.

The problems have mounted only recently in Missouri, where the lawyers pointed out that only two executions took place in the seven years from 2006 through 2012. But this has been a long-term issue in other death penalty states. “For decades it has been widely recognized … that unreasonable workloads among capital litigators can severely challenge the effectiveness of their representation,” said national death penalty expert Deborah Denno, a professor at the Fordham University School of Law.

Though it will be up to the Missouri Supreme Court to adopt or reject the rule changes, the court has shown some flexibility in the past. Last July, it changed the rules to limit executions to no more than one per month.

And last August, the court withdrew an execution warrant it had issued the previous month after the inmates’ attorneys said they wouldn’t have enough time to do everything required in the case while balancing work they had in other pending cases. They were given additional months before that man’s execution was carried out in November....

Jennifer Herndon, a St. Louis-area lawyer who has represented several death row inmates, said the proposals are all good ideas that are badly needed. “People don’t understand the pressure, particularly in the last 30 to 45 days before an execution,” she said. “If you don’t work on it 24 hours a day, you’re thinking about it 24 hours a day.” Facing that same kind of pressure month after month makes it virtually impossible to operate at 100 percent “no matter how hard you try,” she said.

The helpful folks at The Marshall Project have uploaded a copy of the letter reference in this article at this link.

March 11, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Utah legislature brings back firing squad as alternative execution method

Firing-squadAs detailed in this Reuters piece, "lawmakers in Utah voted on Tuesday to bring back executions by firing squad if lethal injections are unavailable, which would make it the only state in the country to permit the practice." Here is more:

Utah used firing squads for decades before adopting lethal injections in 2004. The Republican-sponsored bill, which passed the state Senate by 18-10, was introduced amid national concerns about the efficacy of lethal injections.

The measure, approved last month by the Utah House of Representatives, says a firing squad should be used if "the state is unable to lawfully obtain the substance or substances necessary to conduct an execution by lethal intravenous injection 30 or more days" before the date set for the procedure.

Several U.S. states have had to search for new drugs for their lethal injection cocktails after many pharmaceutical companies, mostly in Europe, imposed sales bans about four years ago because they objected to having medications made for other purposes being used in executions.

Supporters of the legislation said three states - Oklahoma, Ohio and Arizona - recently carried out lethal injections that led to inmates' physical distress and drawn-out deaths, and that death by firing squad was more humane.

Republican state Representative Paul Ray of Clearfield, the bill's sponsor, said someone executed by gunfire typically dies in three to five seconds. "It's a quick bleed-out," he said.

Utah previously used firing squads, including in the execution of Gary Gilmore, a convicted murderer who in January 1977 became the first person to be put to death in the United States in 10 years, after insisting the sentence be carried out....

The last person to be executed in Utah by firing squad was Ronnie Lee Gardner in 2010. Gardner was convicted of murdering a lawyer inside a Salt Lake City courthouse in 1985.

The bill now goes to Utah Governor Gary Herbert. In a statement, a spokesman for the Republican governor said he had not yet decided whether to sign the measure.whether to sign the measure. 

March 11, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Tuesday, March 10, 2015

Might drug shortages in Texas grind its machinery of death to a halt?

The question in the title of this post is prompted by this new article headlined "Dearth Row: Texas Prisons Scrambling to Find More Execution Drug." Here are excerpts:

Texas' prison agency is scrambling to find a supplier to replenish its inventory of execution drugs, which will be used up if the state goes forward with two lethal injections scheduled for this week and next. Prison officials only have enough pentobarbital for the scheduled executions of Manuel Vasquez on Wednesday and Randall Mays on March 18, but they don't know how they will conduct lethal injections on four others scheduled for April.

The Texas Department of Criminal Justice declined to say why it has not been able to obtain more pentobarbital from the same compounding pharmacy that provided the current batch of the powerful sedative last March. The state switched to that source several months after its previous supplier cut ties, citing hate mail and potential litigation after its name became public through an open records request from The Associated Press.

Prison officials have since waged a legal battle to keep the name of its latest supplier secret, but it's unclear how much longer they can do so after a state judge last year ordered the agency to divulge the source. That ruling is on hold pending the outcome of the state's appeal....

Although Texas, traditionally the nation's busiest death penalty state, faces the most imminent deadline for replenishing its pentobarbital supply, other states are experiencing similar problems. Texas has executed a nation-leading 521 inmates since 1982, when it became the first state to use lethal injection. It's now been nearly three years since Texas began using pentobarbital as its only capital punishment drug, switching in July 2012 after one of the chemicals in the previous three-drug mixture no longer was available.

The last 17 Texas executions, stretching back to September 2013, have used compounded pentobarbital, and the last nine from compounding pharmacies the state has refused to identify. Texas officials have insisted the identity should remain secret, citing a "threat assessment" signed by Texas Department of Public Safety director Steven McCraw that says pharmacies selling execution drugs face "a substantial threat of physical harm." Law enforcement officials have declined to elaborate on the nature of those threats.

The U.S. Supreme Court, meanwhile, has refused to block punishments based on challenges to secrecy laws. However, the high court is reviewing Oklahoma's lethal injection method, resulting in a hold on executions there, after a punishment using the sedative midazolam followed by two other drugs went awry. Oklahoma lawmakers now are considering a switch to nitrogen gas as the first alternative to injection while officials in other states are considering a return to firing squads or the electric chair.

Despite all the controversies over lethal injection protocols and problems with drug supplies nationwide in recent years, Texas has been able to keep its machinery of death humming.  And because so many executions take place in Texas (basic DPIC data here), a halting of executions in that one state would functionally diminish the overall number of US executions quite significantly.

Given that Texas has a long modern history of finding ways to move forward with executions, this drug story is especially interesting and dynamic because it might lead the Lone Star State to get serious about other possible execution methods.  I assume some officials in Texas are already quietly exploring the possibility of executions using nitrogen gas or firing squads, and perhaps a Texas discussion of such matters will become public at some point soon if the state struggles to secure needed execution drugs.

March 10, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Monday, March 09, 2015

What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?

As noted in this post, this morning the US Supreme Court today finally decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring.  But, as this new SCOTUSblog post about the cert grant spotlights, it actually is not entirely clear just what the Supreme Court has decided to decide:

The Florida death penalty case now up for review involves Timothy Lee Hurst of Pensacola, who faces a death sentence for the 1998 murder of a woman who was an assistant manager at a Popeye’s fast-food restaurant where Hurst also worked.

Hurst’s public-defender lawyers asked the Court to rule on two broad questions: one about the jury’s role when an accused individual claims a mental disability, and one about the jury’s role in the death-sentencing process, including an issue of whether its verdict must be unanimous. (His jury split seven to five in recommending death.) The second question was based on a claim that Florida courts fail to follow a 2002 Supreme Court decision on death sentencing, Ring v. Arizona.

In agreeing to rule on the case, the Court rewrote the question it will consider in an apparent attempt to simplify it: whether Florida’s approach to death sentencing violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.”

Because the Ring decision is all about the Sixth Amendment, and the role of the jury in deciding whether a murder was committed in an “aggravated” form, it is not clear just what the Court had in mind in linking an Eighth Amendment issue to the Ring precedent. It could be, although this was not plain from the order, that the Court is looking at Hurst’s case on Eighth Amendment grounds on his claim of mental disability, on the lack of jury unanimity, and on the general fairness of a death sentence for this particular individual. Presumably, that will become clearer as the briefs are filed in the case in coming months.

Helpfully, this extended post at Crime & Consequences reviews some of the legal background and possible implication of the Hurst case, which includes these observations:

The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure.  Therefore, there is no limitation on the Court's authority to create new law in this case.  The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States.  Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States.  However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.

Because of the maelstrom of potential legal issues raised by this particular Florida case, I am not sure what to expect from the Justices. I am sure any and everyone who does not like how Florida does its capital sentencing (including the nearly 400 murderers currently on Florida's death row) may be inclined to present varied constitutional arguments to SCOTUS to urge a reversal of the death sentence in this intriguing new case.

March 9, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring

One big question that arose way back in 2000 when the Supreme Court issued its landmark Apprendi decision was whether capital sentencing schemes that incorporated judicial death penalty determinations were still constitutional.  In 2002, in Ring, the Supreme Court somewhat clarified matter when it found Arizona's capital sentencing scheme problematic in light of Apprendi.  Now, finally and remarkably, the Supreme Court has decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring.

This new SCOTUS order list has just one new cert grant, and here it is:

HURST, TIMOTHY L. V. FLORIDA: The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002).

Notably, according to the Death Penalty Information Center's data, Florida has carried out 39 executions since the Supreme Court handed down its ruling in Ring in 2002, and I suspect a good number of those Florida condemned (and now dead) murderers asserted that their death sentencing violated the Sixth Amendment and/or the Eighth Amendment in light of Ring.  If there is some kind of afterlife for executed murderers, I expect there will now be some interesting SCOTUS talk in the Florida section of that netherworld.

March 9, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Sunday, March 08, 2015

"Questions raised about the death penalty in Ohio"

Death-penalty-art1-gpu10obcu-10308-gfxdeathpenaltychart-epsThe title of this post is the headline of this lengthy front-page article appearing today in my own home-town Columbus Dispatch.  The subheading of the piece summarizes its themes: "Dozens of inmates sentenced to die have been removed from Death Row in the past 12 years. Add that to botched executions and lingering questions about lethal-injection drugs, and it raises questions about the death penalty in Ohio." Here is how the extended article gets started:

The Cincinnati man had ordered his last meal and was going to be executed the next day when the governor spared his life largely because the DNA on his shoes did not match the blood of the victim.

A Cleveland man, originally sentenced to Death Row, was freed from prison after serving nearly 40 years when a witness confessed that he lied at the original trial about seeing the killing.

An Akron man was sentenced to die but spared from execution after officials confirmed that he was mentally disabled and had the intellect of a second-grader.

In the wake of such cases and other questions about the death penalty, key Ohio lawmakers say that while there’s no movement to eliminate capital punishment from Ohio’s criminal-justice books, some have proposed changes in the law.

Ohio has removed 20 inmates from Death Row since 2003 because investigations or evidence raised questions about their guilt, they were found to be mentally disabled or governors granted them clemency.

Another five men, who were removed from Death Row in the 1970s when Ohio abolished the death penalty for a short period, have been exonerated and released during the past 12 years. There were another 28 men spared from execution during the same period whose cases involved constitutional violations and procedural issues.

All of this has contributed to a slowdown in executions. Last year, for example, 35 people were executed across the U.S., the lowest number in 20 years. And while Ohio has executed 53 inmates since 1999 — an average of slightly more than three a year — it put to death only four in the past two years. The next execution is set for January 2016.

This all raises issues that should be addressed by the legislature, said Sen. Bill Seitz, R-Cincinnati, but are not reasons to kill the death penalty. “I won’t say never, but right now there is no way (abolishing it) is going to happen,” Seitz said. “But if we’re going to retain the death penalty, and I’m firmly committed to its retention, we ought to take away most of the serious objections.”

Lawmakers are poised to introduce new laws in the next few weeks. Seitz and Sen. Sandra Williams, D-Cleveland, are working on four bills incorporating 14 of the 56 recommendations made by the Ohio Supreme Court Death Penalty Task Force in April 2014. The bills focus on significant recommendations: preventing execution of seriously mentally disabled inmates; establishing a statewide indigent death-penalty litigation fund in the Ohio Public Defender’s office; requiring certification for coroner’s offices and crime labs, and prohibiting convictions based solely on uncorroborated information from a jailhouse informant.

Seitz said he expects “tough sledding” in the legislative debate, adding that it’s too soon to predict whether any of the bills will become law. But he was clear that the debate likely won’t include ending executions because a majority of state lawmakers support the death penalty.

March 8, 2015 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Friday, March 06, 2015

Examining some statistical realities behind federal death penalty administration

This intriguing Voactiv piece, headlined "Here Are The Odds The Boston Bomber Will Get The Death Penalty," draws on the Boston bomber federal capital trial as an opportunity to looks at some basic federal capital sentencing data. The piece is subheaded "Turns out, it's pretty hard to get a jury to vote for execution," and here are excerpts:

As the [Tsarnaev] trial wraps up its first week, we looked at how often the U.S. Attorney General has asked for the death penalty over the past two decades, and how often it has been able to get the jury to agree.  Between 1989 and 2009, some 2,795 cases were eligible for the death penalty.  Of those, the federal government brought 262 death- cases to trial and only 70, or about 25 percent, ended in a death sentence, according to the most recent statistics from the Federal Death Penalty Resource Counsel.  In the vast majority of the 262 cases, the juries recommended a life sentence instead.

Many death-penalty cases, another 201, never saw the inside a courtroom because they were settled before the trial....  [And] the federal government rarely pursues it even in cases that are eligible.  The U.S. Attorney General has approved death penalty prosecution for only 15 percent of all eligible cases over the past 20 years....

Even if Tsarnaev does get the death penalty, the execution isn’t likely to happen any time soon: Of the 70 people who have been sentenced to death in federal trials around the country in the last two decades, most are still waiting on death row.  Only three people have been executed since 1977, the latest in 2001.  Some defendants have been waiting on death row for over 20 years.

March 6, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, March 05, 2015

Despite spending many millions, Arizona prosecutors again fail to convince a sentencing jury to send Jodi Arias to death row

I have been interested in the Jodi Arias case from Arizona since she was found guilty of murder two years ago, not principally because of all the media attention her case generated, but because of the extraordinary efforts Arizona prosecutors were prepared to make AT TAXPAYER EXPENSE to try to get Arias on to the state's death row.  Last year in this post, I guessed that Arizona prosecutors were spending more than $5,000,000 in taxpayer funds in their effort to have Jodi Arias sent and kept on death row rather than in another part of Arizona's prison system.  

As this new AP report from Arizona highlights, all those taxpayer costs created by the prosecutors in this one state capital case have now officially achieved nothing:

Convicted murderer Jodi Arias was spared the death penalty Thursday after jurors deadlocked on whether she should be executed or sent to prison for life for killing her lover in 2008.

It marked the second time a jury was unable to reach a decision on her punishment — a disappointment for prosecutors who argued for the death penalty during a nearly seven-year legal battle.  It means the judge will sentence Arias on April 13 to either life in prison or a life term with the possibility of release after 25 years.

Family members of victim Travis Alexander wept when the judge announced that jurors couldn't reach a decision after deliberating for about 26 hours over five days.  The family sobbed as they left the courtroom, with one covering her eyes as she walked out. Arias' mother, Sandra, received a hug from a friend moments after the verdict was read....

Arias' 2013 trial became a sensation with its tawdry revelations about her relationship with Alexander and that she shot him in the head and slit his throat so deeply that he was nearly decapitated.  It was broadcast live and TV audiences heard how Arias had stabbed and slashed Alexander nearly 30 times then left his body in his shower at his suburban Phoenix home, where friends found him about five days later.

The jury convicted her of first-degree murder but deadlocked on punishment, prompting the sentencing retrial that began in October.  Prosecutors say they don't regret trying again to send Arias to death row.  Maricopa County Attorney Bill Montgomery, who decided to seek the death penalty a second time, told reporters that "regret is a place in the past I can't afford to live in."

Arias initially courted the spotlight after her arrest, granting interviews to "48 Hours" and "Inside Edition."  She testified for 18 days at her first trial, describing her abusive childhood, cheating boyfriends, relationship with Alexander and her contention that he was physically abusive.  She did more media interviews after the jury convicted her of murder.

Spectators lined up in the middle of the night to get a coveted seat in the courtroom for the first trial. However, attention was dampened during the penalty retrial after the judge ruled cameras could record the proceedings but nothing could be broadcast until after the verdict.

The proceedings revealed few new details about the crime and dragged on months longer than expected amid a series of expert witnesses and a surprising late October decision by Judge Sherry Stephens to remove reporters and spectators from the courtroom so Arias could testify in private. A higher court halted the testimony on its second day after complaints from news organizations. At the end of the retrial, Arias passed up a chance to address the jury. She said she wanted to make such comments but refused to do so unless the courtroom was cleared. She cited potential personal safety threats in declining to speak in the open courtroom.

I am not at all surprised to hear the Arizona prosecutors now "say they don't regret trying again to send Arias to death row."  After all, these prosecutors got the opportunity to work for two more years on a high-profile and exciting case and they likely will not suffer any professional consequences for wasting an extraordinary amount of taxpayer resources now twice failing to convince a jury that Jodi Arias ought to die for her crimes.

Especially because, as I said before in prior posts, it was extremely unlikely Arias would ever be executed even if she had been sentenced to death, this case is now for me exhibit #1 in the extraordinary misallocation of resources that the death penalty can often engender because prosecutors generally get all the political benefits and suffer none of the true economic costs of capital punishment systems.  The folks who should really regret how this case has been handed are crime victims and others in need of social services and programming in Arizona.  As I noted in a prior post, the Arizona Crime Victims Programs — which is under the authority of the Arizona Criminal Justice Commission and "provides support to all agencies that assist and compensate the victims of crime" — has an annual budget of around $5,000,000.  I feel pretty confident a lot more good throughout Arizona could have been done if state tax resources were allocated to doubling the funds for crime victim programming rather than enabling prosecutors to keep seeking a death verdict for Jodi Arias (which itself was never likely to get carried out).

Some prior posts on the Arias case:

March 5, 2015 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

"Evolving Standards of Domination: Abandoning a Flawed Legal Standard and Approaching a New Era in Penal Reform"

The title of this post is the title of this provocative new paper by SpearIt now available via SSRN. Here is the abstract:

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress.  Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society.  Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social control.  This evolutionary model was thus betrayed by Court opinions that allowed states nearly unfettered authority over prison sentencing and use of solitary confinement, a self-fulfilling prophecy — a deep irony in the expanded incarceration of poor, uneducated, minorities — the very population that might be expected under an evolutionary frame.

The Article urges the Supreme Court to abandon evolving standards as a flawed and pernicious concept, and simultaneously, accept the duty to reinterpret the Eighth Amendment for prison sentencing and solitary confinement.  Looking forward, the Article advances a blueprint for employing research and science as a means of reimagining the scale of imprisonment.  It challenges the Court to do something never done before in American penal history — justify the length of prison sentences with more than just random and arbitrary figures.  The Court has been trying to implement objective standards to guide punishment practices for decades, but has constantly fallen prey to its own subjective inclinations.  This Article suggests that the objectivity the Court has been seeking all along is there for the taking, provided it abandons the sociological myth of “survival of the fittest” along with the idea that American society is ever-progressing in humane decency.  The Court must move beyond its obsessive tinkering with the death penalty and focus on the realities of “doing time” in America.

March 5, 2015 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, March 04, 2015

Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania

As reported in this local article, folks in Pennsylvania unhappy with "Gov. Tom Wolf's moratorium on the death penalty gathered at the state Capitol on Wednesday to criticize that decision that they say was reached without input from crime victims or law enforcement officers." Here is more:

They came together on the day that death row inmate Terrence Williams was scheduled to be executed; his being the first death sentence to be reprieved as a result of the moratorium.

"Pennsylvania crime victims deserve justice. What they are receiving from the governor is politics," said Rep. Mike Vereb, R-Montgomery, at the news conference. "He could approach the Legislature to try to get the law changed or he could have filed a lawsuit in court and seek an injunction in death penalty cases. The governor chose to pursue neither of those options."

Instead, with the stroke of his pen on Feb. 13, he signed an executive order to put capital punishment in Pennsylvania on hold until he reviews a Senate-ordered study of the issue that is due later this year....

Many are awaiting the outcome of the lawsuit filed by Philadelphia District Attorney Seth Williams challenging Wolf's authority to impose the moratorium. The Supreme Court on Tuesday agreed to hear the case.

In the meantime, Vereb has introduced a resolution calling on the governor to reverse his decision and obey the law that now exists in Pennsylvania allowing for capital punishment. While he admits that won't carry the force of law, Vereb said it at least sends a message to the governor.

House Judiciary Committee Chairman Ron Marsico, R-Lower Paxton Twp., said he plans to have at least two committee hearings on the issue of capital punishment, starting with one in Philadelphia on March 26 and the other scheduled for June. This month's hearing will focus on testimony from family members of murder victims.

Throughout the news conference, legislators along with the crime victims and district attorneys standing in front of a line of photos of murder victims criticized Wolf for failing to seek their input....

York County District Attorney Tom Kearney said victims are best suited to explain the impact of Wolf's actions. He then proceeded to read a letter from Pauline Smith, whose mother June Rose Ohlinger, was murdered in 1995 in Schuylkill County by serial killer Mark Spotz who is among the 186 inmates now on death row. In her letter, Smith described the governor's decision as "a slap in the face to all of the victims of heinous crimes."

Prior related posts:

March 4, 2015 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Cloudy with (less of) a chance of executions in Georgia

ImagesAs reported in this Time piece, headlined "Georgia Postpones 2 Executions Over ‘Cloudy’ Drugs," the forecast in the Peach State just got peachier for those on the state's death row as the state deals with uncertainty concerning its execution drugs.  Here are the details:

Georgia's supply of lethal injection drug pentobarbital may have gone bad.  Georgia indefinitely postponed two executions Tuesday to allow officials to analyze its current batch of lethal injection drugs, which “appeared cloudy” prior to an execution that had been scheduled Monday night.

The execution of Kelly Gissendaner, who would’ve been the first woman put to death in the state in 70 years, was called off by the Georgia Department of Corrections Monday night after the state discovered its supply of pentobarbital, a short-acting barbiturate, looked murky.  Georgia officials made the decision after consulting with a pharmacist, according to The New York Times, even though state officials said that its pentobarbital supply had been tested and was cleared for use.

The state then announced Tuesday that the executions of both Gissendaner and Brian Keith Terrell, who was set to die by lethal injection on March 10 for the 1992 murder of John Henry Watson, were indefinitely postponed.  Gissendaner was convicted of arranging the 1997 murder of her husband, Douglas Gissendaner.

A number of states have had trouble carrying out executions due to problems obtaining drugs.... Like many states, Georgia has turned to compounding pharmacies, which are not under federal oversight, for their drug supplies while also passing a secrecy law that keeps participating pharmacies anonymous.  Georgia has not released the name of its drug supplier, and it’s unclear when its current batch of pentobarbital was due to expire.

March 4, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium

As reported in this local article, headlined "Pennsylvania Supreme Court to take death penalty moratorium case: Philadelphia DA calls governor’s actions lawless and unconstitutional," a fascinating case concerning state executive powers in the Keystone State is officially to be considered by the state Supreme Court. Here are the details:

The Pennsylvania Supreme Court on Tuesday agreed to take a case filed by the Philadelphia district attorney’s office challenging Gov. Tom Wolf’s moratorium implemented last month on capital punishment in the state. District Attorney R. Seth Williams asked the court to take up the matter involving a defendant named Terrance Williams, who was scheduled for lethal injection today.

Although Seth Williams asked that the court take the case on an expedited basis, the court refused, and it will be heard on a standard calendar, which means that both sides will file briefs and replies over the next several months, and oral argument will be scheduled at a date in the future.

It will probably be more than a year before any decision is reached, and University of Pittsburgh law professor John Burkoff said it could be even longer if the court decides it wants two new justices, who will be elected later this year, to consider the case as well.

Mr. Wolf announced on Feb. 13 that he was instituting a moratorium on the death penalty in Pennsylvania, saying that it was not an “expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes.” Instead, he continued, it was “based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive.” He cited nationwide statistics that show 150 people have been exonerated from death row, including six in Pennsylvania....

But in his filing, Seth Williams argues that Mr. Wolf’s action was lawless and unconstitutional. “Merely characterizing conduct by the governor as a reprieve does not make it so,” the prosecutor’s filing said.

Instead, it continued, “At all times in Pennsylvania history a reprieve has meant one thing and only one thing: a temporary stay of a criminal judgment for a defined period of time, for the purpose of allowing the defendant to pursue an available legal remedy. The current act of the governor is not a reprieve. Nor, indeed, could it be. There is no remaining legal remedy available to defendant. He received exhaustive state and federal review. He sought pardon or commutation and it was denied. There is nothing legitimate left to pursue and no remedy to wait for.”

To halt the imposition of the death penalty on a defendant, the district attorney’s office continued, the sentence must be commuted, which can be done only with unanimous agreement by the state Board of Pardons. Seth Williams accused the governor of usurping judicial function.

But in the governor’s response, his attorneys said what he was doing is temporary — a reprieve — and requires no input from the Board of Pardons. “The governor has ‘exclusive authority’ and ‘unfettered discretion to grant a reprieve after imposition of sentence and on a case by case basis,’ ” they wrote, quoting an earlier court case.

Prior related posts:

March 4, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 03, 2015

Jury seated and ready for opening arguments in Boston bombing trial

As reported in this AP article, to culminate "two months of jury selection, a panel of 12 jurors and six alternates was seated Tuesday for the federal death penalty trial of Boston Marathon bombing suspect Dzhokhar Tsarnaev." Here is more about a high-profile federal capital proceeding:

The all-white panel consists of eight men and 10 women. Jurors include a self-employed house painter, an air traffic controller, an executive assistant at a law firm and a former emergency room nurse. Opening statements in the case are scheduled for Wednesday.

Tsarnaev, 21, faces 30 charges in connection with twin bombings at the finish line of the marathon April 15, 2013. Three people were killed and more than 260 were injured. He is also charged in the killing of a Massachusetts Institute of Technology police officer days after the bombings.

If the jury convicts Tsarnaev, the trial will move on to a second phase to determine his punishment. The only two options available for the jury are life in prison or the death penalty....

During the jury selection process, Tsarnaev's lawyers tried repeatedly to get the trial moved out of Massachusetts, saying he could not find a fair and impartial jury because of the emotional impact the bombings had in the state. O'Toole rejected three change-of-venue motions, saying the process of carefully questioning jurors to detect bias was successful in finding impartial jurors. The 1st U.S. Circuit Court of Appeals twice refused to order the trial moved.

Some prior related posts:

March 3, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack