Thursday, March 03, 2016
Florida legislature completes Hurst "fix" for its capital punishment procedures
As reported in this AP piece, the "Florida Legislature on Thursday sent to Gov. Rick Scott a bill that would require that at least 10 out of 12 jurors recommend execution in order for it be carried out." Here is more:
Florida previously only required that a majority of jurors recommend a death sentence. Scott has not said if he will sign the measure but he has supported Florida's use of the death penalty since he became governor.
The U.S. Supreme Court ruled in January that the current law is unconstitutional because it allows judges to reach a different decision than juries, which have only an advisory role in recommending death. The state Supreme Court halted two pending executions following the ruling, and court cases across the state had been put on hold.
Legislators were initially divided over whether they should require a unanimous jury recommendation in death penalty cases. Florida is one of only a handful of states that does not require a unanimous decision by the jury . State senators agreed to switch to 10 jurors as part of a compromise with the House, but some legislators have warned that the decision could result in the law being challenged once again.
The bill sent to Scott does not apply to the 389 inmates now sitting on Florida's death row. The state Supreme Court has been asked to decide whether the U.S. Supreme Court ruling should apply to those already sentenced to death.
It is an absolute certainty, not just a possibility, that Florida's new capital sentencing procedure will be "challenged once again," which is why I put the term "fix" in quotes in the title of this post. Indeed, given the need now to sort through the impact of Hurst (1) on the "389 inmates now sitting on Florida's death row" and (2) on Florida's (many) pending capital cases based on crimes committed before this new law was passed, and (3) on any future capital cases that apply this new law, I kind of feel bad for all the Floridian capital case prosecutors and defense attorneys who will likely not have much of an opportunity to work on their Florida tans for quite some time.
Wednesday, March 02, 2016
Are death penalty advocates troubled by plea deal, presumably urged by families of two slain Viriginia college students, that allows a double murderer to escape any real punishment?
The question in the title of this post is my reaction to this news story about an expected plea deal which seem to allow a high-profile double-murderer in Virginia to, in essence, avoid suffering any real punishment for murdering two college students. The article is headlined "Report: Matthew to be spared death penalty in Va. student murders," and here are the details (with my emphasis added):
Two remarkably similar murder cases that amplified concerns about campus safety are expected to end when a Virginia man enters a plea deal that will spare him a possible death sentence. Jesse LeRoy Matthew Jr., 34, is expected to enter pleas resolving the Hannah Graham and Morgan Harrington cases Wednesday, according to Albemarle County Commonwealth's Attorney Robert N. Tracci. The prosecutor did not disclose the terms of the plea agreement ahead of the hearing.
Sources told CBS affiliate WTVR Matthew is expected to plead guilty to first-degree murder and intent to defile in both cases. WTVR reporter Laura French reports via Twitter that Matthew is expected to serve four life sentences with no eligibility for parole. The deal will spare him the death penalty, sources told the station.
The former hospital orderly and cab driver is charged with capital murder in the September 2014 death of 18-year-old University of Virginia student Graham. He also faces a first-degree murder charge in the 2009 death of Harrington, a 20-year-old Virginia Tech student. He already is serving three life prison terms for a sexual assault in northern Virginia.
According to authorities, Graham and Harrington were young women in vulnerable straits when they vanished in Charlottesville five years apart...
Graham's disappearance, which came at a time of rising national concern about sexual assaults and other crimes on college campuses, prompted a massive search. Her body was found five weeks later on abandoned property in Albemarle County, about 12 miles from the Charlottesville campus and 6 miles from a hayfield where Harrington's remains had been found in January 2010.
After police named Matthew a person of interest in Graham's disappearance, he fled and was later apprehended on a beach in southeast Texas. He was charged with abduction with intent to defile, a felony that empowered police to swab his cheek for a DNA sample. That sample connected Matthew to the 2005 sexual assault in Fairfax, a Virginia suburb of Washington, according to authorities. The DNA evidence in the Fairfax sexual assault, in turn, linked Matthew to the Harrington case, authorities have said.
The charge against Matthew in the Graham case was later upgraded to capital murder, giving prosecutors the option to seek the death penalty.
Both the Harrington and the Graham families are supportive of the deal, WTVR reports. Both families requested to give victim impact statements at the Wednesday afternoon hearing.
When I first saw the headline of this local story, I was puzzled by the willingness of Virginia prosecutors to let a defendant who is already serving multiple life sentences for other crimes now avoid any capital prosecution for two horrific murders. But, after reading that "the Harrington and the Graham families are supportive of the deal," I presume that these families strongly urged the prosecutors to take this kind of deal in order to conclude legal proceedings quickly and to allow them to get a measure of closure.
Assuming I am right that this plea deal is at the behest of the families of the victims, I am genuinely interested to hear from death penalty advocates about whether they think this outcome is ultimately a serious injustice. I surmise that some (many? most?) death penalty advocates think it is an injustice anytime a first-degree murderer escapes a capital prosecution and possible execution. In this case, given that the double-murderer is already serving life sentences for other crimes, this plea deal to additional life sentences means, functionally, Matthew is going to receive no real punishment at all for murdering Graham and Harrington.
Because I am a something of a death penalty agnostic, and especially because I am a strong supporter of taking very seriously the sentencing interests of crime victims in all cases, I really am not sure how I feel about this outcome. But I am sure I would like to hear the opinions of others, especially those who genuinely believe, as did Immanuel Kant, that the "satisfaction of justice" demands the execution of certain killers.
Updating Delaware's struggles with the post-Hurst hydra
As regular readers know, in this post not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what I expected to be multi-headed, snake-like litigation developing in various courts as judges sort ought what Hurst must mean for past, present and future capital cases. And in this post about a month ago, I reported on the notable decision in Delaware to put all pending capital murder trials and executions on hold until the state Supreme Court resolved the constitutionality of the state's death penalty law in the wake of Hurst.
Now, thanks to this local article headlined "Public defenders: Death penalty unconstitutional," we can all read about the arguments from Delaware capital defense attorneys that the post-Hurst hydra must devour the state's existing capital sentencing scheme. Here are the basics from this press account:
Three assistant public defenders have argued to the Delaware Supreme Court that the death penalty law is unconstitutional -- and therefore needs to be fixed by lawmakers. The attorneys from the Office of Defense Services filed a written argument Monday explaining why they believe Delaware's capital punishment policy violates the U.S. Constitution, especially in light of a recent U.S. Supreme Court decision that deemed Florida's similar scheme unconstitutional.
"The Delaware statute contains a number of unconstitutional provisions that cannot be exercised by this court in an effort to salvage the statute," the 58-page argument said. "Because these multiple constitutional problems require Delaware’s death penalty scheme to be substantially restructured, that task is for the legislature, not the courts."...
Attorneys from the Office of Defense Services said in their argument that it is "crystal-clear that the judge is the independent and paramount capital sentencer" in Delaware. They went on to argue that Delaware is violating the Sixth Amendment by requiring a judge to make findings regarding aggravating and mitigating circumstances, and their relative weight, before a death sentence can be imposed.
"As the opinion in Hurst makes clear, any fact-finding that is a necessary precursor to a death sentence, rather than one of imprisonment, must be performed by a jury," the argument said. "The highest courts and legislatures of several states have likewise acknowledged that the Supreme Court’s Sixth Amendment jurisprudence requires the jury to determine the presence of aggravating and mitigating circumstances, as well as the weight of each."
The attorneys went on to say that the practice of allowing juries to be non-unanimous is also unconstitutional. "There is a nationwide consensus against non-unanimous jury verdicts in capital cases," the attorneys wrote. "No existing state statute currently permits a non-unanimous determination of aggravating factors, and only two, in Alabama and Delaware, permit a jury’s sentencing determination to be less than unanimous. That only two states permit non-unanimous jury verdicts in capital cases weighs heavily against its constitutionality."
The full brief referenced above can be accessed at this link.
Prior related post:
Monday, February 29, 2016
SCOTUS appears troubled by state judge's failure to recuse in capital case after past history as prosecutor in case
This AP report, headlined "Justices hear judicial-bias claim in death-row case," reports on today's SCOTUS oral argument in the Williams case involving Eighth Amendment and Due Process claims arising from a jurist's failure to recuse himself in a Pennsylvania capital case. Here are the basics:
The Supreme Court on Monday appeared likely to rule that a Philadelphia district attorney-turned-state high court judge should not have taken part in the case of a prison inmate whose death-penalty prosecution he had personally approved nearly 30 years earlier.
The justices indicated that inmate Terrance "Terry" Williams should get a new hearing in Pennsylvania's Supreme Court because then-Chief Justice Ronald Castille voted to reinstate Williams' death sentence in 2014. A lower court judge had thrown out the sentence because prosecutors working for Castille had hidden evidence that might have helped the defense in Williams' 1986 murder trial.
Justice Sonia Sotomayor was among several justices who focused on Castille's actions in 1986, when he was the Philadelphia district attorney. "The judge here actually signed his name to the review of the facts and the decision to seek the death penalty," Sotomayor said.
When Philadelphia Deputy District Attorney Ronald Eisenberg told the justices that the passage of time had lessened concerns about bias, Justice Anthony Kennedy was almost incredulous. "So the fact that he spent 30 years in solitary confinement actually helps the state?" Kennedy said.
The conditions of Williams' confinement could be an issue in the outcome of his case. Pennsylvania has not executed anyone since 1999, and Gov. Tom Wolf has declared a moratorium on executions. But even if the chance of Williams' being put to death is small, he continues to be held in isolation along with other death row inmates in Pennsylvania. The court also confronted whether Castille's participation in the case made a difference on a court that ruled unanimously against Williams.
The full SCOUS oral transcript in Williams v. Pennsylvania is now available at this link. As always, I would be grateful for help from readers to identify any especially noteworthy (i.e., blog-worthy) interchanges from the argument.
Iran reportedly wages the "war on drugs" by executing the "entire adult male population" of a village!?!?!
There is much talk in the United States about causalities of all sorts from the tough ways in which US governments use criminal justice powers of all sorts to wage a "war on drugs." But this FoxNews article reports on Iran waging the war with a whole new type of extreme powers. The piece is headlined "Iran reportedly executes every adult man in one village for drug crimes," and here are the stunning details:
The entire adult male population of a village in southern Iran was executed for drug offenses last week as part of a country-wide crackdown on trafficking, state media report. Iran’s vice-president for women and family affairs, Shahindokht Molaverdi, revealed the news in an interview with the Mehr News agency last week, but did not say when or where the executions took place, or how many people were killed.
“We have a village in Sistan and Baluchestan province where every single man has been executed,” she said, according to The Guardian. “Their children are potential drug traffickers as they would want to seek revenge and provide money for their families. There is no support for these people.”
Molaverdi said President Hassan Rouhani’s government has brought back previously-axed family support programs. “We believe that if we do not support these people, they will be prone to crime, that’s why the society is responsible for the families of those executed,” she said.
Human rights groups denounced the executions. “The apparent hanging of every man in one Iranian village demonstrates the astonishing scale of Iran’s execution spree,” Maya Foa, from the anti-death penalty group Reprieve, told The Guardian. “These executions — often based on juvenile arrests, torture, and unfair or nonexistent trials — show total contempt for the rule of law, and it is shameful that the UN and its funders are supporting the police forces responsible.”...
The Islamic Republic hanged 753 people in 2014, more than half of whom were convicted of drug-related offenses, the group said. In 2015, nearly 700 people were executed in Iran in the first half of the year alone, it added. The mass executions have led activists to call on the U.N. Office on Drugs and Crime to stop funding the Iranian government’s anti-narcotics campaign until Tehran ends the use of capital punishment for such offenses, The Guardian reports.
Candidly, I have a hard time wrapping my head around the notion that the Iranian government, in order to try to stop drug trafficking in the name of helping "women and family affairs," would execute the entire adult male population of a village in southern Iran (and then, apparently, will provide government support for the families of those executed). But, absent further reports that this story is inaccurate, I have to conclude that Iran believes no punishment is off-the-table and unjustified when trying to combat the scourge that is drug use and abuse.
SCOTUS taking on array of criminal justice cases this week in which Justice Scalia's absence will again be consequential
The Supreme Court this week hears oral argument in a trio of criminal justice cases this week. Because all three cases strike me as involving relatively quirky/narrow issues, I am not expecting to get any blockbuster rulings from any of them (especially with a now short-staffed Court). Via SCOTUSblog, here are links to the cases being heard today and tomorrow with the question presented:
Voisine v. United States: (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.
Williams v. Pennsylvania: (1) Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.
Nichols v. United States: (1) Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.
Because Williams involves an Eighth Amendment case and involves the death penalty, I suspect it will get the most press attention and probably even most of my attention after today's oral argument. But, in part because Williams involves an Eighth Amendment case and involves the death penalty, I am already pretty confident which Justices are likely to be more or less sympathetic to the capital defendant's claims on appeal.
In contrast, both Voisine and Nichols involve questions of statutory interpretation of federal crime statutes in politically fraught settings: Voisine involves the mix of domestic violence and guns, Nichols involves the tracking of sex offenders abroad. Both the specific legal issue before the Court and the context in which it arises makes me uncertain how various justices are likely to approach the cases at oral argument and in an eventual ruling. In both cases, though, the defense side likely is quite sorry to see Justice Scalia's chair empty because he was among the most consistent and forceful voices for the rule of lenity and other principles to limit the reach of government powers in the interpretation of federal criminal justice statutes.
Friday, February 26, 2016
Could a new group called Public Safety Officials on the Death Penalty really impact discussions of death penalty reform?
The question in the title of this post is prompted in part by this recent piece by Ted Gest at The Crime Report headlined "Justice System Voices Question Capital Punishment." Here are excerpts:
As support for capital punishment in the United States erodes, one viewpoint not often heard in debates on the issue is that of the people who do the work that leads to executions: officials of the criminal justice system.
A Washington, D.C., organization called The Constitution Project is moving to fill that gap, with a group called Public Safety Officials on the Death Penalty (PSODP), which it describes as "an independent group of current and former law enforcement, prosecutors and corrections officials strongly concerned about the fairness and efficacy of the death penalty in America."...
[T]he new panel of public safety officials is offering its expertise to policymakers in states that are considering whether to continue executions. The group has three co-chairs: former Virginia Attorney General Mark Earley, former Massachusetts corrections commissioner Kathleen Dennehy, and former Southern Pines, N.C., Police Chief Gerald Galloway, who formerly led the North Carolina Chiefs of Police Association. The group says it stands ready to provide information. It does not take a formal stand on whether capital punishment should be abolished, but it is clear that the co-chairs believe that the current system is not operating fairly and efficiently.
Former Police Chief Galloway declares that the capital punishment system is "dysfunctional," noting that it often takes many years to put an accused murder to death, and that more than 150 people have been removed from death rows in various states after being exonerated or having their convictions overturned for legal reasons. Noting that some convicted murders spend decades on death row amid seemingly endless legal appeals, Galloway told The Crime Report, "The system is unfair. It is too expensive. Some innocent people end up on death row, and victims' families wait for justice that never occurs."
Dennehy said her biggest concern was "the possibility of executing an innocent person -- that is too high a price to pay." S he also cited allegations of "botched executions" in Oklahoma and elsewhere, saying that corrections employees who must carry out the sometimes tricky lethal injection process can suffer psychological harm. (Oklahoma inmate Clayton Lockett died in 2014 more than an hour after he was placed on an execution gurney after an employee had difficulty inserting a needle.)
Earley, who served as Virginia’s attorney general from 1998 until mid-2001, said last year he had changed his views and now opposes capital punishment. "If you believe that the government always ‘gets it right,’ never makes serious mistakes, and is never tainted with corruption, then you can be comfortable supporting the death penalty," he wrote in the University of Richmond Law Review. “I no longer have such faith in the government and, therefore, cannot and do not support the death penalty."
Some members of the new group favor capital punishment, but the entire panel agreed that, "each of us is ready to explore alternative ways to achieve a more just and effective public safety system.” Unless the system can be fixed to insure that innocent people are not sent to death row and that the appeals of those who are convicted in capital cases are handled promptly, those found guilty of murder should serve a maximum penalty of life in prison without the possibility of parole, Galloway and Dennehy said.
Members of the new group will offer their expertise to officials in states considering whether to retain the death penalty, Galloway said. "We represent a powerful perspective" he said, referring to their years of experience working in the justice system.
One major state that faces a close public vote on the issue is California, where there may be competing propositions on the November ballot: one to speed executions and another to abolish capital punishment.... As of last year, California had by far the nation's largest death row, housing 743, inmates, and last conducted an execution in 2006. Jeanne Woodford, former California corrections director, is a member of The Constitution Project's new panel.
Thursday, February 25, 2016
Former judges and Justice in Washington urge state's current Justices to strike down state's death penalty
This AP article from Washington reports on a notable brief filed in a capital case in the state Supreme Court. The article is headlined "Dozens of judges ask Washington high court to ban death penalty," and here are excerpts:
Washington state's relationship with the death penalty over the past few decades has been so tenuous that even mass killers, serial killers and a cop killer have escaped it. Only five people have been executed in the past 35 years. Gov. Jay Inslee, a one-time supporter of capital punishment, has said no executions will take place while he's in office. And the state prosecutors association has called for a referendum on whether to bother keeping it on the books.
Now, the state's high court, which came within one vote of striking down the death penalty a decade ago, is re-examining it. Dozens of former Washington judges have taken the unusual step of urging the court to find it unconstitutional this time — including former Justice Faith Ireland, who sided with the narrow majority in upholding capital punishment back in 2006.
Arguments are scheduled for Thursday in the case of Allen Eugene Gregory, who was convicted of raping, robbing and killing Geneine Harshfield, a 43-year-old cocktail waitress who lived near his grandmother, in 1996.
His lawyers are challenging his conviction and sentence, including procedural issues and statements made by a prosecutor during the trial. But they also insist that the death penalty is arbitrarily applied and that it is not applied proportionally, as the state Constitution requires. Certain counties — especially Pierce, where Gregory was convicted — have been aggressive about seeking execution, while others have said a death-penalty case would quickly bankrupt them, making the location of the crime a key factor in whether someone might be sentenced to death....
One of the newer justices, Charles Wiggins, has expressed concerns over indications blacks are statistically more likely to be sentenced to death in Washington than whites, while another, Sheryl Gordon McCloud, represented defendants who had been sentenced to death — and criticized the way the death penalty is applied — during her previous career as an appellate lawyer....
In its brief, the Pierce County Prosecutor's Office urged the court to uphold the punishment, which is allowed by the federal government and 32 states. It argued the court has repeatedly upheld capital punishment, that those rulings should stand, and that Gregory shouldn't be allowed to make his constitutional arguments because he did not properly preserve those issues for appeal. "Since death penalty abolitionists are unable to convince large numbers of Washingtonians to abolish the death penalty, defendant turns to this court in hopes that he can convince five of the court's members that abolishing the death penalty is reflective of current public opinion," deputy prosecutor Kathleen Proctor wrote. "Essentially, defendant asks this court to become a legislative entity and to override the desire of the people of this state to have the death penalty as an available sanction for certain homicides."
In joining 55 other ex-judges who signed a brief filed by the American Civil Liberties Union of Washington urging an end to capital punishment, Ireland, who served a single term on the Supreme Court, was particularly concerned about geographical disparities in death sentences — an issue that the majority held was not squarely before the court in 2006. "We can't call the death penalty anything but arbitrary when it depends on whether you kill someone in a rich county or one that can't afford such a trial," she wrote in an email to The Associated Press. "That could be fixed in my opinion by having death penalty prosecutions and defenses funded at the state level."
Wednesday, February 24, 2016
"Why and How the Supreme Court Should End the Death Penalty"
The title of this post is the title of this new article by Kenneth Williams recently posted to SSRN. Here is the abstract:
In a recent opinion dissenting from the Supreme Court’s holding that a certain drug used in carrying out lethal injections is constitutional, Justice Breyer urged the Court to reconsider whether the death penalty is constitutional. Although the Court has so far declined Justice Breyer’s invitation, his dissent has provoked a discussion as to whether the United States should continue to use the death penalty. The purpose of this article is to contribute to that discussion.
The article begins with a discussion of the reasons that public support for the death penalty has declined during the last 20 years. Problems in the administration of the death penalty, such as the increasing numbers of exonerations, the continued racial disparities in death sentencing, the continued arbitrary application of the death penalty, and the substandard representation that many defendants receive are identified as the main reasons for this decline. The author concludes that going forward, the Supreme Court has two options available in addressing these problems: it can continue to try to reform the death penalty to make it fairer or it can abolish the death penalty. The article discusses some possible reforms that can be attempted but concludes that these reforms are unlikely to have a significant impact in making the death penalty fairer. Therefore, the author concludes that the only option available to the Court is to completely abolish the death penalty.
The author argues that the doctrinal framework for the Court to abolish the death penalty is already firmly in place. The Court could choose to abolish the death penalty for one of several reasons. First, it could find the death penalty violates Equal Protection because of the continued racial disparities in its application. Second, there are several Eighth Amendment grounds upon with the Court could rely. For instance, in the past the Court has found that the application of the death penalty to juveniles and mentally retarded offenders violated the Eighth Amendment because of “evolving standards of decency.” The Court could similarly find that, given the direction of the states in either abolishing the death penalty by statute or in practice and the significant decline in death sentences by juries, that the continued use of the death penalty also violates “evolving standards of decency.” Finally, the author responds to several likely objections that will be made in the event the Court seriously considers abolishing the death penalty, such as the text of the Constitution and the fear of another Furman type public backlash.
Monday, February 22, 2016
Because Michigan lacks the death penalty, can and should feds consider capital charges against admitted Uber mass murderer?
This new AP article, headlined "Uber driver admits to fatal Michigan rampage," prompts the question in the title of this post now that it seems there were be no questions about guilt in the latest horrific mass shooting. Here are the disturbing particulars:
The Uber driver suspected in a series of three random shootings in Michigan admitted carrying out the seemingly random attacks that killed six people, a prosecutor said Monday. Jason Dalton waived his right against self-incrimination before making the statement to authorities, Kalamazoo County prosecutor Jeff Getting said.
Dalton's statements to police were used to file charges of murder and attempted murder Monday, two days after the shootings in the Kalamazoo area. Dalton appeared briefly in court to hear the charges. He was ordered held without bond and will get a court-appointed attorney.
The shootings occurred in a restaurant parking lot, outside an apartment building and at a car lot. Two victims remain hospitalized.
Meanwhile, an Uber passenger said he called police to report that Dalton was driving erratically more than an hour before the shooting rampage began.
Matt Mellen told Kalamazoo television station WWMT that he hailed a ride around 4:30 p.m. Saturday. He said driver Jason Dalton introduced himself as "Me-Me" and had a dog in the backseat.... "I'm upset because I tried contacting Uber after I had talked to the police, saying that we needed to get this guy off the road," Mellen said....
Kalamazoo County Sheriff Richard Fuller said Uber is cooperating with law enforcement officials, and he believes the company will "help us fill in some timeline gaps." Investigators are particularly interested in communication between Dalton and Uber, as well as customers he might have driven, the sheriff said.
Questions about motive and Dalton's frame of mind are "going to be the hardest to answer for anybody," Fuller said. He expects some answers to emerge in court, but he doubts they will be satisfying. "In the end, I ask people, because I keep hearing this question of why, 'What would be the answer that would be an acceptable answer for you?' They have to think about it for a moment, and they say, 'Probably nothing.' I have to say, 'You are probably correct.' I can't imagine what the answer would be that would let us go, 'OK, we understand now.' Because we are not going to understand."
If Dalton is convicted, the murder charges carry a mandatory life sentence. Michigan does not have the death penalty.
Authorities allege that he shot the first victim outside of an apartment complex and that he shot seven others over the next several hours. Police have not provided a motive. The victims had no apparent connection to the gunman or to each other.
The attacks began early Saturday evening outside the Meadows apartment complex on the eastern edge of Kalamazoo County, where a woman was shot multiple times. A little more than four hours later and 15 miles away, a father and his 17-year-old son were fatally shot while looking at cars at a car dealership. Fifteen minutes after that, five people were gunned down in the parking lot of a Cracker Barrel restaurant. Four of them died....
A man who knows Dalton said he was a married father of two who never showed any signs of violence. Gary Pardo Jr., whose parents live across the street from Dalton in Kalamazoo Township, described him as a family man who seemed fixated on cars and often worked on them.
I do not know enough about federal jurisdiction in capital cases to feel entirely confident that the feds would have a sure-fire jurisdictional basis to take over the prosecution of Jason Dalton. But if one looks at the crimes that have landed some others on federal death row (listed here thanks to DPIC), most involve many fewer murders than Dalton committed. And the fact that Dalton was apparently "on the job" for a notable national (internet?) company when he randomly slaughtered six innocent people and critically wounded two others.
Sunday, February 21, 2016
Will Pope's call for world-wide moratorium on death penalty halt any executions anywhere?
The question in the title of this post is prompted by this news from CNN headlined "Pope Francis calls for one-year moratorium on death penalty." Here are the basic details:
Pope Francis, who has repeatedly called for an end to the death penalty, on Sunday proposed that Catholic leaders suspend the practice for a year to mark the Holy Year of Mercy.
"I make an appeal to the conscience of all rulers, so that we can achieve an international consensus for the abolition of the death penalty," the Pope said in his Sunday address in St. Peter's Square. "And I propose to those among them who are Catholic to make a courageous and exemplary gesture: that no sentence is executed in this Holy Year of Mercy."
The Pope launched the Jubilee Year of Mercy on December 8. The church's formal yearlong push for mercy and forgiveness is set to continue through November 20, when the feast of Christ the King will be celebrated.
Francis voiced his support Sunday for an international conference taking place on Monday in Rome called A World Without the Death Penalty, saying he hoped the conference would bring renewed energy to the mission to end capital punishment. The Pope underlined the possibility of redemption for offenders and a "criminal justice open to the hope of reintegration into society."
"The commandment 'Thou shalt not kill' has absolute value and applies to both the innocent and the guilty," he said on Sunday.
Friday, February 19, 2016
Excited to be at Duke Law School for "The American Death Penalty after Glossip"
I am excited and grateful to have the chance to spend today at Duke Law School for this symposium, "The American Death Penalty After Glossip." Here is the basic description: "The symposium, featuring several of the country's leading experts in the field, will assess the implications of the Supreme Court's 2015 decision in Glossip v. Gross, as well geographic disparities in the application of the death penalty and use of statistics in death penalty litigation." And one can, I am told, watch the event live-streaming via links here, here and here.
Monday, February 15, 2016
Might Virginia go back to the electric chair to try to complete an execution scheduled for next month?
The question in the title of this post is prompted by this recent Washington Post article headlined "Lacking lethal injection drugs, Va. might turn to the electric chair." Here is how the article begins:
Virginia lawmakers are mulling a bill that would allow state officials to use the electric chair to execute those on death row when lethal-injection drugs are not available — a measure that might be needed to put an inmate to death next month.
The legislation passed the Virginia House of Delegates last week, though it still must clear the Senate, which it has failed to do in the past. But this year might be different because an inmate is scheduled for execution in March, and prison officials say they do not have the sedatives they need to do it. “It’s our job to help carry out what they have decided in a court of law,” said Del. Jackson H. Miller (R-Manassas), who introduced the bill.
The proposal again thrusts Virginia to the center of a national debate on how the justice system should deal with those it has determined deserve to die. Historically, states turned away from the electric chair, believing lethal injection to be quicker, less painful and less likely to be declared cruel and unusual punishment, said Robert Dunham, executive director of the Death Penalty Information Center. Now — with the needed drugs in short supply — they are being forced to look at alternatives, sometimes turning to practices that have fallen out of favor, Dunham said.
“The irony is they’re looking for alternatives to lethal injection because lethal injection may be found to be cruel and unusual, or because lethal injection drugs are becoming harder for states to lay their hands on,” Dunham said. “It’s pretty clear that states that adopt electrocution as the method of execution are going to face very serious constitutional challenges.”
Virginia is one of eight states that already allow electrocution as a method of execution, letting inmates choose between it and lethal injection. The next inmate slated to die, Ricky Gray, has not yet picked a method. What will happen at his March 16 execution — or if it will go on as planned — remains unclear.
Gray, 38, was convicted in 2006 of brutally killing a Richmond musician, his wife, and their 9- and 4-year-old daughters. He picked the family because he spotted their door open and decided to rob them, court documents say. The documents say Gray also confessed to killing his wife, Treva Terrell Gray, and three members of another Richmond family. In urging his colleagues to pass the bill, Miller gave a lengthy and graphic description of Gray’s crimes and asked legislators to help the victims’ families “get the justice that they deserve and that our justice system has determined they deserve.”
“This isn’t expanding the death penalty, but the case I just told you about is exactly why we have this punishment on our books,” he said.
Marna Squires, the mother of Gray’s wife, said she does not care what method is used. “I’d love to be there and lay him down on the gurney and put the needle in him if they’d let me,” Squires said.
Executions by electrocution are far less common than those by lethal injection, though they are not unheard of. According to the Death Penalty Information Center, 158 people have been executed by electrocution since 1976, compared with 1,252 by lethal injection. Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia permit the practice in theory, according to data from the center, though each state has different rules. The last inmate to pick electrocution in Virginia was Robert Gleason Jr., who was given a life sentence for killing someone to cover up his involvement in a drug gang, then death for killing two fellow inmates behind bars. He was executed in 2013.
Courts in Georgia and Nebraska have ruled that electrocution violates their state constitutional protections against cruel and unusual punishment, according to the center.
Saturday, February 13, 2016
Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
The question in the title of this post is prompted by this press report headlined "With death penalty decision uncertain, judge delays Dylann Roof’s federal trial." Here are the details:
A federal judge on Thursday delayed Dylann Roof’s trial in the deadly attack on Emanuel AME Church because prosecutors still have not decided whether to seek execution. Roof could face the death penalty on nine of his 33 charges in federal court, but Assistant U.S. Attorney Jay Richardson said the decision by Washington-based Justice Department officials could take another two months.
Such delays in high-profile federal cases are typical. After the Boston Marathon bombings in April 2013, it took then-Attorney General Eric Holder more than nine months to announce he would seek the death penalty against Dzhokhar Tsarnaev. Nearly eight months have passed since Roof’s arrest. Attorneys for the 21-year-old Eastover resident already have said he would plead guilty if the government opts against capital punishment.
U.S. District Judge Richard Gergel urged prosecutors during a hearing Thursday in downtown Charleston to inform him promptly of any development so a trial date can be set. “There are obviously important and alternate paths to go here based on that decision,” the judge said.
Roof’s federal charges in the June 17 shooting of nine black parishioners at the Calhoun Street church include civil rights violations. Officials have called the shooting a hate crime. Because of the delays in the federal case, Roof is likely to be tried first in state court in July. State prosecutors already have said they would pursue the death penalty. Thursday’s hearing in federal court served as a chance for Roof’s defense team and prosecutors to update Gergel on the status of the case. Roof, who remains at Charleston County’s jail, was not there....
Evidence in the cases continues to flow at a steady clip. Roof’s defense team, led by attorney David Bruck, last month got a hard drive full of data, and the FBI has since authored more reports, Richardson said.
While Richardson said the government would be ready for a trial soon, Bruck said his ability to defend his client depends on the death penalty decision. A trial could be avoided, he said, if Roof pleads guilty and gets life in prison.
Roof already had waived his right to a speedy trial because his lawyers need time to review “vast amounts” of evidence to defend him in a death penalty trial, Bruck said. “He has offered to plead guilty,” said Bruck, who also represented Tsarnaev in the Boston trial. “Everybody knows that. That has been the position since the first day of this case. The only issue is the government’s decision to accept that plea.”
Federal prosecutors have said that they planned to send their case to U.S. Attorney General Loretta Lynch’s office in December. The Justice Department’s Review Committee on Capital Cases typically makes a recommendation to Lynch within 90 days. Though two representatives of the department’s Civil Rights Division, which typically leads such prosecutions, attended Thursday’s hearing, Richardson answered the judge’s questions. The prosecutor said that many people must give input and express opinions before a decision is made. “We feel like we are much closer,” he said.
I am generally disinclined to urge a prosecutorial charging decision should be rushed. But I am mystified why and ultimately troubled by the feds needing a year to decide whether to seek a capital charge in a case where there seems to be little doubt about essential offense facts. Especially with guilt not in question, with a large number of sympathetic victims, and with the offender's ugly motive making the indisputably a hate crime conparable to a form of domestic terrorism, I do not really understand why more than eight weeks, let alone eight months, are needed to decide whether to pursue a capital charge here.
Of particular significance, if a capital charge was justified against against Dzhokhar Tsarnaev, whose crime slaughtered many fewer individuals and whose was arguably less culpabale than co-conspirator older brother, I have a had time figuring out why a capital charge against Dylann Roof would not be justified. Indeed, at a time when so many are understandably concerned with whether modern criminal justice systems understand that "black lives matter ," I fear that any decision not to seek a capital charge in this case would create the impression that the nine black lives extinguished in Charleston do not matter as much as just three non-black lives extinguished in Boston.
Tuesday, February 09, 2016
Post-Hurst hydra heads emerging in Alabama
As regularly readers may recall, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases. Now, as reported in this local article, headlined "Capital murder suspects across Alabama seek to bar death penalty," some post-Hurst hydra heads are emerging in the Yellowhammer State. Here are the basic details:
Attorneys for 25-year-old Antonio McCary Jones, a Birmingham man charged with killing a fellow drug dealer by shooting him 14 times, last week told a judge that if Jones is found guilty the death penalty should not be an option. Alabama's sentencing scheme in death penalty cases is the same as Florida's, which was ruled unconstitutional last month by the U.S. Supreme Court, Jones' lawyers argued Friday.
In both Alabama and Florida, judges are allowed to override jury recommendations for either life without parole or death. "The dilemma we're trying to resolve is do we want 12 people deciding death or life, or one person," Joe Basgier, one of Jones' lawyers, said after the hearing. Basgier and Jones' other attorney, Hube Dodd, are not alone in making the argument.
The ink was hardly dry on the U.S. Supreme Court's Jan. 12 ruling in Hurst v. Florida before lawyers around Alabama began filing motions seeking to bar the death penalty for their clients facing capital murder charges because of the similarities between the two states' capital punishment sentencing laws.
That has had local district attorneys scrambling to defend Alabama's capital sentencing law and putting circuit judges in the position of having to hold hearings and rule on the issue. Several judges have already denied the motions, at least one has taken it under advisement, and a few are awaiting further guidance.
District attorneys and Alabama Attorney General Luther Strange say Alabama's law is not the same as Florida's and has already been declared constitutional. "The U.S. Supreme Court ruling regarding the Florida death penalty does not affect Alabama's law. The U.S. Supreme Court specifically upheld Alabama's current system as constitutional in the case of Harris v. Alabama in 1995," according to a statement from the Attorney General's Office.
"In the Florida case (Hurst), the holding is that a jury must find the aggravating factor in order to make someone eligible for the death penalty. Alabama's system already requires the jury to do just that," according to the Attorney General's statement. "The jury must unanimously find an aggravating factor at either the guilt or sentencing phase — such as when the murder was committed during a robbery, a rape, or a kidnapping."...
Defense attorneys argue that that ultimate decision to sentence a defendant to death is made by a judge and not a Jury, just as in Florida. "The jury does make its own sentencing recommendation after a comparable weighing process, but that recommendation 'is not binding upon the court,'" according to Basgier and Dodd's motion.
Rarely, if at all, has a judge in Alabama overridden a jury recommendation for death and sentenced a suspect to life without parole. But there are a number of cases in which a judge has overridden a life without parole recommendation and imposed a death sentence.
According to several motions filed by defense attorneys around Alabama, the U.S. Supreme Court in its ruling in the Hurst case also overruled two previous case — Hildwin v. Florida in 1989 and Spaziano v. Florida in 1984. Both those cases had been used by the court in upholding Alabama's death sentencing scheme in 1995, according to the motions. "As a result, the cases that upheld Alabama's death penalty scheme are no longer valid," according to Basgier and Dodd's motion, which mirrors other defense lawyer's "Hurst" motions. The Alabama Attorney General's Office had filed a brief in the Hurst case asking that the U.S. Supreme Court not overrule Spaziano because that case "had provided the legal foundation for Alabama's death penalty scheme," according to Basgier and Dodd's motion.
Friday, February 05, 2016
Lots of end-of-the-week notable capital punishment stories
A busy day of teaching and other work activies has prevented me from posting about a number of interesting death penalty stories and commentaries I noticed in the media recently. Here are headlines and links to serve as a kind of end-of-week round-up:
Tuesday, February 02, 2016
Post-Hurst hydra develops new heads in Delaware as all capital cases get halted
In this post last month not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various courts as judges try to make sense of just what Hurst must mean for past, present and future capital cases. Now, as reported in this local article, headlined "All Delaware executions, capital murder trials halted," a new head for this litigation hydra emerged yesterday. Here are the basic details:
All pending capital murder trials and executions have been halted until the Delaware Supreme Court determines the constitutionality of the state's death penalty law. The temporary stay, issued by President Judge Jan R. Jurden on Monday, is expected to impact at least four death penalty cases that were scheduled to go to trial in the next 120 days. Likewise, a spokesperson for the Department of Correction said Monday that all executions are also on hold, even though none were scheduled for the coming months.
"I think it is a smart decision," said Delaware's Chief Defender Brendan O'Neill. "It makes sense to stay the cases until we get the Supreme Court's ruling on whether our death penalty statute is constitutional." The stay will give the Delaware Supreme Court time to consider five questions that have arisen in light of a recent U.S. Supreme Court ruling for Florida.
Last month, the U.S. Supreme Court struck down Florida's death penalty system, saying it gives too much power to judges, instead of juries. In that case, a man was convicted of the 1998 murder of his manager at a Popeye's restaurant in Pensacola and was sentenced to death by a judge. Delaware, Alabama and Florida are the only states that allow judges to override a jury's recommendation of life and, instead, impose a sentence of death. Judges in Delaware have not been using that power.
The top U.S. court's recent ruling left prosecutors, defense attorneys and judges in Delaware with many questions about how to proceed in the state's approximately two dozen death penalty cases and with the 14 men on death row. In light of this, Superior Court Judge Paul Wallace solicited questions from Attorney General Matt Denn's office and O'Neill's office that they would like the Delaware Supreme Court to consider. The highest state court agreed last week to address the questions and set a timeline of mid-April for all briefs to be submitted.
The court is using as a test case that of Benjamin Rauf, the Temple University law graduate charged with gunning down classmate Shazi Uppal, 27, in the parking lot of a Hockessin nursing home last summer. Police have said the shooting occurred during a drug deal gone awry....
Jurden wrote in the administrative directive Monday that the certified questions are directly relevant to the pending capital murder trials. "Specifically, the determination will control the procedure to be applied in all such cases," she wrote. "A temporary stay of the pending trials, penalty hearings, and any applications asking this court to declare Delaware's capital sentencing scheme unconstitutional is warranted to ensure the application of the law consistent with the Supreme Court's determination of the certified questions." Jurden went on to say that temporary stays have previously been entered, such as in 2003 and 1992, when questions about the validity of the procedures were being considered by the Delaware Supreme Court.
The ensuing court battle is not the only challenge to the state's death penalty law. A bill to abolish the death penalty failed 23-16 in the House of Representatives on Thursday, but some lawmakers are vowing to give it a second chance this spring.
The administrative directive referenced in this article is available at this link.
Prior related posts:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure out impact of Hurst
- Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida
Monday, February 01, 2016
Notable new parallel studies on comparable execution patterns in two notable states
Frank Baumgartner has recently released these two (short and reader-friendly) reports providing a "review of simple statistics" concerning who has been executed in two states in the modern death penalty era:
There were no data that especially surprised me during my (too quick) review of these reports, though I always find analysis of county-level death penalty patterns especially intriguing. For example, these documents report that "six out of Florida’s 67 counties are responsible for more than half of the state’s 89 executions" and that "four out of Ohio’s 88 counties (Lucas, Summit, Cuyahoga, and Hamilton) — or just 5% — are responsible for more than half of the state’s 53 executions." These kinds of data serve to highlight, yet again, just how significant county-level actors — particularly district attorneys and trial judges — truly are in the actual administration of the death penalty in the United States.
Sunday, January 31, 2016
Notable analysis of many capital defendants in Florida condemned to death by split juries
The Tampa Bay Times has this new detailed analysis of the history and impact of the Sunshine State's willingness to send persons to death row based on split jury recommendations. The article is headlined "Only in Florida: How the nation’s lowest bar for the death penalty has shaped death row," and here is how it gets started:
Florida has more than 170 people on death row today who may not have been condemned to die in any other state — the result of its one-of-a-kind law that allows a jury to recommend capital punishment by a simple majority vote, a Tampa Bay Times analysis has found.
Unburdened by the need to reach a unanimous decision, Florida juries typically don’t. Two-thirds of the people Florida has executed since 1995 were condemned to die on the recommendation of fewer than 12 jurors, the Times analysis found.
No other state allows juries to recommend death by a 7-5 vote. Of the 32 states that have the death penalty, 29 require a unanimous vote of 12. Alabama requires 10. Delaware calls for jurors to unanimously agree on whether the defendant is eligible for the death penalty, but their sentencing recommendation can be split.
This month, the U.S. Supreme Court struck down Florida’s death penalty statute, forcing the Legislature to rewrite it. Although the court did not explicitly address the issue of non-unanimous jury votes, legal experts say this part of Florida’s law is in constitutional jeopardy.
The Times reviewed more than 450 death penalty cases dating back decades to determine how juries voted in the penalty phase of capital trials. The juries’ sentencing recommendations are merely advisory, another unusual feature, but no Florida judge has ignored a jury’s guidance in nearly two decades.
The Times found that prisoners who were sentenced to death based on non-unanimous jury recommendations were far more likely to have their cases overturned on direct appeal, or to be ultimately acquitted.
Florida leads the nation in death row exonerations. Of the 20 people who have been exonerated and for whom sentencing information is available, 15 were sent to death row by a divided jury. Three others were cases in which judges imposed the death penalty over a jury’s recommendation of life in prison.
Thursday, January 28, 2016
New poll shows that, even among younger voters, support for the death penalty remains solid
YouGov has conducted some recent polling concerning death penalty perspectives that included a number of interesting questions and interesting demographic data. This brief summary of the poll results with a focus on age divisions includes this accounting of some of the poll results:
Most Americans still favor the death penalty, but a quarter of young Americans would refuse to even consider the death penalty if they were on a jury.....
YouGov's latest research shows that most Americans still favor the death penalty for people who have been convicted of murder. Support is highest among Republicans (71%) and over-65s (67%). Under-30s are the only group where there is not majority support for the death penalty, with 45% people aged 18 to 29 saying that they favor the death penalty and 35% saying that they are opposed.
Despite the fact that only 58% of Americans actively support the death penalty 73% say that, if they were on the jury for a murder trial, they would consider all sentencing options, including the death penalty. 18% of Americans say that, regardless of their jury duty, they would never consider the death penalty. Younger Americans are the most likely to say that they could never consider condemning someone to death, with a quarter of under-30s (24%) stating that they'd never consider the death penalty.
I am not at all surprised that younger people, who tend to be more liberal than older people on a wide range of issues, are generally less supportive of capital punishment than their elders. Indeed, as the title of this post suggests, I am somewhat surprised that only 1 of 3 millennials voice general opposition to the death penalty and tht only 1 of 4 would be unable to return a capital verdict if on a jury.
Wednesday, January 27, 2016
Florida trial judge refuses to allow capital case to proceed in wake of SCOTUS Hurst ruling
A helpful reader altered me to this notable local article reporting on a notable local ruling concerning the administration of the death penalty in Florida in the wake of the Supreme Court's ruling in Hurst earlier this month. Here are the basic details:
Days after the Supreme Court struck down the way Florida sentences people to die, a Pinellas County circuit judge has ruled that the death penalty cannot be pursued in a first-degree murder case scheduled for trial next month.
In an order filed Friday, judge Michael Andrews rejected prosecutors' notice that they intend to seek the death penalty in the case of a Pinellas Park father, Steven Dykes, accused of fatally shaking and striking his 3-month-old daughter in February of last year. "This court concludes that there currently exists no death penalty in the State of Florida in that there is no procedure in place," Andrews wrote.
The order is the first of its kind in the state following the Hurst vs. Florida decision on Jan. 12, said Pinellas-Pasco public defender Bob Dillinger. In an 8-1 opinion, the Supreme Court found Florida's death penalty procedures unconstitutional because juries play only an advisory role in recommending life or death. Judges make the ultimate decision after giving "great weight" to jurors' recommendations....
Dillinger, whose office is representing Dykes, said he agreed with Andrews' ruling. "What the judge has done is absolutely correct," Dillinger said, adding Andrews is "right on point."
Prosecutors could file an appeal in the case. Another hearing is scheduled on Feb. 16, court records show, with the trial slated to begin Feb. 29. Chief Assistant State Attorney Bruce Bartlett said his office "respectfully" disagrees with judge Andrews, adding that the Hurst decision is not final yet. That will happen after the state asks for a rehearing. Bartlett also said the Legislature still has to create new sentencing guidelines in response to the court's decision.
"They issue an opinion and they don't issue any guidelines on how to fix it, and what to do next," Bartlett said of the Hurst opinion. "It's just a dilemma that faces us because the question is how exactly do you fix it? And they didn't really lay out how they thought it should be fixed, so it kind of lends you to, you know, potentially all kinds of challenges."
Lawmakers have previously said that they are making fixes to the death penalty sentencing system a priority this session. "It's not the Supreme Court's job to lay out the procedural guidelines," said Charles Rose, a Stetson University law professor and the director of the Center for Excellence in Advocacy. "That's an issue for every legislature in every state to deal with independently."
The fate of other murder cases remains in flux until new sentencing guidelines are signed into law, said St. Petersburg criminal defense lawyer Marc Pelletier. "Until the Legislature does its part," he said, "we're still going to be in a situation where everything's unclear."...
[L]aw experts across the state agreed with Andrews' order. "The judge has it absolutely right," said Teresa Reid, a University of Florida Levin College of Law professor and assistant director of the Criminal Justice Center. "You need to have a statute in place regarding sentencing, and we don't have that right now."
She said that the judge's responsibility is to make sure the trial is fair and is conducted under law. "It seems to me the appropriate thing to do is wait," she said. "We can't proceed when we don't have the procedure in place."
Rose, the Stetson law professor, said the decision "makes perfect sense." "Judge Andrews should be commended for doing what the law requires," he said. "It's not only sound, it's courageous because he's the first to step out on the ledge on this issue."
Rose predicted that judges across the state would and should follow suit. "My expectation is that there won't be any new death penalty cases tried," he said.
Prior related posts on Hurst and its aftermath:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure out impact of Hurst
- Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida
Maine Gov calls for return of death penalty to state for drug dealers and others
This notable recent local article, headlined "Maine should have death penalty for drug dealers, LePage says," reports on some notable recent comments by the chief executive in the Pine Tree state. Here is how the piece starts:
Gov. Paul LePage came out Tuesday in support of reinstating capital punishment in Maine. After starting his day with an apparent joking reference to using the guillotine to stage public executions of drug traffickers, he ended it by saying he believes in the death penalty for drug traffickers, criminals who invade homes and sexually assault the residents, and people convicted of murder.
“What we ought to do is bring the guillotine back,” LePage said during a morning interview on WVOM radio in Bangor. “We could have public executions.” The Governor’s Office said the remark was just a joke to illustrate his support for tougher penalties for drug crimes.
On Tuesday night, LePage was asked whether he supported the death penalty, specifically using the guillotine, during a town hall meeting at Husson University in Bangor broadcast by WVII-TV. “I talk about people dying (from drug overdoses) every day, but no one wants to hear that,” LePage told the audience. “When I talk about the death penalty everyone wants to protect the drug traffickers. I want to protect the people of Maine.”
The death penalty was abolished in Maine by the Legislature in 1887. His comments about the guillotine, made just a few weeks after he made national headlines with a remark about drug traffickers coming to Maine and impregnating a young white girl before they leave the state, were picked up by several national media outlets, including CNN and The Washington Post.
“The only time Maine makes the national news is when the governor says something crazy like this,” said Democratic House Majority Leader Jeff McCabe of Skowhegan. McCabe said such remarks produce a “spectacle,” but do little to solve the issue of ending the drug epidemic.
Monday, January 25, 2016
Do SCOTUS watchers really expect the Justices to take up the basic constitutionality of the death penalty soon?
The question in the title of this post is prompted by this new article from The Hill reporting on the Supreme Court's denial of cert in a Pennsylvania case involving a blanket Eighth Amendment attack on the death penalty. Here is the article's discussion of the matter:
The Supreme Court announced [today] that it would not hear a case challenging the constitutionality of the death penalty. The appeal was filed on behalf of Shonda Walters, who was sentenced to death in May 2006 for murdering her next door neighbor with a hatchet and stealing his car.
The U.S. Supreme Court of Pennsylvania for the Eastern District upheld the lower court’s death sentence, saying the court found the evidence sufficient to support her conviction for first-degree murder. In appealing the decision to the Supreme Court, Walters asked the justices to weigh in on whether the imposition of the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The court did not give any statement supporting or dissenting from its decision to reject the case.
Court watchers have been expecting the justices to take up the constitutionality of the death penalty in light of a dissent by Justice Stephen Breyer last year. Experts said Breyer’s dissent provided a blueprint for a broad challenge to capital punishment.... The court appears to be waiting for the right case to weigh in. The case that was declined on Monday is Walter v. Pennsylvania.
I know that a lot of folks eager to have the death penalty completely abolished in the United States are ever hopeful, especially in the wake of Justice Breyer's Glossip dissent, that the Supreme Court will consider anew a wholesale Eighth Amendment challenge to any and every death sentence. But I have always considered quite significant the fact that Justice Breyer's dissent in Glossip was joined by only one other Justice; moreover, just last week every member of the Court except Justice Sotomayor voted to reinstate a number of Kansas death sentences as consistent with the Eighth Amendment (as blogged here).
I fully understand why Justice Breyer's dissent in Glossip is now prompting many capital defense attorneys to raise and seek to preserve an Eighth Amendment broadside attack on the death sentence given to his or her client. But, especially after the Supreme Court's most recent capital case work from Kansas and elsewhere, I am one "court watcher" who does not expect this kind of claim to be taken up by the Justices anytime soon.
Friday, January 22, 2016
Over dissent of Justice Breyer, Alabama goes forward with its first execution in years
As reported in this lengthy local article, headlined "Alabama executes Christopher Eugene Brooks for 1992 murder of Jo Deann Campbell," Alabama got its capital punishment tide rolling again last night. Here are some of the details:
Alabama death row inmate Christopher Eugene Brooks was executed Thursday night for the 1992 slaying of a Homewood woman after the U.S. Supreme Court denied his request for a stay of execution.
Brooks was pronounced dead at 6:38 p.m. in the execution chamber at the Holman Correctional Facility in Atmore. He was the 57th death row inmate executed in Alabama since executions resumed in 1983 after an unofficial more than decade-long nationwide moratorium ended. He was the first person executed in Alabama since 2013....
After the execution Alabama Prison Commissioner Jeff Dunn said the execution with the controversial sedative drug midazolam "went exactly as planned." Brooks did not appear to struggle during the administration of the drugs. His attorneys and other inmates had claimed the first drug in the cocktail does not put the condemned inmate in deep enough sleep to prevent pain when the other two drugs are administered. Dunn said that there are no other executions currently planned, but the prison system does have the drugs available to conduct more. He said the same drug combination has been used in other states.
Dunn also read letters from victim Jo Deann Campbell's two sisters and mother, all of whom witnessed the execution. Mona Campbell, her mother, said the execution does not give her closure and will not bring back her youngest daughter. She said she hoped Brooks had "made peace with God." Jo Deann's sister, Fran Romano and Corinne Campbell also issued statements. "Just as God forgives me for my sins I pray for mercy for this man's soul," Corinne wrote....
Minutes before he was to die, word spread that the U.S. Supreme Court had denied Brook's request to stay the execution. Justice Stephen Breyer dissented from the ruling. Dunn said prison officials were notified of the justices' decision at 5:55 p.m., five minutes before the execution was scheduled to begin.... The request for the stay was made to Justice Clarence Thomas. Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred with Thomas' decision to deny the stay.
Brooks, 43, was convicted in the December 1992 rape and murder of 23-year-old Jo Deann Campbell. Investigators linked Brooks to the crime through DNA, fingerprints, and Campbell's car and other items taken from her Homewood apartment, including a credit card he had used. Her partially clothed body had been found under her bed and she had been beaten with a barbell.
Brooks was one of 187 inmates on Alabama Death Row. Twenty-two have served longer than Brooks on death row. Alabama changed its drug combination for executions in 2014 after it and other states reported they could no longer find supplies of the drugs it had used in the past, mainly because manufacturers did not want their drugs used in executions.
The SCOTUS order denying a stay in this case is available at this link, and here is the text of the concurrence and dissent:
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in the denial of certiorari.
This Court’s opinion upholding Alabama’s capital sentencing scheme was based on Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U. S. 447 (1984), two decisions we recently overruled in Hurst v. Florida, 577 U. S. ___ (2016). See Harris v. Alabama, 513 U. S. 504 (1995). I nonetheless vote to deny certiorari in this particular case because I believe procedural obstacles would have prevented us from granting relief.
JUSTICE BREYER, dissenting from denial of application for stay of execution and petition for certiorari.
Christopher Eugene Brooks was sentenced to death in accordance with Alabama’s procedures, which allow a jury to render an “advisory verdict” that “is not binding on the court.” Ala. Code §13A–5–47(e) (2006). For the reasons explained in my opinions concurring in the judgment in Hurst v. Florida, ante, at 1, and Ring v. Arizona, 536 U. S. 584, 613–619 (2002), and my dissenting opinion in Schriro v. Summerlin, 542 U. S. 348, 358–366 (2004), I dissent from the order of the Court to deny the application for stay of execution and the petition for a writ of certiorari. Moreover, we have recognized that Alabama’s sentencing scheme is “much like” and “based on Florida’s sentencing scheme.” Harris v. Alabama, 513 U. S. 504, 508 (1995). Florida’s scheme is unconstitutional. See Hurst, ante, at 1 (BREYER, J., concurring in judgment). The unfairness inherent in treating this case differently from others which used similarly unconstitutional procedures only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 1–2). I respectfully dissent.
Thursday, January 21, 2016
"Pulling Leviathan's Teeth – The Political Economy of Death Penalty Abolition"
The title of this post is the title of this provocative new article available via SSRN authored by Jerg Gutmann. Here is the abstract:
It is not immediately apparent why a state would willingly abolish the death penalty and thereby lose a powerful political instrument. The fact that some states abolish capital punishment while others retain it has thus far been explained by systematic differences in the values of politicians or citizens. An explanation of different behavior based on different preferences for such behavior is, however, largely tautological and not of much use to social science.
This article proposes and empirically tests a political economy model in which rational politicians are more likely to abolish the death penalty when it is of no political use to them and if the process of abolition serves as a self-commitment in periods of transition. The results of estimating stratified Cox regression models show that the death penalty tends to be abolished particularly during periods of democratization and transitions to peace, but also that independence of the judiciary can encourage abolition. In contrast, military dictatorships are significantly more likely to retain capital punishment, as are countries with a common law legal system and those that are strongly politically influenced by Islam. These findings support the view that the abolition of capital punishment is at least partly motivated by rational political considerations.
Wednesday, January 20, 2016
Supreme Court, reversing Kansas Supreme Court, finds no Eighth Amendment problems with Kansas capital procedures
Continuing to do significant capital sentencing procedure work at the start of 2016, the Supreme Court this morning handed down an opinion rejecting Eighth Amendment concerns with the way Kansas has imposed some capital sentences. The opinion of the Court in Kansas v. Carr, No. 14-449 (S. Ct. Jan. 20, 2016) (available here), authored by Justice Scalia and joined by every Justice except Justice Sotomayor, is at times quite nuanced in its analysis and at times quite crisp. Here are excerpts from the start and body of the opinion highlighting these realities:
The Supreme Court of Kansas vacated the death sentences of Sidney Gleason and brothers Reginald and Jonathan Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man. The Carrs’ notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable doubt.” And second, whether the Constitution required severance of the Carrs’ joint sentencing proceedings....
As an initial matter, the defendants’ argument rests on the assumption that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt. Assuming without deciding that that is the case, the record belies the defendants’ contention that the instructions caused jurors to apply that standard of proof....
Not once do the instructions say that defense counsel bears the burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt — nor would that make much sense, since one of the mitigating circumstances is (curiously) “mercy,” which simply is not a factual determination.....
The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’ background or the circumstances of their offense. Jurors would not have misunderstood these instructions to prevent their consideration of constitutionally relevant evidence....
Whatever the merits of defendants’ procedural objections [about a joint sentencing], we will not shoehorn them into the Eighth Amendment’s prohibition of “cruel and unusual punishments.” As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like “mercy.” Brief for United States 24, n. 8. As we held in Romano v. Oklahoma, 512 U. S. 1 (1994), it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing proceedings.” Id., at 11–12. Rather, it is the Due Process Clause that wards off the introduction of “unduly prejudicial” evidence that would “rende[r] the trial fundamentally unfair.” Payne v. Tennessee, 501 U. S. 808, 825 (1991); see also Brown v. Sanders, 546 U. S. 212, 220–221 (2006).
The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” 512 U. S., at 12. The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vacatur of a death sentence.
In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale.
Tuesday, January 19, 2016
Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida
In this post last week not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various Florida courts as both state and federal judges try to make sense of just what Hurst must mean for past, present and future capital cases.
Not surprisingly, as reported in these two new local articles, courts, lawyers and experts are already puzzled by the situation that SCOTUS has now handed them:
From the Orando Sentinel here, "Florida death penalty experts disagree on who will be spared execution"
From the Florida Times-Union here, "Courts face dilemma with Donald Smith and other death-penalty cases coming up after Supreme Court ruling"
As these capital cases are sure to unfold in hard-to-predict ways in the weeks and months ahead, I cannot help but be especially sympathetic to the difficult position in which Florida's prosecutors and the families of victims of capital murderers now find themselves in. Until the Florida legislature enacts a Hurst fix, and likely long thereafter, so many of the worst-of-the-worst murder cases are going to be in a legal limbo that will make hard cases for prosecutors and hard times for families only that much harder.
Prior related posts:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure out impact of Hurst
Saturday, January 16, 2016
"The End of the Death Penalty Isn't Near"
The title of this post is the title of this recent column by Noah Feldman for Bloomberg View, which is actually mostly focused on various votes by various Justices in this past week's ruling in Hurst v. Florida. Here are excerpts:
The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again. The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter. The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific. The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.
This arrangement violated a principle that Scalia and Thomas adopted in 2000 as part of their goal to strike down federal sentencing guidelines. According to that principle, any fact that’s necessary to increase a defendant’s punishment must be submitted to the jury for proof beyond a reasonable doubt. The Florida structure didn’t satisfy that requirement, the court held. So Scalia and Thomas had no choice but to join the opinion....
In case you’re wondering if Scalia and Thomas are somehow softening, proof to the contrary may be gleaned from the fact that last week, the court refused to stay the execution of a Florida death row inmate. Ordinarily, if the court knew that a forthcoming opinion would save a defendant’s life, it would issue a stay — a decision that requires five justices.
The court didn’t give a reason for refusing the stay. But the defendant, Oscar Ray Bolin Jr., had waived the jury’s part of the process at his 2001 trial and chosen to go straight to the judge for sentencing. Thus, the court could’ve concluded that he wouldn’t have benefited from the constitutional rule requiring submission of facts to the jury. You’re entitled to waive your constitutional rights, and five of the justices must’ve thought that Bolin would’ve done so even if he’d known he had the right to demand a jury finding.
And what about Breyer? He still hasn’t given up on the constitutionality of the sentencing guidelines. He concurred separately in the Florida case to explain that he still doesn’t think that facts enhancing punishment must be submitted to a jury. He gave a different reason for striking down the sentence, namely that the death penalty in particular must be decided by a jury, not a judge.
The upshot is that the Florida case wasn’t about the death penalty for Scalia and Thomas — it was about the old fight over the sentencing guidelines, which Breyer hasn’t forgotten either.
Prior related postson Hurst:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure impact of Hurst
Friday, January 15, 2016
Intriguing new poll on 2016 Californian perspectives on the death penalty
This local article, headlined "Poll: California death penalty is toss-up for voters," reports on a notable new poll of a notable group of state voters on an issue that often garners national attention. Here are the basics:
Opposition to capital punishment continues to rise in California, a new Field Poll released Friday shows, with state voters now equally divided between scrapping the death penalty altogether and speeding up the path to executing inmates on the nation's largest death row.
The poll found that 47 percent of voters favor replacing the death penalty with life in prison without the possibility of parole in California, up from 40 percent in 2014. But at the same time, the poll shows that 48 percent of registered voters would support proposals to accelerate the state's notoriously slow system of resolving death penalty appeals to pick up the pace of executions.
California voters are likely to be confronted with those two issues on the November ballot. Death penalty opponents are preparing a measure that would abolish California executions, while advocates of capital punishment are proposing a conflicting measure to reform and speed up the death penalty system....
Voters in 2012 rejected the last effort to abolish California's death penalty by a 52 to 48 percent margin. If voters were to approve both measures in November, the one with the most votes would settle the death penalty question in California for now, according to both campaigns.
"I think the public really wants some action," said San Bernardino County District Attorney Michael Ramos, among the leaders of the measure to speed up the process. "We are either going to fix the death penalty or it's going away in California."
Support for such a measure, which includes shortening the timetable for the California Supreme Court to resolve death penalty appeals, has dropped since 2014, according to the Field Poll. At that time, 52 percent of state voters backed efforts to accelerate death penalty cases, four percent above the most recent poll.
California has not executed an inmate in nearly ten years as a result of legal challenges to the state's lethal injection method, leaving 750 inmates on death row whose state and federal appeals now take decades to resolve. National polls have also shown dropping support for the death penalty, which remains on the books in 30 other states.
Thursday, January 14, 2016
Is there any chance any domestic criminal justice issue gets any attention during tonight's GOP debate?
The first big Prez debate of this big Prez election year takes place in South Carolina, and I am already assuming that any number of notable and important domestic criminal justice issues will be largely forgotten as GOP candidates spar again over the now-standard debate topics of immigration, ISIS and terrorism, and economic development. Still, as this new Marshall Project piece highlights, the location of the GOP debate tonight was the site of a high-profile mass shooting, and that reality might perhaps enhance the (slim) odds we get a question or two about the death penalty or gun violence or the racial dynamics of crime, policing and punishment. The MP piece is titled "Republican Candidates on Criminal Justice: A Primer," and here is how it sets up a review of what the GOP candidates in the prime-time debate have said so far on the campaign trail about these issues:
Race. Guns. The Death Penalty.
If these issues resounded anywhere in the past year, it was in Charleston, S.C., where Dylann Roof shot and killed nine parishioners in a Bible study class in one of the oldest black churches in the South. The June massacre, apparently propelled by the gunman’s white supremacist views and coming amid a spate of killings of blacks by the police around the country, underscored a plaintive question being asked more and more: Do black lives matter?
Thursday night, Republicans seeking the party’s nomination for president gather in Charleston for their sixth televised debate, less than three weeks before their first big contest, the Iowa caucuses. In the weeks after the killings at Emanuel A.M.E. Church, the South Carolina Legislature finally confronted the racially divisive symbol of secession, the Confederate battle flag, and ordered it removed from the state house grounds. But questions of race, guns and the death penalty have only intensified nationally since then. Here’s how the candidates (listed in alphabetical order) stand on some of those issues, as reviewed by The Marshall Project.
Florida Supreme Court wasting no time trying to figure impact of Hurst
This new article by Chris Geidner for BuzzFeed News reports that the top court in the Sunshine State is asking lawyers to sort out ASAP the dark death penalty clouds that the Supreme Court created with its ruling earlier this week in Hurst finding unconstitutional the process Florida uses for imposing death sentences. The article is headlined "Florida Supreme Court Orders State To Address Death Sentencing Ruling’s Effect By Friday," and here are excerpts:
The Florida Supreme Court on Wednesday ordered state officials there to address questions by Friday about the effect of the U.S. Supreme Court’s decision striking down the state’s death sentencing law on a man due to be executed in less than a month. The brief order from the Florida high court came in the case of Cary Michael Lambrix, who currently is scheduled to be executed on Feb. 11. On Jan. 11, his lawyers had filed a petition for relief based on a similar argument to that made by Timothy Hurst at the U.S. Supreme Court.
After the U.S. Supreme Court ruled on Jan. 12 in Hurst’s case that Florida’s death sentencing law was unconstitutional under the Sixth Amendment because it violated the right to a jury by making the imposition of a death sentence the responsibility of a judge and not a jury, the Florida Supreme Court amended its order in Lambrix’s case. Lambrix was convicted and sentenced to death in 1984 for the murders of Clarence Moore and Aleisha Bryant....
Specifically, the state is ordered to address whether the U.S. Supreme Court’s decision should apply retroactively to past death sentences in Florida, how Hurst applies given the specific facts of Lambrix’s sentencing, and whether any error in Lambrix’s case should be viewed as harmless.
Tuesday, January 12, 2016
A few (too) quick thoughts on the post-Hurst hydra
As reported in this post, the Supreme Court via Hurst finally clarified today what most sensible folks long argued, namely that Florida's death penalty procedures have Sixth Amendment problems in light of the Supreme Court's 2002 ruling striking down Arizona's similar judge-dependent system in Ring v. Arizona. Kent Schneidegger in this post at Crime & Consequences highlights why this was not really a surprise and why what's next is the interesting issue now to follow:
Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.
The Florida Legislature foolishly stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring. I tried to tell them that was insane. They didn't listen. Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.
How many of the existing judgments can be salvaged? The Supreme Court said it left harmless error analysis to the state courts. In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance. Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.
The first thing the Florida Legislature needs to do is fix its system. And do it right this time.
Before turning to what Hurst may mean for the roughly 400 persons now on death row in Florida, I must first note that the two Floridians currently running to be US Prez should both be held responsible for the capital mess Florida now finds itself in. Jeb Bush was Gov of Florida when Ring was decided, and Marco Rubio was in the state legislature (and was not long thereafter to become Speaker of the Florida House). I hope that anyone troubled by the mess that Hurst creates for Florida's criminal justice system will direct some of their frustration to (and ask some hard questions of) this Sunshine State pair.
As for the mess that Hurst will create, I am coining the term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will grow and grow again in Florida's courts (both state and federal). Whether the Sixth Amendment can be deemed harmless in some cases on direct appeal and whether/how Hurst will be applied retroactively in collateral cases — e.g., is Hurst a new rule or just an application of Ring? — is sure to engender some interesting mythology-like discussions in state and federal courts in the months ahead.
Also, not to be overlooked as we take stock of the post-Hurst world, is whether any other states' capital systems might be subject to another round of procedural attack now. Alabama comes to mind because some of its nearly 200 death sentences were imposed via jury override by sentencing judges, though I am not sure if any of these are formally based on the judicial fact-finding found unconstitutional in Ring and Hurst. Similarly, it seems likely that creative capital defense lawyers will find creative ways to attack other death sentences in other jurisdictions based on something in Hurst.
Prior related post:
SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
The big news from SCOTUS this morning was a big (and notably short) ruling declaring unconstitutionally Florida's death penalty procedure via Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2015) (available here). Here is how the opinion of Justice Sotomayor for the Court gets started and ends:
A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determinewhether sufficient aggravating circumstances existed tojustify imposing the death penalty. The judge so found and sentenced Hurst to death.
We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough....
The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s fact-finding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.
Six Justices joined in Justice Sotomayor's opinion, and SCOTUS-watchers ought to have little trouble figuring out which justice concurred only in the result and which Justice dissented.
"Could One of These Cases Spell the End of the Death Penalty?"
The question in the title of this post is the headline of this new Marshall Project piece. Here is how it starts, with links from the original:
Last June, Supreme Court Justice Stephen Breyer suggested that the death penalty might be close to its ultimate demise. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote in a dissent toGlossip v. Gross, to which Justice Ruth Bader Ginsburg added her name, “I would ask for a full briefing on a more basic question: whether the death penalty violates the Constitution.”
Attorneys for death-row inmates, generally a tight-knit group, immediately started talking about what to do next. While some urged caution — arguing that if the court upholds capital punishment it could set their cause back indefinitely — others sensed a rare opportunity. The most outspoken advocates for a more aggressive strategy have been the 8th Amendment Project, a group of lawyers who oppose the death penalty and are tracking cases that might allow the court to strike it down for good.
On Friday, the high court will discuss whether to hear a challenge to the death sentence of a Pennsylvania woman named Shonda Walter. Her case is one of several posed as direct responses to Breyer’s invitation to attack the death penalty head-on.
There is no way to know whether the justices will take any of these cases; for the court to take a case, four justices must agree, and aside from Breyer and Ginsburg, no other justices have indicated their views on whether to take such a challenge. If they do take a case, there is also no way of knowing which one they will position as the next potential landmark, the next Brownor Miranda or Roe. But each of those historic cases was preceded by numerous appeals of the sort that are now reaching the court. Death penalty abolitionists are braiding the details of these cases to the legal arguments they believe have the best shot at swaying the court.
Wednesday, January 06, 2016
Two new Slate commentaries assailing the modern death penalty and modern prisons
The on-line magazine Slate has these two notable new commentaries on two topics that are often the focal point of this blog:
Tuesday, January 05, 2016
Interesting international death penalty data via Amnesty International
Amnesty International (AI) is a human rights organization that has long called for abolition of the death penalty worldwide. Via this New York Times article, headlined "Death Sentences Surge, Even as More Countries Drop Capital Punishment," I see that AI has released its latest accounting on global capital punishment practives in this lengthy report titled "Death Sentences and Executions in 2014." Here is the report's executive summary:
Amnesty International recorded executions in 22 countries in 2014, the same number as in 2013. At least 607 executions were carried out worldwide, a decrease of almost 22% compared with 2013. As in previous years, this figure does not include the number of people executed in China, where data on the death penalty is treated as a state secret. At least 2,466 people are known to have been sentenced to death in 2014, an increase of 28% compared with 2013. This increase was largely due to sharp spikes in death sentences in Egypt and Nigeria, where courts imposed mass sentences against scores of people in some cases.
An alarming number of countries that used the death penalty in 2014 did so in response to real or perceived threats to state security and public safety posed by terrorism, crime or internal instability. For example, Pakistan lifted a six-year-long moratorium on the execution of civilians in the wake of the horrific Peshawar school attack. The government also pledged to execute hundreds of people on death row who had been convicted on terrorism-related charges. China made use of the death penalty as a tool in the “Strike Hard” campaign, which the authorities characterized as a response to terrorism and violent crime in the Xinjiang Uighur Autonomous Region.
There is no evidence that the death penalty has a greater deterrent effect on crime than terms of imprisonment. Where governments present the death penalty as a solution to crime or insecurity they are not only misleading the public but — in many cases — failing to take steps to realize the goal of abolition recognized in international law.
Many of those states that retain the death penalty continued to use it in contravention of international law and standards. Unfair trials, “confessions” extracted through torture or other ill-treatment, the use of the death penalty against juveniles and people with mental or intellectual disabilities, and for crimes other than “intentional killing” continued to be concerning features of the use of the death penalty in 2014.
Despite these concerns, the world continues to make progress towards abolition.
With the exception of Europe and Central Asia region, where Belarus — the only country in the region that executes — resumed executions after a 24-month hiatus, Amnesty International documented positive developments in all regions of the world. The Sub-Saharan Africa region saw particular progress, with 46 executions recorded in three countries, compared to 64 executions in five countries in 2013 — a 28% reduction. The number of executions recorded in the Middle East and North Africa region decreased by approximately 23% — from 638 in 2013 to 491 in 2014. In the Americas, the USA is the only country that executes, but executions dropped from 39 in 2013 to 35 in 2014, reflecting a steady decline in executions over recent years. The state of Washington imposed a moratorium on executions.
Fewer executions were recorded in the Asia-Pacific region, excluding China, and debates on abolition began in Fiji, South Korea and Thailand.
Monday, January 04, 2016
Noting Alabama's notable struggles to secure various execution drugs
This lengthy local article, headlined "Court records show pharmacists refused death penalty drugs," reports on the various difficulties experienced by the Cotton State in an effort to get the chemical tools it needs to get its machinery of death running again. Here are some details:
At the height of Alabama’s search for lethal injection drugs, state officials were turned down by every pharmacy they contacted for help, according to court records filed Wednesday. State officials asked every licensed compounding pharmacist in Alabama to make batches of pentobarbital — once the primary drug used to kill inmates — and all refused. Attempts to buy the drug from four other states also failed, court documents state.
Those refusals could point to a rough road ahead for the death penalty, despite a U.S. Supreme Court ruling last year that cleared another drug, midazolam, for use in executions.... Alabama officials are trying to resume executions by lethal injection after a two-year hiatus caused by legal challenges and shortages of key execution drugs.
Tommy Arthur, condemned to death for the 1980s murder-for-hire of Muscle Shoals resident Troy Wicker, is one of several inmates who have challenged the state’s current approach to execution: injecting an inmate with midazolam to deaden pain, rocuronium to still the muscles and potassium chloride to stop the heart.
Midazolam has been used in botched executions in other states, including an Oklahoma execution in 2014 in which it took an inmate more than 30 minutes to die after the drugs were injected. Inmates say the use of midazolam is cruel and unusual, but the U.S. Supreme Court approved its use in an Oklahoma case last summer, seemingly clearing the way for executions in Alabama as well.
Lawyers for the state on Wednesday asked a federal court for a summary judgment that would end Arthur’s appeals and send him to the execution chamber. But Arthur’s lawyers are trying to flip the script in the case. Before the state adopted midazolam as a death penalty drug, Arthur filed a similar challenge against the use of pentobarbital, Alabama’s main execution drug before 2014. Now that he’s faced with execution by a new drug, Arthur wants to switch back to pentobarbital, a drug he claims is less cruel than midazolam.
Lawyers for the Alabama attorney general’s office say they can’t return to pentobarbital, because no one will sell the drug to the Department of Corrections. “These sources have either indicated they cannot obtain the ingredients for compounded pentobarbital, were not capable of compounding pentobarbital, or refused to be a supplier for the ADOC” lawyers for the attorney general’s office wrote in a court document.
The court documents, among hundreds of pages filed in Arthur’s case last week, shed light on Alabama’s often secretive attempts to obtain drugs for use in lethal injection. Several states have struggled to get their hands on drugs because a growing number of drug suppliers refuse to sell them, citing ethical objections or opposition to capital punishment.... [I]n the Arthur case ... new court documents show ... the state simply couldn’t find a supplier, despite contacting “nearly thirty” sources....
Arthur’s lawyers supplied the state with a list of 19 Alabama pharmacies they said were potential sources of pentobarbital. (All 19 names are blacked out in court documents.) But the state’s lawyers argue they’ve contacted all 19, plus others, and been turned down. “While Arthur alleged that as many as 10 states intend to use compounded pentobarbital for executions, the process of obtaining compounded pentobarbital is difficult to impossible for most,” the state’s lawyers wrote.
That might not matter now, given that Alabama has switched to midazolam, a drug that’s more readily available on the market. But pharmacists’ resistance to compounding execution drugs may soon turn out to be important in the search for midazolam as well...
Two major suppliers of midazolam — Illinois-based Akorn and New Jersey-based Becton-Dickinson — have declared in the past year that they’re opposed to selling the drug to Alabama for executions. While the state hasn’t identified its midazolam supplier, the state’s lawyers used “package inserts,” essentially instructions for use of a midazolam, from Akorn and Becton Dickinson in court filings this year. Both companies have denied selling the drug directly to Alabama prisons, and Akorn even asked the state to return any Akorn-made midazolam it had on hand for executions.
Individual pharmacists are also backing out of the lethal injection business. Last year, the International Academy of Compounding Pharmacists and the American Pharmacists Association both voted to discourage their members from supplying drugs for executions.
Saturday, January 02, 2016
Local prosecutor urges Wyoming legislature to "fish or cut bait" with capital punishment
As reported in this local AP piece, headlined "Casper prosecutor says Wyoming needs to reconsider death penalty," a district attorney in the Equality State is complaining that his state legislature seems unwilling to back the state's capital laws with sufficient capital. Here is the story:
A prosecutor who secured a death sentence against Dale Wayne Eaton for the murder of a woman nearly 30 years ago says the lingering appeal in the case shows the Wyoming Legislature must decide if it's willing to provide the resources necessary to handle capital punishment.
The call came from Natrona County District Attorney Mike Blonigen, who prosecuted Eaton in 2004 for the 1988 killing of Lisa Kimmell of Billings, Montana. For years, Eaton was the only man on death row in Wyoming. His death sentence was overturned in November 2014. "You keep going, and you tell yourself that this is about what the man actually did," Blonigen said.
"But it seems the further we get removed from what he actually did, and out from his trial, the less and less that seems to matter," Blonigen said of Eaton. "Instead, we're tied up in all this other stuff that has nothing to do with the truth or untruth of any of the allegations made, but have everything to do with the procedure."
Kimmell disappeared while driving across Wyoming and fishermen later found her body in the North Platte River. In 2002, DNA evidence linked Eaton to the case while he was in prison on unrelated charges.
The Wyoming Supreme Court upheld Eaton's death sentence, but U.S. District Judge Alan B. Johnson of Cheyenne overturned it last year, ruling that ruled that Eaton hadn't received an adequate defense. Johnson said the Wyoming Public Defender's Office had tried to scrimp on expenses and failed to follow American Bar Association staffing recommendations on providing qualified lawyers, an investigator and a mitigation expert.
Johnson gave the state the choice of allowing Eaton to serve life in prison or seeking the death penalty against him at a new sentencing hearing with the requirement that the state appoint lawyers for him not associated with the Wyoming Public Defender's Office. Blonigen began pressing in state court to hold a new death penalty hearing for Eaton.
But Johnson ruled this summer that the state had failed to follow his order by not appointing new lawyers for Eaton fast enough. In his order last week, Johnson prohibited the state from holding a new death penalty hearing while Eaton appeals aspects of the order Johnson issued last year. Eaton's current legal team is asking a federal appeals court in Denver to rule that too much time has passed for Eaton to get a fair death penalty hearing.
Gov. Matt Mead's budget recommendations, released before Johnson's order, called for the Legislature to appropriate over $1 million for the coming two-year state funding cycle to pay for Eaton's defense in state court. Mead also is calling for $25,000 to study whether prosecutors and the Public Defender's Office are receiving adequate funding.
Wyoming last carried out the death penalty in 1992, when it executed convicted murderer Mark Hopkinson. Several other death sentences have been overturned on appeal since then on the grounds of ineffective legal representation from the Public Defender's Office....
Blonigen said Eaton's case underscores the need for the state to provide adequate support if it wants to keep the death penalty on the books. "You've got to have the resources and have the commitment to it to carry through with it," Blonigen said. "I think the Legislature has to decide do we really want this or not. If we really want it, then we have to change some things."
Monday, December 28, 2015
Defense argues veteran's mental problems should make him ineligible for Oregon death penalty
This interesting local article from Oregon reports on a notable and novel argument being made by defense attorneys for a defendant accused in a brutal group murder. The story is headlined "Lawyers cite client’s military service in arguing that death penalty should not be sentencing option if found guilty," and here are the interesting details:
Army veteran A.J. Nelson stands accused of playing a central role in a brutal Eugene murder that happened three years after his squad’s armored vehicle was destroyed by a roadside bomb during a combat tour in Afghanistan.
Nelson was badly hurt in the blast, and his attorneys say there’s a link between the mild traumatic brain injury he suffered and his alleged crimes. They are asking a judge to exclude the death penalty as a potential sentencing option in their client’s case due to his service-related injury. One of Nelson’s court-appointed lawyers, Laurie Bender of Portland, said in a telephone interview that she does not know of any prior capital case in which a judge has been asked to rule on a death penalty exclusion request made on behalf of a former soldier.
Nelson, now 25, is scheduled to go to trial in March. If he is convicted of aggravated murder in the slaying of Celestino Gutierrez Jr., prosecutors could ask a jury to sentence Nelson to death. Nelson was one of three people arrested and charged with kidnapping and killing Gutierrez, and then using his car to carry out an armed, takeover-style bank robbery in Mapleton in August 2012.
The plot’s mastermind, David Ray Taylor of Eugene, is now on Oregon’s death row after a jury convicted him in May 2014. The third defendant in the case, Mercedes Crabtree, is serving life in prison with the possibility of parole after 30 years. She pleaded guilty to the murder in 2013 and agreed to testify against both Nelson and Taylor.
Nelson’s lawyers said in a recent court filing that they intend to present evidence at trial of a mental disease or defect that interfered with their client’s ability to form the intent to commit the alleged crimes. In addition to the brain injury, the attorneys also assert Nelson has been diagnosed with post-traumatic stress disorder.
Those two issues change the way people see and react to the environment, can lead to other psychological problems and produce “a greater propensity for aberrant and criminal behavior,” Bender wrote in a Dec. 15 motion to exclude the death penalty in Nelson’s case. “Nelson’s service-related injuries and illness do not exonerate him of the charged offenses but mitigate his culpability and the state’s standing to execute him,” Bender wrote...
The Dec. 15 filing includes copies of awards and commendations Nelson received as a result of his military service. They include the Purple Heart, given to soldiers who are injured or killed while serving.... Nelson’s lawyers say sentencing a war veteran with PTSD to death is unconstitutional, and amounts to cruel and unusual punishment under the Eighth Amendment. Veterans, the attorneys argue, deserve categorical death-penalty exclusions similar to those given to juvenile offenders and people with intellectual disabilities....
According to evidence presented at Taylor’s trial, Taylor came up with a plan to kill a stranger and take that person’s vehicle for use in a bank robbery.... Crabtree then obtained a ride from Gutierrez to Taylor’s nearby home. Gutierrez was slain at the house, where Taylor, now 60, and Nelson are said to have dismembered his body. Crabtree, who was 18 at the time of the incident, testified during Taylor’s trial that Nelson — at Taylor’s direction — bound Gutierrez with electrical wire and a belt, pushed a crossbow bolt through one of the victim’s ears and choked him.
After mocking Nelson for failing to kill Gutierrez swiftly, Taylor wrapped a metal chain around Gutierrez’s neck and pulled on it until the victim stopped breathing, Crabtree told the jury. Crabtree said Nelson went into a brief seizure as he and Taylor dismembered the body, and came out of it confused about what he had done.
It is well-established constitutional law that defendants can present mitigating evidence of all sorts, including evidence of mental battle scars of war, to argue to a jury not to impose a death sentence. But here it seems defense attorneys are pressing for a new categorical ban on the death penaty for veterans whose service-related injuries may have played a role in their capital crimes.
Some (of many) prior related posts:
- Should prior military service reduce a sentence?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- "Should Veterans With PTSD Be Exempt From the Death Penalty?"
- "Neuroscience, PTSD, and Sentencing Mitigation"
- Should there be a death penalty exemption for combat veterans with PTSD?
- "Military Veterans, Culpability, and Blame"
- Should honoring vets and PTSD call for commuting a death sentence?
- "Battle Scars: Military Veterans and the Death Penalty"
Saturday, December 26, 2015
Hoping Californians get crisp "mend it or end it" capital initiative votes in 2016
This local article, headlined "Death penalty supporters seek to speed up executions," reports on efforts in California to give voters a chance to mend the state's broken capital punishment system by initiative. Here are the basics:
Death penalty supporters got the state’s go-ahead Thursday to collect signatures for a November 2016 ballot measure aimed at speeding up executions, raising the prospect that voters will be asked to choose between toughening California’s death penalty law and repealing it.
The new initiative would require the state Supreme Court to rule on capital cases within five years. It would also limit death penalty appeals, set strict deadlines for filing appeals and seek to expand the pool of death penalty lawyers. Any attorney who now accepts court appointments to represent impoverished defendants in criminal cases would also have to take on capital cases, regardless of experience.
Another provision would eliminate the currently required public comment period before the state can approve a new single-drug execution method, which officials have proposed to replace the current three-drug executions. Supporters of the measure say it would reduce by at least half the period, typically 25 years or more, needed to resolve death penalty appeals in California. Opponents disagree, noting that the initiative would not add funding for death penalty lawyers or court staff.
A rival initiative to repeal the death penalty and replace it with life imprisonment without parole was cleared for circulation last month. A similar repeal measure was defeated by four percentage points in November 2012. Both initiatives need 365,880 signatures of registered voters in 180 days to qualify for the ballot. Sponsors of the new initiative have raised more than $1 million so far and expect to collect the needed signatures, said Charles Bell, a lawyer for the campaign.
This article also notes that California has not carried out an execution in a decade thanks to lethal injection litigation, while still having the nation's largest death row with nearly 750 condemned murderers waiting to receive their jury-imposed death sentence. As readers may recall, the remarkable size and delay that has come to define California's dysfunctional capital system itself led to a (temporary) ruling of unconstitutionality in federal courts in recent years.
As the title of this post highlights, I am hopeful that both proposals to deal with California's capital system come before voters in 2016. If both do, voters will likely have a crisp "mend it or end it" set of policy choices, and there will also likely be considerable funding (both local and national) devoted to informing voters about what votes on these proposals would mean in an election year likely to be marked by high turnout. Through such a process, we should get some really good insights concerning what voters in a huge (left-leaning) state really want to do about the death penalty circa 2016.
Prior related post:
Wednesday, December 23, 2015
"IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins"
The title of this post is the title of this article by Robert Sanger recently posted on SSRN. Here is the abstract:
In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty. Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled. Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.
Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty. This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race. The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores.
Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.
Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors — such as childhood abuse, poverty, stress, and trauma — can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.
Monday, December 21, 2015
Pennsylvania Supreme Court upholds Gov Wolf's execution moratorium
As reported in this local press article, Pennsylvania's "Gov. Wolf acted within his constitutional authority to temporarily halt the execution of a convicted murderer from Philadelphia, the state Supreme Court ruled on Monday." Here is more from the article about this notable ruling from the top court in the Keystone State:
In a unanimous decision, the high court said Wolf had the power to delay the death sentence for Terrance Williams until a legislative task force issued its final report on the future of capital punishment in Pennsylvania. The ruling doesn't apply to Wolf's broader moratorium on the death penalty, but represented a victory for the governor in the broader and contentious battle over the future of executions in the commonwealth.
Wolf announced the reprieve for Williams in February, saying he would shelve all executions until after the report was issued. That decision that was challenged by Philadelphia District Attorney Seth Williams and prosecutors from other counties, who argued, among other things, that the governor's position unlawfully meddled with the jury's decision in the case.
But in a 33-page decision written by Justice Max Baer, the court said, "we disagree with the Commonwealth's suggestion that the reprieve unconstitutionally altered a final judgment of this Court; rather, the execution of the judgment is merely delayed."
The court was careful to say it was not considering whether Wolf's overall moratorium was legal; instead, it said, it was weighing specifically whether the governor could delay the execution of Williams, a former quarterback at Germantown High School who was convicted for the 1984 killing of Amos Norwood, a 56-year-old church volunteer. "Future challenges to reprieves granted by Governor Wolf will have to await independent examination based upon our holdings herein," the court wrote....
Wolf issued a brief statement saying he was pleased by the court's ruling. When he announced the decision earlier this year, he called the death penalty "ineffective, unjust, and expensive." A report from the task force studying if the death penalty can be legally and effectively administered in Pennsylvania was initially due two years ago. But its deadline has been extended.
Shawn Nolan, Terrance Williams' attorney, said Monday that he had not yet shared the news with his client but was pleased with the decision. "We have been saying all along that it was constitutional what the governor did," he said. "We're gratified that the Supreme Court made a unanimous decision."
Williams' case is also scheduled to go before the U.S. Supreme Court in February. In that appeal, Nolan is arguing that former Pennsylvania Supreme Court Justice Ronald D. Castille should have recused himself from hearing appeal in the case because he was Philadelphia's district attorney when Williams was sentenced to death.
Cameron Kline, spokesman for the Philadelphia District Attorney's Office, said that prosecutors respected the decision even though they had argued for another outcome.
Prior related posts:
- Pennsylvania Gov declares moratorium on state death penalty
- Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"
- Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium
- Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania
- Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dysfunctional death penalty
- Pennsylvania Attorney General calls Governor's execution moratorium an "egregious violation" of the state constitution
Astute review of factors killing the death penalty ... with a questionable final assessment
The Economist has this lengthy new piece (as well as this intriguing graphic) about the modern administration of capital punishment in the United States headlined "Who killed the death penalty?: Many suspects are implicated in capital punishment’s ongoing demise. But one stands out." I recommend the full piece; but, as explained below, I am put off a bit by its concluding statement. First, here are extended excerpts along with the closing paragraph:
Exhibit A is the corpses. Or rather, the curious paucity of them: like the dog that didn’t bark in Sherlock Holmes, the bodies are increasingly failing to materialise. Only 28 prisoners have been executed in America in 2015, the lowest number since 1991. Next, consider the dwindling rate of death sentences — most striking in Texas, which accounts for more than a third of all executions since (after a hiatus) the Supreme Court reinstated the practice in 1976. A ghoulish web page lists the inmates admitted to Texas’s death row. Only two arrived in 2015, down from 11 the previous year.
There is circumstantial evidence, too: the political kind. Jeb Bush, a Republican presidential candidate — who, as governor of Florida, oversaw 21 executions — has acknowledged feeling “conflicted” about capital punishment. Hillary Clinton, the Democratic frontrunner, said she “would breathe a sigh of relief” if it were scrapped. Contrast that stance with her husband’s return to Arkansas, during his own campaign in 1992, for the controversial execution of a mentally impaired murderer. Bernie Sanders, Mrs Clinton’s main rival, is a confirmed abolitionist.
The proof is overwhelming: capital punishment is dying. Statistically and politically, it is already mortally wounded, even as it staggers through an indeterminate — but probably brief — swansong. Fairly soon, someone will be the last person to be executed in America. The reasons for this decline themselves form a suspenseful tale of locked-room intrigue, unexpected twists and unusual suspects. So, whodunnit? Who killed the death penalty?
Where politicians follow, voters often lead. Capital punishment is no longer a litmus test of political machismo because public enthusiasm for it is waning. Most Americans still favour retaining it, but that majority is narrowing. And one critical constituency — the mystery’s first prime suspect — is especially sceptical: juries....
The widely available alternative of life without parole — which offers the certainty that a defendant can never be released — helps to explain that trend [of fewer jury-imposed death sentences]. So does the growing willingness of jurors, in their private deliberations, to weigh murderers’ backgrounds and mental illnesses; ditto the greater skill with which defence lawyers, generally better resourced and trained than in the past, muster that mitigating evidence. But the biggest reason, says Richard Dieter of the DPIC, is juries’ nervousness about imposing an irrevocable punishment. Behind that anxiety stands another, unwilling participant in the death-penalty story: the swelling, well-publicised cadre of death-row exonerees....
Those mistakes implicate another suspect in the death penalty’s demise: prosecutors. The renegades who have botched capital cases — by suppressing evidence, rigging juries or concentrating on black defendants — have dragged it into disrepute. But some responsible prosecutors have also contributed, by declining to seek death in the first place. They have been abetted by another unlikely group: victims’ relatives....
To avoid that protracted agony [of repeated capital appeals], says James Farren, district attorney of Randall County in Texas, “a healthy percentage” of families now ask prosecutors to eschew capital punishment. Mr Farren also fingers another key player in the death-penalty drama: the American taxpayer. Capital cases are “a huge drain on resources”, spiralling costs that — especially given juries’ growing reluctance to pass a death sentence anyway — have helped to change the calculus about when to pursue one, Mr Farren says....
Even when the appeals are exhausted, enacting a death sentence has become almost insuperably difficult — because of an outlandish cameo by the pharmaceutical industry. Obtaining small quantities of drugs for lethal injection, long the standard method, might seem an easy task in the world’s richest country; but export bans in Europe, American import rules and the decision by domestic firms to discontinue what were less-than-lucrative sales lines has strangled the supply....
Lethal injection was intended to be reassuringly bloodless, almost medicinal (as, once, was electrocution). Should it become impractical, it is unclear whether Americans will stomach a reversion to gorier methods such as gassing and shooting: they are much less popular, according to polls. The death penalty’s coup de grace may come in the form of an empty vial.
Or it may be judicial rather than pharmaceutical: performed in the Supreme Court, the most obvious suspect of all. In an opinion issued in June, one of the left-leaning justices, Stephen Breyer, voiced his hunch that the death penalty’s time was up. He cited many longstanding failings: arbitrariness (its use varying widely by geography and defendants’ profiles); the delays; the questionable deterrent and retributive value; all those exonerations (Mr Breyer speculated that wrongful convictions were especially likely in capital cases, because of the pressure to solve them). He concluded that the system could be fair or purposeful, but not both. Meanwhile Antonin Scalia, a conservative justice, recently said he would not be surprised to see the court strike capital punishment down.
Cue much lawyerly soothsaying about that prospect. Yet the legal denouement is already in train: a joint enterprise between state courts, legislatures and governors. Of the 19 states to have repealed the death penalty, seven have done so in the past nine years. Others have imposed moratoriums, formal or de facto, including, in 2015, Arkansas, Ohio, Oklahoma, Montana and Pennsylvania. The number that execute people — six in 2015 — is small, and shrinking. (After their legislature repealed the death penalty in May, Nebraskans will vote in 2016 on reinstating it; but their state hasn’t executed anyone since 1997.) These machinations may help to provoke a mortal blow from the Supreme Court. After all, the fewer states that apply the punishment, the more “unusual”, and therefore unconstitutional, it becomes.
Juries; exonerees; prosecutors, both incompetent and pragmatic; improving defence lawyers; stingy taxpayers; exhausted victims; media-savvy drugmakers: in the strange case of the death penalty, there is a superabundance of suspects. And, rather as in “Murder on the Orient Express”, in a way, they all did it. But in a deeper sense, all these are merely accomplices. In truth capital punishment is expiring because of its own contradictions. As decades of litigation attest — and as the rest of the Western world has resolved — killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society. In the final verdict, America’s death penalty has killed itself.
This article does an effective job summarizing how and why the death penalty in the US continues to be subject to attacks that could lead to its eventual demise. But, even using just 2015 evidence, one could still build an argument that capital punishment has steady heartbeat in the United States. Prez Obama's Justice Department sought and secured a federal death sentence against the Boston bomber in deep blue Massachusetts, while Gov Brown's Attorney General appealed and got reversed a judicial ruling threatening the largest state capital punishment system in deep blue California. Meanwhile, officials in swing state Pennsylvania and activists in heartland Nebraska still (reasonably) think advocating for the death penalty makes for good politics.
Ultimately, I see 2016 as a make-or-break year for the future of the death penalty in the US. If voters in Nebraska (and perhaps also California) vote for the death penalty's repeal, or if US voters elect a new Prez likely to appoint abolitionsit-minded judges and Justices, I will jump on the "death penalty is dying" bandwagon. But, because actual voters rather than just elites still shape the direction of significant legal reforms in our democracy, I do not expect the death penalty to be truly dying until a significant majority of Americans share the legal elite's belief that "killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society."
It is these words at the end of this article that put me off because I continue to struggle with the notion that giving tens of thousands of lesser offenders life-without-parole prison sentences is somehow more "civilized" than giving a few of the very worst murderers a death sentence. Though I respect and understand why abolitionists feel strongly that the death penalty is inconsistent with many American values they cherish, I find it problematic and troubling that so many abolitionists seem to have little respect and understanding for those who believe the death penalty vindicates legitimate values. And, I think that the reduced use of the death penalty well-chronicled in this Economist article suggest reasons why, over time, it could become easier for supporters of the death penalty to show to voters that capital punishment will in the future only be used in the very worst cases involving no doubt about the guilt and the horrors of the murders committed.
Wednesday, December 16, 2015
DPIC releases year-end report highlighting death penalty use "declines sharply" in 2015
This press release from the Death Penalty Information Center, titled "Death Penalty Use in 2015 Declines Sharply: Fewest Executions, Fewest Death Sentences, and Fewest States Employing the Death Penalty in Decades," provides a summary of the DPIC's 2015 year-end report on the administration of the death penalty in the United States. Here are excerpts from the press report:
The use of the death penalty in the U.S. declined by virtually every measure in 2015. The 28 executions this year marked the lowest number since 1991, according to a report released today by the Death Penalty Information Center (DPIC). As of December 15, fourteen states and the federal government have imposed 49 new death sentences this year, a 33% decline over last year’s total and the lowest number since the early 1970s when the death penalty was halted by the U.S. Supreme Court.
Only six states conducted executions this year, the fewest number of states in 27 years. Eighty-six percent of executions this year were concentrated in just three states: Texas (13), Missouri (6), and Georgia (5). Executions in 2015 declined 20 percent from 2014, when there were 35. This year was the first time in 24 years that the number of executions was below 30.
Death sentences have been steadily declining in the U.S. over the past 15 years. The country has now imposed fewer death sentences in the past ten years than in the decade just before the U.S. Supreme Court declared the death penalty unconstitutional in 1972. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC’s Executive Director and the author of the report....
Relatively few jurisdictions handed down death sentences in 2015. A single county — Riverside, California — imposed 16% of all death sentences in the U.S., and accounted for more death verdicts than any state, except for Florida. More than a quarter of the death sentences were imposed by Florida and Alabama after non-unanimous jury recommendations of death — a practice barred in all but three states. Texas, by contrast, imposed only two new death sentences in 2015. Nearly two-thirds of all new death sentences this year came from the same two percent of U.S. counties that are responsible for more than half of all death-sentenced inmates nationwide.
Even as the use of the death penalty declined, its most dangerous flaw remained apparent. Six death row prisoners were exonerated of all charges this year, one each in Alabama, Arizona, Florida, Georgia, Mississippi, and Texas. Since 1973, a total of 156 inmates have been exonerated and freed from death row. The number of people on death row dropped below 3,000 for the first time since 1995, according to the latest survey by the NAACP Legal Defense Fund.
At least 70 death row prisoners with execution dates in 2015 received stays, reprieves, or commutations, 2.5 times the number who were executed.
I have reprinted above the DPIC graphic emphasizing the continued decline in the number of death sentences imposed each year because I view that metric as the most significant and consequential in any serious discussion of the present status and future prospects of capital punishment throughout the US.
Monday, December 14, 2015
SCOTUS yet again summarily reverses circuit reversal of state death sentence
The Supreme Court this morning issued what has become a notably common type of summary reversal: in White v. Wheeler, No. 14-1372 (S. Ct. Dec. 14, 2015) (available here), the Justices via a per curiam opinion determined the Sixth Circuit was wrong to overturn a death sentence based on the exclusion of a juror. Here is part of how the opinion starts and ends:
A death sentence imposed by a Kentucky trial court and affirmed by the Kentucky Supreme Court has been overturned, on habeas corpus review, by the Court of Appeals for the Sixth Circuit. During the jury selection process, the state trial court excused a juror after concluding he could not give sufficient assurance of neutrality or impartiality in considering whether the death penalty should be imposed. The Court of Appeals, despite the substantial deference it must accord to state-court rulings in federal habeas proceedings, determined that excusing the juror in the circumstances of this case violated the Sixth and Fourteenth Amendments. That ruling contravenes controlling precedents from this Court, and it is now necessary to reverse the Court of Appeals by this summary disposition....
The two federal judges in the majority below might have reached a different conclusion had they been presiding over this voir dire. But simple disagreement does not overcome the two layers of deference owed by a federal habeas court in this context.
The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment. Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis....
As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. See, e.g., Parker v. Matthews, 567 U.S. ___ (2012) (per curiam); Bobby v. Dixon, 565 U.S. ___ (2011) (per curiam); Bobby v. Mitts, 563 U.S. 395 (2011) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam).
Kent Scheidegger at Crime & Consequences has this interesting closing thought in this post about this latest SCOTUS summary reversal:
The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary. Judges who cannot or will not decide capital cases fairly should not sit on them. They should be excludable just like the jurors. If they will not recuse themselves, perhaps it is time to establish a challenge for cause. How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?
Friday, December 11, 2015
Prez candidate Donald Trump pledges (seemingly unconstitutional) death penalty mandate for cop killers
As reported in this article from The Hill, "Republican presidential front-runner Donald Trump on Thursday vowed to issue an executive order to mandate the death penalty for anyone who kills a police officer." Here is more:
“One of the first things I’d do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen,” he said.
“We can’t let this go,” he added, speaking to a New Hampshire crowd alongside the New England Police Benevolent Association, shortly after the group voted to endorse Trump.
The outspoken businessman referenced the 2014 shooting of two New York City police officers in their squad car, which prompted significant outcry from some conservatives accusing President Obama of fostering resentment against police officers. “I want to let you know, the police and law enforcement in this country, I will never ever let them down,” he said. “The job they do and the job all you in this room do is second to none, and everyone in our country knows that.”
As most informed readers likely know, the Supreme Court back in 1976 first declared that a system of mandatory death sentencing was unconstitutional, and the Justices reaffirmed this "individualization" constitutional requirement in a number of subsequent ruling. But Justice Scalia has long complained about the Supreme Court finding such a limit in the Constitution, and it is certainly possible that a President Trump might be inclined to seek to live up to this campaign pledge by seeking to overturn prior SCOTUS precedent precluding any capital punishment mandates.
Wednesday, December 09, 2015
Georgia struggles a bit while completing final scheduled US execution of 2015
As reported in this local article, headlined "Georgia executes Brian Keith Terrell after struggling to find vein," the Peach State had a not-so-peachy time completing an execution yesterday. Here are the details:
Brian Keith Terrell was put to death at 12:52 a.m. Wednesday for the 1992 murder of 70-year-old John Watson of Covington.
The U.S. Supreme Court denied Terrell’s final appeal shortly after 11 p.m. Tuesday, clearing the way for the death to proceed. But it took an hour for the nurse assigned to the execution to get IVs inserted into both of the condemned man’s arms. She eventually had to put one into Terrell’s right hand.
Terrell winced several times, apparently in pain. After all the witnesses were seated and a prayer was offered, Terrell raised his head and mouthed, “Didn’t do it,” to Newton County Sheriff Ezell Brown, who was sitting at the center of the front row.
Terrell’s execution marks the fifth lethal injection the state has carried out this year, more than any other year since the state first used lethal injection in 2001....
In 1992, Terrell stole John Watson’s checkbook and withdrew a total of $8,700 from the victim’s bank account. Watson, a friend of Terrell’s mother, Barbara, told her he would not press charges against her son if a substantial amount of the stolen money was returned within two days. Instead, Terrell ambushed Watson as he left his Covington house for a dialysis appointment.
Terrell’s lawyers had pleaded for clemency because of their concerns about the pharmacist who made the lethal injection drug. According to court filings, that pharmacist has a 50 percent error rate.
The pharmacist — whose identity is secret under state law — compounded the drugs used in six previous executions, including the pentobarbital that turned cloudy in early March, forcing the state to postpone scheduled executions. The Department of Corrections said it has addressed the problem. Kelly Gissendaner, who was the lone woman on Georgia’s death row, and another man have since been put to death. Terrell’s lawyers argued in court filings that at the very least Georgia should use another pharmacist to make the drug.
Tuesday, December 08, 2015
"Why Has The Death Penalty Grown Increasingly Rare?"
The title of this post is the headline of this extended NPR piece reported by Nina Totenberg. (She also has this companion shorter piece headlined "As Supreme Court Upholds Death Penalty, Number Of Executions Plummets.") Here is how the big segment gets started:
The last execution scheduled in the U.S. for the year is set for Tuesday in Georgia. But capital punishment has gown rare in America, to the point of near extinction.
Even though polls show that 60 percent of the public still supports the death penalty, and even though the Supreme Court has repeatedly upheld it as constitutional, the number of executions this year so far is almost the same as the number of fatalities from lightning strikes — 27 executions versus 26 deaths by lightning.
It's an ironic statistic. When the Supreme Court briefly banned the death penalty in 1972, it did so, in part, because, as Justice Potter Stewart put it, capital punishment was being imposed so randomly and "freakishly" that it was like being "struck by lightning." Four years later, the court would revive the death penalty, but with new limitations aimed at reserving it for the so-called worst of the worst.
Few could have imagined the trajectory the death penalty would follow in the years after. The number of executions soared in the 1990s — hitting a high of 98 in 1999 and ultimately totaling more than 1,400 — but tailed off dramatically after 2000. With just one more execution set for this year, the current year's total will be the smallest number in almost 25 years.
While the death penalty remains the law in 31 states, that figure is misleading. In many of the 31, capital punishment has largely fallen into disuse. In four states, the governor has put a moratorium on the death penalty, and in 17 there's an executive or judicial hold on executions because of botched procedures or problems in obtaining drugs that courts and legislatures have approved for lethal injection.
Saturday, December 05, 2015
Have conservatives been "manipulated" and "duped" by abolitionists to oppose the death penalty?
The question in the title of this post is prompted by statements in the final paragraph of this lengthy American Thinker commentary authored Aaron J. Veselenak and headlined "Some Reading for Conservatives Who Oppose the Death Penalty." I recommend the full piece, and here is how it starts and ends:
In recent years, opponents of capital punishment have leveled key criticisms against conservatives, claiming major hypocrisy in their continued approval of society's most serious criminal sanction. One claim is that conservative support for the death penalty violates the most central tenet of conservatism — that of limited government. How can conservatives, they ask, in their suspicion of and disdain for large, powerful government, advocate use of the greatest governmental power of all, the taking of life? Contradiction — indeed, hypocrisy — is said to exist.
This charge is faulty, even bogus. Unfortunately, this and other equally faulty charges have resonated with certain members of the conservative movement, among them state and federal lawmakers.
Why is the above claim so faulty, in fact lacking of substance? The answer lies in the fact that conservatives are not anarchists. Yes, conservatives do believe in very limited size and power of government. However, that does not mean they abandon the most basic functions of government, chief among them protection of the people through military and police powers. Or a court and penal system to further provide safety and administer justice....
Conservatives jumping on the anti-death penalty bandwagon in recent years need to rethink their position. They have been manipulated — duped by the seemingly sound and logical statements of death penalty opponents. Deeper reflection demonstrates these claims to be very shallow and without merit.
Perhaps because I hang out and interact with a number of pretty bright people with an array of views on an array of criminal justice topics, I am disinclined to believe that conservatives who oppose the death penalty are being convinced by "very shallow" claims or are subject to being manipulated or duped by death penalty opponents. Nor do I think one need to be drawn in by appeals to anarchy or libertarianism to have conservative-based concerns about the operation of modern death penalty in the United States.
Rather, I think one readily can embrace a strong belief/commitment to a government focused on the "protection of the people through military and police powers [and] a court and penal system to further provide safety and administer justice" while still voicing considerable disaffinity for the modern death penalty. This disaffinity would be based on the (seemingly conservative) perspective that the governments often, even when trying really hard to be effective in its core functions, far too often end up doing more harm than good (and at an excessive cost to taxpayers). Even apart from concerns about government dysfunction showcases by wrongful convictions (which I assume trouble conservatives as much if not more than liberals), the governmental mess we have recently seen in Oklahoma with the mixing up of execution drugs or states previously relying on unqualified executioners or even evidence of racial disparities in capitl application could all seemingly provide a principled basis for principled conservatives to conclude the government (especially state governments) ought not still be in the business of killing its killers.
Friday, December 04, 2015
Arkansas state judge strikes down portion of state execution law aimed at keep drug suppliers secret
As reported in this AP article, an "Arkansas judge struck down a portion of the state's execution law that keeps secret the source of drugs it uses, saying Thursday that drug suppliers do not have a constitutional right to be free from criticism." Here is more about the ruling and its context:
Pulaski County Circuit Judge Wendell Griffen sided with death row inmates who challenged a law passed by lawmakers this year that prevents disclosure about the drugs that are used in executions. The judge also ordered the state to disclose drug details, including the makers and suppliers, by noon Friday. "It is common knowledge that capital punishment is not universally popular," Griffen wrote. "That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge."
Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said late Thursday that the office had filed notice of appeal with the state Supreme Court. Rutledge also asked for an immediate stay of Griffen's order. "Attorney General Rutledge has a duty to defend the State's lethal injection statute and disagrees with Judge Griffen's order," Deere wrote in an emailed statement.
In the filing for an immediate stay, attorneys for the office noted that states with secrecy laws regarding executions have generally won challenges to those laws. They believe Arkansas' law is less stringent than many of those.
In his ruling, Griffen noted that a federal judge in Ohio last month granted a protective order to allow that state to maintain secrecy about the drugs, but he said that court erred because it accepted "what it acknowledged as no proof of 'a single known threat'" as an indicator that disclosing a state's source for drugs would pose an undue burden on that state....
The Arkansas Supreme Court put on hold executions for eight inmates until the inmates' lawsuit challenging the state's execution protocol and secrecy law could be heard.
Under the execution secrecy law, the Department of Correction has withheld the manufacturer and distributor of midazolam, vecuronium bromide and potassium chloride obtained last year, as well as other information. Midazolam, a sedative, gained notoriety after being used during executions that took longer than expected last year in Arizona, Ohio and Oklahoma. The U.S. Supreme Court upheld the drug's use in executions in June. Earlier this year, The Associated Press identified three pharmaceutical companies that likely made Arkansas' execution drugs; each company said it objects to its drugs being used that way.
The inmates argued that the secrecy law is unconstitutional. They want information on the drugs' makers and suppliers to determine whether they could lead to cruel and unusual punishment. They also argued the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said the agreement is not a binding contract.
Griffen noted in his ruling that an attorney for the state said Arkansas' suppliers "covertly sold" the drugs to the state despite directives from the pharmaceutical companies that they should not be sold for use in executions. He said the admission, "whether inadvertent of not," was important because it shows the state could abide by the contract and still obtain drugs....
Griffen noted that Arkansas has a law outlining humane euthanization practices for animals. "The court rejects the notion that domestic pets and livestock in Arkansas have the right to die free of unjustifiable or prolonged pain, but that the constitutional guarantee against 'cruel or unusual punishment' found in the Arkansas Constitution allows people who commit murders to be put to death as if they have no entitlement to such right," he wrote.
Arkansas last executed an inmate in 2005.