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.
Spotlighting a correlation (and a connection) between police shootings and capital punishment
The always interesting Radley Balko has this especially interesting opinion piece headlined "America’s killingest counties." Here are excerpts:
Throughout the 1980s and 1990s, Kern County, Calif., had a reputation for being one of the most law-and-order jurisdictions in the United States. Led by longtime tough-guy prosecutor Ed Jagels, the county earned the unofficial motto “Come for vacation, leave on probation.” In 2009, Jagels’s county Web page boasted that Kern had “the highest per capita prison commitment rate of any major California County.” Jagels would retire to great acclaim and praise, despite the fact that at least two dozen of the people his office convicted during the ritual sex-abuse panic of the 1980s and 1990s have since been exonerated. Kern County has also sent 26 people to death row since 1976, putting it among the top 25 in the country, and among the 2 percent of U.S. counties that account for more than half of America’s death row population.
Given all of that, it probably isn’t terribly surprising that Kern County is also home to the deadliest cops in the United States.... Kern County, in fact, has seen 79 police killings since 2005, or about 8 per year. That’s 0.9 police killings per 100,000 residents. By comparison, the city’s overall murder rate is 4.6 per 100,000, a figure right at about the national average.
There is, in fact, a pretty remarkable correlation between counties that produce a lot of death sentences and counties where cops kill a lot of people. Oklahoma County, Okla., for example, is second in the nation in both death sentences and per capita killings by police officers. San Bernardino County, Calif., is 11th in death sentences, and third in per capita killings by police. Clark County, Nev., is fourth in police killings, and among the top 50 in death sentences. Santa Clara County, Calif., is fifth in police killings, 19th in death sentences. It goes on like that....
There are more than 3,000 counties in the United States. But the 13 with the highest rates of police killings are not only all in death penalty states; they also all rank among the top 30 in death sentences meted out over the past 40 years. These 13 cities are wide-ranging in size (from Kern’s 875,000 people to Los Angeles’ 10 million), murder rate (from 9.1 in Dallas to 2.3 in San Diego) and demographics.
What does this mean? I pointed out in a post a couple of years ago that the counties that send the most people to death row also tend to be counties with histories of prosecutorial abuse and misconduct. (Jagels’s office in particular was regularly berated by appeals courts for bending — or outright ignoring — the rules.) District attorneys are the chief law enforcement officers within their judicial districts. They set the tone for the entire area. They’re also typically in charge of investigating officer-involved shootings and other allegations of excessive force. It isn’t difficult to see how when a DA takes a “win at all costs” approach to fighting crime, that philosophy would permeate an entire county’s law enforcement apparatus, from the beat cop to the DA herself or himself.
Thursday, December 03, 2015
Interesting accounting of capital defense costs in Colorado
The Denver Post has this interesting new piece on capital defense costs headlined "Colorado public defenders spent $6.3 million on death penalty cases: Colorado Public Defender's office spent $6.3 million on 10 cases in which prosecutors filed a notice to see the death penalty since 2002." Here is an excerpt:
The Colorado Public Defender's office has spent a combined $6.3 million on death penalty cases during the past 13 years. In response to a request from The Denver Post, the office on Tuesday released its aggregate cost of handling death penalty cases between July 12, 2002 and Oct. 31, 2015. During that time period, public defenders handled a total of 10 cases in which prosecutors filed a notice of intent to seek the death penalty.
Most recently, public defenders represented Aurora theater shooter James Holmes and Dexter Lewis, who stabbed five people to death in a Denver bar. Prosecutors sought the death penalty in both cases. Both men were sentenced to life in prison after lengthy trials this summer....
The $6.3 million total includes expenses the office incurred in handling the cases and the "best estimate of the portion of" salaries that can be attributed to death penalty cases. The office said it did not hire additional staff specifically for death penalty cases. During the 13-year period, the office spent $1,989,453 on expenses incurred on death penalty cases. For that same period, the office paid $4,343,484 in salaries related to handling death penalty cases.
Tuesday, December 01, 2015
Using SCOTUS Johnson ruling, Boston Bomber argues for vacating some convictions and death sentence
Regular readers know that I have given considerable attention to the import and potential impact of the Supreme Court's summer ruling that a key clause of the federal Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015). But even from my ivory tower perch, I had not considered that the Johnson ruling might provide a basis for a high-profile federal capital defendant to seek to undo his death sentence. But, as this FoxNews article details, just such an argument was made today in Boston:
Lawyers representing Boston Marathon bomber Dzhokhar Tsarnaev sought Tuesday to spare him from the death penalty, citing a Supreme Court ruling they say taints half of the charges of which he was convicted.
Tsarnaev, now 22, was sentenced to death in June after being convicted of working with his brother to plant pressure cooker bombs at the 2013 race's finish line in an attack that killed three and injured hundreds. But his attorneys say prosecutors were able to pile on more severe charges using a 1984 federal law that was partly invalidated by the high court this summer, and that without those enhanced charges, Tsarnaev may have gotten a more lenient sentence. They are pushing for a new penalty phase trial, and want it held outside of Boston. "The loss of those convictions would mean that a penalty trial should be held as to all counts," attorney William Fick argued.
Tsarnaev's attorneys argued some 15 of the 30 charges came under an enhanced sentencing policy they say was invalidated by a U.S. Supreme Court decision from earlier this year. In that case, Johnson vs. United States, the court ruled 8-1 held that the term "violent felony" as it applies to a 1984 law allowing for harsher prison terms in certain cases is unconstitutionally vague. The defense argued that the number and nature of those charges likely influenced jurors when they decided Tsarnaev deserved the death penalty....
Former Assistant U.S. Attorney Andrew McCarthy, who prosecuted the terrorists who bombed the World Trade Center in 1993, said the Tsarnaev team is off-base in trying to apply the Johnson case. In that case, the Supreme Court had ruled "violent felony" was a vague term in certain instances, such as extortion, where violence may or may not be involved. Tsarnaev's use of a bomb left no gray area, he said. "It is a frivolous argument," McCarthy told Fox News. "There is no such thing as "passive" deployment of a bomb, which is innately a destructive device."
Split Ohio Supreme Court reverses death sentence based on statutory "independent evaluation"
As reported in this Reuters piece, a "man who beat a female neighbor to death with a baseball bat when he was a teenager had a troubled family background and childhood of drug and alcohol abuse and should not have been sentenced to death, the Ohio Supreme Court ruled on Tuesday.' Here is more about the notable capital ruling and some reactions thereto:
The court in a 4-3 decision vacated the death sentence of Rayshawn Johnson, who was 19 years old when he killed Shanon Marks in 1997 in a Cincinnati neighborhood.... "The sentence of death imposed by the trial court is not appropriate in this case," Justice Paul Pfeifer wrote for the majority.
Johnson had been sentenced to death twice in the killing, most recently in 2012 after a federal court set aside the initial sentence, ruling that jurors should have been allowed to consider his difficult childhood at a sentencing hearing.
“I think the message is that courts need to give meaningful consideration to the mitigation that is presented on behalf of clients. His life story, all of those things, the negative influences… the significant trauma … comes back later in life in unfortunate ways,” said Ohio Public Defender Timothy Young, whose office represents Johnson....
"What's kind of mindboggling about this decision is that -- I have to be careful because we have rules not to criticize judges so I'm not going to do that. But what is frustrating, and this poor family, my god, we went through basically two trials already," Hamilton County Prosecuting Attorney Joseph Deters told reporters.
The lengthy ruling in Ohio v. Johnson, No. 2015-Ohio-4903 (Ohio Dec. 1, 2015), is available at this link, and here is a key pargraph from the start of the majority opinion:
In 2011, the state conducted a new mitigation hearing. A new judge presided over the hearing, and 12 new jurors recommended a sentence of death. The trial court again imposed a death sentence, and we now review Johnson’s direct appeal as of right from that sentence. We find that there were no significant procedural defects in the new mitigation hearing, but, pursuant to our independent evaluation of the sentence under R.C. 2929.05(A), we determine that the aggravating circumstances in this case do not outweigh beyond a reasonable doubt the mitigating factors. We accordingly vacate the sentence of death and remand the cause to the trial court for resentencing consistent with R.C. 2929.06.
Monday, November 30, 2015
Detailing how Ohio prosecutors, armed with LWOP options, are migrating away from capital charges
This recent local article, headlined "Eluding death: Ohio prosecutors charge far fewer capital murder cases," spotlights the role that local prosecutors are playing in changing the death penalty landscape in the Buckeye State. Here are excerpts:
Prosecutors across Ohio are changing the way they charge suspected killers. They are indicting far fewer with the death penalty and pushing more sentences of life in prison without parole.
The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year. During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.
The Ohio numbers mirror a national trend involving the death penalty. Legal experts cited the high costs of taking a capital case to trial. They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families....
As the death penalty in Ohio sits stalled in a moratorium over the drugs used in executions, the emerging trends of how prosecutors handle aggravated murder cases offer insight into the way justice is meted out in Ohio courtrooms. "We simply are not charging people with the death penalty like we once did," said Michael Benza, a senior instructor of law at the Case Western Reserve University School of Law....
Since late 2012, when Prosecutor Timothy J. McGinty took office, five men have been indicted on death-penalty charges. But there were 75 cases that met the criteria for the penalty, according to prosecutors' records. That means McGinty's office pushed the death penalty in less than 7 percent of the possible cases.... Compare McGinty's record to his predecessor, Bill Mason: From 2009 through much of 2012, Mason's office indicted 89 death-penalty cases out of a possible 114 that met the requirements for the charge, or 78 percent, according to prosecutors' records.
McGinty told The Plain Dealer that he believes in the death penalty when going after the worst of the worst. "The death penalty used in the correct case — a case that leaves no doubt — is, I believe, a strong deterrent to crime," McGinty said. "But the endless appeals process has undermined the death penalty. In every case, I have to ask, 'Are we going to survive this?' We have to take a case to a judge and jury and then face 25 years of appeals. Is it fair to families of victims? Is it fair putting them through a quarter century of appeals?'
Since taking office, McGinty has used an internal office review committee to examine whether the death penalty is justified in each case brought to his office. Specifically, the panel looks at whether the crime fits the letter and spirit of the law, whether a reasonable jury would return a guilty verdict and whether it would be worth the resources to spend decades fighting the appeals. Based on the panel's recommendation and the family's wishes, McGinty makes the decision.
Life in prison without parole became an option to jurors in death-penalty cases in 1995. Ten years later, state lawmakers made it possible for prosecutors to seek the life-without-parole sentence in other murder cases. Years later, the trends have become quite clear.
* Death-penalty indictments dropped 77 percent, going from 81 in 2010 to 19 this year, according to records from the Ohio Public Defender's Office.
* The number of felons convicted of murder and sentenced to life in prison without parole has jumped 92 percent, going from 283 in January 2010 to 544 in October, according to state prison records. The inmates make up about 1 percent of the 50,370 inmates in the system.
* It costs $22,836 a year to house an inmate in Ohio. Since there are 544 serving sentences of life without parole, that means the total dollar amount for the group is $12.4 million a year. Because many are under the age of 35, the costs will grow for years to come.
But counties and the state also bear major costs in death-penalty trials. The trials can cost hundreds of thousands of dollars prosecuting and defending complex cases at trial — and much more during the appeals process. Ohioans to Stop Executions cited a study by WHIO-TV in Dayton that found it costs $3 million to execute a person in Ohio — from arrest to death. By comparison, the television station found, it costs $1 million to keep an inmate in prison for the rest of his or her life....
For years, Ohio Public Defender Tim Young has pushed the sentence of life without parole. "It is a good thing as an alternative to the death penalty for a myriad of reasons," Young said. "There's closure for the family, and it is cheaper to put a person in prison for life than litigating the case for 15 to 20 years. At the end of the day, it's a good thing for our society."
Others disagree. "Yes, life without parole is the lesser of two evils, but we have to be careful of applauding these sentences," said Ashley Nellis, the senior researcher at the Sentencing Project, a Washington, D.C., group that seeks criminal justice reform. "It would be wrong to simply toss them away and forget about them."
Nellis said she is not opposed to sending the most violent convicts to prison for life. But she believes that their cases should be reviewed. "These people should not be kicked to the curb," she said. "Life in prison is a death sentence, without the execution." If there is enough evidence that shows the inmates have grown and matured behind bars, Nellis said, then they should receive consideration before the parole board or judge.
Friday, November 27, 2015
Might Prez Obama seek to do something bold on the death penalty in his final year?
The question in the title of this post is prompted by this new AP article, headlined "Obama Still Pondering Death Penalty's Role in Justice System." Here are excerpts:
Even as President Barack Obama tries to make a hard case for overhauling sentences, rehabilitating prisoners and confronting racial bias in policing, he has been less clear about the death penalty. Obama has hinted that his support for capital punishment is eroding, but he has refused to discuss what he might call for.
A Justice Department review has dragged on for 18 months with little mention or momentum. The president recently repeated he is "deeply concerned" about the death penalty's implementation, though he also acknowledges the issue has not been a top priority. "I have not traditionally been opposed to the death penalty in theory, but in practice it's deeply troubling," Obama told the Marshall Project, a nonprofit journalism group, citing racial bias, wrongful convictions and questions about "gruesome and clumsy" executions. His delay in proposing solutions, he said, was because "I got a whole lot of other things to do as well."
Obama said he plans to weigh in, and considers the issue part of his larger, legacy-minded push for an overhaul of the criminal justice system. White House officials say the president is looking for an appropriate response and wading through the legal ramifications.
Capital prosecutions are down across the United States. A shortage of lethal injection drugs has meant de facto freezes in several states and at the federal level. Spurred in part by encouragement from Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg, advocates are debating whether the time is right to push the court to take a fresh look at whether the death penalty is constitutional....
Obama isn't alone in struggling with the issue. "We have a lot of evidence now that the death penalty has been too frequently applied and, very unfortunately, often times in a discriminatory way," Democratic presidential candidate Hillary Rodham Clinton said. "So I think we have to take a hard look at it." She also said she does "not favor abolishing" it in all cases.
For Clinton's Democratic presidential rival, Vermont Sen. Bernie Sanders, the issue is settled. "I just don't think the state itself, whether it's the state government or federal government, should be in the business of killing people," he said. On the Republican side, candidate Jeb Bush says he's swayed by his Catholic faith and is "conflicted."...
In September, Pope Francis stood before Congress and urged that the death penalty be abolished. Obama specifically noted the comment when talking about the speech to aides. White House spokesman Josh Earnest said Obama was "influenced" by what the pope said. Such hints have death penalty opponents likening Obama's deliberations to his gradual shift toward supporting gay marriage.
Charles Ogletree, a Harvard law professor who taught the president, said: "Though not definitive, the idea that the president's views are evolving gives me hope that he — like an increasing number of prosecutors, jurors, judges, governors and state legislators — recognizes that the death penalty in America is too broken to fix."
White House officials caution that any presidential statement disputing the effectiveness or constitutionality of the death penalty would have legal consequences. For example, would the administration then commute the sentences of the 62 people currently on federal death row to life in prison?
I suspect hard-core capital abolitionists are growing ever more eager to hear Prez Obama say ASAP that he has evolved now to believe, in the words of Prof Ogletree, that "the death penalty in America is too broken to fix." But any statement by Prez Obama to that effect would likely trigger a significant backlash among an array of GOP leaders (including most running to be Prez), and could refocus death penalty debate away from persistently problematic state capital cases to higher-profile (and less problematic) federal capital cases like the Boston Marathon bomber. With another White House occupant coming soon, I am not sure such a change in focus would enhance the success of the broader abolitionist effort in the long run.
This all said, I could still imagine Prez Obama and his Justice Department moving ahead on a number of lower-profile efforts that would continue to advance an abolitionist agenda. DOJ could file SCOTUS amicus briefs in support of state capital defendants or provide additional funding for research on some of the issues Justice Breyer flagged as the basis for a broadsided constitutional attack on the death penalty. And I would not be at all surprised if Prez Obama around this time next year, when he is a true lame duck and we all know who will be following him into the Oval Office, does something genuinely bold in this arena.
Speaking of doing something genuinely bold, the headline of this San Francisco Chronicle piece provides one possibility: "Obama considers clemency for 62 federal Death Row prisoners." Here is an excerpt from the extended piece:
The bulk of the more than 3,000 Death Row inmates nationwide, including nearly 750 in California, were sentenced under state law. They are beyond the president’s authority. But, by commuting federal prisoners’ sentences to life without the possibility of parole, Obama would stamp the issue as part of his legacy and take a bold action that no successor could overturn.
It is “a quantitatively small gesture that could make the point he’d want to make,” said Stanford Law Professor Robert Weisberg, co-director of the law school’s Criminal Justice Center and a veteran death penalty lawyer. Like other commentators, he offered no prediction of what action Obama would take, but said the president would probably wait until after the November 2016 election, to avoid voter reaction against whoever the Democratic candidate is.
Wednesday, November 25, 2015
Intriguing findings on race and criminal justice issues from 2015 American Values Survey
I just came across this recently released publication by the Public Religion Research Institute, which "conducted the 2015 American Values Survey among 2,695 Americans between September 11 and October 4, 2015." The lengthy survey report, titled "Anxiety, Nostalgia, and Mistrust: Findings from the 2015 American Values Survey," covers lots of ground on lots of issues, and the last four pages discuss findings under the heading "Race and the Criminal Justice System." Here are just a few highlights from this discussion:
Most Americans do not believe that police officers treat blacks and other minorities the same as whites. Only about four in ten (41%) Americans say that the police generally treat racial and ethnic groups equally, while nearly six in ten (57%) disagree....
White Americans are divided in their views about police treatment of racial minorities. Half (50%) say police officers generally treat blacks and other minorities the same as whites, while 48% disagree. In contrast, more than eight in ten (84%) black Americans and nearly three-quarters (73%) of Hispanic Americans say police officers do not generally treat non-whites the same as whites....
Additionally, more than six in ten Republicans (67%) and Tea Party members (63%) say police treat blacks and other minorities the same as whites, while only about one-quarter (23%) of Democrats agree. Three-quarters (75%) of Democrats — including two-thirds (67%) of white Democrats — say that police do not treat blacks and whites the same. The views of political independents closely mirror the general public....
Americans’ views on racial disparities in the criminal justice system largely mirror views on racial disparities in treatment by police. Nearly six in ten (58%) Americans do not believe blacks and other minorities receive equal treatment as whites in the criminal justice system, while four in ten (40%) believe they are treated equally. In 2013, Americans were evenly divided on whether nonwhites receive the same treatment as whites in the criminal justice system (47% agreed, 47% disagreed).
There are stark racial and ethnic divisions in views about the fairness of the criminal justice system. White Americans are closely divided: slightly less than half (47%) say blacks and other minorities receive equal treatment as whites in the criminal justice system, while a slim majority (52%) disagree. In contrast, more than eight in ten (85%) black Americans and two-thirds (67%) of Hispanic Americans disagree that minorities receive equal treatment in the criminal justice system.
White Americans’ attitudes on racial disparities in the criminal justice system differ substantially by class. White working-class Americans are divided: 52% say blacks and other minorities receive equal treatment as whites in the criminal justice system, while 47% disagree. In contrast, just 36% of white college-educated Americans say whites and non-whites are treated equally in the criminal justice system, while nearly two-thirds (64%) disagree.
Partisan divisions on this issue closely mirror divisions on the question of police treatment of whites versus non-whites. More than six in ten Republicans (64%) and Tea Party members (65%) say blacks and other minorities are treated the same as whites in the criminal justice system, while about three-quarters (74%) of Democrats disagree. The views of independents are identical to the views of Americans overall....
When asked which punishment they prefer for people convicted of murder, a majority (52%) of Americans say they prefer life in prison with no chance of parole, compared to 47% who say they prefer the death penalty. Views about the death penalty have held roughly steady since 2012 when the public was closely divided.
Partisan attitudes on this question are mirror opposites. Two-thirds (67%) of Republicans prefer the death penalty over life in prison with no chance of parole for convicted murderers, while nearly two-thirds (65%) of Democrats prefer the opposite. The attitudes of independents mirror the general population.
Americans are also closely divided over whether there are racial disparities in death penalty sentencing. A majority (53%) of Americans agree that a black person is more likely than a white person to receive the death penalty for the same crime, while 45% of Americans disagree. American attitudes about the way that the death penalty is applied are virtually unchanged from 1999, when half (50%) of Americans said a black person is more likely than a white one to be sentenced to the death penalty for an identical crime, and 46% disagreed.
American attitudes about the fairness of death penalty sentences continue to be sharply divided along racial and ethnic lines. More than eight in ten (82%) black Americans and roughly six in ten (59%) Hispanic Americans, compared to fewer than half (45%) of white Americans, report that a black person is more likely than a white person to receive a death penalty sentence for the same crime. A majority (53%) of white Americans disagree. White Americans’ views on this question differ significantly by social class. A majority (54%) of white college-educated Americans say a black person is more likely than a white person convicted of the same crime to receive the death penalty, compared to four in ten (40%) white working-class Americans. A majority (58%) of white working-class Americans say that this is not the case.
Consistent with previous patterns, there are stark partisan divisions in views about the administration of the death penalty. Roughly six in ten (64%) Republicans and Tea Party members (58%) do not believe a black person is more likely than a white one to be sentenced to the death penalty for the same crime, while fewer than three in ten (28%) Democrats agree. Seven in ten (70%) Democrats say that a black person is more likely than a white person to receive the death penalty. Independents are evenly divided over whether a black person convicted of the same crime as a white person is more likely to receive the death penalty (49% agree, 49% disagree).
There is a strong correlation in views about how fairly the death penalty is applied and support for it as punishment for people convicted of murder. A majority (59%) of those who say that there is no racial disparity in death penalty sentencing support capital punishment, compared to 37% who say there are racial disparities.
Monday, November 23, 2015
Would dueling initiatives in California bring capital clarity or continued confusion?
The question in the title of this post is prompted by this Orange County Register editorial, which is headlined "Cloudy prospects for death penalty in California." Here are excerpts:
Is the death penalty viable in California? Until recently, opposing it usually meant political suicide at the state level. In 1986, Rose Bird, chief justice of the California Supreme Court and Gov. Jerry Brown’s appointee, was booted from office by voters after she overturned 64 straight death-penalty convictions. So were two like-minded associate justices.
After that, even Democrats promised to execute the worst criminals. Democratic Gov. Gray Davis executed five men. His successor, Arnold Schwarzenegger, terminated three, the last being Clarence Ray Allen, convicted of organizing three murders.... In 2012, voters defeated Proposition 34, which would have repealed capital punishment in California....
In recent years, the death penalty has been suspended because of accusations the “drug cocktail” used in executions violated the Eighth Amendment’s guarantee against “cruel and unusual punishments.” However, as the Register’s Martin Wisckol reported last week, “Death penalty advocates cheered two incremental steps this month: The Department of Corrections will proceed with the review process toward replacing the three-drug cocktail with a single drug, and an appeals court made a narrow technical ruling that favors the death penalty.”
Voters again could get a say. One initiative advanced for the November 2016 ballot by actor Mike Farrell would repeal the death penalty. Given that Prop. 34 lost, 52 percent to 48 percent, it has a chance. The other proposed initiative is backed by county district attorneys across the state, including Orange County’s Tony Rackauckas. In Mr. Wisckol’s summary, the measure would streamline “the process for approving a single-drug injection” and the appeals process, and expand “the pool of defense attorneys available to represent death row inmates.” Under state law, if two similar initiatives pass, the one with the most votes becomes law.
However, California elects a new governor in 2018. Lt. Gov. Gavin Newsom, who already has announced his candidacy, in 2013 came out strongly against the death penalty. Other Democratic candidates likely will take the same stance. Republicans now are so weak a statewide electoral force, supporting the death penalty won’t help much. Which means a death penalty opponent almost certainly will move into the Governor’s Office in 2019.
As a big supporter of direct democracy, I generally favor any and all efforts to put issues before voters. In addition, given the persistent mess that California's capital punishment system has been, I think it would be very valuable to give voters clear choices to either end or to mend the death penalty in the state. For various legal and political reasons, even a landslide vote on death penalty reform likely would not resolve all capital issues in California. But I think it could help bring a lot more capital clarity.
Thursday, November 19, 2015
Capital defense lawyers in Utah seek to depose all county prosecutors to make constitutional case against death penalty
This local story from Utah, headlined "Murder defense to depose all of state's top prosecutors," reports on the latest defense approach to putting a bee in the state's capital punishment bonnet in the Beehive State. Here are the interesting details:
The defense in a 2010 murder case plans to schedule depositions with all of Utah’s 29 county prosecutors and other state law enforcement representatives possibly including Utah Attorney General Sean Reyes as part of its bid to overturn a death penalty ruling in the case. Attorneys Gary Pendleton and Mary Corporan announced their plans on Wednesday to seek testimonies from anyone in the state who decides whether the death penalty should be applied in a criminal case. The issue forms part of their arguments that the death penalty is unconstitutional and applied inequitably.
The pair represent Bloomington Hills resident Brandon Perry Smith, 34, who is accused of killing 20-year-old Jerrica Christensen two weeks before Christmas 2010 in a brutal downtown incident. Pendleton told 5th District Judge G. Michael Westfall that he and Corporan have investigated how many death penalty-eligible cases since 1992 have actually ended up with a suspect being referred to death row. They determined that the prosecution seeks the death penalty in fewer than 3 percent of eligible cases, with most cases leading to a life in prison sentence instead, Pendleton said.
“Why is the death penalty not being sought in those cases but it is being sought in this case?” he asked. “I think we have to call as witnesses the charging authorities who were in positions of authority to make the charging decisions at the time the (state’s other) cases were filed either as capital cases — aggravated murder cases — or not,” Corporan said.... Pendleton’s question amounts to a challenge about whether anyone should be sentenced to death unless everyone who could legally be sentenced to death receives that ultimate penalty....
The death penalty has since been allowed on a state-by-state basis, and Utah established eight aggravating circumstances to define death penalty cases. “Over the years, we have now come to 22 or 23 aggravators,” Pendleton said, adding that at one time Utah had more than any other state. “Even though we supposedly have a statute that narrows the class, … (in) only 3 percent of (those cases) is the state seeking the death penalty and they’re not seeking the death penalty based upon any articulable standard,” Pendleton said. “It’s completely arbitrary. … The state can’t articulate and won’t articulate on what basis they are making that selection and deciding that this is a death-worthy case. They’re not doing it based on the statute.”...
Pendleton and Corporan initially asked Westfall to schedule a three-day hearing in Smith’s case that would require the presence of all the affected prosecutors from across the state, but Westfall said he feared such a hearing would create a devastating delay for the case because of the difficulty of coordinating everyone’s schedules as well as problems for the other attorneys’ caseloads. “We’re talking about a real domino effect,” he said.
Shaum suggested deposing each affected prosecutor individually would be more practical, even though Corporan and Westfall conceded that to do so will still likely create significant delays in trial scheduling, especially with the holiday season approaching. With the attorneys’ agreement, Westfall scheduled a review hearing for Feb. 3 to check the progress of the depositions.
Christensen’s mother, Ellen Hensley, has previously expressed concerns about the length of the court process and held a candlelight vigil at the courthouse on the last anniversary of her daughter’s death to call for swifter justice for the victims of crimes. Westfall expressed apparent awareness of her concerns, reminding the attorneys that “I also think that we need to keep in mind that we’ve got some victims’ family members in this case that I think are also entitled to try to see if we can get this case resolved. … I am still concerned about moving this case along and making sure that we get a decision as soon as possible.”
“I’m concerned about providing adequate representation on all the legal issues,” Pendleton replied, adding that the depositions will be “only the tip of the iceberg” in his motion to have the death penalty declared unconstitutional, but that they will be the only real evidence issue before moving to legal arguments.
Vermont killer makes broadside constitutional attack on federal death penalty prior to capital retrial
As reported in this local AP article, headlined "Fell’s lawyers challenge death penalty law," a notable killer is now making a notable argument to preclude capital punishment's application at his retrial. Here are the details:
A Vermont man facing the federal death penalty for the 2000 killing of a woman abducted from outside a Rutland supermarket is asking a judge to declare the death penalty law unconstitutional, court documents say. In documents filed in federal court Monday, attorneys for Donald Fell argue the federal death penalty is unreliable, arbitrary and adds “unconscionably long” delays in cases. “Most places within the United States have abandoned its use under evolving standards of decency,” the attorneys say.
They contend that U.S. Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg earlier this year “issued a clarion call for reconsideration of the constitutionality of the death penalty.” It also noted that the Connecticut Supreme Court, relying largely on Breyer and Ginsburg’s arguments, found that state’s death penalty unconstitutional. “Mr. Fell asks this Court to (rule)... that the federal death penalty, in and of itself, constitutes a legally prohibited cruel and unusual punishment prohibited by both the Fifth and Eighth Amendments,” his filing said.
Fell, 35, was convicted and sentenced to death in 2005 for the 2000 killing of Terry King, a 53-year-old North Clarendon grandmother who was abducted in Rutland and later killed. A judge last year ordered a new trial for Fell because of juror misconduct during the original trial. The trial is scheduled for next fall.
U.S. Attorney Eric Miller said his office would respond to the defense filings at the appropriate time. Vermont has no state death penalty; Fell was sentenced to death under federal law. In 2002, the judge then hearing the case declared the federal death penalty unconstitutional. But two years later, an appeals court overturned that ruling, allowing the trial to go forward.
Robert Dunham, executive director of the Death Penalty Information Center, said a decade’s worth of data has accumulated showing the legal problems with the federal death penalty since the ruling allowing Fell’s case to go forward.... “You can expect going forward that there will be constitutional challenges of this type filed in most, if not all, federal capital prosecutions,” Dunham said.
I share the view that defendants will be making this kind of categorical constitutional argument against the death penalty this will be made in most federal capital prosecutions, and I would go even further to assert that it may now be pretty close to obligatory for defense attorneys to make some form of this argument in any and every capital case. In light of the comments by Justices Breyer and Ginsburg in Glossip, and the risk of having an argument considered waived if not brought as soon as possible, I would think most capital defense attorneys would feel duty-bound to at least raise this kind of argument in order at leas to preserve it for future high court consideration.
Wednesday, November 18, 2015
Texas completes execution as Georgia soberly prepares for another
Two capital news stories from two states caught my eye this evening as we approach the final planned executions of the year. From Texas comes this news: "Texas on Wednesday executed a 36-year-old man convicted of killing his daughter and two stepdaughters in a mobile home blaze in 2000." Here is more:
Raphael Holiday was put to death by lethal injection at the state's death chamber in Huntsville and pronounced dead at 8:30 p.m., a prisons official said. He became the 531st inmate executed by Texas since the U.S. Supreme Court reinstated the death penalty in 1976, the most of any state....
Holiday was convicted of killing Tierra Lynch, 7; Jasmine DuPaul, 5; and Justice Holiday, 1, in a rural community about 100 miles (160 km) northwest of Houston.
He had been living with Tami Wilkerson, his common law wife at the time, until she secured a restraining order against him for sexually assaulting Tierra, according to the Texas attorney general's office. About six months later, Holiday, who had attempted to reconcile with Wilkerson, returned to the house and forced the girls' grandmother at gunpoint to douse the home with gasoline, which ignited, it said. The grandmother survived....
The U.S. Supreme Court denied a request filed by a new lawyer for Holiday, who argued his federally appointed counsel had acted against his wishes and abandoned further rounds of court filings to spare his life.
From Georgia comes this news: "A death row inmate set to be executed Thursday in Georgia cannot have a six pack of beer for his final meal, the department of corrections announced." Here is more:
Marcus Ray Johnson is scheduled to die by lethal injection at 7 p.m. on Thursday. "Johnson requested a last meal consisting of a six pack of beer. His request was declined as alcohol is a contraband item, and he will be receiving the institutional tray consisting of baked fish portions, cheese grits, dry mixed beans, cole slaw, cornbread, crisp drop cookies and fruit punch," a press release stated.
Johnson was convicted of the 1994 slaying of Angela Sizemore in Albany, Ga.... Johnson's attorney, Brian Kammer, is adamant his client did not kill Sizemore. "The lack of physical evidence is extremely troubling," Kammer told AJC.com.
However, Former Daugherty County District Attorney Ken Hodges, said claims of Johnson's innocence are "little more than hogwash, unsupported lies just to save his soul."
Is it appropriate for condemned's lawyers to give up capital fight at 11th hour?
The question in the title of this post is prompted by this extended Dallas Morning News article headlined "Condemned man’s lawyers stop helping, cite ‘false hope’." Here is the start and end of the story involving a murderer scheduled to be executed today in Texas:
From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.
Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.
Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying. But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.
Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.
Lawyers James “Wes” Volberding and Seth Kretzer said they worked diligently to find new evidence on which to base additional appeals for Holiday, but that none exists. Seeking clemency from Abbott, a staunch death penalty supporter, would be pointless, they say. The two contend they are exercising professional judgment and doing what’s best for their client.
“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.
But others say the law under which death row lawyers are appointed doesn’t allow that kind of discretion. It requires attorneys to make every possible effort to save a client’s life, if that’s what the inmate wants. “This seems unconscionable,” said Stephen Bright, president and senior counsel of the Southern Center for Human Rights and a teacher at Yale Law School. “Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can.”
So far, appeals courts have sided with Volberding and Kretzer. Last Thursday, the 5th U.S. Circuit Court of Appeals denied a motion to have them replaced. On Monday, Sween appealed to the Supreme Court.
Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.... In decades of practicing, Bright said he had never seen a case like Holiday’s in which appointed lawyers so vociferously fought to keep a death row inmate from retaining a different attorney. In some cases, he said, new lawyers have discovered evidence others overlooked pointing to an inmate’s innocence or showing people’s intellectual disabilities made them incompetent for execution. “Most people don’t get executed for crimes they committed,” Bright said. “They get executed for mistakes their lawyers made.”
Friday, November 13, 2015
Washington state prosecutors (wisely?) hoping for direction from a death-penalty referendum
This local AP article, headlined "Washington prosecutors want death-penalty referendum," reports that a number of notable executive branch officials are hoping a referendum vote might provide some clarity on how to approach the ultimate punishment. Here are the details:
The Washington Association of Prosecuting Attorneys issued a statement Thursday saying prosecutors “overwhelmingly believe that the people of the state should vote on the question of whether the state should retain the death penalty as an option in cases of aggravated murder.”
The death penalty has been on hold in Washington state since last year, when Gov. Jay Inslee issued a moratorium for as long as he’s in office. Nine men are now on death row in Washington state.
King County Prosecutor Dan Satterberg said a public vote would tell prosecutors “one way or the other” how Washingtonians feel about the death penalty. The impetus for the prosecutors’ action, according to an email from Tom McBride, executive secretary of the association, were the jury decisions in the murder cases involving the killings of a Carnation family in 2007 and a Seattle police officer in 2009.
In the Carnation case, Michele Anderson is accused of joining her then-boyfriend Joseph McEnroe in killing six members of her family. McEnroe was convicted of participating in the killings and sentenced in May to life in prison after the jury could not agree on the death penalty. In July, Satterberg said his office would not seek the death penalty against Anderson, an announcement made after Christopher Monfort was sentenced to life in prison for killing Officer Timothy Brenton.
The lack of pending death-penalty cases provides “a window where we don’t have to think through” immediate impacts, McBride said in his email, noting that the group’s Thursday statement had almost “unanimous support from elected prosecuting attorneys who both support and oppose the death penalty.”
Rep. Reuven Carlyle, D-Seattle, said the prosecutors’ statement is a “really important and momentous step forward” in public conversation over the law. But Carlyle, who has sponsored bills to ban the death penalty, said he believes any change should come from the Legislature. There’s a lot of complexity surrounding a change in the law, he said, and a public referendum would spur an expensive and difficult campaign....
Death-penalty cases in Washington are still being tried and continue to work through the system. Inslee’s moratorium means that if a death-penalty case comes to his desk, he will issue a reprieve, which means the inmate would stay in prison rather than face execution. In response to the prosecutors’ Thursday statement, Jaime Smith, spokeswoman for Inslee, called the death-penalty debate an important one. She added that “The governor made clear his reasons for enacting a moratorium and his support for a discussion among legislators and the people.”
Since 1981, most death-penalty sentences in Washington have been overturned and executions rare, according to the prepared remarks of Inslee’s 2014 moratorium announcement. “When the majority of death-penalty sentences lead to reversal,” Inslee said in the remarks, “the entire system itself must be called into question.”
Thursday, November 12, 2015
Ninth Circuit panel reverses, on procedural grounds, district court ruling declaring California's capital system unconstitutional
Today via a procedural ruling in Jones v. Davis, No. 14-56373 (9th Cir. Nov. 12, 2015) (available here), a panel of the Ninth Circuit has reversed this ground-breaking ruling by US District Judge Cormac Carney that California's system of reviewing capital convictions and sentences " violates the Eighth Amendment’s prohibition against cruel and unusual punishment." The circuit panel's majority opinon in Jones, authored Judge Graber, gets started this way:
The State of California authorizes the execution of a capital prisoner only after affording a full opportunity to seek review in state and federal courts. Judicial review ensures that executions meet constitutional requirements, but it also takes time — too much time, in Petitioner Ernest DeWayne Jones’ view. He argues that California’s post-conviction system of judicial review creates such a long period of delay between sentencing and execution that only an “arbitrary” few prisoners actually are executed, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Under Teague v. Lane, 489 U.S. 288 (1989), federal courts may not consider novel constitutional theories on habeas review. That principle “serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227, 234 (1990). Because we conclude that Petitioner’s claim asks us to apply a novel constitutional rule, we must deny the claim as barred by Teague. Accordingly, we reverse the district court’s judgment granting relief.
A concurrence by Judge Watford in Jones gets started this way:
My colleagues conclude that relief is precluded by Teague v. Lane, 489 U.S. 288 (1989), which bars federal courts from applying “new rules of constitutional criminal procedure” to cases on collateral review. Beard v. Banks, 542 U.S. 406, 416 (2004) (emphasis added). The Teague bar does not apply to new rules of substantive law. Schriro v. Summerlin, 542 U.S. 348, 352 n.4 (2004).
The rule announced by the district court, while undoubtedly “new” for Teague purposes, is substantive rather than procedural. The court held that the death penalty as administered in California constitutes cruel and unusual punishment and therefore violates the Eighth Amendment. In particular, the court concluded that the long delays between imposition of sentence and execution, resulting from systemic dysfunction in the post-conviction review process, combined with the low probability that an inmate sentenced to death will actually be executed, preclude the death penalty from serving any deterrent or retributive purpose. Jones v. Chappell, 31 F. Supp. 3d 1050, 1053, 1062–65 (C.D. Cal. 2014); see Glossip v. Gross, 135 S. Ct. 2726, 2767–70 (2015) (Breyer, J., dissenting). The Supreme Court has held that capital punishment violates the Eighth Amendment if it does not fulfill those two penological purposes. Kennedy v. Louisiana, 554 U.S. 407, 441 (2008). Thus, the effect of the district court’s ruling is to categorically forbid death as a punishment for anyone convicted of a capital offense in California. A rule “placing a certain class of individuals beyond the State’s power to punish by death” is as substantive as rules come. Penry v. Lynaugh, 492 U.S. 302, 330 (1989).
I would reverse the district court’s judgment on a different ground. A federal court may not grant habeas relief unless the petitioner has first exhausted the remedies available in state court. 28 U.S.C. § 2254(b)(1)(A). Jones concedes he has not done that. He never presented the claim at issue here to the California Supreme Court to give that court an opportunity to rule on the claim in the first instance. Jones did present a so-called Lackey claim to the California Supreme Court, which asserted that the long post-conviction delay in Jones’ own case has rendered his death sentence cruel and unusual punishment. See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari). But the claim on which the district court granted relief rests on a different set of factual allegations and a different legal theory. Presenting the Lackey claim to the California Supreme Court therefore did not satisfy the exhaustion requirement. See Gray v. Netherland, 518 U.S. 152, 162–63 (1996).
Jones contends that exhaustion should be excused here. The federal habeas statute provides just two scenarios in which a petitioner’s failure to satisfy the exhaustion requirement may be excused: (1) when “there is an absence of available State corrective process,” or (2) when “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Jones’ case does not fit within either of these exceptions. He does not dispute that he can file another habeas petition in the California Supreme Court to exhaust the claim at issue here, so the first exception doesn’t apply. And the second exception does not apply because Jones can’t show that filing a new habeas petition with the California Supreme Court would be ineffective to protect his rights.
I will have some commentary on this significant and interesting circuit court ruling later today in a follow-up post after I find some time to read the opinions here closely. But even without a full read, I can predict with certainty that the defense team (and their amici) are all-but-certain to seek en banc review before the full Ninth Circuit and/or certiorari review in the Supreme Court. In all likelihood, those further appeals will keep this case going (and provide an excuse for California to not set any execution dates) throughout the rest of 2015 and probably all of 2016.
Tuesday, November 10, 2015
"Battle Scars: Military Veterans and the Death Penalty"
The title of this post is the title of this notable new report from the Death Penalty Information Center. Here are excerpts from its Executive Summary:
In many respects, veterans in the United States are again receiving the respect and gratitude they deserve for having risked their lives and served their country. Wounded soldiers are welcomed home, and their courage in starting a new and difficult journey in civilian life is rightly applauded. But some veterans with debilitating scars from their time in combat have received a very different reception. They have been judged to be the "worst of the worst" criminals, deprived of mercy, sentenced to death, and executed by the government they served.
Veterans with Post-Traumatic Stress Disorder (PTSD) who have committed heinous crimes present hard cases for our system of justice. The violence that occasionally erupts into murder can easily overcome the special respect that is afforded most veterans. However, looking away and ignoring this issue serves neither veterans nor victims....
PTSD is now formally recognized in the medical community as a serious illness. But for those who have crossed an indefinable line and have been charged with capital murder, compassion and understanding seem to disappear. Although a definitive count has yet to be made, approximately 300 veterans are on death row today, and many others have already been executed.
Perhaps even more surprising, when many of these veterans faced death penalty trials, their service and related illnesses were barely touched on as their lives were being weighed by judges and juries. Defense attorneys failed to investigate this critical area of mitigation; prosecutors dismissed, or even belittled, their claims of mental trauma from the war; judges discounted such evidence on appeal; and governors passed on their opportunity to bestow the country's mercy. In older cases, some of that dismissiveness might be attributed to ignorance about PTSD and related problems. But many of those death sentences still stand today when the country knows better.
Unfortunately, the plight of veterans facing execution is not of another era. The first person executed in 2015, Andrew Brannan, was a decorated Vietnam veteran with a diagnosis of PTSD and other forms of mental illness. Despite being given 100% mental disability by the Veterans Administration after returning from the war, Georgia sought and won a death sentence because he bizarrely killed a police officer after a traffic stop. The Pardons Board refused him clemency. Others, like Courtney Lockhart in Alabama, returned more recently with PTSD from service in Iraq. He was sentenced to death by a judge, even though the jury recommended life. The U.S. Supreme Court turned down a request to review his case this year.
This report is not a definitive study of all the veterans who have been sentenced to death in the modern era of capital punishment. Rather, it is a wake-up call to the justice system and the public at large: As the death penalty is being questioned in many areas, it should certainly be more closely scrutinized when used against veterans with PTSD and other mental disabilities stemming from their service. Recognizing the difficult challenges many veterans face after their service should warrant a close examination of the punishment of death for those wounded warriors who have committed capital crimes. Moreover, a better understanding of the disabilities some veterans face could lead to a broader conversation about the wide use of the death penalty for others suffering from severe mental illness.
Monday, November 09, 2015
"The Most Ambitious Effort Yet To Abolish The Death Penalty Is Already Happening"
The title of this post is the headline of this extraordinary new BuzzFeed News piece about the significant on-going effort to build a case for the Supreme Court to abolish the death penalty through a major constitutional ruling. The very lengthy article by Chris Geidner covers lots of ground, making the full piece a must-read for any and everyone who follows any aspect of the debate over the modern death penalty. Here is how the piece gets started:
Henderson Hill and Rob Smith are the odd couple shepherding a collaborative effort to end the death penalty in America at the most significant moment for that movement in decades.
As talk of mass incarceration, racial disparities, and criminal justice legislation has permeated the public debate on both sides of the political spectrum, another effort has taken shape under the radar: the laying of the groundwork for a Supreme Court ruling that the death penalty is unconstitutional, a violation of the Eighth Amendment’s ban on cruel and unusual punishments.
When Supreme Court Justice Stephen Breyer, along with Justice Ruth Bader Ginsburg, raised the prospect this June of the Supreme Court revisiting the constitutionality of the death penalty — using a key part of Smith’s work as evidence — the ground shifted overnight, and discussions went from hypothetical to hyperdrive.
In the wake of that change, two of the death penalty’s most strident abolitionists sat down with BuzzFeed News to make their case not only for ending the death penalty in the United States — but for doing so in the next few years. The effort, as with so many focused on the Supreme Court, ultimately comes down to Justice Anthony Kennedy.
The 8th Amendment Project, which Hill and Smith run, is a centralized effort to advance death penalty abolition research, raise issues of legal system accountability, and help capital defense efforts — all with the Supreme Court in mind. It has a $1 million budget and six full-time staff members this year. It is part of a national effort backed by the Themis Fund, a donor collaborative dedicated to ending the death penalty in America, the fund’s director told BuzzFeed News. The Themis Fund was launched as an initiative of the progressive Proteus Fund in 2007, when a broad array of opponents of capital punishment — from litigators to funders — came together to figure out a way to end capital punishment in the country.
As death sentences and executions slowed down across the country — and some states got rid of it altogether — the Themis Fund donors decided to ramp up their efforts. In 2014, Hill, a 59-year-old black lawyer who began his career decades ago as a public defender, was made the head of the project, giving it its current name. He has since brought on Smith, a 34-year-old white law professor who graduated from law school in 2007, to serve as the project’s litigation director.
Sunday, November 08, 2015
California (finally!) officially announces switch to one-drug lethal injection protocol
California, the state with the largest death row and the seemingly most-dysfunctional and expensive capital punishment system, late last week announced that it is finally going to try to modernize its long-dormant execution protocol. This extended Los Angeles Times piece provides the details and the back-story:
California unveiled a new method for executing prisoners Friday, proposing a “humane and dignified” single-drug injection protocol that could restart capital punishment after a nearly 10-year hiatus. The regimen would replace a three-chemical method the state used in the past. That mixture was struck down in 2006 by a judge who said it could cause inhumane suffering if one of the drugs failed to work.
The new proposal stems from a lawsuit filed against the state by crime victims' families who favored the death penalty and wished to see it enforced. A settlement of the suit, brought by the Criminal Justice Legal Foundation, required the state to devise a new lethal injection method by this month.
Executions are not likely to resume immediately, however. Public vetting of the proposal could take a year, and court challenges may follow. In addition, voters may see one or more ballot measures on the death penalty next year....
The new California protocol would allow a choice of four barbiturates for lethal injection: amobarbital, pentobarbital, secobarbital and thiopental. The selection would be made on a “case-by-case basis, taking into account changing factors such as the availability of a supply of chemical,” according to the proposal, published online Friday by the California Department of Corrections and Rehabilitation.
The single-drug protocol creates “a better flexibility, a better system of options,” said Michael Rushford, who heads the foundation that filed the suit. Rushford expressed chagrin over the state's decision to use the regulatory process, which allows two months for public comment and will delay the resumption of executions.
He said officials had dragged their feet in crafting a new policy. He attributed that to Gov. Jerry Brown and Atty. Gen. Kamala D. Harris, who oppose the death penalty although they have said they would enforce it. “If we had a different governor and a different attorney general, these wouldn't be problems,” Rushford said.
Harris' office did not immediately respond to requests for comment. Corrections spokeswoman Terry Thornton, speaking for the Brown administration, ascribed the delay to the developing national debate over execution methods, not resolved until a U.S. Supreme Court ruling in June.
At least 16 death row inmates in California have exhausted their appeals and could be executed if the protocol is adopted. The inmates range in age from 49 to 78. One was condemned for crimes that took place 36 years ago.
Some condemned prisoners were stoic when told about the impending arrival of a new execution protocol. “In the meantime, I have my life,” Clifton Perry, 46, said in a recent interview, noting that legal challenges could drag on for years. He was sentenced to death for the 1995 killing of a convenience store owner during a robbery.
California has 749 inmates on death row, the most in the country. Since 1978, the state has executed 13 prisoners, 68 condemned offenders have died from natural causes and 24 have committed suicide....
California voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000. Death penalty opponents have proposed an initiative for the November 2016 ballot that would replace capital punishment with life without the possibility of parole. Legislative analysts this week said such a move would save California some $150 million a year, by reducing the costs of capital punishment trials and subsequent penalty appeals.
A competing measure, sponsored by law enforcement and victim groups, also has been submitted for state review. That measure would propose changes to speed up executions.
Saturday, November 07, 2015
A citizen's notable (and radical?) suggestions for improving the Ohio execution process
Yesterday I received an interesting e-mail from an Ohioan styled as a "letter to the editor" and which I received permission to reprint here:
Dear Mr. Berman,
In reference to the PD article "Ohio in quandary over how to resume executions " (Oct 24) about lethal-injection drugs, I would like to comment.
Since I live in Ohio, I would like to address our execution dilemma. Allow me to suggest an alternative to lethal injection.
I am disappointed to see the failure of execution cocktails that have taken an half an hour or more to end a prisoners life. Although the suffering of these dying criminals does not seem unfair.
But I would like to solve -- once and for all -- the problems with inefficient lethal drugs. Let's make execution less painful for us all. As an alternative to drugs, we simply use the Red Cross method of donating a pint of blood, but using a 20 ounce bag to hold all of a person's blood, resulting in a complete draining of all blood for a quick and painless eternal sleep.
I call this the 'Total Blood Withdrawl' execution. I wrote the protocol for this method. Maybe Red Cross can use the blood.
Let's use this transition method to a day when there will be no more executions.
I have no idea if this plan for "Total Blood Withdrawal" would actually produce a "quick and painless eternal sleep." But given that officials in Ohio and elsehwere seem unwilling and/or unable to come up with viable alternatives to problematic lethal injection protocols, I am pleased to highlight here that even average citizens are eager to offer alternative execution methods for consideration.
Friday, November 06, 2015
Reflecting on 2015's historically low number of executions (and on death penalty dogs not barking)
This DPIC yearly execution page highlights that we have had only 25 executions so far throughout the United States in 2015, and this page listing scheduled executions suggests it is very unlikely we will have more than a couple more executions before the end of the year. Statistically and historically speaking, then, 2015 will be a year with a remarkably low number of executions in the US: in every single year since 1992,there have been 30 or more executions and there were 98 executions nationwide in 1999; throughout both the 1990s and 2000s, the US averaged nearly 60 executions per year.
Lots of factors have contributed to the significant recent decline in yearly executions now resulting in 2015 becoming a record-low execution year: abolition of the death penalty in a few states, moratoria on executions in a few others, persistently effective litigation challenging state lethal injection protocols, persistently ineffective efforts by states to improve lethal injection protocols and obtain needed execution drugs, and continued judicial and public scrutiny long-ago-imposed death sentences even after standard appeals have concluded. For what it is worth, I am highly disinclined to attribute a decline in US executions to diminished public support for the death penalty: both national polls and surveys in the states that have historically carried out the most death sentences indicate that, at least among the general public, support for a functioning death penalty system remains strong and deep.
Though I encourage comments about what most accounts for 2015's historically low number of executions, I was moved to write this post by the realization that I have not seen or heard a single traditional death penalty advocate or "tough-and-tougher-on-crime" proponent claim that the widely-discussed uptick in homicides in some US cities might be attributable to the US now being softer on murderers. Not long ago, when the US was averaging five or six executions every month and murder rates were in decline, there was considerable complex empirical research contending that every execution might save a dozen or more innocent lives. But I noticed less and less of this kind research in the years before 2015, perhaps because we were still generally exeperiencing declining murder rates even as the number of yearly executions have started to decline.
Given how much talk and concern there is concerning an uptick in homicides in a number of cities, and especially given that there is much discussion and debate over whether and how criticisms of the police or recent drug epidemics or recent sentencing reforms might be playing a role, I am now struck and intrigued by the realization that traditional death penalty advocates and "tough-and-tougher-on-crime" proponents have not yet suggested there could be a link between fewer executions and more homicides in 2015. Critically, I am not trying to make any accusations about research agendas nor to suggest that there readily could or should be significant research efforts seeking to link modern execution trends and homicide rates. I am just observing that, despite what seems like a tendency for the "tough-and-tougher" crowd to attribute any crime spike to the nation "going soft" in some way, I have seen no effort to link the remarkably low number of executions in the US in 2015 to any crime patterns.
Wednesday, November 04, 2015
"Death sentences are down across the country — except for where one of these guys is the defense attorney."
The title of this post is the subheadline of this notable new Slate commentary authored by Robert Smith. The piece merits a full read, and here are some excerpts:
“He looks like a killer, not a retard,” Nathaniel Carr, a lawyer in Maricopa County, Arizona, wrote about his client, Israel Naranjo, who is now on death row. Naranjo has a standardized IQ score of 72, but Carr badly botched the introduction of this evidence at trial. The trial judge found that Carr “violated the rules of criminal procedure” and admonished him for both lacking candor and filing “offensive” and “incomprehensible” motions. The Arizona Supreme Court said Carr’s behavior could be described as “willful misconduct.” Carr has represented four of the men who currently occupy Arizona’s death row....
Carr might not visit his capital clients very often, but he does seem to be dedicated to his job — his other job as a high school football coach. People who knew Carr at the county courthouse told Paul Rubin of the Phoenix New Times that “coaching seems Carr’s true passion.” Indeed, Carr “often was unavailable to clients and co-counsel on most weekday afternoons during football season—and always on game days.” This dual career did not stop Carr from billing the county an average of $370,000 per year for his services — even though some the hours he billed were for team meetings and prison visits that appear to be fictitious. (Carr did not respond to requests for comment.)
Last year marked the lowest number of new death sentences in modern American history. Nationwide, in the five-year period from 2010 through 2014, only 13 counties imposed five or more death sentences. Maricopa County is one of those 13. With 24 new death sentences between 2010 and 2014, Maricopa is the nation’s second highest producer of death sentences, after Los Angeles County, which is twice as populous.
One explanation for why counties like Maricopa hang on to capital punishment is that the prosecutors in these places are outliers who continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned. But prisoners sentenced to death in these counties often suffer a double whammy — they get both the deadliest prosecutors in America and some of the country’s worst capital defense lawyers. Nathanial Carr makes that list of awful lawyers, but he is not the only one from Maricopa who deserves to be included.
Herman Alcantar has been called, by a lawyer intervening on behalf of one of his former clients, “arguably the busiest capital defense attorney in the entire United States.” That’s not a compliment. Capital cases are notoriously complex and time-consuming. One trial-level capital case can be a full caseload for a defense attorney, and almost no one considers it a good idea to handle more than two active death penalty cases at a time. During the winter of 2009, Alcantar represented five pretrial capital defendants at once. He was so busy, in fact, that one month before the trial of Fabio Gomez was set to begin, Alcantar had neither filed a single substantive motion nor visited his client in more than a year. Six of Alcantar’s former clients are on death row....
Like Maricopa, Duval County, Florida, is among the few counties in America that continue to regularly impose death sentences. Since 2010, it is the second highest producer of death sentences per capita, after Caddo Parish, Louisiana. MO When Shirk took over, he fired 10 lawyers, including senior capital litigators Ann Finnell and Pat McGuinness, whose stellar representation of a wrongfully arrested 15-year-old, Brenton Butler, was the subject of an Oscar-winning documentary film, Murder on a Sunday Morning. With his experienced capital litigators gone, Shirk hired Refik Eler to be his deputy chief and the head of homicide prosecutions. Since 2008, Eler has been a defense lawyer on at least eight cases that resulted in a death sentence. That’s more than any other lawyer in Florida. (Eler declined to comment.)...
The quality of defense representation in capital cases has substantially improved in many places. But not in Caddo Parish. Like Maricopa and Duval counties, Caddo Parish, Louisiana, is one of the few districts that continue to regularly impose the death penalty. Indeed, Caddo has become the leading per capita death-sentencing machine in America. Of the death sentences imposed in Caddo Parish since 2005, 75 percent of the cases involved at least one defense lawyer who, under the new case representation standards, is no longer certified to try capital cases in Louisiana....
In the counties with the most death sentences, prosecutors and defense lawyers, often abetted by judges and other local officials, fight to maintain the status quo that Stephen Bright wrote about 20 years ago. In these places, the death penalty is still a punishment reserved mostly for the people with the worst lawyers. Disproportionate numbers of death sentences in these few counties do not result from a high number of murders, or even the unique fervor of the residents who reside there, but instead from the operation of death’s double whammy—bloodthirsty, overreaching prosecutors and woefully inadequate defense lawyers.
Tuesday, November 03, 2015
Supreme Court stays Missouri execution to allow consideration of medical claim concerning execution
As reported in this AP article, the "U.S. Supreme Court on Tuesday put on hold the execution of a Missouri man convicted beating three people to death with a claw hammer while a lower court considers an appeal." Here is more about the stay:
Ernest Lee Johnson claims the execution drug could cause painful seizures because he still has part of a benign tumor in his brain, and surgery to remove the rest of the tumor in 2008 forced removal of up to 20 percent of his brain tissue.
The Supreme Court granted a stay while the 8th U.S. Circuit Court of Appeals considers whether his complaint was properly dismissed. It wasn't immediately clear how quickly the appeals court might rule....
Johnson was convicted of three counts of first-degree murder for killing 46-year-old Mary Bratcher, 57-year-old Mable Scruggs and 58-year-old Fred Jones during a closing-time robbery of a Casey's General Store in Columbia on Feb. 12, 1994. Johnson wanted money to buy drugs, authorities said. All three workers were beaten to death with a claw hammer, but Bratcher was also stabbed at least 10 times with a screwdriver and Jones was shot in the face....
Johnson grew up in a troubled home and his attorney, Jeremy Weis, said his IQ was measured at 63 while still in elementary school. Testing after his conviction measured the IQ at 67, still a level considered mentally disabled.
He was already on death row in 2001 when the U.S. Supreme Court ruled that executing the mentally disabled was unconstitutionally cruel and a new sentencing hearing was ordered. Johnson was again sentenced to death in 2003. The Missouri Supreme Court tossed that sentence, too, forcing another sentencing hearing. In 2006, Johnson was sentenced to death for a third time.
The brain tumor was removed in an operation in 2008. While benign, doctors could not remove the entire tumor. Weis said the combination of the remaining tumor and the fact that Johnson lost about one-fifth of his brain has left him prone to seizures and with difficulty walking.
Missouri's execution drug is a form of pentobarbital believed to be manufactured by a compounding pharmacy — the state won't say where it gets it. Weis cites a medical review by Dr. Joel Zivot, who examined MRI images of Johnson's brain and found "significant brain damage and defects that resulted from the tumor and the surgical procedure," according to court filings. "Mr. Johnson faces a significant medical risk for a serious seizure as the direct result of the combination of the Missouri lethal injection protocol and Mr. Johnson's permanent and disabling neurologic disease," Zivot wrote.
Court filings by the Attorney General's office note that Missouri has carried out 18 "rapid and painless" executions since it went to the one-drug method in November 2013.
"Death Penalty Opponents Split Over Taking Issue to Supreme Court"
The title of this post is the headline of this interesting new New York Times article by Adam Liptak. Here is how the piece gets started:
In the long legal struggle against the death penalty, the future has in some ways never looked brighter. In a passionate dissent in June, Justice Stephen G. Breyer invited a major challenge to the constitutionality of capital punishment. This fall, Justice Antonin Scalia all but predicted that the court’s more liberal justices would strike down the death penalty.
But lawyers and activists opposed to the death penalty, acutely conscious of what is at stake, are bitterly divided about how to proceed. Some say it is imperative to bring a major case to the court as soon as practicable. Others worry that haste may result in a losing decision that could entrench capital punishment for years.
“If you don’t go now, there’s a real possibility you have blood on your hands,” said Robert J. Smith, a fellow at Harvard Law School’s Charles Hamilton Houston Institute. His scholarship was cited in Justice Breyer’s dissent from a decision upholding the use of an execution drug that three death row inmates argued risked causing excruciating pain.
But others are wary. “There are reasons to be cautious about pushing the court to a decision too early,” said Jordan M. Steiker, a law professor at the University of Texas.
The divide is partly generational. Many veteran litigators have suffered stinging setbacks in the Supreme Court, and they favor an incremental strategy. They would continue to chip away at the death penalty in the courts, seek state-by-state abolition and try to move public opinion. Some younger lawyers and activists urge a bolder course: to ask the Supreme Court to end capital punishment nationwide right away.
Monday, November 02, 2015
"Will the Roberts court abolish capital punishment?"
The question in the title of this post is the headline of this recent lengthy article in The Hill. Here are excerpts:
The U.S. Supreme Court appears on track to revisit the constitutionality of the death penalty, with recent remarks from justices and world leaders sparking fresh optimism from opponents of capital punishment.
The high court under Chief Justice John Roberts has in recent terms agreed to rule on cases related to how states handle death penalty prosecutions and conduct executions, but has yet to weigh in on whether the practice violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
Some court watchers say that will soon change, pointing to signals suggesting an appetite among some of the justices to delve into that question in the near future, if not this term. “There is a feeling that this is not a long shot with the court anymore,” said Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project. “I think there is no question we have four votes.”
Many in the legal field have pointed to Justice Stephen Breyer’s dissenting opinion in a case known as Glossip v. Gross as evidence of the court’s trajectory. The case, decided last year, centered on whether state can use of the drug midazolam in lethal injections. While the majority ruled in the affirmative, some viewed Breyer’s dissent — which was joined by Justice Ruth Bader Ginsburg — as practically inviting lawyers defending death row inmates to bring a broad challenge, and providing a blueprint for what it might look like.
“Today’s administration of the death penalty involves three fundamental constitutional defects: serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty’s penological purpose,” Breyer wrote. “Perhaps as a result, most places within the United States have abandoned its use.”...
But even conservative Justice Antonin Scalia says it could happen. During a speech last month at a Tennessee college, Scalia said he “wouldn’t be surprised” if the court ruled the death penalty unconstitutional, suggesting there are at least four justices that hold that view, according to a report in The Los Angeles Times....
The speculation comes amid renewed attention on the divisive issue, sparked most recently by Pope Francis’ call during September’s address to Congress for the “global abolition” of the death penalty.
President Obama, who supports the death penalty in certain cases, has himself shown signs of shifting his position, particularly after a botched execution in Oklahoma last year that prompted him to order a study of issues surrounding capitol punishment. The White House said Obama was “influenced” by the pope’s remarks in Washington. And in a recent interview with The Marshall Project, Obama said he finds the practice of the death penalty "deeply troubling.” He went on to reference racial disparities in it’s application, how long it takes to carry out, inmates who have been found innocent and recent executions that, as he said, have been “gruesome and clumsy.”...
Proponents of the death penalty, however, push back against the notion that the tide has begun to turn against the death penalty. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, pointed to an October Gallup poll showing stable support. The poll found that 63 percent of Americans favor the death penalty for convicted murderers, numbers that proved generally consistent with attitudes in 2008....
Public support or not, Scheidegger said cases challenging the death penalty have been coming before the court for over 50 years. “It’s not something that is a new idea,” he said. “I would not expect them to grant certiorari on a question of whether the death penalty violates the Eight Amendment in the foreseeable future.”
Even so, Scheidegger said potential vacancies on the Supreme Court coupled with a new president could threaten a practice that’s legal in 31 states. “It’s been a consistent pattern that justices nominated by Democratic presidents are more criminal friendly than those appointed by a Republican president,” he said. “ I would expect that pattern to continue to hold.”
For now, the court has only agreed to hear questions on procedural aspects of death penalty cases. On Monday, for example, the court will hear arguments in Foster v. Chatman, which questions if race was used to discriminate against potential jurors in a capital case out of Georgia. Scheidegger said these types of cases have very little to do with the justice of the case, but rather are designed to chip away at capitol punishment. “Polls consistently show the death penalty is just and right in some cases,” he said. “They are trying to grind it down through a war of attrition.”
Saturday, October 31, 2015
Might California get two completing capital punishment propositions to consider in 2016?
The question in the title of this post is prompted by this notable new Los Angeles Times article headlined "Voters may weigh competing death penalty measures on 2016 ballot." Here are excerpts:
A pro-death penalty group unveiled a ballot measure Friday that would require death row inmates to work in prison and provide new deadlines intended to expedite appeals. The measure, which would appear on the November 2016 ballot, is aimed at speeding up executions in California. The state has executed 13 inmates since 1978, but nearly 750 remain on death row, the largest in the nation. Most condemned inmates die of suicide or illness.
A proposed anti-death penalty initiative also has been submitted for state review, creating the possibility that voters next year will weigh competing initiatives on capital punishment. Both measures would require current death row inmates to work and pay restitution to victims, but one would keep the death penalty, and the other scrap it for life without parole.
Backers of the death penalty estimate their new measure would reduce the time from conviction to execution from as long as 30 years to 10 to 15 years. San Bernardino County Dist. Atty. Mike Ramos, one of several supporters who spoke about the measure at a Los Angeles news conference, said it would honor the more than 1,000 victims — including 229 children and 43 peace officers — who have been murdered by inmates on California’s death row.
Neither side in the death penalty debate has yet raised the commanding sums needed to assure ballot placement. The pro-death penalty group said it has raised $1 million so far. The opposition has raised $350,000. An estimated $2 million is probably needed to gather the required signatures.
Friday's news conference came a few days before the state plans to release a revised method of execution. The new protocol will involve a single drug rather than the three-drug cocktail previously used. Court rulings have prevented the state from executing anyone since 2006. A federal judge ruled that the former method exposed inmates to inhumane suffering if one of the three drugs failed to work....
The measure announced Friday is similar to one that death penalty supporters launched more than a year ago. The earlier proposal did not get enough signatures to qualify for the ballot. A key difference is that the former was a proposed constitutional amendment, which requires more signatures than a mere change in state law.
Like the earlier measure, the newest one would allow the revised lethal injection method to take effect without exhaustive public comment. Death row inmates would be housed throughout the prison system.
The state’s voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000.
Ana Zamora, the criminal justice policy director for the ACLU of Northern California, which sponsored the 2012 initiative to end the death penalty, said Friday’s proposal would just cause more delays. “The only solution is to keep murderers in prison until they die,” she said.
But Kermit Alexander, whose mother, sister and two young nephews were killed in 1984, said families deserve the execution of those who killed their loved ones. Choking back tears, the former football star said the killer, now on death row, had mistakenly gone to the wrong house when he killed Alexander’s family. “If you prey upon the elderly or massacre our children,” Alexander said, “you should be required to pay the ultimate price. It's the law. … Justice isn't easy. Justice isn't gentle. But justice denied isn't justice.”
As some readers may know, I am a huge fan of direct democracy and thus I am always generally support of any and all efforts to bring important issues directly to voters through the initiative process. In addition, because I generally view the death penalty to be an issue that can be effectively and soundly addressed through the initiative process, I am now rooting for both capital reform proposals to make it to California voters. (Indeed, I have of late been thinking/hoping someone might have the resources and inclination to bring some kind of initiative reform concerning the death penalty to Buckeye voters in my own state of Ohio.)
Friday, October 30, 2015
"IQ, Intelligence Testing, Ethnic Adjustments and Atkins"
The title of this post is the title of this intriguing new paper authored by Robert M. Sanger and available via Bepress. 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.
Florida finally completes execution three decades after triple murderer sentenced to death (nonunanimously)
As reported in this local article, headlined "Orlando man on death row executed for 1985 murders," Florida carried out a notable death sentence last night. Here are the basics, which highlight that the case involved issues that the Supreme Court has taken up in recent years:
Though it took 30 years for Jerry Correll to receive his death sentence, the process to kill him took 10 minutes. Correll, one of Orange County's most notorious killers, was pronounced dead at 7:36 p.m. Thursday at Florida State Prison after receiving a lethal injection that included the controversial sedative midazolam.
About two dozen witnesses watched as the 59-year-old Orlando man lay on a gurney covered with a white sheet from the neck down, his hands covered in bandages, his wrists strapped down and IVs in his arms. When the curtain surrounding him rose, Correll looked to his right and mouthed the words, "Thank you," to a man wearing a cross in the front row. Asked whether he wanted to say any last words, Correll responded to the leader of the execution team, "No, sir."
Correll had been on death row for three decades after stabbing to death his ex-wife, Susan; their 5-year-old daughter, Tuesday; and Susan's mother and sister in 1985. Police and prosecutors described the murders at the Conway-area home as among the most bloody and gory they had ever seen....
The victims' family members released a statement saying they were "at peace in knowing justice had finally been served." "Jerry Correll chose to take the lives of four beautiful, innocent people on June 30, 1985," the statement said. "People who are still loved and missed by their family and friends 30 years later. The consequences of those actions should be no less than death itself."...
The execution was the first in the nation since a U.S. Supreme Court ruling in June that allowed the use of midazolam, a sedative that is part of the three-drug protocol used in Florida executions.... Correll becomes the second inmate executed in Florida this year and the 91st since 1979, according to the Death Penalty Information Center.
A U.S. Supreme Court case regarding whether all death-penalty decisions should require a unanimous jury verdict in sentencing death ... is pending.... A jury of 10 women and two men, selected in Sarasota because of the publicity locally, convicted Correll of four counts of first-degree murder after a weeklong trial. Jurors voted 10-2 that he should die.
Thursday, October 29, 2015
Leading Dems stake out notable positions on death penalty and marijuana reform
For sentencing and criminal justice fans, last night's GOP Prez debate was a big snooze. But, as the two articles linked below highlight, the leading Prez candidates for the Democrats made headlines in this arena yesterday:
October 29, 2015 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)
Sunday, October 25, 2015
Extraordinary tales of extraordinary government dsyfunctionality in execution business
In this recent post I spotlighted the remarkable reporting by BuzzFeed News about the peculiar fellow in India who has become a central figure in some states' efforts to get their machinery of death up and running again. Continuing their great investigavtive journalism in this space, BuzzFeed now has up two additional reports documenting how a trio of states apparently violated federal laws in order to try to import lethal injection drugs from this fellow. Here are links to the two pieces with their extended headlines:
"Arizona, Texas Purchased Execution Drugs Illegally Overseas, But FDA Halts The Import: Both Arizona and Texas attempted to illegally import sodium thiopental in July, but the shipments are still being held at the airports. Nebraska also attempted to import the same drug illegally this summer, as previously reported."
"Three States Bought Illegal Execution Drugs From Supplier In India: Chris Harris, the execution drug salesman who has been the focus of ongoing reporting by BuzzFeed News, sold drugs to Texas, Arizona, and Nebraska."
Here is how the second of these two articles concludes:
The FDA has consistently maintained that importing sodium thiopental would be illegal, but the states proceeded regardless. FDA records first reported on Thursday by BuzzFeed News show that two shipments of sodium thiopental made their way to the Phoenix and Houston airports in late July.
On Friday, TDCJ’s Clark told BuzzFeed News that, after obtaining an import license from the DEA prior to the shipment, TDCJ filed the required notice with the agency of the anticipated shipment.
After the shipments were held upon arrival, Arizona Department of Corrections Director Charles Ryan wrote to the FDA in August, asking them to release the drugs. “The Department will not use, or attempt to use, the cargo until it is either unconditionally released by FDA or the Department is otherwise permitted to do so by a Court Order, whichever comes first,” Ryan wrote. “I am writing to advise you that we need to take possession of the shipment.”
The FDA was not persuaded. Domenic Veneziano, who heads the FDA division that handles imports, replied, “FDA has determined that this shipment should not be allowed to move to destination at this time and thus will not be requesting that CBP lift its detention.”
For its part, Texas isn’t giving up yet, with TDCJ’s Clark telling BuzzFeed News on Friday that it “is going through internal proceedings set up for addressing the lawful status of imports with the Food and Drug Administration and is awaiting their decision.”
The FDA confirmed to BuzzFeed News on Friday that it was still holding the shipments. “Courts have concluded that sodium thiopental for the injection in humans is an unapproved drug and may not be imported into the country for this purpose. FDA has notified the state correctional facilities of the status of their respective shipments,” spokesperson Jeff Ventura wrote.
Asked whether, given the FDA’s repeated statements that such importation of sodium thiopental would not be allowed, TDCJ is challenging that position, TDCJ’s Clark responded, “We disagree with your characterization of the FDA’s statement as to the legality of importing sodium thiopental, we are appealing the detention of the drugs through the FDA’s internal proceedings.”
As if this story of government dysfunctionality was not ugly enough on its own terms, this post by Kent Scheidegger at Crime & Consequences contends that the federal government is the one really acting outside the rightful reach of the law. His post is titled "FDA Blocks Execution Drug Importation Based on Erroneous Court of Appeals Decision," and it makes the case (as was made in a slightly different way by Ohio officials) that the FDA is off-base and over-reaching in this arena.
In addition to wanting to note that my expertise on the death penalty comes up short when the issues is federal and state squabbles over federal drug and import laws, I am now especially eager to stress that I have been calling for Congress for nearly a decade to conduct hearings and investigate all the difficulties states have been facing with lethal injections protocols and securing executions drugs. But, as one commentors suggested in response to my post on this topic in May 2014, perhaps the only way we woud get hearing on this topic in short order would be if there was some link to Benghazi.
Some prior related posts:
- Investigating the international drug dealer working with some death penalty states
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
- How could (and should) Congress clean up the lethal injection mess? (from April 2006)
- A lethal hearing (in the wrong place?) (from Sept 2006)
- Shouldn't Congress be holding hearings to explore federal and state execution methods? (from April 2014)
Friday, October 23, 2015
"Utah latest red state grappling with death penalty"
The title of this post is the headline of this notable local article reporting on a notable new discussion about the death penalty in the Beehive State. Here are the basics:
For the first time in years, Utah lawmakers are debating the merits of the death penalty, with some conservative Republican legislators questioning whether the cost and risk of executing innocent people argued for doing away with executions in the state.
"I'd pull the switch if I knew the person was guilty, and I have no problem with an eye for an eye," said Sen. Mark Madsen, R-Saratoga Springs. "But it is not a conservative value to have blind, slavish faith in government and to assume that they'll always get it right just because they have a badge or work in the prosecutor's office and we've invested them with a lot of authority."
Members of the Legislature's Judiciary Interim Committee heard from a pair of legislators in Nebraska about why that state recently abolished capital punishment, and critics of the death penalty who said the cost is exorbitant and the risk of executing innocent people is very real.
Madsen, the committee chairman, described his own evolution on the issue, to the point where he would support following the lead of legislatures in other states and do away with the death penalty. Other states are already moving in that direction.
Last week, Ohio Gov. John Kasich granted a reprieve to inmates scheduled for execution in 2016, since the state has been unable to obtain the drugs used in lethal injections. The attorney general in Oklahoma announced a one-year moratorium on executions after it was found the state used the wrong drug in its most recent case. Earlier this month, a judge in Montana blocked executions in that state for the same reason.
And the Nebraska Legislature repealed the death penalty earlier this year, but a petition drive seeking to reverse the move has blocked the repeal from taking effect until after the 2016 election.
Nebraska Republican Sen. Brett Lindstrom told the committee by phone that he supported the death penalty a year ago, but botched executions in other states and concerns about the cost and false convictions led him to a change of heart. "It just wasn't something that was working all that well in the state of Nebraska," he said....
The prospects for such a major shift among Utah's conservative Legislature are unclear, and neither Madsen nor any other Utah lawmaker is currently sponsoring a bill to end the death penalty. "I don't think Utahns think that much about the death penalty because it hardly ever happens in our state, but when it does, it's a horrific thing," said Rep. Steve Handy, R-Layton. But he acknowledged polls continue to show public support for the practice. "I don't see — and I'm going to say, unfortunately — too much of an appetite to ban the death penalty."
Handy cited figures he had prepared by legislative analysts in 2012 that showed executing a hypothetical 25-year-old convict would cost the state $1.6 million more than it would cost to incarcerate the same inmate for the rest of his or her life. And the state, at that time, spent $1.75 million a year handling death-row appeals.
More compelling to several lawmakers, was the risk of wrongly executing an inmate. Jensie Anderson from the Rocky Mountain Innocence Project said there are estimates that 4 percent of those on death row in the United States are innocent. Since 1973, there have been 156 death-row convicts who have been exonerated — one exoneration for every nine inmates put to death. "The problem is the system gets it wrong," she said....
But some, like Rep. Dixon Pitcher, R-Ogden, has no problem with continuing the current course. He and Handy knew Carol Naisbitt and her son Cortney, who were shot in the back of the head during the Ogden Hi-Fi murders in 1974. Carol was killed and Cortney lived with debilitating injuries until he died in 2002. Their killers, Pierre Dale Selby and William Andrews, were executed in 1987 and 1992, respectively.
Pitcher said he trusts the checks in place in the justice system to get it right and would be "opposed to taking [the death penalty] off the table."...
House Minority Leader Brian King, D-Salt Lake City, said the process of going through an execution itself is detrimental to society. "It's not the high road that I think we as a state and we as a country should be on, and the existence of the death penalty for me is a very coarsening thing," King said.
Thursday, October 22, 2015
"Heroin as an execution drug?"
The title of this post is the headline of this notable Columbus Dispatch article discussing the legislative conversation starting to emerge in the wake of the recent decision by Ohio Gov Kasich to extend the state's de facto moratorium on executions due the the continuing difficulty securing lethal injection drugs (noted here). Here are excerpts:
As Ohio continues to struggle to find the drugs needed to carry out executions of death row inmates, the president of the Ohio Senate says it may be time to find other methods. “If we can’t get the drugs that our protocol calls for, either we need to change our protocols, or we need to think about other solutions,” said Senate President Keith Faber, R-Celina.
“There are a lot of people out there talking about other solutions. I’ve heard everything from using heroin, to using nitrogen, to going back to the electric chair. That’s a debate we probably need to have.”
The state's has not executed an inmate since Jan. 16, 2014, when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of drugs being used for the first time anywhere in the U.S. The state last week canceled all executions for 2016 and there are now 24 inmates with executions scheduled into 2018.
A law that Gov. John Kasich signed in December allowing prison officials to secretly buy lethal-injection drugs from compounding pharmacies has not worked in getting Ohio the necessary drug mixture. Pharmacies have generally been unwilling to participate in a process that leads to little in sales but a potential for harsh blowback from the public if they are discovered.
The federal government has thus far blocked Ohio’s efforts to import the drugs from overseas, though the state continues to seek ways to do that. Asked if the state would bring back the electric chair known as “Old Sparky,” Faber said, “there are options out there.”
A few prior related posts:
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
- In defense of Ohio officials trying to figure out how to get execution drugs legally
- Ohio Gov Kasich extends de facto execution moratorium into 2017
Investigating the international drug dealer working with some death penalty states
BuzzFeed this week published this fascinating report on a curious person who has become a central figure in some states efforts to get their machinery of death up and running again. The article's full headline highlights why the piece merits a full read: "This Is The Man In India Who Is Selling States Illegally Imported Execution Drugs: When states ran out of execution drugs, they started paying tens of thousands of dollars to Chris Harris, a salesman in India with no pharmaceutical background." Here is how the extended article gets started:
Eight thousand miles from the execution chamber at the Nebraska State Penitentiary is Salt Lake City — a planned satellite town in Kolkata, the capital city of India’s West Bengal state. It’s a modern mecca of swanky office complexes, colleges, shopping malls, and restaurants. Here, on the eighth floor of a plush glass building overlooking a lake, is an office where Nebraska’s lethal injection drug supplier says he makes his drugs.
A laminated paper sign stuck on the door of room 818 reads “Harris Pharma - manufacturer and distribution.” The office, with powder-blue walls and a frosted glass facade, is one of 61 spaces on the floor rented out to various companies.
This is the facility in India where a man named Chris Harris, a salesman without a pharmaceutical background, claims his manufacturing and distribution business is based. He has sold thousands of vials of execution drugs for corrections officials in the U.S. who are desperate to find drugs to carry out the death penalty. An employee who works at the facility, however, said the office is not being used to make drugs.
Saurav Bose, a customer relations officer at the office rental company who has met Harris twice since he started working here a few months ago, said Harris did not manufacture drugs in this rented office. Harris’s office, which was shut on a Tuesday morning when a reporter from BuzzFeed News visited, is much like the other ready-to-use, standardized workspaces available to rent by Regus — an international firm operating in 900 cities across the world, including the more well-known Salt Lake City in Utah. It appeared highly unlikely that the rented office would accommodate laboratory equipment required to manufacture pharmaceutical drugs.
“He comes only two to three times in a month,” Bose said, adding that most of his communication with Harris was limited to email. Bose, who described Harris as being “fickle” with his visits to the office, said he rarely had any clients or other people in the office.
BuzzFeed News identified several such inconsistencies after reviewing thousands of pages of court records, emails, and invoices; interviewing his past business partners; and visiting the locations in India from which Harris claims to run his business. BuzzFeed News spent more than four months trying to talk to Harris over emails, via phone calls and during a visit to his office in India. Each time, Harris refused to talk.
“Quote me on this. I don’t speak to reporters as they always say what is not true,” Harris told BuzzFeed News when first contacted for comment in June. After months of reporting on his sale to Nebraska, Harris again declined to talk with BuzzFeed News in September, writing, “Do and say what you want. But I will never give a reporter 2 min of my time. As all print what they want. Not the true story. They need a scandal to get sales and keep they jobs.”
BuzzFeed News has been able to confirm four times that Harris sold execution drugs illegally to four death penalty states, and documents indicate there is likely a fifth. His sales follow a typical script: The legal issues are fixed this time, don’t worry about it. Other states are buying it, too. You aren’t the only one. You just need to make it a “minimum order” to make it worth the while. Payment in advance. The documents show little effort by states to investigate Harris’s qualifications or the legalities of importing drugs.
Harris has gotten states to pay tens of thousands of dollars for his drugs, but each time, after concerns were raised over the legality of the purchase, the drugs have gone unused. Somehow, states are still falling for it.
Noting the notable decline in death sentences in Texas
A few years ago, I generally considered talk of the "death of the death penalty" to have been somewaht overstated even as a few new states abolished the death penalty and a few other states struggled with executions. In the past I saw the talk as overstated largely because committed death penalty states like Texas and a few others were still regularly carrying out executions and because most years nationwide still more murderers were getting sentenced to death row than we getting released from death row.
But now, circa fall 2015, with Arkansas, Ohio and Oklahoma all recently halting scheduled execution plans because of continued lethal injection problems and litigation even after the Glossip ruling, I see more to the talk of the death penalty's demise. And this notable death penalty administration story out of the Lone Star State, headlined "Texas Poised to See New Low in Death Sentences," provides more reason for justified excitement among death penalty abolitionists. Here are the details:
Texas is on track to see fewer death sentences handed down in 2015 than in any other year since the state’s death penalty was reinstated in 1976. In the past two weeks, two new inmates arrived on Texas’ death row — the state’s first two death sentences of 2015. A jury sentenced a man to death in a third case, but he is awaiting a competency trial, so that sentence is unofficial.
Kathryn Kase, executive director of Texas Defender Services, a nonprofit organization of death penalty attorneys, said that there is one new death penalty trial underway and another case “threatening to go” for a death penalty. “That’s a very low number [of cases] for Texas," Kase said. “We see fewer cases overall going to the death penalty across the country, and that’s no different in Texas.”
In 2011, eight people were sentenced to death in Texas, currently the lowest number for any full calendar year, according to TDCJ. Kase said that there had been three other death penalty cases this year, all ending in sentences of life without parole.
Experts often point to the 2005 introduction of a penalty of life without parole in the state as a reason for the decline in death sentences in recent years. In 2015, however, there has been a drastic drop from even last year, when there were 11 death sentences handed out.
There are many theories on the cause of this year’s drop, including new legislation from 2013 on criminal discovery reform and prosecutors pursuing the death penalty less often, Kase said. “You see prosecutors who are more concerned about innocence, more concerned about intellectual disabilities,” Kase said.
Robert Kepple, executive director of the Texas District & County Attorneys Association, points to a simpler reason for the decrease: a lower crime and murder rate. “We shouldn’t be surprised that death penalty cases are going down when there have been less murders,” Kepple said. “That’s a success story.”
The three death sentences handed down by Texas juries this year were all within the last two weeks. The sentences came 10 months after Eric Williams was sent to death row in December for the 2013 killing of the Kaufman County district attorney's wife, Cynthia McLelland. It was the state’s longest stretch between new death sentences since the death penalty was reinstated, Kase said, adding that the timing of the three cases is “purely coincidental."
Wednesday, October 21, 2015
Evangelical group adds interesting nuance to death penalty stance
As reported in this Christian Science Monitor article, a notable religious group has made a notable change in its death penalty position. The article's headline(s) provide the basics: "Why US evangelicals are changing their position on the death penalty: The National Association of Evangelicals has officially supported the death penalty for more than 40 years. They have now softened their stance." Here are the details:
As the death penalty continues to lose favor with Americans, the National Association of Evangelicals has adjusted its position on the practice. Since the early 1970s, the NAE has supported capital punishment as a deterrent to criminals. But on Monday, the organization — which represents more than 45,000 churches from almost 40 different denominations, serving millions of Americans — passed a resolution that acknowledges growing opposition and differing views on death penalty.
"Evangelical Christians differ in their beliefs about capital punishment, often citing strong biblical and theological reasons either for the just character of the death penalty in extreme cases or for the sacredness of all life, including the lives of those who perpetrate serious crimes and yet have the potential for repentance and reformation," the resolution states. "We affirm the conscientious commitment of both streams of Christian ethical thought."...
White evangelical support for the death penalty has waned recent years, from 77 percent in 2011 down to 71 percent in 2014, according to a March survey from the Pew Research Center. At the same time, 66 percent of white mainline Protestants and 63 percent of white Catholics favor the death penalty. Overall, the survey shows American support for the death penalty has dropped from 78 percent in 1996 to 56 percent in 2014.
Tuesday, October 20, 2015
Arkansas Supreme Court stays execution to allow lethal injection litigation
As reported in this AP article, a partial ruling in favor of the state today by the top court in Arkansas was insufficient to allow the state to move forward with a number of scheduled executions. Here are the details:
The Arkansas Supreme Court ruled Tuesday that a lower-court judge overstepped his jurisdiction by halting the executions of eight death row inmates. But the high court immediately granted its own stay to give the inmates time to challenge a new state law that bars Arkansas from disclosing its execution-drug supplier.
The justices sided with the state in agreeing to toss this month's order by Pulaski County Circuit Judge Wendell Griffen. Still, Attorney General Leslie Rutledge said she was disappointed that the executions, the first of which was scheduled for this week, remained on hold. "While the Supreme Court's decision is not about the merits of the case, it is unfortunate that this further delays justice for the victims. I will continue to defend Arkansas's lethal injection statute and fight for the victims and their grieving families," Rutledge wrote in a statement Tuesday.
The high court also refused to order Griffen to schedule an earlier hearing in the case. He set the next hearing for March, just months before one of the state's execution drugs is set to expire. The attorney general's office had asked for a faster timetable, arguing that defense attorneys were trying to delay the case until the drug was no longer usable.
The prisoners are challenging the constitutionality of the state's new secrecy law, saying they need information about where and how the state's execution drugs were made to determine whether they will lead to cruel and unusual punishment. They also argue that the law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information, but the state has said the agreement was not a binding contract.
The inmates also are challenging Arkansas' three-drug execution protocol, focusing on the use of the drug midazolam. The sedative was implicated after inmates gasped and groaned during longer-than-expected executions in Oklahoma, Ohio and Arizona. "We realize there is a lot of litigation yet lying in front of us. But we feel the decision of the Supreme Court was the appropriate decision in this case," said Jeff Rosenzweig, an attorney for the inmates. "The state made a binding commitment to provide us with this information and we are entitled to this information."
Sunday, October 18, 2015
Referendum on legislative death penalty appeal now officially on Nebraska ballot for 2016
As reported in this local article, headlined "Death penalty supporters put repeal on hold till 2016 vote," Nebraska is going to be the locus and focus for a lot of death penalty debate over the next year. Here is why:
A pro-death penalty group has submitted enough valid signatures to postpone the repeal of capital punishment and place a referendum on the issue on the November 2016 ballot, it was confirmed Friday.
Nebraska Secretary of State John Gale said Friday that he has sent letters certifying the success of the petition drive mounted by Nebraskans for the Death Penalty, a group backed by Gov. Pete Ricketts.
The group launched a signature drive in June shortly after the Nebraska Legislature overrode a veto by Ricketts to abolish the death penalty in the state.
Gale said the petition drive had not only submitted enough signatures to force a vote on the issue during the 2016 general election, but also to postpone the repeal until that vote is taken. “More than 143,000 signatures were verified to our office from counties where signatures were collected, which was more than enough to meet each of those thresholds,” Gale said in a press release.
Chris Peterson, a spokesman for the pro-capital-punishment group, said in a press release that the campaign to retain the death penalty has begun. “Our message is simple: the death penalty is an appropriate punishment for the most heinous of murders, it protects public safety officers from criminals who otherwise have nothing to lose by murdering a corrections officer, and is a worthwhile deterrent if it saves even a single life,” Peterson said.
Dan Parsons, a spokesman for the anti-death-penalty coalition Nebraskans for Public Safety also issued a statement. “Nebraska voters will have the same opportunity the Legislature did to have a thoughtful discussion on whether to bring back a failed system that hasn’t been used in nearly two decades, is not a deterrent, and is a waste of taxpayer dollars,” Parsons said.
As a result of Friday’s announcement, the death penalty remains on the books, according to Nebraska Attorney General Doug Peterson, who also issued a press release. But the state still lacks the necessary drugs to carry out a lethal injection execution. Even if the state could obtain the drugs, legal scholars have expressed doubt that the Nebraska Supreme Court would approve a death warrant pending the Nov. 8, 2016, vote....
Ricketts issued a statement Friday after the verification: “Nebraskans continue to tell me that the death penalty is an important public safety tool. Today’s announcement takes us one step closer to giving the voters a say in retaining the death penalty.”
One thing that could prevent a vote on the issue would be a court order, and death penalty opponents have filed two lawsuits in an attempt to do that. One of the lawsuits claims that Ricketts should have been listed as an official sponsor of the petition drive because he was a major financier of the effort, contributing $200,000.... The second lawsuit maintains that the ballot language approved by the Nebraska Attorney General’s office was misleading and slanted.
Saturday, October 17, 2015
"The Decline of the Virginia (and American) Death Penalty"
The title of this post is the title of this notable new article by Brandon Garrett now available via SSRM. Here is the abstract:
The American death penalty is disappearing. Death sentences and executions have reached the lowest levels seen in decades. Public support for the death penalty has declined. More states have abolished the death penalty or imposed de facto moratoria. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline. Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s. How times have changed. There are now two or fewer trials a year in Virginia at which a judge or jury even considers imposing the death penalty. Still more surprising, over one half of those trials in Virginia now result in a life sentence (11 of 21 cases from 2005 to present at which there was a capital sentencing hearing resulted in a life sentence).
Why is this happening and in Virginia of all places? In this study of the decline in the Virginia death penalty, I examine every capital trial since 2005, a group of 21 trials, and I compare those to a group of twenty capital trials from 1996 to 2004. The law on the books has not meaningfully changed in ways that would make it harder to obtain death sentences in Virginia. However, in 2004 regional capital defense resource centers were created to handle capital cases. From 1996 to 2004, the crucial sentencing phase at which the judge or jury decided whether to impose the death penalty was typically cursory, averaging less than two days long. In the more recent trials, the average was twice that — four days — and still more striking was the increase in numbers of defense witnesses called, greater use of expert witnesses, and the added complexity of sentencing proceedings. Only seven counties have imposed death sentences in the past decade in Virginia. The changed understanding of effective mitigation, together with improved defense resources, may help explain the decline.
I examine additional evidence from North Carolina and Florida, situating the role of other factors such as national trends in homicide rates, and conclude by describing heightened Eighth Amendment concerns with the scattered state of the American death penalty.
Friday, October 16, 2015
Oklahoma AG officially agrees not to seek state executions anytime soon
As reported in this new local piece, headlined "All executions may be put on hold until 2016, court documents show," a new court filing suggests Oklahoma now has another de facto temporary moratorium on executions in place. Here is why:
Attorneys for death row inmates and the Oklahoma attorney general's office jointly filed a motion in federal court early Friday morning requesting that executions and a legal challenge to the state's death penalty be put on hold. If granted, the request would mean no executions would take place in Oklahoma until 2016, at the earliest.
All of Oklahoma's scheduled executions were put on hold last month after the execution of inmate Richard Glossip was halted when corrections officials noticed they'd received the wrong drug for the procedure. Oklahoma Attorney General Scott Pruitt said the indefinite stay made it unnecessary to litigate challenges to the state's execution protocol brought by Glossip's attorneys.
“As I have previously stated, my office is conducting a full and thorough investigation into all aspects of the Department of Corrections' handling of executions," Pruitt said. "The Oklahoma Court of Criminal Appeals granted the state's request for an indefinite stay of all scheduled executions. My office does not plan to ask the court to set an execution date until the conclusion of its investigation."
In the filing, both parties agree the state should not seek any new execution dates until all on-going federal and state investigations into Oklahoma's death penalty have been completed, any investigations and changes to protocol are made available to the extent they are public, and the Oklahoma Department of Corrections is able to comply with its execution protocol.
A multicounty grand jury will hear testimony on Tuesday from Corrections Department Director Robert Patton and other officials as part of a state investigation, and the attorney general's office is conducting an internal inquiry into recent lethal drug mix-ups.
Some recent prior posts:
- Oops: "Oklahoma used wrong drug in January execution, autopsy report shows"
- Is anyone surprised to learn of government dysfunction as Oklahoma operates machinery of death?
Notable new polling on distinct sentencing/punishment issues
Via two of my favorite crime and punishment bloggers, I see that there are two new polls about public views of two different sets of sentencing and punishment issues:
From Kent Scheidegger at Crime & Consequences, "Gallup: Solid Majority Continue to Support Death Penalty"
For a host of reasons, I am not sure these polls are especially consequential when it comes to changing the minds or votes of established politicians. After all, as I discussed in this recent post about medical marijuana reforms consistently polling at 90% support, we long ago would have seen an end to blanket federal marijuana prohibition if elected officials were very responsive to public polling on all these issues. Still, these polls still provide a useful snapshot of some public perceptions of sentencing reform debates, and they also might lead even established politicians to be more (or less) confident about how aggressive they should be in their efforts in this arena.
Thursday, October 15, 2015
Texas completes its 12th execution of 2015
While many other states continue to struggle to acquire execution drugs (as highlighted here) or to properly administer the drugs they have (as highlighted here), Texas continues to have its machinery of death humming. This AP article, headlined "Texas Executes Inmate for Killing Dallas Police Officer," reports on the state's latest execution:
A Texas man already being sought for a neighbor's slaying when he killed a Dallas police officer outside a club was executed Wednesday. Licho Escamilla was put to death for the November 2001 death of Christopher Kevin James who was trying to break up a brawl involving Escamilla. The 33-year-old prisoner was pronounced dead at 6:31 p.m. CDT — 18 minutes after the lethal injection began.
Escamilla became the 24th convicted killer executed this year in the United States. Texas has accounted for 12 of the executions. Before dying, Escamilla looked at the slain officer's daughter, who was seated a few feet away watching through a window, and told her: "God bless your heart."
He turned to his relatives watching through another window and said he loved them and everyone who supported him. "Pope Francis, God's children has asked the state of Texas to switch my death sentence to life in prison," he said. "But the state of Texas has refused to listen to God's children. They will have to take that up with God," he added.
He took two breaths as the sedative pentobarbital took effect, then became still. His sister cried and screamed for God not to take him. The rumbling of motorcycles could be heard outside the prison where bikers supporting the punishment had gathered....
James and three other uniformed officers were working off-duty when the brawl started. Escamilla pulled out a gun and opened fire on the officers as they tried to end the fight. The bullets from his 9 mm semi-automatic handgun struck James twice, knocking him to the ground. Escamilla then calmly walked up to the officer and fired three more shots into the back of his head before running and exchanging shots with other officers, witnesses said. A second officer wounded in the shootout survived. A wounded Escamilla was arrested as he tried to carjack a truck.
About a half-dozen Dallas police officers stood at attention and saluted as relatives of the slain officer entered the prison in Huntsville ahead of the execution. "It's taken longer than we would have liked," Frederick Frazier, first vice president of the Dallas Police Association, said. He said he and others showed up to support James and make sure he's remembered for the work he did. While officers know they're risking their lives every day, James' death has been difficult for them because of how it happened, Frazier added.
Tuesday, October 13, 2015
Lots of tea leaves (readings may vary) from SCOTUS arguments in Montgomery and Hurst
I have now had just enough time to skim the SCOTUS oral argument transcripts in Montgomery v. Louisiana (which is here) and in Hurst v. Florida (which is here). Both transcripts showcase, albeit in somewhat different ways, all the complicated and intersecting jurisprudential issues in play in both cases.
At this stage, and based perhaps more on my pre-argument beliefs than on what I surmised from my first review of the transcripts, I would predict narrow wins for the defendants in both cases. And by narrow, I mean holdings that are fairly fact-based, case-specific and that also produce somewhat split rulings. But maybe others read the tea leaves in these transcripts differently, and will share their insights in the comments.
Lots of media previews of today's two big SCOTUS sentencing cases
The Supreme Court returns from a long weekend with two cases that should remake, or at least will refine, retroactivity jurisprudence and capital sentencing procedures. I have previewed Montgomery v. Louisiana and Hurst v. Florida in a bunch of prior posts, and here I will provide links to a handful of mainstream media coverage of the cases:
- "Justices to decide on sentences for young prison 'lifers'"
Monday, October 12, 2015
Does the Sixth or Eighth Amendment matter more for jury's role in capital punishment?
The question in the title of this post is the primary uncertainty likely to impact Supreme Court debate over Florida's capital punishment system during tomorrow's scheduled oral argument in Hurst v. Florida. Helpfully, Lyle Denniston has this lengthy preview post at SCOTUSblog titled "Defining the jury's role on death penalty," and here are excerpts:
For years, the Supreme Court has been engaged in an energetic effort to enhance the role of the jury in criminal courts. No part of that has been more actively pursued than deepening the jury’s involvement in sentencing — a part of the process long dominated by trial judges. A new case from Florida, set for argument at 11 a.m. on Tuesday, provides a new test.
Florida is the last state to hold out against a common requirement that jurors must be unanimous in both specifying why a convicted individual is eligible for a death sentence and recommending a sentence. Juries in Florida death penalty cases have only an advisory role to begin with, and even that influence on the judge is potentially lessened by the lack of unanimity and by the judge’s authority to make the key decisions anyway.
The Court is examining the case of a brutal slaying at a Popeye’s fast-food restaurant in Pensacola, Fla. (Hurst v. Florida), to determine how far a state may go to assign the important decisions on death sentencing to the judge. The Justices attempted to curb that role, and give more of it to the jury, in a 2002 decision but the Florida Supreme Court has essentially exempted the state’s capital punishment process from that ruling.
In Ring v. Arizona thirteen years ago, the Supreme Court ruled that a judge may not make the factual findings about “aggravating factors” — the seriousness of the crime that can make an individual eligible to be sentenced to death — because that role under the Sixth Amendment belongs to the jury. The Court has said repeatedly that, if a potential sentence is to be made more severe, the enhancement must be based upon the jury’s findings.
The Court, however, has never ruled that juries must be used in the sentencing phases of a case in which a death sentence is a possibility, and it has never ruled that a jury recommendation of a death sentence must be by a unanimous vote. It has allowed guilty verdicts by less than unanimous votes in cases involving lesser crimes. The case set for a hearing next Tuesday could provide new interpretations on both of those issues....
Florida law splits up the roles on death sentencing between the jury and the judge. The jury’s advisory role is to ultimately recommend a sentence to the judge. To do that, the jury weighs aggravating and mitigating factors and decides whether to recommend a death sentence. It can make that final recommendation on a split vote — it must be at least seven to five, as it was in Hurst’s case. But there is no need for even a majority of jurors to agree on even one of the aggravating factors the jurors as a group had apparently indicated did exist.
The sentencing duty then shifts to the judge, who does the same weighing process of the two kinds of factors; in doing so, the judge is not bound by what the jury concluded. The judge then decides for or against a death sentence, again with no duty to follow the jury’s recommendation.
The Florida Supreme Court, upholding that process as used in Hurst’s case, found no constitutional problem with the role of either the jury or the judge. The state court divided four to three, with the dissenting justices arguing that the Florida approach violates both the Sixth and Eighth Amendments and deviates from the Supreme Court’s ruling in Ring v. Arizona.
Hurst’s lawyers took the case on to the Supreme Court, raising two multi-faceted questions, with most of them focusing on the split role of judge and jury. The Court granted review in March, rephrasing the issue to be whether the Florida scheme violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.” The order did not specify whether it would consider Hurst’s argument that he also had a claim of mishandling in his trial of a mental disability claim, but the Court did not appear to have accepted that for review and it has dropped out of the case.
Hurst’s brief on the merits largely separates the arguments between the Sixth Amendment, claiming that provision is violated by the jury’s limited role in finding whether Hurst was eligible for a death sentence, and the Eighth Amendment, claiming that provision is violated by allowing the judge to impose the sentence after a split verdict by the jury. However, he also levels a separate Sixth Amendment challenge to the judge’s role in imposing a death penalty....
Florida’s brief on the merits noted that the Supreme Court has examined its capital punishment scheme at least four times before and has not found it to be flawed under the Constitution. The state also insisted that Hurst’s lawyers had exaggerated what is required under Ring v. Arizona. That decision, it contended, only mandates a role for the jury in the death-eligibility analysis, and does not insist that it have a role in the actual selection of the sentence to be imposed.
As fans of Ring v. Arizona should recall, a few of the Justices still on the Court now considered these issues to be primarily of Sixth Amendment concern (Justices Scalia, Thomas and Ginsburg), whereas some other of the Justices still on the Court viewed these issues primarily from an Eighth Amendment perspective (Justices Kennedy and Breyer). And, notably, the four newer Justices have had a lot of distinct (and differing) things to say about both the Sixth and Eighth Amendments in recent years. How all this will add up to a majority ruling in Hurst remains to be seen, but I will suggest that anyone sentenced to death in Florida after a non-unanimous jury recommendation already ought to be getting ready to file a new habeas petition as soon as we get a ruling in Hurst.
Is anyone surprised to learn of government dysfunction as Oklahoma operates machinery of death?
The question in the title of this post is prompted by this latest local story from a state that has spotlighted how jurisdictions are continue to struggle with lethal injection protocols. The piece is headlined "Emails from Gov. Fallin's office show state agencies' struggle to respond to scrutiny over execution," and it begins this way:
An examination of more than 40,000 pages of records released Thursday by Oklahoma Gov. Mary Fallin’s office in response to an open-records request provides a picture of multiple state agencies scrambling under pressure to send coordinated, consistent responses to reporters and each other after an April 2014 execution went awry.
The Tulsa World requested the documents 17 months ago after Clayton Lockett’s April 29, 2014, execution — the first in Oklahoma to be carried out using the sedative midazolam — ended 43 minutes after it began in what records later called a “bloody mess” carried out by inexperienced medical staff who were using the wrong size needles to start IVs in Lockett’s veins.
Lockett was set to die for the murder of 19-year-old Stephanie Neiman of Perry ahead of Charles Warner, who received a death sentence for the rape and murder of 11-month-old Adrianna Waller. The state issued a temporary stay for Warner after realizing Lockett’s lethal injection had gone wrong.
An autopsy report released to the World on Thursday, the contents of which were first reported by The Oklahoman, shows that Warner was executed Jan. 15 using potassium acetate rather than potassium chloride, the latter of which is required according to Oklahoma’s lethal-injection protocol. In correspondence to attorneys representing Lockett and Warner, John Hadden, an assistant attorney general, told them potassium chloride would be used as part of a three-drug cocktail in the lethal injection.
Many of the records provided Thursday had little to do with the World’s or other media outlets’ requests, but the emails exchanged between Fallin’s office, Attorney General Scott Pruitt’s staff and Department of Corrections personnel show numerous people were involved in drafting replies to media inquiries. Officials from each agency appeared not to know on multiple occasions whether they, or a spokesperson from the Department of Public Safety, should comment publicly on questions about the fallout from Lockett’s execution and subsequent DPS investigation.
Saturday, October 10, 2015
Should GOP Prez candidates be questioned on why being pro-life and anti-government doesn't lead to death penalty opposition?
The question in the title of this post is prompted by this The Week commentary authored by Bonnie Kristin and headlined "The rise of the anti-death penalty conservative." Here are excerpts:
[P]rotesting abortion is not all the consistent pro-life ethic entails. As typically expressed, most often in Catholic circles, consistent defense of human life in all its forms also requires opposition to the death penalty and assisted suicide (as well as any involuntary form of euthanasia).
"Life is something that comes from God and shouldn't be taken away by man," explains Father Thomas Reese, a Jesuit priest. Those with a consistent pro-life ethic "are concerned about a person from womb to tomb." For all Christians, consistent pro-lifers argue, "Something is definitely wrong when we claim to follow a man who halted an execution (John 8:1–11) and then was unjustly executed by the state, but still prefer justice over mercy."...
[T]here are some conservatives for whom capital punishment is already a pressing issue. "For those of us who are pro-life and maintain the far-from-radical notion that our government shouldn't kill innocent Americans, the death penalty fails to live up to our standards," argues Marc Hyden of Conservatives Concerned About The Death Penalty (CCATDP), a nonprofit that exists to question "a system marked by inefficiency, inequity, and inaccuracy."
And marked by these difficulties it most certainly is. As CCATDP enumerates, the problems and perils of capital punishment in modern America are many. There's the risk — as in the Glossip case and too many others, like Marlon Howell or Cameron Todd Willingham — of accidentally killing an innocent person. More than 150 people sentenced to die in America have been exonerated in the last four decades, some after spending 30 years or more on death row.
Beyond that, the death penalty is exorbitantly expensive for taxpayers — as much as 10 times more expensive than a life sentence by some calculations. The lengthy process drags out the grief of murder victims' families, endlessly resuscitating it with a new appeal or evidence. And there's no evidence that the threat of death deters crime. Furthermore, capital punishment is implemented in a systemically unfair manner: Factors like where you live, your race and the race of your alleged victim, and even whether your judge is elected or appointed can all influence whether you're sentenced to prison or death.
With inequities like these, Hyden argues, there's nothing "limited or wise about giving an error-prone government the power to kill its citizens, especially when many of us don't trust the state to even deliver mail."
In spite of the evidence that — as conservatives tend to agree in other policy arenas — the government is neither competent nor trustworthy, polling suggests that CCATDP is still in the minority on the right: Only 11 percent of Americans oppose both abortion and the death penalty. There is "no significant correlation between attitudes about the legality of abortion and views on capital punishment," according to Robert P. Jones of OnFaith, and if we zoom in on Tea Partiers, support for a consistent pro-life ethic drops to just 7 percent.
So in 2016, Republican debate moderators looking for a tough but thoughtful question to add to their list should consider question grilling presidential contenders on the death penalty. Thanks to the Planned Parenthood footage — not to mention the cross-partisan popularity of the broader cause of criminal justice reform, as well as the consistently pro-life Pope Francis — the timing is good. And thanks to the clear discrepancies between opposition to big government handing out a license to kill, on the one hand, and support for the death penalty on the other, the chance to catch candidates in hypocrisy is pretty good, too.
Some prior related posts:
- Is there a "growing movement against death penalty – on the right"?
- "Why conservatives should oppose the flawed death penalty, too"
- New talk of abolishing the death penalty in Ohio spurred by pro-life conservative
- Ron Paul at Townhall: "Death Penalty is Big Government at Its Worst"
- Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?
Friday, October 09, 2015
In defense of Ohio officials trying to figure out how to get execution drugs legally
This new AP story, headlined "Ohio Challenges FDA's Stand on Execution Drug," provides more details and context for the notable letter sent today by Ohio officials to the FDA (first reported here). Here are excerpts (with my bold emphasis):
With two dozen scheduled executions in limbo, Ohio sent a forceful letter to Washington on Friday asserting that the state believes it can obtain a lethal-injection drug from overseas without violating any laws.
The letter to the Food and Drug Administration stopped short of suggesting Ohio is moving forward to obtain the powerful anesthetic sodium thiopental. However, the state asked to begin discussing with federal officials about acquiring the substance legally.
The FDA had warned Ohio in June that importing the restricted drug could be illegal as a result of recent federal court decisions, setting up the latest roadblock to carrying out the death penalty.
Ohio hasn't executed anyone since January 2014, when condemned killer Dennis McGuire gasped and snorted repeatedly during a 26-minute procedure with a two-drug method that had yet to be tried. Ohio abandoned that method in favor of other drugs it now can't find.
Pharmaceutical companies have discontinued the medications traditionally used by states in executions or put them off limits for use in lethal injections. Stephen Gray, chief counsel for the Ohio Department of Rehabilitation & Correction, said the state has no intention of violating the law to obtain such drugs — but "the responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly."
Death penalty opponents have seized on trouble with lethal injections, as in McGuire's case, and difficulty in obtaining drugs as further justification for ending it. Supporters of capital punishment encourage states to continue to pursue legal avenues for getting the drugs — or find alternatives — so that condemned killers can be brought to justice.
Ohio's latest correspondence comes as the state is set to resume executions in a little over three months. The state is scheduled to execute Ronald Phillips on Jan. 21 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another 23 executions have been scheduled into 2019.
In part because I know and respect, both professional and personally, a number of Ohio executive officials, I have highlighted parts of the story above that I suspect may have led many of them to feel duty-bound to explain to FDA why Ohio thinks it legally could (and perhaps sensibly should) seek to import lethal injection drugs. Ohio has a long (and sometimes ugly) history with its lethal injection protocols, but Ohio officials have always seemed (at least to me) to be willing and eager to make reasonable efforts to adjust its execution protocols in order to try to carry out lawful death sentences in the most humane way possible. I perceive that an effort to find a legal way to import sodium thiopental is another example of Ohio officials making this effort.
Of course, opponents of the death penalty are often quick to say that no execution is humane and that Ohio's troubles with executions protocols and drug acquisition provide further reasons for the state to get entirely out of the capital business. Ironically, I suspect many Ohio executive officials personally share this perspective, especially because their jobs would surely get easier if they did not have to worry about the next scheduled execution (or the 23 others right behind it). But all executive officials, short of perhaps Ohio Gov John Kasich, are duty-bound to apply the existing law enacted by Ohio's elected representatives, not the law as would serve their own personal interests. (Indeed, in neighboring Kentucky, Kim Davis recently highlighted the ugliness that can ensure when executive officials seek to elevate personal law over the actual law.)
Consequently, unless and until the Ohio General Assembly repeals the death penalty or Gov Kasch uses his clemency authority to create an execution moratorium, it strikes me as defensible (and arguably obligatory) for Ohio executive officials to look to secure drugs needed for execution by any and all lawful means. And it will now be especially interesting to see if FDA official will be willing and able to work with Ohio officials to help the state lawfully secure execution drugs (assuming, as I think all should, that this is what Ohio would like to be able to do).
Prior related post:
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
In this post a few months ago, I reported on a letter sent by the US Food and Drug Administration (FDA) to the head of the Ohio Department of Rehabilitation Correction (ODRC) expressing concern that Ohio might be trying to import illegally the drug it needed to carry out scheduled executions. Now I can report on an interesting official response sent today from ODRC back to FDA. In a four-page letter, ODRC provides an extended explanation for how, in Ohio's view, it could be legal for it to import certain drugs needed to carry out executions.
The full letter from ODRC to FDA, which is available for downloading below, merits a careful read by anyone closely following the challenges many states are having securing needed drugs for executions. As a kind of summary, here is how the ODRC letter starts and concludes:
Your June 26, 2015 letter to Director of the Ohio Department of Rehabilitation and Correction (ODRC), Gary Mohr, referenced some unspecified information you had received about Ohio's "inten[t] to obtain bulk and finished dosage forms of sodium thiopental." Based on this information, you referenced two federal court decisions, Beaty v. FDA, 853 F. Supp. 2d 30 (D.D.C. 2012) and Cook v. FDA, 733 F.3d 1(D.C. Cir. 2013), and sought to "remind [Ohio] of the applicable legal framework" for importation of sodium thiopental. Contrary to the implication in your letter that the importation of sodium thiopental is currently prohibited, there is a legal framework for a state, if it so chooses, to import sodium thiopental in accordance with both the federal Food, Drug, and Cosmetic Act (FDCA) and the June 2012 Court Order issued by Judge Leon in Beaty. Further, please be advised that if at some point in the future the State of Ohio should choose to pursue the importation of sodium thiopental or any other drug that may be used to carry out a sentence of lethal injection, Ohio has no intention of breaking any federal laws or violating any court orders in an attempt to procure the legal drugs necessary to carry out constitutionally approved and court-ordered death sentences....
Given the specific facts and parameters of those [above-referenced] decisions, it is clear that importation of sodium thiopental is not completely prohibited by Judge Leon's 2012 Orders. That is, importation of sodium thiopental is not prohibited provided that [five key conditions are met]....
Thus, we believe that if a state were to attempt to import sodium thiopental under these five conditions, then the specific terms of the Beaty injunction would not apply. In other words, the FDA would not be permanently enjoined from permitting that shipment into the United States, and that it would be lawful and permissible for a state to proceed with such lawful importation.
The responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly. To that end, ODRC has no intention of attempting to procure drugs for lethal injection in a manner that would violate a proper interpretation of the FDCA. And, as the federal agency tasked with enforcing the FDCA and subject to the Court Order in Beaty, we would be happy to begin a dialog with the FDA as to how best achieve this goal.
Prior related post:
Thursday, October 08, 2015
Oops: "Oklahoma used wrong drug in January execution, autopsy report shows"
The title of this post is the headline of this article (with a little extra commentary) from The Christian Science Monitor. Here are the details:
The wrong lethal injection drug was used in an Oklahoma execution in January, an autopsy report obtained by an Oklahoma newspaper shows. The Oklahoman reported Thursday that potassium acetate, instead of potassium chloride as required under the state's protocol, was the final drug administered to stop Charles Frederick Warner's heart during his Jan. 15 execution.
Mr. Warner, convicted of the rape and murder of an 11-month-old in 1997, is the last murderer to be executed at the Oklahoma State Penitentiary in McAlester. His punishment was carried out almost nine months after the execution of murderer Clayton Lockett, whose botched execution triggered an investigation into the combination of drugs used that went all the way up to the Supreme Court on the grounds of Eighth Amendment rights infringement -- that is, whether or not Oklahoma failed to protect Mr. Lockett from “cruel and unusual” punishment....
The same incorrect drug found in Warner’s autopsy report were delivered to corrections officials Sept. 30 for the scheduled execution of another convicted murderer, Richard Glossip. After learning of the mistake, Oklahoma Gov. Mary Fallin granted a last-minute stay and postponed off the executions of two additional death row inmates.
An investigation into the circumstances surrounding Warner's execution was announced by Attorney General Scott Pruitt shortly after. On Wednesday, Mr. Pruitt said the investigation will cover any previous drug mistake, The Oklahoman reports.
“I want to assure the public that our investigation will be full, fair, and complete and includes not only actions on Sept. 30, but any and all actions prior, relevant to the use of potassium acetate and potassium chloride,” Pruitt said.
Governor Fallin said Wednesday night she supports further inquiry into Warner's execution, and told the newspaper it “became apparent” on Sept. 30 when Glossip’s execution was delayed that a similar mix-up may have occurred in Warner’s case....
“It is imperative that the attorney general obtain the information he needs to make sure justice is served competently and fairly,” Fallin said in an email to The Oklahoman. “Until we have complete confidence in the system, we will delay any further executions.”
She said she and the attorney general delayed Glossip's execution as a precaution, despite the doctor and the pharmacist working with corrections officials agreeing that potassium chloride and potassium acetate are medically interchangeable. “The active ingredient is potassium, which, when injected in large quantities, stops the heart,” the governor said.
She said “it became apparent” during the discussions Sept. 30 about a delay that the Corrections Department may have used potassium acetate in Warner's execution. “I was not aware nor was anyone in my office aware of that possibility until the day of Richard Glossip's scheduled execution,” she said. On Tuesday, Fallin said she has hired an outside attorney “to look at the whole process” and provide oversight.
Highligthing that states, despite Glossip ruling, continue to struggle with lethal injections
This lengthy new New York Times article, headlined "Death Penalty States Face Hurdles in Carrying Out Executions," reports on the (surprising?) reality that the Supreme Court's recent Glossip ruling has not made it significantly easier for states to complete scheduled lethal injections. Here are excerpts:
Despite a Supreme Court ruling allowing a controversial drug to be used for lethal injections in Oklahoma, deathpenalty states are finding it harder to carry out executions as they struggle to obtain and properly use limited supplies of everchanging combinations of lethal injection drugs.
Prison officials in Texas and Virginia have improvised a short-term solution by trading drugs for lethal injections. Both Ohio and Nebraska have sought to buy a drug no longer available in the United States from overseas only to be told by the federal Food and Drug Administration that importing the drug is illegal.
Executions in Mississippi have been postponed for months over a federal lawsuit challenging the state’s three-drug protocol. The delay will stretch into next year, with a trial scheduled in July 2016. And in Montana on Tuesday, a judge blocked the state from carrying out executions, ruling that one of the two drugs it planned to use did not comply with the state law governing lethal injections. The only way Montana can resume executions with that drug, the judge said, is by having the State Legislature modify the law.
“Over time lethal injection has become only more problematic and chaotic,” said Deborah W. Denno, a professor at Fordham Law School and an expert on lethal injections.
Oklahoma last week halted the execution of Richard E. Glossip, who was part of the challenge the Supreme Court had turned down, after officials realized two hours before it was to take place that the state’s supplier had sent prison officials the wrong drug. The error led to a court-ordered stay of the three executions scheduled in October and November while officials conduct an investigation....
The scramble for drugs has caused some states to embrace or consider more unusual or more antiquated ways of putting inmates to death. In 2014, Tennessee authorized prison officials to use the electric chair if lethal-injection drugs were unavailable. Gov. Gary R. Herbert of Utah signed a bill into law in March approving firing squads when drugs cannot be obtained.
In April, Oklahoma made nitrogen gas its new backup method. In Louisiana, where executions have been postponed following a federal lawsuit over its lethal-injection system, prison officials recommended in a report in February that nitrogen gas be adopted as an alternative method, through the use of a mask or other device but not a gas chamber.
Wednesday, October 07, 2015
Previewing Kansas capital case day for SCOTUS argument
The Supreme Court will be spending the morning today talking a lot about how Kansas administers its death penalty. (The official nickname for Kansas is the Sunflower State, but perhaps the Justices will be thinking of the state's unofficial nickname of Bleeding Kansas.) Helpfully, SCOTUSblog and Crime & Consequences provides previews. Here are links and leads from their efforts:
The Justices closed out last Term with a high-profile death penalty case, holding that Oklahoma’s lethal injection procedures do not violate the Eighth Amendment’s ban on cruel and unusual punishment. The decision in that case may be best known for Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, in which he suggested that the death penalty itself is unconstitutional. The Eighth Amendment is back before the Court again tomorrow, albeit with lower stakes, this time in a set of challenges to the procedures used to sentence three Kansas inmates to death. The oral arguments and the Court’s eventual decision may tell us more about whether some of the Justices’ discomfort with the death penalty will translate into additional protections for defendants in capital cases or whether the Justices will instead remain — as they were in the Oklahoma case — sharply divided.
Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them. The United States Supreme Court considers such a case tomorrow. It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.
UPDATE: This short post-argument Reuters piece reports that the "U.S. Supreme Court on Wednesday appeared poised to rule against two brothers challenging their death sentences for a 2000 crime spree in Kansas that included the execution-style murders of four people on a snowy soccer field."