Friday, October 14, 2016
Remembering notable pre-modern moment of great concern over California capital case
This local article from California discussing a new play, headlined "'Chessman' explores crucial moment for Brown family, California death penalty," spotlights a California capital case more than a half-century ago that generated widespread attention. Here are excerpts from the article:
Buck Busfield is pondering the finer points of one of the most important phone calls in California political history. It was Feb. 18, 1960, the eve of the long-delayed execution of Caryl Chessman. A 21-year-old Jerry Brown, recently departed from the seminary and now a student at UC Berkeley, called his father, then-Gov. Pat Brown, asking him to grant a reprieve for the condemned inmate.
Across the world, millions awaited the fate of a man they had taken up as the poster boy for ending the death penalty. The freighted decision tore at Pat Brown, whose Catholic faith taught him that execution was immoral.
At the moment, however, Busfield is more concerned about the type of telephone Jerry would have used. During a recent rehearsal for “Chessman,” a new play about the case debuting this week at the B Street Theatre, director Busfield asked his stage manager whether they could hang a phone on the wall for the pivotal scene....
“Chessman” [is] a side project of political consultant Joe Rodota. The production attempts to capture the international, O.J. Simpson-like frenzy and divisiveness that surrounded Chessman for more than a decade, while also asking the audience to look beyond its cast of iconic California figures to a family split by a deeply personal, ethical dilemma.
It also strives to keep a neutral distance and a historical sheen on one of California’s most inflammatory political issues, just as voters are weighing two November ballot measures on capital punishment: one to abolish it and one to expedite the process. “This is not a documentary for or against the death penalty,” Rodota said....
Caryl Chessman was 27 and already a convicted felon when he was found guilty in 1948 of a series of robberies and rapes around Los Angeles. The “Red Light Bandit,” as the perpetrator was dubbed, had visited lovers’ lanes pretending to be a policeman and mugged couples in their cars.
On several occasions, Chessman took the young women back to his vehicle and sexually assaulted them. Under California’s since-discarded “Little Lindbergh Law,” named for the kidnapping and murder of aviator Charles Lindbergh’s infant son, Chessman was sentenced to death for kidnapping with bodily harm, though he had killed no one.
Chessman maintained his innocence and continued to fight his conviction. By 1954, he had been on death row for six years, longer than anyone in California history until that point. The unusual delay for his execution was gaining notice, and it would soon explode into sensation with the publication that year of his first memoir, written secretly and smuggled out of prison.
Translated into more than a dozen languages and adapted into a movie, “Cell 2455, Death Row: A Condemned Man’s Own Story” captured the public’s imagination with its searing and brutal dispatch from inside San Quentin State Prison....
The controversy also came at a relative highwater mark for opposition to the death penalty, when Americans were about evenly split on the issue. This allowed Pat Brown to openly grapple over Chessman’s fate without committing “automatic political suicide,” the biographer Rarick noted at a recent panel on the case.
Because Chessman had prior felonies, Pat Brown could not commute his sentence without the approval of the California Supreme Court, which voted 4-3 to uphold the conviction. Chessman was going to die.
But the night before the execution was scheduled to proceed, Jerry Brown called his father urging him to grant a 60-day reprieve and pursue a moratorium on the death penalty in the Legislature. As Pat recounted in “Public Justice, Private Mercy,” he believed there was not “one chance in a thousand” that lawmakers would act. “Then Jerry said, “But Dad, if you were a doctor and there was one chance in a thousand of saving a patient’s life, wouldn’t you take it?’
“I thought about that for a moment. You’re right, I finally said. I’ll do it.” For his decision, Pat Brown received a slew of negative responses – and a 16-page letter from a “surprised and grateful” Chessman.
With his usual aplomb about the social significance of his case – “the burning hope that my execution would lead to an objective reappraisal of the social validity or invalidity of capital punishment” – Chessman suggested that Brown put forth a proposal excluding him from the mercy granted to others, if it would persuade the Legislature to end the death penalty. “I do not overstate when I say I gladly would die ten thousand gas chamber deaths if that would bring these truths into hearts and minds of those who make our laws,” he wrote.
Lawmakers, however, had little interest in taking such a decisive step, particularly in an election year. Brown’s bill to abolish the death penalty was quickly swatted down in the Senate Judiciary Committee after a lengthy and highly publicized committee hearing.
Chessman was eventually gassed to death on May 2, 1960, his ninth scheduled execution date. The story appeared on the front page of newspapers from Italy to Brazil. Pat Brown ultimately believed he suffered greatly for his choice, blaming it in part for his loss to Ronald Reagan while running for a third term in 1966.
Thursday, October 13, 2016
Fair Punishment Project releases second part of report on small number of US counties still actively utilizing the death penalty
In this post earlier this year, I noted the significant new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And in this post a couple of months ago, I highlighted the new big project and first part of a report from the the FPP providing an in-depth look at how the death penalty is operating in the handful of counties still actively using it. The second part of this report has now been released under the title "Too Broken to Fix, Part II: An In-depth Look at America’s Outlier Death Penalty Counties," and it is available at this link. Here is its introduction:
As we noted in Part I of this report, the death penalty in America is dying.
In 2015, juries only returned 49 death sentences — the fewest number since the death penalty was reinstated in 1976. Of the 31 states that legally retain the death penalty, only 14 — or less than half — imposed a single death sentence in 2015. When we look at the county level, the large-scale abandonment of the death penalty in the country becomes even more apparent. Of the 3,143 county or county equivalents in the United States, only 33 counties — or one percent — imposed a death sentence in 2015. Just 16 — or one half of one percent — imposed five or more death sentences between 2010 and 2015. Among these outliers, six are in Alabama (Jefferson and Mobile) and Florida (Duval, Hillsborough, Miami-Dade, and Pinellas)—the only two states that currently permit non-unanimous death verdicts. Of the remaining 10 counties, five are located the in highly-populated Southern California region (Kern, Los Angeles, Orange, Riverside, and San Bernardino). The others include Caddo Parish (LA), Clark (NV), Dallas (TX), Harris (TX), and Maricopa (AZ). As Justice Stephen Breyer noted in his 2015 dissent in Glossip v. Gross, “the number of active death penalty counties is small and getting smaller.”
In this two-part report, we have endeavored to figure out what makes these 16 counties different by examining how capital punishment operates on the ground in these outlier death-sentencing counties. In Part II, we highlight Dallas (TX), Jefferson (AL), San Bernardino (CA), Los Angeles (CA), Orange (CA), Miami-Dade (FL), Hillsborough (FL), and Pinellas (FL) counties.
Our review of these counties, like the places profiled in Part I, reveals that these counties frequently share at least three systemic deficiencies: a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion. These structural failings regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities.
This is what capital punishment in America looks like today. While the vast majority of counties have abandoned the practice altogether, what remains is the culmination of one systemic deficiency layered atop another. Those who receive death sentences do not represent the so-called “worst of the worst.” Rather, they live in counties with overzealous and often reckless prosecutors, are frequently deprived access to competent and effective representation, and are affected by systemic racial bias. These individuals are often young, and many have significant mental impairments. Some are likely innocent. This pattern offers further proof that, whatever the death penalty has been in the past, today it is both cruel and unusual, and therefore unconstitutional under the Eighth Amendment.
Prior related posts:
- Harvard Law School launches "Fair Punishment Project"
- New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty
Wednesday, October 12, 2016
"The Challenges of 'Improving' the Modern Death Penalty"
I had the opportunity and honor of speaking at a Duke Law School symposium about the death penalty earlier this year, and the follow-up essay has now been published and can be accessed here via SSRN. The essay has the same title as the title of this post, and here is the SSRN abstract:
In his dissent in McCleskey v. Kemp, Justice William Brennan turned a famous phrase that has long resonated with criminal justice reformers. In upholding Georgia’s capital sentencing system, the majority expressed concern about Eighth Amendment claims based on statistics revealing racial disparities in the application of the death penalty, fearing that such claims “would open the door to widespread challenges to all aspects of criminal sentencing.” Justice Brennan lamented that “on its face, such a statement seems to suggest a fear of too much justice.”
Disconcertingly, almost everyone seriously involved in debates over the modern administration of death penalty seemingly has a fear of too much capital justice. This essay seeks to explain this practical reality of modern death penalty advocacy in order to spotlight the problems it necessarily creates for any sustained efforts to improve the modern death penalty. By unpacking the fear of too much capital justice among capital punishment’s active supporters and ardent opponents, this essay seeks first to expose an enduring disconnect between lay interest and insider advocacy concerning death penalty reform, and second to explain my pessimistic concern that even moderate and modest efforts to improve the modern administration of capital punishment may, more often than not, constitute something of a fool’s errand.
After discussing these dynamics surrounding modern capital punishment advocacy and reform, this essay closes by admitting uncertainty concerning what enduring lessons should be drawn from my observations for the future of the death penalty in the United States. It may be tempting to conclude simply that it would be far wiser for existing death penalty jurisdictions to try to end, rather than just mend, their modern capital punishment systems. But in an effort to provide a silver lining to what may otherwise seem like a dark story, this essay concludes by noting some unique potential benefits for American criminal justice systems when capital jurisdictions try (and fail) to achieve “too much justice” in their death penalty systems.
Tuesday, October 11, 2016
Fascinating SCOTUS per curiam summary opinion stresses that Eighth Amendment still limits victim testimony in capital cases
The Supreme Court's order list this morning includes a little and very interesting summary opinionin Bosse v. Oklahoma, No. 15-9173 (S. Ct. Oct. 11, 2016) (available here). The order rules in favor of Shaun Michael Bosse, who was convicted and sentence to death by a jury "of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children." Here is the per curiam Bosse ruling account of the problem below and its consequences:
Over Bosse’s objection, the State asked three of the victims’ relatives torecommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P. 3d 1203, 1226–1227. We grant certiorari and the motion for leave to proceed in forma pauperis, and now vacate the judgment of the Oklahoma Court of Criminal Appeals.
“[I]t is this Court’s prerogative alone to overrule one of its precedents.” United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); internal quotation marks omitted); see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). The Oklahoma Court of Criminal Appeals has recognized that Payne “specifically acknowledged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appropriate punishment. Ledbetter, 933 P.2d at 890–891. That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further and conclude that Payne implicitly overruled Booth in its entirety. “Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Hohn v. United States, 524 U. S. 236, 252–253 (1998).
The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless this Court reconsiders that ban. The state court erred in concluding otherwise.
The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law. See Brief in Opposition 14–15. Those contentions may be addressed on remand to the extent the court below deems appropriate.
Justice Thomas (joined by Justice Alito) added this one paragraph concurring opinion:
We held in Booth v. Maryland, 482 U. S. 496 (1987), that the Eighth Amendment prohibits a court from admitting the opinions of the victim’s family members about the appropriate sentence in a capital case. The Court today correctly observes that our decision in Payne v. Tennessee, 501 U.S. 808 (1991), did not expressly overrule this aspect of Booth. Because “it is this Court’s prerogative alone to overrule one of its precedents,” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997), the Oklahoma Court of Criminal Appeals erred in holding that Payne invalidated Booth in its entirety. In vacating the decision below, this Court says nothing about whether Booth was correctly decided or whether Payne swept away its analytical foundations. I join the Court’s opinion with this understanding.
Monday, October 10, 2016
Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade
I had the great fortune of having the Assistant Chief Counsel for Ohio Governor John Kasich come speak to my OSU Moritz College of Law Sentencing Class about the decade-long litigation in Ohio over the state's various lethal injection protocols (which, as this post explains, is now poised to kick into yet another new phase). With that class freshly in mind, I was intrigued to see this notable new local AP story headlined "Death penalty stalls in Mississippi." Here are excerpts:
With sprawling litigation over Mississippi’s use of execution drugs now scheduled to stretch into 2017, the state could go five years without executing a death row inmate. That would be the longest gap between executions in Mississippi in 15 years.
Mississippi has executed 21 people, all men, since the death penalty resumed. That includes a 13-year gap between the 1989 execution of Leo Edwards and the 2002 execution of Tracy Edwards. During that time, executions stalled out over concerns about adequate legal representation for the condemned. That’s also when Mississippi switched it execution method from the gas chamber to lethal injection. Multiyear gaps remained even after 2002, but the state picked up the pace, executing 11 people in a 25-month span ending in 2002. Then, just as it became routine, the death penalty sputtered out.
That halt is in some ways a tribute to lawyer Jim Craig. He’s tying state government in knots fighting Mississippi’s plan to use a new drug to render prisoners unconscious before injecting additional drugs to paralyze them and stop their hearts. Craig, of the MacArthur Justice Center, says the litigation isn’t aimed at overturning the death penalty in Mississippi, only at seeking a better way of executing people. But he’s doing a good job of keeping his clients alive.
On behalf of Richard Jordan, Ricky Chase and Charles Ray Crawford, Craig argues Mississippi can’t use midazolam as a sedative because it doesn’t meet state law’s specification for an “ultra-short-acting barbiturate” Until 2012, the state used pentobarbital. But drug makers have choked off supplies of the drug for executions.
Midazolam doesn’t render someone unconscious as quickly as a barbiturate. Craig argues midazolam leaves an inmate at risk of severe pain during execution, violating the U.S. Constitution’s prohibition on cruel and unusual punishment. The U.S. Supreme Court in 2015 upheld as constitutional Oklahoma’s use of midazolam, but Craig’s lawsuit is based in part on his claims about Mississippi state law. He’s also trying to reopen other issues surrounding midazolam.
One part of Craig’s legal offensive is a federal challenge to the drug’s use. U.S. District Judge Henry T. Wingate had issued a preliminary injunction freezing executions, but executions didn’t resume when appeals judges lifted the freeze in July. Last month, Craig and lawyers for Attorney General Jim Hood extended that lawsuit into next year, setting a trial for May. Craig rates it unlikely that the state Supreme Court will green-light executions with that case unresolved. “They aren’t stayed automatically,” Craig said. “But I think the Mississippi Supreme Court will respect the federal process and thus will not set execution dates while the federal case is active.”
To aid that case, Craig is also fighting Missouri, Georgia and Texas in court, arguing they must say who’s still supplying them with pentobarbital, so he can argue Mississippi has alternatives to midazolam and could return to its old drug. Mississippi said it destroyed all its pentobarbital and can’t get more.
There are also three cases before the Mississippi Supreme Court. Crawford is challenging the state’s ability to execute him with a drug compounded from raw ingredients, how other states are likely getting pentobarbital. Meanwhile, Jordan and Gerald Loden are fighting use of midazolam based on the barbiturate requirement.
Hood says he’s working to resume executions, but acknowledges Craig’s efforts are gumming the works. “The Mississippi Supreme Court’s resolution of those pending petitions will determine when any executions will be re-set,” Hood said in a statement. “Any delay in the federal lawsuit has been the result of the Jordan plaintiffs’ strategic decisions.”
Saturday, October 08, 2016
Reviewing the nature and stakes for death penalty ballot initiatives in three states
This lengthy new AP article, headlined "Repeal or Reform? Death Penalty Voter Decisions for 3 States," provides a useful rundown of the capital punishment issues coming before voters next month in three states. Here is how the article gets started:
California's dysfunctional death penalty faces a fate in November that seems fitting: voters can put it out of its misery, or fix it so it does what it promises. The state is among three where voters will make decisions on capital punishment. California's ballot initiatives — one would repeal capital punishment, the other would speed up appeals so convicted murderers are actually executed — are fueled by those who agree only that the current system is broken, leaving murder victims' kin grieving and the condemned languishing on death row.
Meanwhile, voters in Nebraska will be asked whether they want to reinstate the death penalty and Oklahoma residents will decide whether to make it harder to abolish it.
In California, more than 900 convicted murderers have been sent to death row since 1978 — but only 13 have been executed in the state. Many more have died of natural causes and no one has been put to death in more than a decade after a judge ordered an overhaul to the state's lethal injection procedure.
The votes for the three states come amid an evolution for capital punishment in the U.S. Executions have mostly been in decline since the turn of the century and last year reached their lowest level in 25 years, with 28 prisoners killed. Capital punishment has been either legislatively or judicially repealed in eight states since 2000, according to Robert Dunham, executive director of the Death Penalty Information Center.
Thursday, October 06, 2016
Texas completes first US execution in nearly three months and only third since April
As noted in this post last month, titled "A not-so-deadly summer: only one US execution from Memorial Day to Labor Day," and as detailed on this DPIC executions page, there was almost a quasi-moratorium on executions throughout the United States this past summer as there was only one completed execution in the months of June, July and August. But yesterday a mini-de-facto execution moratorium in the US ended thanks to, as reported here, Texas finally getting around to giving a lethal injection to a man who slaughtered his neighbors 13 years ago and then sought out his death sentence. Here are the details:
An East Texas man who pleaded guilty to killing a neighbor couple during a shooting rampage 13 years ago and said he wanted to be put to death for the crime was executed Wednesday evening. Barney Fuller Jr., 58, had asked that all his appeals be dropped to expedite his death sentence.
Fuller never made eye contact in the death chamber with witnesses, who included the two children of the slain couple. Asked by Warden James Jones if he had any final statement, Fuller responded: “I don’t have anything to say. You can proceed on, Warden Jones.”
Fuller took a deep breath as Texas Department of Criminal Justice officials injected a lethal dose of pentobarbital into each arm, then blurted out: “Hey, you fixin’ to put me to sleep.” He took a couple of breaths, then began snoring. Within 30 seconds, all movement stopped.
Fuller was pronounced dead 38 minutes later, at 7:01 p.m. CDT. The time between when the drug was injected and when he was pronounced dead was somewhat longer than normal. “Each person is unique in how his body shuts down,” prison agency spokesman Jason Clark said, explaining the extended time.
Fuller became the seventh convicted killer executed this year in Texas and the first in six months in the nation’s most active capital punishment state.
Fuller surrendered peacefully at his home outside Lovelady, about 100 miles north of Houston, after a middle-of-the-night shooting frenzy in May 2003 that left his neighbors, Nathan Copeland, 43, and Copeland’s wife, Annette, 39, dead inside their rural home. The couple’s 14-year-old son survived two gunshot wounds, and their 10-year-old daughter escaped injury because Fuller couldn’t turn the light on in her bedroom.
Court records show Fuller, armed with a shotgun, a semi-automatic carbine and a pistol, fired 59 shots before barging into the Copeland home and opening fire again. He had been charged with making a threatening phone call to Annette Copeland, and the neighbors had been engaged in a 2-year dispute over that. The Reuters news agency reports the gun was an AR-15 assault weapon and that the Copelands had also complained to police that Fuller had shot their dog, according to court documents.
Fuller pleaded guilty to capital murder. He declined to appear in court at his July 2004 trial and asked that the trial’s punishment phase go on without his presence. He only entered the courtroom when jurors returned with his sentence. Last year, Fuller asked that nothing be done to prolong his time on death row. “I do not want to go on living in this hellhole,” he wrote to attorney Jason Cassel.
A sheriff’s department dispatcher who took Annette Copeland’s 911 call about 1:30 a.m. on May 14, 2003, heard a man say: “Party’s over, bitch,” followed by a popping sound. Annette Copeland was found with three bullet wounds to her head. On Wednesday evening, one of her sisters who watched Fuller die said as she left the death chamber: “Party’s over, bastard.”
Cindy Garner, the former Houston County district attorney who prosecuted Fuller, described him as mean and without remorse. “It’s not a cheerful situation,” she said of the execution. “I just regret that this little, plain, country, nice, sweet family — bless their heart — moved in next door.”
Fuller’s execution was only the 16th in the U.S. this year, a downturn fueled by fewer death sentences overall, courts halting scheduled executions for additional reviews, and some death penalty states encountering difficulties obtaining drugs for lethal injections.
Tuesday, October 04, 2016
Racial issues in death sentencing (and insider trading and malicious prosecution) next up for SCOTUS oral argument
As I noted in this recent post, the Supreme Court is back in action with a new fall season chock full of cases involving criminal justice issues. Today's first official day of oral argument, as noted here, involved case on how to interpret the federal bank-fraud statute and on how to apply the Double Jeopardy Clause. And the SCOTUS action gets extra exciting for sentencing fans with the first big capital case of the season, Buck v. Davis, to be heard on Wednesday. Here are excerpts from Amy Howe's lengthy overview of the case at SCOTUSblog, "Argument preview: Justices to consider role of racial bias in death penalty case":
Even Duane Buck’s attorneys describe the facts of his crime as “horrific.” Buck believed that his former girlfriend, Debra Gardner, was in a romantic relationship with another man, Kenneth Butler. On July 30, 1995, he went to Gardner’s Houston home, where he shot and killed both Gardner and Butler. Buck also shot his step-sister, Phyllis Taylor, in the chest at point-blank range; the bullet missed her heart by only an inch, but she survived.
A Texas trial court appointed two lawyers to represent Buck at his trial. One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.
A key issue at Buck’s trial was whether he would be dangerous in the future: Unless the jury unanimously concluded that he would be, it could not sentence him to death under Texas law. One of Buck’s former girlfriends, Vivian Jackson, testified that he had repeatedly abused her, but that fear had kept her from going to the police. However, Buck did not have any convictions for violent crimes, and a psychologist testified that he was unlikely to be dangerous in the future.
Buck’s lawyers also retained another psychologist, Dr. Walter Quijano. Quijano provided the defense team with a report in which he indicated that, as a statistical matter, Buck was more likely to commit violent crimes in the future because he is black. That report was admitted into evidence, at the request of Buck’s lawyers. After two days of deliberations, the jury concluded that Buck was indeed likely to be dangerous in the future and sentenced him to death....
There are several points of contention in the Supreme Court. The first is the merits of Buck’s argument that his trial counsel violated his constitutional right to an effective attorney when he introduced Quijano’s opinion.
Buck emphasizes that Quijano’s “testimony was so directly contrary to Mr. Buck’s interests, no competent defense attorney would have introduced it.” And the introduction of that evidence, he contends, likely “tipped the balance in the prosecution’s favor”: Although the key question before the jury was whether Buck was likely to be dangerous in the future, prosecutors failed to provide any evidence that Buck “had been violent outside the context of romantic relationships with two women, and the jurors learned that he had adjusted well to prison.” Moreover, he notes, the jury apparently “struggled to determine the appropriate sentence” for Buck, which suggests that, if Quijano’s testimony had not been admitted, at least one juror — all that would be necessary — might have voted against a death sentence.
The state concedes both that “race is an arbitrary, emotionally charged factor that has nothing to do with individual moral culpability” and that the introduction of Quijano’s opinion “was at least debatably deficient performance” by Buck’s trial lawyers. But, the state contends, Buck had failed to show that the jury might have reached a different decision if the opinion had not been introduced, because there was plenty of evidence that Buck was likely to be dangerous in the future. The state further downplays the significance of Quijano’s opinion that Buck was statistically more likely to be dangerous in the future because he is black, asserting that it “played only a limited role at trial,” particularly when the psychologist’s “ultimate conclusion” was that Buck “would likely not be a future danger.”
The other issues before the Court are more technical, but no less important: whether Buck’s case presents the kind of extraordinary circumstances that would justify relief under Rule 60(b)(6) and whether the lower courts made a mistake when they rejected his application for a certificate of appealability....
In many of the court’s recent death penalty cases, the justices have been deeply divided. Two justices — Stephen Breyer and Ruth Bader Ginsburg — have even suggested that the court should consider whether the death penalty is constitutional at all. That question is not before the court in Buck’s case, but ... oral arguments could nonetheless elicit strong opinions on the administration of death penalty from the eight-member court.
Though the Buck case is likely to garner the most media attention, there are other big legal and practical issues before Justices in two other criminal cases tomorrow. Again, SCOTUSblog provides helpful resources for these cases:
On eve of VP debate, a deep dive into "Tim Kaine’s Long, Conflicted History With The Death Penalty"
BuzzFeed News reporter Chris Geidner (who just happens to be one of my favorite former students) did some important yeoman's work recently by looking closely at Democratic VP candidate's long professional engagement with capital punishment. The subheadline of BuzzFeed's lengthy report highlights its themes: "As a lawyer, the Democratic vice presidential nominee took cases defending death-row inmates, arguing that parts of Virginia’s death penalty process made the system 'shockingly unequal.' When he was governor, however, he allowed executions to proceed, even when some of those issues were raised again." I recommend the piece in full, and here is how it gets started:
In 2005, Tim Kaine faced a tight race for governor. He was running against Jerry Kilgore, then the state’s attorney general, and Kilgore was hitting him hard on the death penalty.
Two decades earlier, Kaine had arrived in Virginia a new lawyer who immediately called up the ACLU and asked how he could help. When he was asked to take over a death penalty appeal, he initially turned it down — but then changed his mind, believing that he had to put his principles to work. “The essence of human life is probably suffering and pain,” he would tell the Richmond Times-Dispatch, discussing the death penalty and his Catholicism. “The thing that redeems that is the presence of God in every person.”
Kaine took on representation of Richard Whitley — sentenced to death for a brutal murder in 1980 — and spent more than two years trying, ultimately unsuccessfully, to stop his execution. For Kaine, it wasn’t just about making sure an adversarial system worked properly — he called the death penalty in America “outrageous” in the extensive interview with the Times-Dispatch. Whitley was just the first of a handful of death row inmates that Kaine would try to keep from execution over the course of 15 years, working on behalf of the kind of convicted murderers whose stories do not make for sympathetic coverage.
And, in 2005, Kilgore reminded voters of just that. His campaign produced television ads that featured the family members of people killed in Virginia. In one, the wife of a police officer killed by “a drug dealer illegally in this country” who was on death row, expressed a concern that Kaine would put in place a death penalty moratorium. In another, the father of the man killed by one of the death row inmates who Kaine had represented said that Kaine’s death penalty opposition was so extreme that the would-be governor wouldn’t support the death penalty for Adolf Hitler.
Kaine had made a decision early on in his campaign that the response would be to reiterate his personal opposition to the death penalty, to explain that the position was informed by his Catholic faith, and then to say that he would follow the law and enforce the death penalty as governor. When the attack ads ran, the response ad had already been prepared. The attack didn’t appear to do any damage in the long run, and it may even have turned some voters against Kilgore because the ads were seen as unfair — or even as attacking Kaine’s faith. Kaine ultimately won the race on Election Day, 52%-46%, and took office on Jan. 14, 2006.
Less than three months later, Kaine would be faced with the convergence of two threads in his life — his work as a capital defense lawyer and his promise to enforce the death penalty — when he received a petition seeking executive clemency for Dexter Lee Vinson on April 13, 2006. Vinson was scheduled to be executed two weeks later, and his lawyers, including those from the Virginia Capital Representation Resource Center, held out hope that the new governor would take action to halt the scheduled execution.
In the clemency petition, obtained by BuzzFeed News, the lawyers wrote, “If this execution is carried out as scheduled, troubling questions about whether Vinson is innocent of the crimes for which he will be put to death will remain unresolved.” Specifically, the lawyers wrote, “The unique combination of newly discovered evidence, undeveloped evidence, and singular circumstances of Vinson’s case rattle the confidence the Commonwealth must have before taking an irremediable action like execution.”
Kaine denied clemency to Vinson and his execution took place on April 27, 2006, the first of 11 executions that took place under Kaine’s governorship. In that time, Kaine only commuted one death sentence, that of Percy Walton, who faced the death penalty for three murders. In 2008, Kaine concluded Walton was not mentally competent to face execution and commuted his sentence to life in prison.
“What I told Virginians was, ‘I’m against the death penalty, but I’ll uphold the law,’ and I did that,” Kaine said this June in a C-SPAN interview about his life and career. Of considering, and ultimately rejecting, most of the clemency petitions that came before him, he said, “Very, very difficult — the hardest thing in public life I’ve had to do was that. … I grappled with the cases, but only gave relief to people who I felt had made a case that they were entitled to clemency.”
Over the course of the past three decades, Tim Kaine’s experience with the death penalty is far more complex and nuanced than that of any other major party candidate for the presidency or vice presidency in the modern era of the death penalty. Kaine has represented multiple people on death row, seeking to highlight what he has described as a “shockingly unequal” system, and he also has governed one of the few states that has continued to carry out executions regularly over the past decade.
The questions Kaine raised as a defense lawyer were mostly related to process — from the time given for federal court review of cases and the rules that Virginia state courts had for review of capital cases to the quality of the lawyers provided to criminal defendants in those cases and the way those lawyers carried out that defense — but that process, as Kaine said at the time, is sometimes the difference between life and death. “If you had enough money to pay” for a top-tier criminal defense attorney at trial, he said at the time of Whitley’s execution, “you’re not going to get the death penalty.”
And yet, a decade later, in his four years as governor, Kaine found himself in the position of denying clemency requests in cases where those and other similar issues were being raised by people facing execution under his watch.
Monday, October 03, 2016
Ohio planning to use new three-drug execution protocol to get its machinery of death operative in January 2017
Long-time readers and/or hard-core death penalty fans perhaps recall that my own great state of Ohio way back in Fall 2009, in the wake of some problems administering the then-universal three-drug lethal injection approach, pioneered a new one-drug execution protocol. This one-drug approach to executions seemed to work reasonably well for the Buckeye state for a period, as the state completed 19 executions in the period from 2010 to 2013. But when Ohio struggled to get the needed supply of the drug being used in its one-drug protocol, the state in January 2014 tried a two-drug approach that did not seem to work our so well (as reported in this prior post).
Since January 2014, Ohio has been a de facto death penalty moratorium state because Ohio Gov John Kasich repeatedly delayed a long list of scheduled executions while the state sought to figure out how best to acquire drugs for conducting lethal injections. (During this period, the Ohio legislature enacted a law to shield the identity of some who helped the state move forward with executions (background here), and some advocates started calling for the state to consider nitrogen gas as an alternative way to carry out death sentences (details here). But today, as this new AP article reports, Ohio has now revealed that it is planning to get its machinery of death up-and-running again come January 2017 by returning to a (new kind of) three-drug execution protocol. Here are the details and context:
Ohio plans to resume executions in January with a new three-drug combination after an unofficial three-year moratorium blamed on shortages of lethal drugs, an attorney representing the state told a federal judge Monday.
Thomas Madden with the Ohio attorney general's office said the state will use the drugs midazolam, which puts the inmate to sleep; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart. He said the drugs are not compounded and are FDA approved. Madden told Columbus federal Judge Edmund Sargus that a new execution policy will be announced at the end of the week....
The development opens the way for the execution of Ronald Phillips for the rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993. Ohio hasn't put anyone to death since January 2014, when Dennis McGuire repeatedly gasped and snorted during a 26-minute procedure using a never-before-tried two-drug combo.
The state also used midazolam in McGuire's execution, making it disappointing that Ohio would again turn to that drug, said Allen Bohnert, a federal public defender representing several death row inmates.
The state has more than two dozen inmates with firm execution dates sitting on death row, with executions scheduled out as far as October 2019.
After McGuire's execution, the longest ever in Ohio using lethal drugs, the prisons agency changed its policies to allow for single doses of two alternative drugs. Complicating matters, neither of those drugs — sodium thiopental and pentobarbital — is available in the United States after their manufacturers put them off-limits for executions. The state has unsuccessfully tried to find compounded or specially mixed versions.
Last year, Republican Gov. John Kasich ruled out looking for alternative methods, such as the firing squad or hanging. In 2014, Kasich signed a bill into law shielding the names of companies that provide the state with lethal injection drugs.
Supporters said such confidentiality is necessary to obtain supplies of the drugs, and the measure is needed to restart Ohio executions. Opponents said it was naive to think the bill could truly protect companies' names from being revealed.
In 2014, former federal Judge Gregory Frost sided with the state, saying the prisons agency's need to obtain the drugs outweighed concerns by death row inmates that the information was needed to meaningfully challenge the source of the drugs.
"Dignity and the Death Penalty in the US Supreme Court"
The title of this post is the title of this new paper authored by Bharat Malkani now available via SSRN. Here is the abstract:
The US Supreme Court has repeatedly invoked the idea of dignity in its Eighth Amendment jurisprudence, particularly in cases involving capital punishment. However, it has never articulated a clear and consistent conception of dignity. The first half of this paper examines the Court's inconsistent use, and highlights how various justices have used different conceptions of human dignity, communitarian dignity, and institutional dignity to uphold the constitutionality of capital punishment. This stands in contrast to how foreign and international authorities have used the idea of dignity to advance abolition.
The second half of this paper uses the Supreme Court's own accounts of dignity, and philosophical approaches to dignity, to argue that respect for dignity must pull towards a finding that the death penalty is unconstitutional. Respect for dignity, it is argued, requires a consideration of how human, communitarian, and institutional dignity inter-relate and inform one another. For example, it makes little sense to examine the death penalty and the dignity of the legal system without considering the human dignity of the people involved in administering capital punishment. When these three dignities are considered together, it becomes clear that the death penalty cannot comport with respect for dignity, as required by the Eighth Amendment.
Sunday, October 02, 2016
Untroubled by SCOTUS Hurst ruling, unanimous Alabama Supreme Court upholds state's capital punishment procedures
As reported in this local article, headlined "Supreme Court of Alabama has unanimously upheld the state's capital murder sentencing scheme," a top state court has concluded that its capital punishment law is not to be consumed by the post-Hurst hydra. "post-Hurst hydra" (As regularly readers may recall, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases.) Here are the basics and the context for this significant ruling:
The Supreme Court of Alabama has unanimously upheld the state's capital murder sentencing scheme, which signifies Alabama as the last state in the country that allows for this type of scheme. The ruling allows for judicial override, which means a judge can impose the death penalty even after a jury has recommended a lesser sentence.
This happened in Montgomery county in 2008, when Circuit Judge Truman Hobbs overrode a jury’s decision to sentence Mario Woodward to life in prison without the possibility of parole for killing Montgomery police officer Keith Houts. After finding him guilty, the jury recommended life in prison without parole, “But Hobbs said the 34-year-old should die for killing Houts in September 2006,” the Advertiser reported at the time of the sentencing.
In March, Jefferson County Circuit Judge Tracie Todd ruled that the judicial override sentencing scheme was unconstitutional in light of Hurst v. Florida — a January U.S. Supreme Court decision stating that Florida’s sentencing scheme, which also incorporated a judicial override system, was unconstitutional. Florida’s scheme left it to the judge to find the aggravating factors, not the jury.
The case that sparked Alabama's judicial override appellate process stems from a case involving four men who were charged with three capital murders. Defense attorneys argued the men should be barred from receiving the death penalty based on that the Supreme Court of the United States' decision.
Todd ruled in their favor, which barred prosecutors from seeking the death penalty. In her 28-page ruling, Todd called the judicial override practice a “life-to-death override epidemic” and questioned Alabama’s partisan judicial elections. “There is a time and place for diplomacy and subtlety,” Todd wrote. “That time and place has been expunged by the dire state of the justice system in Alabama. It is clear, from here on the front line, that Alabama’s judiciary has unequivocally been hijacked by partisan interests and unlawful legislative neglect.”
Alabama Attorney General Luther Strange asked the Alabama Court of Criminal Appeals to vacate Todd’s order shortly after it was issued. In June the Alabama Court of Criminal Appeals vacated her decision, stating that Alabama’s scheme differs from Florida’s because in Alabama the jury determines the aggravating factors before deciding the sentence.
Jerry Bohannon, one of the defendants challenging Alabama's sentencing scheme, subsequently petitioned for a writ of certiorari. Upon review, Alabama Supreme Court Justices echoed points made by the Court of Criminal Appeals. "Because in Alabama a jury, not the judge, determines by a unanimous verdict the critical finding that an aggravating circumstance exists beyond a reasonable doubt to make a defendant death-eligible, Alabama's capital-sentencing scheme does not violate the Sixth Amendment," wrote acting Chief Justice Lyn Stuart....
Strange praised the court’s decision, stating “Today’s ruling is an important victory for victims and for criminal justice. The Hurst ruling has no bearing whatsoever on the constitutionality of Alabama’s death penalty, which has been upheld numerous times.” Since Hurst, The United States Supreme Court has told the Alabama Court of Criminal Appeals to reconsider appeals filed on behalf of at least three Alabama death row inmates.
The full opinion from the Alabama Supreme Court is available at this link. I would call it a near certainty that some Alabama death row defendants will continue to seek certiorari review based on Hurst, and I suspect SCOTUS review will eventually be more a question of when rather than whether.
Friday, September 30, 2016
Pew survey indicates "Support for death penalty lowest in more than four decades"
This new item from the Pew Research Center reports based on a new survey that "the share of Americans who support the death penalty for people convicted of murder is now at its lowest point in more than four decades." Here is more:
Only about half of Americans (49%) now favor the death penalty for people convicted of murder, while 42% oppose it. Support has dropped 7 percentage points since March 2015, from 56%. Public support for capital punishment peaked in the mid-1990s, when eight-in-ten Americans (80% in 1994) favored the death penalty and fewer than two-in-ten were opposed (16%). Opposition to the death penalty is now the highest it has been since 1972.
Though support for the death penalty has declined across most groups, a Pew Research Center survey conducted Aug. 23-Sept. 2 among 1,201 adults finds that most Republicans continue to largely favor its use in cases of murder, while most Democrats oppose it. By more than two-to-one, more Republicans (72%) than Democrats (34%) currently favor the death penalty.
Two decades ago, when majorities in both parties favored the death penalty, the partisan gap was only 16 percentage points (87% of Republicans vs. 71% of Democrats). And, for the first time in decades, independents are as likely to oppose the use of the death penalty (45%) as they are to favor it (44%). The share of independents who support capital punishment has fallen 13 points since last year (from 57%)....
Even as support for the death penalty has declined across nearly all groups, demographic differences remain: Men are more likely to back the use of the death penalty than women, white Americans are more supportive than blacks and Hispanics, and attitudes on the issue also differ by age, education and along religious lines. More than half of men (55%) say they are in favor of the death penalty and 38% are opposed. Women’s views are more divided: 43% favor the death penalty, 45% oppose it.
A 57% majority of whites favor the death penalty for those convicted of murder (down from 63% last year). But blacks and Hispanics support it at much lower rates: Just 29% of blacks and 36% of Hispanics favor capital punishment.
There are only modest difference by age and education in support for the death penalty, with 18- to 29-year-olds somewhat less likely to support it (42% favor) than those in older age groups (51% of those 30 and older). Those without a college degree are more likely than those with at least a college degree to favor the use of the death penalty in cases of murder (51% vs. 43%).
White evangelical Protestants continue to back the use of the death penalty by a wide margin (69% favor, 26% oppose). White mainline Protestants also are substantially more likely to support (60%) than oppose (31%) the death penalty. But among Catholics and the religiously unaffiliated, opinion is more divided: 43% of Catholics favor capital punishment, while 46% oppose it. And while 50% of those who are religiously unaffiliated oppose the death penalty, 40% support it.
Thursday, September 29, 2016
New HELP Act seemingly proposes death — and mandates LWOP — for spiked heroin dealing in every case in which "death or serious bodily injury results"
In this post yesterday I noted that Representative Tom Reed, who represents the 29th Congressional District of New York, last week introduced a bill (with four co-sponsors) that would respond to the current heroin epidemic by expanding the federal death penalty. In that post, you can find Rep Reed's press release, headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," explaining the background and reasons for his proposal.
This morning, I found that this page at Congress.gov providing more information about the Help Ensure Lives are Protected (HELP) Act now has this link to the (quite short) text of Rep Reed's bill. Somewhat disconcertingly, but not really all that surprisingly, the bill is written in a way that seems to mandate federal life without parole (and permits the death penalty) in any and every case in which any user of spiked heroin suffers even serious bodily injury and even if the person distributing the heroin does not know or even have any reason to know the heroin is spiked or that it could seriously injure a user.
In other words, as I read the key text of the proposed HELP Act, this bill calls for holding any and all heroin distributors strictly and severely criminally liable for any and all serious injuries or deaths that result from a user ingesting spiked heroin. This is because the HELP Act simply amends the "Penalties" provision of the Controlled Substances Act by adding "if the mixture or substance [of more than 100 grams] containing a detectable amount of heroin also contains a detectable amount of [spiked substance like fentanyl], and if death or serious bodily injury results from the use of such substance, such person shall be sentenced to life imprisonment or death."
Of course, the Supreme Court long ago concluded that the Eighth Amendment precludes even felony murderers from be subject to the death penalty unless and until it can be shown they were at least extremely reckless in the causing of a death. Thus, because of constitutional limits, there is little chance this bill if enacted would end up sending lots of drug dealers to federal death row. But, the Eighth Amendment was interpretted in 1991 to permit Michigan to mandatorily impose LWOP on adults for just the possession of a significant quantity of drugs. Thus, if the HELP Act were to become law, there is a real reason to expect that a huge numbers of persons involved in heroin distribution throughout the US could soon be facing mandatory life sentences if anyone who gets a spiked drug gets seriously injured.
Prior related posts:
- NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors
- Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
- "In Heroin Crisis, White Families Seek Gentler War on Drugs"
September 29, 2016 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)
Wednesday, September 28, 2016
NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors
This official press release from the offices of Representative Tom Reed, who represents the 29th Congressional District of New York, reports on the introduction of a bill that would respond to the current heroin epidemic by expanding the federal death penalty. The press release is headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," and here are the details form the press release:
Tom Reed continued his fight against heroin and opioid abuse by offering a proposal which would toughen penalties for drug dealers that supply users with illicit substances that cause an overdose death. “We care about the families of every overdose victim in our community and the addicts that are struggling. We’ve held several roundtable discussions and heard directly from the parents who have lost children to opioids and heroin. It’s only right that we hold those responsible for harming our loved ones accountable,” said Reed.
The bill, known as the Help Ensure Lives are Protected (HELP) Act, would allow federal prosecutor expanded access to more severe penalties, including life in prison or the death penalty, when prosecuting certain criminal drug cases where prosecutors can connect an overdose death to the drug dealer that sold heroin laced with fentanyl.
The move comes in the wake of several roundtable discussions held by Reed throughout the region as well as the recent spike in overdoses directly related to fentanyl laced heroin. The number of deaths due to synthetic opioids, mainly Fentanyl, rose 80% between 2013 and 2014.
Fentanyl is extremely addictive substance, 100 times more powerful than morphine, which is often included in heroin without the user’s knowledge, to maximize the dealer’s profits. The substance is so potent that law enforcement officers are forced to wear level ‘A’ hazmat suits following raids and seizures to avoid coming in contact with it. These hazmat suits are the same kind worn by medical professionals combating Ebola.
Reed supported the Comprehensive Opioid Abuse Reduction Act which was signed into law in July. The law provides for new programs that offer prevention and treatment options for addicts by offering grants to states, and groups of states, to implement and expand access to these services. The government funding proposal, which is expected to pass the House later this week, will designate $37 million to these efforts.
Reed says his proposal will “bring balance to the approach” by providing law enforcement with additional options to aid prosecution. “This is about justice for the victims and their families and giving our law enforcement and prosecutors the tools they need to stop the flow of these lethal substances into our communities,” said Reed. The proposal was introduced late last week.
I cannot yet find the Help Ensure Lives are Protected (HELP) Act on-line, but I am very interested in seeing just how this bill seeks to apply and administer LWOP and the death penalty in this setting.
UPDATE: I have found this page via Congress.gov providing more information about the HELP Act, which on that site goes by this description "H.R.6158 - To provide for enhanced penalties for certain offenses relating to controlled substances containing fentanyl, and for other purposes." Unfortunately, that webpage does not yet have either the bill text or the a substantive summary, but the page does note that H.R.6158, the HELP Act, was introduced with these four other sponsors:
Rep. Yoho, Ted S. [R-FL-3]
Rep. LaMalfa, Doug [R-CA-1]
Rep. Flores, Bill [R-TX-17]
Rep. Chabot, Steve [R-OH-1]
Sunday, September 25, 2016
Can and will California voters "save" the death penalty in the United States?
The quirky question in the title of this post is prompted by this lengthy new press article and its provocative headline: "Death penalty is dying across America. Will California save it?". Here are excerpts:
The last inmate executed in California was 76-year-old Clarence Ray Allen, legally blind and suffering from diabetes, who had his heart stopped with a lethal chemical cocktail as punishment for a triple homicide in Fresno he’d ordered from a Folsom Prison cell a quarter century earlier. It was more than a decade ago when Allen spoke his last words – “Hoka Hey, it’s a good day to die” – and the poisons flowed into his veins at San Quentin State Prison.
Now, with the death penalty dying across America, the nation is watching California as its voters weigh competing initiatives meant to either revive executions or abolish capital punishment. Several states in recent years ended their death penalties through court decisions or legislation, but California is a test of whether voters think executions are worth trying to save....
Proposition 62 on the November ballot would end the death penalty and convert the sentences to life without parole. Proposition 66 aims to speed up executions with – among other things – limits on appeals and deadlines on court rulings. Should both measures pass, the one with the most votes becomes law. California’s decision comes as the death penalty withers in the rest of the nation. There were 28 executions in America last year, the lowest number since the death penalty was reinstated in 1976, and a 70 percent decline from the peak in 1998.
Only six states had executions last year, most of them in the cotton belt. Even America’s execution capital of Texas is slowing down, with a 68 percent decline in inmates put to death over the past 15 years. A new Harvard University study found that just 16 counties in the U.S.’s 3,143 had imposed at least five death sentences since 2010. Supreme Court Justice Stephen Breyer noted last year that “the number of active death penalty counties is small and getting smaller.”
Reasons include legal challenges to death sentences, botched executions – including a 2011 Oklahoma injection where the condemned man writhed and moaned as it took him more than 40 minutes to die – difficulty obtaining lethal drugs from pharmaceutical companies reluctant to play a role in ending lives, and wrongful convictions. More than 150 people on death row nationwide have been exonerated since 1973, according to the Death Penalty Information Center, including three in California. Wrongful convictions doomed the death penalty in Illinois, which passed legislation to abolish it in 2011.
States are also balking at costs of a death penalty case and appeals. Lawmakers in conservative Nebraska voted to join the states shedding the death penalty last year, citing expenses and religious objections. The issue will go to Nebraska’s voters in a November referendum.
The death penalty is on hold in California, Arizona, Arkansas, Colorado, Kentucky, Louisiana, Montana, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania and Washington state as a result of legal challenges or moratoriums imposed by governors. Capital punishment has been abolished in eight other states over the past decade and is in limbo in Florida, which has the nation’s second-most-populous death row after California, following a Supreme Court decision striking down the state’s death penalty statute....
Sacramento County District Attorney Anne Marie Schubert said that regardless of what was happening in the rest of the nation she saw the death penalty as appropriate justice for the “worst of the worst” killers in California. “It’s a policy that Californians continue to support but they want the system fixed,” Schubert said.
?California voters supported keeping the death penalty in 2012 with 53 percent of the vote. Recent polling suggests this year’s initiative campaign to end capital punishment is struggling to win majority support. No state has repealed the death penalty by public vote since Oregon in 1964 – and voters there reinstated it in 1978. While courts and legislatures around the nation are abolishing capital punishment, when it goes to a public vote the hard line tends to have the advantage, said Franklin Zimring, a criminal justice expert at the University of California, Berkeley.
“The question is what do you do with the worst criminals you have?” Zimring said. “And if that ever becomes a question of sentiment the answer is boil them in oil.” California has the largest death row population in the Western Hemisphere, with 746 inmates who are sentenced to die. The nonpartisan Legislative Analyst’s Office estimates that eliminating California’s death penalty would save around $150 million a year, including reduced costs for trials and challenges to death sentences.
According to the study from Harvard’s Fair Punishment Project, five of the 16 U.S. counties in the U.S. that imposed at least five death sentences since 2010 are in Southern California – Kern, Los Angeles, Orange, Riverside and San Bernardino. Riverside County has become the nation’s leader in death sentences – with eight people sent to death row last year alone. Meanwhile, no one is actually being executed in California....
Cal-Berkeley’s Zimring predicts the initiative designed to speed executions in California will have minimal impact if it passes. The main result would be litigation and delay, he said, since the ballot measure has so many pieces open to challenge. That’s disputed by Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento. “The most important reforms of this carefully drafted initiative are virtually bulletproof,” he asserted.
Friday, September 23, 2016
Latest polling suggests California voters could benefit from more information about state's competing death penalty initiatives
This news report on the latest polling concerning the competing death penalty initiatives before voters this fall reinforces my sense that Californians could benefit from a lot more public discussion and debate over the state and possible fate of capital punishment there. The news piece is headlined "Is a plan to end the death penalty on the ropes in California?," and here are the details (with my emphasis added):
A plurality of likely voters backs the latest ballot effort to repeal the death penalty in California and shutter the nation’s largest death row, but support remains below the 50 percent threshold needed, a new poll shows. The survey, completed jointly by the Field Poll and the Institute of Governmental Studies at UC Berkeley, found Proposition 62 ahead 48 to 37 percent, with 15 percent of likely voters undecided.
Meanwhile, barely a third (35 percent) support Proposition 66, a competing initiative aimed at expediting the death-penalty process. With 42 percent undecided, it appears far less familiar to voters. Twenty-three percent are opposed.
The see-saw measures come four years after voters narrowly rejected Proposition 34, an initiative that would have replaced capital punishment with life in prison without parole. The Field Poll’s last survey of that measure, taken a week before the 2012 election, found it leading 45 to 38 percent.
Mark DiCamillo, director of the poll, said there are signs of encouragement for death-penalty opponents this time, despite hovering below a majority seven weeks before the Nov. 8 election. “This is not a bad-news poll for Prop. 62,” DiCamillo added....
Proposition 62 would replace death sentences with life in prison without the possibility of parole and apply retroactively to existing death sentences. Proposition 66 endeavors to speed up the process by requiring that appeals conclude within five years of sentencing. DiCamillo said there is “much greater confusion” about Proposition 66, adding, “Voters don’t fully understand what the impact is.” If both measures pass, the one with the most votes will prevail....
California’s last execution was in January 2006, with the state effectively halting executions over challenges to its lethal injection protocol.
Some of many prior related posts:
- California voters in November to have "mend it or end it" death penalty initiative options
- California initiative to reform death penalty officially qualifies for ballot (and will compete with repeal initiative)
- California DA makes the case for mending rather than ending California's capital punishment system
- "California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives."
- "It's Silicon Valley vs. law enforcement on California death penalty"
- Poll suggests Californians will vote in November 2016 to mend rather than end the death penalty in their state
- "Fourteen Years Later: The Capital Punishment System in California"
Thursday, September 22, 2016
"Under the Radar: Neuroimaging Evidence in the Criminal Courtroom"
The title of this post is the title of this notable (and quite lengthy) article available via SSRN authored by Lyn Gaudet and Gary Marchant. Here is the abstract (with one line emphasized therein for sentencing fans):
This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases.
In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual.
As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.
Interesting account of how Mexico invests in keeping its homicidal citizens from being sentenced to death in the US
The Marshall Project has this interesting new article headlined "How Mexico Saves Its Citizens from the Death Penalty in the U.S.: A fund is designated to train, pay and advise American defense lawyers." Here are is how it gets started:
When the body of 25-year old Lesley Hope Plott was found lying in a ditch in Russellville, Ala., in February of 2013, police had little trouble zeroing in on a suspect: hours earlier, a nearby church’s security camera had recorded her being beaten and stabbed by her estranged husband, Angel Campos Nava.
Then, Thomason received a call offering her something few lawyers in death penalty cases get: money, training, and advice, courtesy of the Mexican government. Nava’s case had caught the attention of the Mexican Capital Legal Assistance Program, created by Mexican officials in 2000 to save the country’s citizens from execution in the United States.
One of the program’s chief purposes is to help defense attorneys construct a biography of the accused—to humanize them. Poverty, family dysfunction, and developmental disability are frequent themes in their clients’ lives. When presented as part of a defense, such themes can encourage mercy among jurors and dissuade them from handing down a death sentence.
To that end, the program arranges for lawyers to go to Mexico to track down school and hospital records and stories about their clients’ lives, either paying for their travel costs or advising them on how to request money from local courts. Under the program, Mexico pays American lawyers up to $220 an hour to track potential death penalty cases around the country—watching court decisions and news stories from the moment of arrest, all the way through the last minute scramble before an execution—and advise court-appointed lawyers like Thomason.
Since 2008, the program has provided these attorneys with an average annual budget of around $4 million to track as many as 135 cases at a time, according to the program’s filings with the Department of Justice. That comes out to roughly $29,000 per case, per year. By contrast, the Equal Justice Initiative, which represents numerous inmates on Alabama’s death row, has reported that many of them were sentenced to death after their attorneys’ fees were capped at $1,000 for out-of-court trial preparation.
Tuesday, September 20, 2016
What should we make of why and how New Mexico's Gov is pushing hard to bring back the death penalty in her state?
One notable sentencing reform story in the United States over the last decade has been the growing number of states abolishing capital punishment legislatively while no new state has come to (or come back to) embrace the penalty. Specifically, in the last decade, we have seen legislatures in New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland and Nebraska take their machineries of death off-line. (The 2015 Nebraska repeal, as regular readers know, might be reversed by voter referendum this November.)
But as highlighted by this new AP article, headlined "New Mexico Governor Wants Vote on Reinstating Death Penalty," a notable chief executive is now making a notable hard push for bringing the death penalty back in her state. Here are the latest details:
P>New Mexico Gov. Susana Martinez stepped up pressure on lawmakers Tuesday to consider reinstating the death penalty by promising to add the issue to a legislative agenda for a pending special session that was aimed solely at fixing the state's budget shortfall.
The second-term Republican governor said that she wants the death penalty as an option for convicted killers of police, children and corrections officers. New Mexico repealed the death penalty in 2009 before Martinez took office by replacing provisions for lethal injection with a sentence of life in prison without parole. The move by Martinez could compel lawmakers to take a public stand on capital punishment ahead of November elections for the Republican-controlled state House of Representatives and Democrat-dominated state Senate.
"Cop killers and child murderers deserve the ultimate punishment," Martinez said in a written statement. "If you kill an officer, you deserve the death penalty. If you kill a child, you deserve the death penalty. It's time we say enough is enough."...
Her push to restore capital punishment follows the killings in southern New Mexico of two police officers in separate shootings in August and September by wanted fugitives, along with the horrific killing and dismemberment of a 10-year-old New Mexico girl in Albuquerque last month.
New Mexico executed nine men starting in 1933 until more than seven decades later when it abolished the death penalty. The state's most recent execution in 2001 was its first since 1960. Former Gov. Bill Richardson, a Democrat, cited flaws in how the death penalty was applied when he signed the legislation that abolished it. He said the criminal justice system must be perfect if it will be used to put someone to death.
I presume Gov Martinez genuinely believes that justice demands the death penalty for cop killers and child killers (although her strong rhetoric makes me wonder if she shares GOP Prez nominee Donald Trump's view that we should have a mandatory capital punishment for cop killers as well as for child killers). And yet, given the current timing of her push for bringing the death penalty back to New Mexico, I cannot help but wonder if Gov Martinez (1) has some strong internal polling numbers suggesting citizens in the state also strongly favor a return of the death penalty, and (2) thinks that the death penalty can be an effective "wedge" issue for her to help get her preferred state legislative candidates elected this fall.
"Lethally Deficient: Direct Appeals in Texas Death Penalty Cases"
Texas’ system of providing direct appeal representation in death penalty cases is in dire need of reform, according to a new report by Texas Defender Service. The report, Lethally Deficient, evaluates six years of direct death penalty appeals and concludes that the current system is broken. The Texas Legislature should, Texas Defender Service recommends, create a capital appellate defender office to handle these appeals, establish a statewide appointment system with caseload controls and uniform compensation, and require the appointment of two qualified lawyers to each death penalty direct appeal.
Lethally Deficient: Direct Appeals in Texas Death Penalty Cases is the first report to engage in an in-depth examination of direct appeals for Texas death penalty cases. Texas law requires all death sentences to be directly appealed from the trial court to the Texas Court of Criminal Appeals. A direct appeal is based on the trial record and transcript.
“This report documents that, in case after case, most death row inmates are not well represented on direct appeal,” said Kathryn Kase, Executive Director of Texas Defender Service, a nonprofit law firm that works on capital cases and related criminal justice issues. “Texas should do what it did to address the crisis in capital habeas representation: create a public defender office that handles only direct death penalty appeals.”
TDS examined all direct appeals filed in each of the 84 death penalty cases decided by the Court of Criminal Appeals between January 1, 2009 and December 31, 2015. The study uncovers multiple deficits in capital direct appeal representation. Lawyers submitted briefs that recycled failed legal arguments without updating to reflect current law, failed to meet — and at times, correspond with — their clients, failed to request oral argument, and avoided filing reply briefs and applications for U.S. Supreme Court review. And while other jurisdictions reported attorneys needing between 500 and 1,000 hours to brief a capital direct appeal, defense lawyers for the cases in the TDS study billed between 72.1 to 535.0 hours for each appeal, for an average of only 275.9 hours.
In the six years – 2009 through 2015 – that these deficiencies occurred, TDS found that the CCA did not reverse a single conviction in a death penalty case on direct appeal. The CCA affirmed convictions and death sentences in 79 cases, and reversed death sentences in just three cases.
When compared to capital litigants in other jurisdictions, Texas death penalty appellants fare far worse. Death row inmates outside Texas are 2.8 times more likely to have their cases reversed on direct appeal. TDS reviewed 1,060 capital direct appeal decisions issued by the highest courts in the 30 other death penalty states between 2005 and 2015, and these courts collectively reversed 16.0% of all death sentences. By contrast, the Texas Court of Criminal Appeals reversed just 5.7% of the death penalty cases heard on direct appeal between 2005 and 2015.
Sunday, September 18, 2016
"What Executioners Can — And Cannot — Teach Us About the Death Penalty"
The title of this post is the title of this notable new paper authored by Susan Bandes now available via SSRN. Here is the abstract:
Executioners and others who come into close proximity with the condemned often come to reject the death penalty. They reject it not only in individual cases, and not only on the ground that the death penalty is poorly implemented. They conclude that capital punishment is wrong. I argue that the perspective of the executioner helps illuminate the debate about whether to abolish capital punishment, and raises the troubling possibility that support for the death penalty can survive only at a great remove.
The essay responds to a recent article by Jeffrie Murphy focusing on the question of whether executioners can take pride in their work. I contend that Murphy asks the wrong question, and that the better question is whether anyone ought to be asked to do such work. On this latter question, the perspective of the executioner sheds important light. Like Murphy, I draw on works by and about Albert Pierrepoint, the “last hangman” of Britain. I also draw on the perspectives of numerous executioners, wardens, chaplains and other death row personnel. I argue that their perspectives offer a powerful argument against the main rationale for the death penalty: retribution. If retribution is keyed to the offender’s character as well as his wrongful act, then post-conviction character ought to matter. The executioners’ accounts share a common theme: that death row inmates change over time and hold the potential for redemption.
Saturday, September 17, 2016
Notable opposition to initiative seeking to enshrine the death penalty in Oklahoma's state constitutions
Two big substantive fights via voter initiative concerning the death penalty this fall are taking place in California and Nebraska. But this AP article highlights that Oklahoma voters are being presented with an important kind of stylistic question concerning capital punishment. And, as the article explains under the headline "Oklahoma death penalty question faces bipartisan opposition," there is some notable disaffinity for its proposition. Here are the basic details:
A proposal to ask Oklahoma voters to enshrine the death penalty in the state’s nearly 100-year-old constitution sailed easily through the Legislature, but now is facing opposition from groups on opposite ends of the political spectrum. In addition to various faith and civil rights organizations that traditionally oppose capital punishment, several conservative groups and the newly recognized Oklahoma Libertarian Party also are joining the fight against State Question 776.
“The conservative position is against the death penalty because it costs more than life (in prison), more than life without parole,” said Marc Hyden, national advocacy coordinator for Conservatives Concerned About the Death Penalty, one of several organizations that helped kick off rallies in Oklahoma City and Tulsa opposing the question. “Beyond that … we believe the founding fathers had the foresight to institute checks and balances, and this aims to subvert those checks and balances.”
A group opposing the state question — Say No To SQ 776 — has raised about $4,000, according to its most recent report with the Oklahoma Ethics Commission. There don’t appear to be any organized groups supporting the question.
The state question was sent to the voters through a resolution approved by the Legislature in 2015 following a botched execution and problems with the administration of lethal injection. Sponsored by two pro-death penalty lawmakers, it would ensure that death sentences would not be reduced if a method of execution is ever ruled invalid and gives the Legislature the explicit power to designate any method of execution not prohibited by the U.S. Constitution. It also states that the imposition of the death penalty will not be considered cruel and unusual punishment, which is currently prohibited under the Oklahoma Constitution.
Because the language would be added to the state constitution, it would also make it more difficult for the courts or future Oklahoma legislatures to eliminate the death penalty, said Rep. Mike Christian, a former highway patrolman who authored the bill. “It’s such a serious issue, we decided to put it in the Constitution,” said Christian, R-Oklahoma City. “I believe it will get overwhelming support. We thought we should put it in the constitution, just to send a message that we support it as a people.”
The measure passed 80-10 in the House and 44-0 in the Senate, receiving support from Democrats and Republicans. But since its passage, Oklahoma has continued to have problems administering lethal injections....
“If we cannot trust our state government to fund our schools, our hospitals, fund our infrastructure, how in the world can we continue to trust them to strap someone down on a table, put a needle in their arm and fill it full of poison until they’re dead,” said Ryan Kiesel, executive director of the Oklahoma Civil Liberties Union of Oklahoma. “We cannot continue to trust them to do that.”
Friday, September 16, 2016
"What crimes warrant the death penalty? Depends on the prosecutor"
The title of this post is the headline of this new Los Angeles Times editorial, which gets started this way:
If the government is going to impose a punishment as medieval and irreversible as the death penalty, it should take pains to ensure that the penalty is invoked only for the most heinous crimes and that it is applied fairly and consistently. Data compiled by the state attorney general’s office, however, suggest that California is falling short of those ideals because of the individual judgments of local prosecutors.
To be eligible for a death sentence in this state, a person must be convicted of first-degree murder enhanced by any one of about three dozen special circumstances — more than just about any other state (if California wants to reduce death sentences, it could start by reassessing these threshold crimes). There’s murder for hire. Murder to silence a witness. Killing a police officer. Wrecking a train. Using poison. Murder, even, when killing wasn’t the intent but occurred during the commission of any of a dozen other crimes. And on and on.
Who decides whether a murder case involves one of those special circumstances, and thus warrants the death penalty? A jury, followed by the trial judge’s affirmation (a judge can reduce a death sentence, but not order one if the jury didn’t recommend it). A jury, though, doesn’t consider a death sentence unless a prosecutor asks it to. And that’s one of the places where capital punishment is inherently inconsistent. National studies have found that whether someone faces a death sentence depends significantly on the county in which the crime is committed because county-level prosecutors are the ones who decide whether to put the death penalty in play. In fact, 2% of counties nationwide account for a majority of death sentences.
How inconsistent is application of the death penalty? From 2011 to 2015, California juries handed down 74 death sentences, more than half from Los Angeles and Riverside counties, with 23 each. Yet Riverside County is only one-quarter the size of Los Angeles County and had fewer than one-sixth of the homicides during that same time. Is the nature of homicide in Riverside that much more heinous than in Los Angeles County? No. The difference between the two counties lies in the makeup of the prosecutorial teams deciding whether to seek the death penalty, with the standard set by the elected district attorney.
Tellingly, there was a change in the Riverside district attorney’s office in January 2015, and the current top prosecutor, Mike Hestrin, has been less aggressive in pursuing the death penalty than his predecessor, Paul E. Zellerbach, who himself sought it less often than the D.A. he replaced. Further evidence that individual prosecutors make a difference: Hestrin inherited 22 capital cases and, after reviewing them, dropped the death penalty against seven defendants. So two different district attorneys, looking at the same seven cases, came to different conclusions on whether the crimes merited a death sentence.
Hestrin and others argue that county district attorneys represent the views of their constituents, which explains why liberal San Francisco County tends not to seek the death penalty and more conservative Riverside County does (of the 747 people on death row, one is a San Francisco County case compared with 89 from Riverside). Yet that is one of the many grave flaws of capital punishment in general, and in California specifically. Capital punishment is authorized only by state law, but there is no objective statewide standard against which factors are weighed and a decision is made. It is unconscionable that the specifics of a crime are subordinate to a prosecutor’s whim in determining whether a death sentence will be sought.
Wednesday, September 14, 2016
Highlighting polling reality that death penalty remains pretty popular on Left Coast
Ed Morrissey has this effective new commentary about the latest capital punishment polling under the heading "Hmmm: Blue California wants to keep its death penalty, 52/36." Here are excerpts (with a few links retained from the original):
California voters, among the most reliably liberal in the nation, have an opportunity to pass a repeal of the death penalty in November. Proposition 62 would commute the sentence of those on California’s Death Row to life without parole and require a higher percentage of inmate income to go to victim restitution. With opposition to the death penalty a big progressive goal, and with California’s execution process among the slowest and most frustrating in the nation, one would expect overwhelming support for Proposition 62.
Not so, according to a new poll from Survey USA. In fact, opposition to repeal leads by sixteen points, 36/52, and leads among almost all demographics. Majorities of both men (38/54) and women (33/50) oppose repeal. Voters under the age of 35 oppose it in plurality (40/45), but all other age groups oppose it by majorities and double-digit gaps. Black voters and Democrats support repeal, but not significantly enough to overcome overwhelming opposition among all other ethnic and partisan groups. Perhaps most tellingly, the only ideological demo to support repeal are those who identify as “very liberal” — and even then unimpressively at 52/32. Even the ultra-liberal Bay Area has a slight plurality opposed to repeal, 42/47....
The problem with the death penalty in California (besides the issues that form my general opposition to it) is that it’s almost purely academic. California hasn’t executed anyone since 2006, and Clarence Ray Allen had been on Death Row for more than 23 years at that point. That was the second-longest string for those who eventually got executed; Stanley “Tookie” Williams spent almost 25 years waiting for his execution, which finally came in December 2005. They are two of only 13 inmates executed since the reinstatement of the death penalty in 1978.
How many are actually on Death Row now? The state’s September 2016 lists 747 inmates, with sentencing dates from 1982 to this past May. Eight times more inmates have died of other causes (104) than of executions (13).
Death penalty proponents will also have a referendum on the November ballot. Proposition 66 would offer several reforms to speed up the execution process, including expediting all appeals to the state Supreme Court and having attorneys assigned to death-penalty appeals immediately. Presumably this will find more support than Proposition 62, although SUSA didn’t poll on it. Will Californians take steps to fix its capital-punishment system — or be satisfied with a Death Row that just waits inmates to death?
Monday, September 12, 2016
Former GOP Ohio Attorney General explains why he is convinced "the death penalty is just not worth it any more"
Over the weekend my local paper published this capital commentary by Jim Petro, a widely-respected local Republican leader who served as Ohio Attorney General from 2003 to 2007. Here are excerpts:
As Ohio attorney general, I oversaw 18 executions in accordance with Ohio law. As a state legislator before that, I helped write Ohio’s current death-penalty law. We thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong. What I am coming to understand is just how wrong we were, and what needs to be done to fix our mistake.
My direct experience with executions makes me more than a mere spectator as Ohio continues to struggle with capital punishment. Since I left office in 2007, I’ve been following developments and watching those most deeply engaged with it.
Earlier this week, Ohioans to Stop Executions (OTSE) released its third report in as many years, providing perspectives on the status of Ohio’s death penalty. I am in agreement with the report, “A Relic of the Past: Ohio’s Dwindling Death Penalty,” which details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases.
In 2015, only one new death sentence was handed down. Cuyahoga and Summit counties, two jurisdictions responsible for more than 25 percent of death sentences, initiated zero new death penalty cases last year. In fact, new death sentences overall were down for the fourth year in a row. There were three in 2014, four in 2013, and five in 2012.
It has become clear to me that what matters most is the personal predilections of a county prosecutor. Consider Cuyahoga County, which until 2012 was seeking the death penalty in dozens of cases a year. Last year Cuyahoga County sought none. Crime rates did not plunge. There was a new prosecutor. On the other hand, consider Trumbull County, with one of the lowest homicide rates of Ohio counties which sentence people to death. Trumbull County leads the state with the highest death-sentence-per-homicide rate. Why? Again, the personal preference of the county prosecutor matters most.
The new OTSE report addresses many other issues, including 13 wrongful convictions and exonerations in Ohio death cases. After serving as attorney general, my chief concern was that our state has sentenced individuals to death or lengthy prison sentences for crimes they did not commit....
Most urgently in my view, the new report catalogs the reluctance of Ohio legislators to consider most of the 56 recommendations made in 2014 by the Supreme Court Joint Task Force on the Administration of Ohio’s Death Penalty. The charge to that task force was to find ways to make Ohio’s death penalty more fair and accurate.
Only a handful of the recommendations have been considered, and not those which would make the biggest difference. For example, the recommendation to narrow the felony murder rule would address much of Ohio’s disparity in death sentencing. Thirteen of the recommendations, individually and collectively, would go a long way toward preventing wrongful convictions. In failing to act, legislators effectively maintain the status quo, which is a broken system that currently serves only the interest of Ohio prosecutors. That is a grave mistake.
Another grave mistake is the terrible suggestion by the director of the Ohio Prosecuting Attorneys Association that Ohio adopt the gas chamber to conduct executions. I hope Gov. John Kasich and all Ohio legislators soundly reject that notion. It is offensive to the human experience and has no place in our great state.
I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. Starting in January 2017, 28 Ohioans have execution dates. If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy.
Sunday, September 11, 2016
Is Ohio again about to pioneer a new execution method?
The question in the title of this post is prompted by this Columbus Dispatch article from last week headlined "Ohio looks at nitrogen as a new execution method." Long-time readers may recall, from this post back in 2009, that Ohio was the first state to switch to a one-drug lethal injection protocol after it botch an execution. And, as this new article explains, new problems with lethal injection plans may prompt Ohio to become an execution pioneer again. Here are the details:
Ohio might consider adding nitrogen gas as a new execution method because of problems securing lethal injection drugs.
There have been no executions in the state for 2½ years, largely because of lawsuits and difficulty obtaining drugs for lethal injection. Beginning in January, there are 28 convicted killers with execution dates scheduled over four years.
John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said today lethal injection is "stalled" and it's time for a change. Prosecutors have long been strong supporters of Ohio's death penalty law. "I think the legislature ought to recommend another method of execution," Murphy said in an interview. He recommends switching to nitrogen gas, a method he called "humane and reasonably inexpensive."
Nitrogen gas, pumped into an air-tight chamber, produces asphyxiation by a lack of oxygen in the blood. It has not been used for executions, although Oklahoma adopted it as a backup method. The sponsor of the Oklahoma law called it "foolproof." People occasionally die accidentally from nitrogen asphyxiation. Deep-sea divers sometimes suffer from a form of it, producing an effect often described as euphoric. The gas is widely available and inexpensive.
JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction, said the agency "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions." State Rep. Jim Butler, R-Oakwood, chairman of the House Judiciary Committee, said, "It's good to look at alternative methods that are humane. That's something we should definitely do." But Butler added, "One problem is if it's something that's not been tried before, you need to vet it to make sure it's appropriate. It's certainly going to be tested in the court system."
Other states have moved ahead with alternatives. Tennessee permits use of the electric chair, Utah allows the firing squad, and Oklahoma allows nitrogen gas.
Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University College of Medicine, said using nitrogen gas could be "dangerous and impractical."
"You and I are breathing 78 percent nitrogen right now," he said. "It's not a poison. It's an inert gas." When nitrogen is introduced, oxygen is pushed out of the bloodstream, causing potentially painful suffocation, Groner said. "I would challenge that it's foolproof. We've heard that before," he said.
Thursday, September 08, 2016
Top Texas criminal judges wonders about value of LWOP sentencing and its lesser process
This local article from Texas reports on interesting comments by a top state judge in the state about LWOP sentences. Here are excerpts from the article:
Judge Larry Meyers, the longest-serving member of the state’s highest criminal court, has grown uncomfortable with the way Texas allows for life in prison without parole, calling it a slow-motion death sentence without the same legal protections given to defendants who face the death penalty. It can be argued, Meyers said, that the prospect of decades of prison — ended only by death from old age, medical problems or even violence — is as harsh or harsher than execution.
Even so, life without parole can be given in some capital murder cases without jurors answering two questions that must be considered before issuing a death sentence — is the defendant a future danger to society, and are there any mitigating factors such as mental disability or childhood abuse that weigh against capital punishment?
“I’m not saying the death penalty is unconstitutional. I think right now it’s about as fair as it could be,” Meyers said. “But there are two variations of the death penalty; one is just longer than the other. People are getting a (life without parole) death sentence without the same safeguards and procedures that you get when there is a death sentence.”
Larry Meyers has been a judge on the Texas Court of Criminal Appeals since 1993. Meyers, the only Democrat on the Texas Court of Criminal Appeals, plans to make changing the life-without-parole system an issue of his re-election campaign, an admittedly uphill battle after he switched from the Republican Party in 2013 over disagreements in its direction under the surging tea party movement.
His Republican opponent in the Nov. 8 election, 22-year state District Judge Mary Lou Keel of Houston, believes Meyers has strayed from his principal task as a judge. “Policy issues like this are best left to the Legislature,” Keel said. “Doesn’t he have enough work to do as a judge?”...
Life without parole, an option for capital murder cases since 2005, has been credited with helping to sharply reduce the number of death row inmates by allowing prosecutors to reserve capital punishment for the worst cases, yet ensure that other convicted murderers are permanently removed from society.
Since life without parole became an option, the population of Texas’ death row has fallen to 244 inmates, down about 40 percent, as the pace of executions has outstripped the number of new death sentences. In contrast, 782 inmates were serving life without parole for capital murder as of July 31. An additional 54 inmates are serving life without parole after repeat convictions for sexually violent offenses, including crimes against children, since the Legislature allowed the punishment for the crime of continuous sexual abuse in 2007....
Seeking life without parole is by far the simpler option. Jurors are easier to seat — death penalty opponents aren’t allowed on juries if execution is an option — and there is no punishment phase trial. The appeals process also is less rigorous, with death row inmates granted two appeals before the state’s highest criminal court, while inmates serving life without parole go through the normal process. Meyers, a 23-year member of the Court of Criminal Appeals, believes life without parole has been made too simple, providing “an easy, inexpensive way of getting the death penalty.”
It would be fairer, he said, to let jurors consider some variation of the future danger question and to allow defense lawyers to present mitigating evidence. If jurors cannot agree that life without parole is appropriate, the defendant would get a life sentence and be eligible for parole after 40 years or some other suitable time, Meyers said.
The bigger reform — what Meyers called the “smarter fix” — would be for the Legislature to end capital punishment, making life without parole the ultimate punishment and including an option for parole. The political reality in Texas, by far the nation’s top death penalty state, makes that an extremely unlikely option for legislators, Meyers admits. “But right now, as I see it, there’s just two options — both for death,” he said....
Meyers said his change of heart on life without parole didn’t come about because of appeals. Nobody is going to tell his court that they improperly received a no-parole term when the alternative is a death sentence, he said. Instead, Meyers said, his qualms arose after coming to see the sentence as a delayed death penalty — one that is particularly harsh on young people — when a typical murder conviction is often enough to lock away killers until they are no longer a danger.
When the Legislature debated life without parole in the mid-2000s, prosecutors were divided on the best course to take, but many opposed adding a “long, drawn-out” sentencing hearing to determine the difference between a no-parole sentence and parole eligibility after 40 years, said Shannon Edmonds, staff attorney with the Texas District and County Attorneys Association. “You could argue that it’s not much difference. It was a lot of squeeze without much juice,” Edmonds said.
In addition, many capital murder cases are decided by a plea bargain that allows defendants to choose perpetual prison time over execution. Some prosecutors feared losing bargaining leverage to a defense lawyer who threatened, for example, to drag out a sentencing hearing for three weeks unless offered a sentence with parole for a lesser crime like murder, Edmonds said.
Life without parole raises questions about whether Texas is imprisoning people long past the point that they “will ever be dangerous,” said Kathryn Kase, executive director of Texas Defender Service, a nonprofit that provides capital murder legal representation at trial and on appeal. “We’ve got places in prisons that look like nursing homes. It makes me wonder, as a taxpayer, are these people dangerous? Why are we paying the extra cost of imprisoning them when they are geriatrics?” Kase said.
September 8, 2016 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Wednesday, September 07, 2016
Feds file motion seeking to limit how jury might consider mercy in capital trial of Charleston mass murderer Dylann Roof
This new BuzzFeed News article, headlined "Prosecutors Want To Limit Dylann Roof’s Use Of A “Mercy” Defense," provides an effective summary of this interesting motion filed by prosecutors in a high profile federal capital case. Here are the basic details:
Federal prosecutors trying the death penalty case against alleged Charleston church shooter Dylann Roof want to limit the use of “mercy” when he goes on trial later this year. In a new court filing, prosecutors argue that should Roof be convicted, the jury should determine his sentence based on a weighing of the factors for and against — known as aggravating and mitigating factors — the death penalty. Roof is accused of fatally shooting nine people inside the historically black Emanuel AME Church on July 17, 2015.
The prosecutors argue that allowing the defendant to instruct the jury that, regardless of their findings, they are never required to sentence someone to death isn’t consistent with the Federal Death Penalty Act. In arguing against a mercy defense, prosecutors point out that during the sentencing phase of the trial, if it gets to that, the government’s burden is much higher — they must convince the jury to unanimously find that the aggravating factors outweigh the mitigating factors. The defendant’s burden is “significantly lower” — he needs to convince one juror that there is enough mitigating evidence to merit a sentence less than death, such as life in prison without parole.
In the filing, the prosecution did say that mercy may enter into equation when the jury debates aggravating versus mitigating factors. “It is within that context, and that context alone, that mercy may enter into the death penalty process,” the prosecution writes....
Earlier this month, the court revealed that 3,000 people were sent jury summonses notifying them that they are being considered to serve on the jury at Roof’s trial.
This week, a South Carolina circuit court judge set the date for Roof’s state trial, which is expected to be tried after the conclusion of the federal trial. That case, where Roof is also facing the death penalty, is scheduled to begin in late January 2017.
Monday, September 05, 2016
A not-so-deadly summer: only one US execution from Memorial Day to Labor Day
I have been fascinated to see Texas courts, as detailed here by the Death Penalty Information Center, intervene to stay roughly a half-dozen scheduled executions in the state in the summer months. Consequently, as detailed on this DPIC executions page, on this Labor Day as we mark the unofficial end to the summer, throughout the United States there was only one completed execution in the months of June, July and August.
A quick review of yearly execution lists leads me to think that it has been more than three decades since the US had a year in which so few murderers had their death sentences carried out in the summer months. Thus, for those rooting for the death of the death penalty, I think this Labor Day there is a notable milestone to celebrate.
Wednesday, August 31, 2016
Latino legislator group calls for ending the death penalty
As reported in this NBC News piece, a "group of Latino legislators passed a resolution demanding the end of the death penalty in the United States because it disproportionately affects people of color of all ages." Here is more:
The National Hispanic Caucus of State Legislators said there is disproportionate punishment for Latinos, Black Americans and Native Americans. "The disproportionate and prejudicial application of the death penalty towards Latinos and other minorities, the high costs of this cruel and unusual punishment to our tax payers and the increasing likelihood that innocent people can be wrongfully executed by the states — among many other compelling reasons — led us to raise our voices to call for an end to capital punishment," said NHCSL President and Pennsylvania State Representative Ángel Cruz in a statement.
The non-profit, non-partisan group is made up of 320 Hispanic legislators in the U.S., Puerto Rico and the Virgin Islands. "Black, Latino, Native Americans, and all people of color are sentenced to longer prison terms, more likely to be tried as an adult, and are more likely to be sentenced to death in the USA," the resolution reads.
The resolution asks the U.S. congress and local municipalities to search for alternatives to combating violence and repeal the death penalty. The group points out that death penalty cases often cost taxpayers millions of dollars — an Urban Institute study found death penalty cases cost an average $3 million per trial, nearly three times as expensive as a trial without the possibility of a death penalty. "We cannot allow more government dollars to be diverted to killing people, instead of investing them in prevention, rehabilitation, and effective crime fighting measures that ensure greater safety in our communities," Cruz stated....
Rep. Dan Pabón, D-Colorado, said the death penalty is the "civil rights issue of our time."
"Even if repealing the death penalty results in one innocent life being saved, it's worth it. Our criminal justice system should focus on 'justice,'" Pabón said.
As I noted in this prior post, because Latinos make up nearly 40% of the population in California, how they cast their votes in this November's death penalty reform/repeal initiative battle is going to play a huge rule in the future of the death penalty in that state. But, if they focus a bit on the fuzzy thinking of Rep. Dan Pabón, they might end up being inclined to vote in favor of retaining the death penalty. Though the evidence about the deterrence effective of the death penalty are mixed, I think it is likely folks think that the death penalty is more likely to save innocent lives than to end them. For that reason (and because many think justice supports capital punishment for the worst murderesrs), I am not sure he is making a strong argument for repeal.
In addition, I cannot help but find remarkable the assertion that the death penalty, which impacts at most a few dozen people of color each year, should be considered the "civil rights issue of our time." I guess the Representative must think that all the other civil rights issues that impact tens of millions of individuals in the US are now all squared away.
Saturday, August 27, 2016
"Fourteen Years Later: The Capital Punishment System in California"
The title of this post is the title of this new and timely article authored by Robert Sanger and avaiable for download via Bepress. Here is the abstract:
Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed. The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if California’s system was in need of the same reforms. The study concluded that over ninety-two percent of the same reforms were needed in California. In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead to the execution of the innocent.
This article is an effort, fourteen years later, to determine what has transpired in California during the last fourteen years. It will survey of the major scholarly and judicial work that has been published in the last fourteen years on the death penalty nationally and specifically with regard to California as well as on the progress, if any, to meet the unmet recommendations of the Illinois Commission.
This article concludes that there has been much additional criticism of the failures of the criminal justice and death penalty systems in the country and specifically in California. Nevertheless, the empirical study demonstrates that no additional Recommendations of the Illinois Commission have been met in California in the last fourteen years. Illinois, itself, enacted significant reforms to meet at least some of the Illinois recommendations. Nevertheless, Illinois repealed its death penalty. California, despite no reforms, has not, as yet. The voters will have that option on November 8, 2016. By voting “Yes“ on Proposition 62, the California death penalty would be repealed.
Remarkable and disconcerning stories emerging from just a few months into Philippine Prez Duterte's aggressive new "war on drugs"
In prior posts here and here, I noted the eagerness of the Philippines new Prez to rachet up a "war on drugs" to almost unheard-of new levels. This new Washington Post article reports on recent developments on this front under the headline "Nearly 2,000 have died in Duterte’s ‘war on drugs’ in the Philippines. One is a 5-year-old girl." Here are excerpts:
Philippine President Rodrigo Duterte's "war on drugs" has left hundreds of people killed in less than two months. One of the most recent victims — and possibly the youngest — is 5-year-old Danica May Garcia, who was shot in the head on Tuesday.
According to the online news website Rappler, two motorcycle riders barged into the girl's family's home in Dagupan City, more than 130 miles northwest of Manila, while they were having lunch and opened fire. The men's main target was Danica's grandfather, 53-year-old Maximo Garcia, who had already surrendered to police a few days earlier after he was told he was on a drug watch list. Garcia ran to the back of the house toward the bathroom as the gunmen chased and shot at him. Danica, who was stepping out of the bathroom, was gunned down, Rappler reported.
"This is so painful for us," Garcia's wife, Gemma, told the Philippine Daily Inquirer. "I would miss the nights when Danica would massage us until we fell asleep. I would miss her laughter when she teased her mother." Gemma Garcia, who runs a small eatery, told the Inquirer she was surprised to find out that her husband was a drug suspect, saying he had never been involved in illegal drugs. Maximo Garcia used to earn a living by driving a tricycle, a form of auto rickshaw commonly used to carry passengers in the Philippines. But he had to stop after he suffered a stroke three years ago, according to the paper.
Superintendent Neil Miro, Dagupan's police chief, told the Inquirer that 26 suspected drug dealers have been killed in the city as of Tuesday. Nationwide, more than 1,900 killings have occurred since Duterte took office June 30, according to estimates by several media outlets. Nearly 700,000 drug users and peddlers have turned themselves in, according to Reuters.
Duterte, a tough-talking former mayor of the southern city of Davao, ran on a pledge to eradicate his country's problems with drugs. Illegal drugs, particularly methamphetamine, locally known as "shabu," have been rampant in the Philippines for decades. The 71-year-old former prosecutor has publicly advocated killing suspected criminals, even once urging citizens to take matters into their own hands.
On Monday, Philippine senators started an investigation into the rising death toll under Duterte's administration. Witnesses, with their faces covered to protect their identities, testified about how their loved ones were arrested and gunned down by police. Sen. Leila de Lima, head of the Senate justice committee leading the investigation, said in her opening remarks Monday that she's concerned about the spate of killings that appear to have been carried out by vigilantes, not by the government. "What is particularly worrisome is that the campaign against drugs seems to be an excuse for some — may I just emphasize, some — law enforcers and other vigilantes to commit murder with impunity," de Lima said.
De Lima has been accused of having an affair with her former driver and authorizing him to collect money from drug lords detained in the New Bilibid Prison in Muntinlupa City, Metro Manila when de Lima was justice secretary. De Lima has denied the allegations.
Philippine National Police Director General Ronald dela Rosa reported to the Senate committee earlier this week that of those who died, only 756 were killed during confrontations with police. Dela Rosa, nicknamed "Bato," which means rock or stone, told the Senate committee that the drug suspects were killed because they resisted arrest. "If they did not resist, they would still be alive," dela Rosa told the committee, according to the Inquirer.
The majority of the killings — 1,160 — were committed outside police operations, mostly by vigilantes, and are under investigation, dela Rosa said. He added that not all the deaths are drug-related.
International advocacy groups, meanwhile, have been vocal in opposing Duterte's policy. Phelim Kine, deputy director of the Human Rights Watch's Asia Division, wrote Thursday about Danica May's death. Kine noted that Philippine Justice Secretary Vitaliano Aguirre defended the killings linked to Duterte's war on drugs. "If you're in the Philippines, you will choose to kill these drug lords," Aguirre said. "Desperate times call for desperate measures. So this is what the president is doing, and we support it."
Amnesty International has called on Duterte to "break the cycle of human rights violations" and to curb his "inflammatory" rhetoric. "President Duterte has been elected on a mandate to uphold the rule of law. It is encouraging that he spoke of honouring the Philippines' obligations under international law in his inauguration speech," Rafendi Djamin, Amnesty International's director for Southeast Asia and the Pacific, wrote in June. "But now he is in power, he needs to lend substance to those words and break with his earlier rhetoric."...
Gemma Garcia said that her granddaughter's death has left her and her family in fear for their lives. "We are afraid to stay here. But the problem is, where will we go?" Gemma Garcia told the Inquirer. "The killers may come back for my husband."
When I discuss deterrence and related utilitarian justifications for various sentencing and punishment schemes, I often suggest that a "hard core" utilitarian with no concens about retributivist/desert-based limits on punishment might be willing to consider not just summary executions of convicted criminals, but even executions of relatives of criminals as part of an effort to dramatically deter certain types of wrong-doing. This report suggests that Philippine Prez Duterte's regime is functionally trying out what I always considered just a hypothetical thought experiement.
Prior related posts:
- President-elect in Philippines eager to bring back death penalty "especially if you use drugs"
- New Philippines Prez wasting no time executing deadly "tough on crime" plans
Thursday, August 25, 2016
New York Times magazine takes deep dive into "Where the Death Penalty Still Lives"
In this post earlier this week, I highlighted the new Fair Punishment Project report taking close look at the small number of US counties still actively utilizing the death penalty. That report, Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties, has justifiably received a good deal of national and local media coverage. But the biggest and most impressive discussion of the report and the various issues it raises appears in this week's forthcoming New York Times magazine via this lengthy feature article under this full headline: "Where the Death Penalty Still Lives: As capital punishment declines nationwide, a tiny fraction of the country generates an alarming number of death sentences. What this new geography tells us about justice in America." Here are a few excerpts of a great read from the pen of Emily Bazelon:
What separates the 16 counties where the death penalty regularly endures from the rest of the country, where it is fading away? The 16 counties span seven states in the South and the West. They include major cities, like Los Angeles, Houston, Las Vegas and Phoenix; suburban areas like Orange County, Calif., and San Bernardino, Calif.; and semirural pockets like Mobile County, Ala., and Caddo Parish, La. Some are dominated by Democratic voters, some are dominated by Republicans and a few are evenly split. Many of the counties have high numbers of murders, but so do plenty of other places that don’t use the death penalty.
Brandon Garrett, a law professor at the University of Virginia, along with a research team at Harvard Law School called the Fair Punishment Project, has been trying to identify the factors that explain why certain counties still regularly impose capital punishment. They have been delving into the death-penalty records of the 16 counties and comparing them with those of other jurisdictions and have found three key features that often characterize the 16. “The people who get the death penalty tend to live in places with overaggressive prosecutors and defense lawyers who aren’t up to the task of defending against them — that’s a double whammy,” says Robert J. Smith, who directs the project. “Then in some places there’s a third element: a cultural legacy of racial bias and exclusion. It’s just not true that we execute the people who are the most culpable.”...
Black jurors are relatively absent from death-penalty trials, which can affect their outcomes. “Research shows the mere presence of blacks on capital juries — on the rare occasions they are seated — can mean the difference between life and death,” Melynda J. Price, a law professor at the University of Kentucky, wrote in a 2009 law review article. But to be seated on a death-penalty case, a prospective juror must say he or she could vote for execution without substantial moral or religious qualms, in keeping with the test set by the Supreme Court. Since African-Americans oppose capital punishment at a higher rate than whites, fewer of them can serve.
Prosecutors also can take steps to keep them off juries. In Caddo Parish, La., which is among the 16 counties, prosecutors excluded black jurors at three times the rate of white jurors between 2003 and 2012, according to Reprieve Australia, a legal-assistance group. “You see all-white or nearly all-white juries at capital murder trials where you’d never expect it given the diversity of the population,” says Smith of the Fair Punishment Project.
Florida and Alabama also diminish the influence of any juror who wants to spare a defendant’s life. They are the only states that don’t require a unanimous vote for execution. Between 2010 and 2015, there was only one unanimous verdict among 13 death sentences in Jefferson County and Mobile County, both on the list of 16. Of the 24 death sentences Angela Corey has won, three came from unanimous juries. The jury split 8 to 4 in eight cases, and in three others, the vote was 7 to 5.
Many of the 16 counties where the death penalty is prevalent have a criminal-justice system with a power structure similar to Duval’s. Whites retain control to a striking degree, despite the presence of sizable numbers of African-Americans or Latinos. This phenomenon is the most pronounced within the former borders of the Confederacy. “Alabama has 19 appellate judges,” says Bryan Stevenson, founder of the Equal Justice Initiative, which represents clients on death row in the state. “They are all white. Fourteen percent of the trial judges are black. Out of 42 elected prosecutors in the state, one is black.” Stevenson says that by seeking numerous death sentences, prosecutors in the Deep South “hark back to the history of using the criminal-justice system to maintain racial control.” Mobile County is the site of the last known lynching in the country, in 1981. (After a jury deadlocked in the trial of a black man accused of killing a white police officer, two Ku Klux Klan members abducted a black 19-year-old who had nothing to do with the death, cut his throat and hanged his body from a tree.) Jefferson had the state’s highest total of lynchings between 1877 and 1950. In Caddo Parish, men have been hanged outside the courthouse, where a monument to the Confederacy still stands on the front lawn.
Wednesday, August 24, 2016
Should I feel guilty finding delicious ironies in reports of condemned California murderers killing themselves with smuggled illegal drugs?
The question in the title of this post is my sincere uncertainty concerning my reaction to this new lengthy Los Angeles Times article headlined "Illegal drugs are flowing into California's most guarded prisons — and killing death row inmates." Here is how the article starts and ends:
Condemned murderer Michael Jones was acting strangely and profusely sweating when guards escorted him in chains to the San Quentin medical unit that doubles as the psych ward on death row.
“Doggone, I don’t think you’re ever going to see me again,” he told a fellow inmate, Clifton Perry. Hours later, Jones was dead. Toxicology tests later found that he had toxic levels of methamphetamines in his blood.
The condemned inmates on California's death row are among the most closely monitored in the state. Death row’s 747 inmates spend most of their time locked down, isolated from the rest of the prison system under heavy guard with regular strip searches and checks every half-hour for signs of life. Still, six death row inmates died between 2010 and 2015 with detectable levels of methamphetamines, heroin metabolites or other drugs in their system, according to Marin County coroner records.
Three of them had toxic levels of drugs, including one in whose intestines were found five snipped fingers of a latex glove, each packed with methamphetamine or marijuana. He had overdosed when they burst. A 70-year-old man among the three died of acute methamphetamine toxicity. He left a stash of marijuana in his cell. State psychological reports and court files document at least eight non-fatal drug overdoses that required death row inmates to be hospitalized during this period.
Jones' death was reported as a suicide. In the psych ward, he attempted to strangle himself with an electrical cord. He was cut free by officers but died 10 minutes later. The coroner's report showed that Jones bore signs of chronic drug abuse. State corrections officials declined to discuss the case or provide data on drugs found on death row — at first citing that investigation and then citing a wrongful death claim filed by Jones’ family. The department provided a statement saying the prison has thwarted past attempts by visitors to bring drugs into San Quentin.
According to data from the U.S. Bureau of Justice Statistics and the state prison medical office, the drug-related death rate in California prisons is seven times higher than that of prisons in the rest of the country. “Drugs have considerable value inside prison and so some inmates have a very strong incentive to procure them," the statement said. "Regardless of the security level of the inmate, the presence of any contraband items is concerning to us.”
The overdoses on death row mirror the larger problem with drugs in California’s prison system as a whole. From 2010 to 2015, 109 inmates died of overdoses, according to state figures. California's prison drug trade is notoriously robust. The drug-related death rate in California prisons — 18 deaths per 100,000 inmates in 2013 — is seven times higher than prisons in the rest of the country, according to data from the U.S. Bureau of Justice Statistics and the state prison medical office.
Reports to the Legislature show that as many as 80% of inmates in some cell blocks tested positive for illegal substances in 2013. The same year, the state's prison watchdog, the independent Office of Inspector General, chastised corrections officials for making "very little or no effort" to trace the source of drugs when inmates overdose....
Because of the high security on death row, some who have worked at San Quentin suspect that the drug trade is abetted by prison staff. During his tenure as a death row psychologist, Patrick O’Reilly said in an interview that he discovered a psychiatric technician bartering alcohol and amphetamines for inmates’ prison-prescribed opiates. Similarly, the inspector general's office reported that a death row officer in 2011 was accused of buying morphine from condemned inmates. The report states she paid with ramen noodles and candy.
Outside of death row, the trade takes place on an enormous scale. This spring, federal agents busted a Southern California prison narcotics ring in which a state drug counselor allegedly smuggled $1 million of meth and heroin sealed in potato chip bags to inmates in her treatment group. The state prison guard union has long raised objections to vigorous screening of guards as they arrive and leave work, noting that the state would have to pay large amounts for the extra time that would add to each shift. The union "supports the department's efforts to keep drugs out of prison," said spokeswoman Nichol Gomez. "Anyone who brings contraband inside prisons should be held accountable. ... The majority of correctional officers take their oath seriously. "
All of the men on San Quentin’s death row are there for murder. Many arrived on death row with long histories of drug addiction. Most killed their victims during robberies or gang fights, but the population also includes psychopaths and serial killers. Until a psychiatric unit for the condemned was opened in 2014, severely mentally ill and psychotic inmates were housed with the rest of the condemned.
Former San Quentin Warden Jeannie Woodford, state prison director under Gov. Arnold Schwarzenegger, said extreme idleness and the cramped, ill-suited confines of death row complicate drug abuse. “Idleness is such a problem and it leads people to self-medicate,” Woodford said.
Although guards are supposed to randomly search cells each shift as a curb against drugs, weapons and other contraband, one former San Quentin corrections officer said staffing issues have made it impossible for guards to do all the required checks. Moreover, the amount of property that condemned inmates accumulate over decades of confinement clutters many cells. "What is said and what is done are two different things," said Tony Cuellar, a former San Quentin officer. In that environment, Cuellar said, officers "picked and chose" when to try to confront a condemned drug user.
There are soooooo many ironies in this report, I do not know where to start. In an effort to keep them straight (and to encourage comments about which irony is most remarkable), I will provide a numbered list of just some of the ironies that jump out at me:
- California has not conducted an execution of a condemned murderer in over a decade due in large part to the incompetence of prison officials and others in California in acquiring and handling drugs involved in its planned execution protocols ... and yet corrupt prison officials seem to be able to indirectly help condemned inmates access the drugs with which they are killing themselves.
- Many abolitionist have complained and litigated aggressively to try to prevent prison officials in many states nationwide from finding ways to "smuggle" into the state the drugs needed to conduct lawful (painless?) official executions ... and yet California prison officials are smuggling drugs directly to condemned inmates in ways that functionally facilitate what are essentially unlawful (painful) self-executions.
- This article suggests that we should be seriously concerned that the "drug-related death rate in California prisons — 18 deaths per 100,000 inmates in 2013 — is seven times higher than prisons in the rest of the country" ... and yet that (stunningly high) drug-related death rate in California prisons is still almost half of the drug-overdose death rate — reported to be at over 32 deaths from drug overdose per 100,000 inhabitants — according to the latest figure in the state of West Virginia.
- With a death row population of less than 1000, just a single overdose per year on California's death row is a relatively high rate ... and yet the reality that so many arrived "on death row with long histories of drug addiction ... [and murderered during] robberies or gang fights" surely suggests the real possibility that a many of those unfortunate souls now condemned to die in California have lived a lot longer on death row than they might have lived on the mean streets of California.
I could go on, but I already am starting to feel mean and crass about how I am responding to this new report from California's always notable death row.
Tuesday, August 23, 2016
New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty
In this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). I received an email this morning highlighting a new big project and report from the the FPP. Here are excerpts from the email:
Today [FPP] released a new report offering an in-depth look at how the death penalty is operating in the small handful of counties across the country that are still using it. Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015. Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010....
The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments. The report notes that many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability. The Court previously found that individuals with intellectual disabilities (Atkins v. Virginia, 2002) and juveniles under the age of 18 (Roper v. Simmons, 2005) should not be subject to the death penalty under the Eighth Amendment.
In conducting its analysis, we reviewed more than 200 direct appeals opinions handed down between 2006 and 2015 in these eight counties. We found:
- Sixty percent of cases involved defendants with significant mental impairments or other forms of mitigation.
- Eighteen percent of cases involved a defendant who was under the age of 21 at the time of the offense. In Riverside County, 16 percent of the defendants were age 18 at the time of the offense.
- Forty-four percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In four of the counties, half or more of the defendants had mental impairments: Maricopa (62 percent), Mobile (60 percent), Caddo Parish (57 percent), and Kern (50 percent).
- Approximately one in seven cases involved a finding of prosecutorial misconduct. Maricopa and Clark counties had misconduct in 21 percent and 47 percent of cases respectively.
- Bad lawyering was a persistent problem across all of the counties. In most of the counties, the average mitigation presentation at the penalty phase of the trial, in which the defense lawyer is supposed to present all of the evidence showing that the defendant’s life should be spared -- including testimony from mental health and other experts, lasted approximately one day. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. In Duval County, Florida, the entire penalty phase of the trial and the jury verdict often came in the same day.
- A relatively small group of defense lawyers represented a substantial number of the individuals who ended up on death row. In Kern County, one lawyer represented half of the individuals who ended up on death row between 2010 and 2015.
- Five of the eight counties had at least one person exonerated from death row since 1976. Harris County has had three death row exonerations, and Maricopa has had five.
- Out of all of the death sentences obtained in these counties between 2010 and 2015, 41 percent were given to African-American defendants, and 69 percent were given to people of color. In Duval, 87 percent of defendants were Black in this period. In Harris, 100 percent of the defendants who were newly sentenced to death since November 2004 have been people of color.
- The race of the victim is also a significant factor in who is sentenced to death in many of these counties. In Mobile County, 67 percent of the Black defendants, and 88% of all defendants, who were sentenced to death were convicted of killing white victims. In Clark County, 71 percent of all of the victims were white in cases resulting in a death sentence. The report noted just three white defendants sentenced to death for killing Black victims between 2010 and 2015. One of those cases was from Riverside, and in that case the defendant was also convicted of killing two additional white victims. The two other cases were from Duval.
- Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts. In Duval, 88 percent of the decisions in the review period were non-unanimous, and in Mobile the figure was 80 percent.
Part II of this report, which will be released in September, will look at the remaining eight “outlier counties,” including: Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA).
August 23, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)
Friday, August 19, 2016
"The Firing Squad as a 'Known and Available Alternative Method of Execution' Post-Glossip"
The title of this post is the title of this timely article now available via SSRN authored by execution-method expert Deborah Denno. Here is the abstract:
In Glossip v. Gross, the United States Supreme Court’s most recent effort to review a state’s lethal injection protocol, the Court affirmed Oklahoma’s use of a drug called midazolam and also stressed that petitioners had failed to “identify a known and available alternative method of execution that entails a lesser risk of pain.” This Article proposes that the Glossip Court’s “known and available alternative method of execution” requirement, however objectionable, adds another dimension to execution method challenges that attorneys must address.
As Justice Sonia Sotomayor’s dissent in Glossip notes, the requirement also strengthens the viability and suitability of the firing squad as an appropriate means of execution. For example, the firing squad has a long history and world-wide application, making it a “known” method; it is also an easily “available” method, given the pervasive use of firearms in our society for purposes such as law enforcement and self-protection. There is also ample evidence suggesting that the firing squad is currently the most humane and reliable method of execution and that it meets the “lesser risk of pain” standard.
Indeed, the primary hurdle faced by advocates of the firing squad is the method’s “primitive” or “violent” image. Yet this Article contends that there is no evidence that such an image is deserved, quite the contrary. Witnesses to modern firing squad executions describe a process that may be far more sterile in perception and procedure than lethal injection — a viewpoint that may come to be shared by the public and prisoners alike. In Glossip, Justice Sotomayor’s dissent briefly yet convincingly touches on reasons why death row inmates may prefer the firing squad over lethal injection, marking the first time that a Justice proactively and favorably compared the firing squad — or any other execution method — to lethal injection. Such practicality may with time trump perceived barbarity in favor of the firing squad as states are increasingly unable to obtain acceptable lethal injection drugs.
Thursday, August 18, 2016
Poll suggests Californians will vote in November 2016 to mend rather than end the death penalty in their state
This new press release from the Institute of Governmental Studies at UC Berkeley, which is titled "IGS Poll Finds Support for Retaining Death Penalty," suggests that California voters have some strong preferences regarding competing death penalty ballot initiatives. Here are the interesting details via the main text of the press release:
California voters oppose an effort to abolish the death penalty and strongly support a competing measure that would streamline procedures in capital cases, according to a new poll released today by the Institute of Governmental Studies at the University of California, Berkeley.
Respondents opposed the abolition measure 55.1 percent to 44.9 percent, while three out of four respondents supported the streamlining proposition, the survey found. Since the two measures conflict, if both should pass, the measure receiving more votes would take effect.
The poll used online English-language questionnaires to survey respondents from June 29 to July 18. All respondents were registered California voters, and the responses were then weighted to reflect the statewide distribution of the California population by gender, race/ethnicity, education and age. The sample size for the questions on the two death penalty initiatives was 1,506 respondents for one question and 1,512 for the other.
A stark partisan difference emerged on Proposition 62, which would abolish capital punishment and replace it with a sentence of life without the possibility of parole. Democrats supported the measure, 55.1 percent to 44.9 percent. Republicans overwhelmingly opposed it, 70.2 percent to 29.8 percent. Independents were also opposed, though by only 60.6 percent to 39.4 percent. By contrast, there was support across partisan lines for Proposition 66, which would streamline procedures in capital cases to speed up the resolution of those cases. Even among Democrats there was strong support (69.7 percent) for the measure, and support was even higher among independents (81.1 percent) and Republicans (85 percent).
A majority (60 percent) of African-Americans favored abolishing the death penalty, but among all other ethnic groups, most respondents opposed that proposal. Support for the death penalty was stronger among older people.
Interestingly, religious differences were reflected in views about abolishing the death penalty, but mostly that difference was related to whether the respondent was or was not religious, rather than to differences among various religious denominations. Among all religious groups there was majority opposition to eliminating the death penalty; only among the self-identified atheists and agnostics did most voters support abolition of capital punishment.
Prior related posts:
- California voters in November to have "mend it or end it" death penalty initiative options
- California initiative to reform death penalty officially qualifies for ballot (and will compete with repeal initiative)
- California DA makes the case for mending rather than ending California's capital punishment system
- "California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives."
- "It's Silicon Valley vs. law enforcement on California death penalty"
New York Times editorial pushes for "Mercy on Texas’ Death Row" for condemned getaway driver
Today's New York Times has this notable new editorial discussing a notable capital case in Texas under the headline "Rare Chance for Mercy on Texas’ Death Row." Here are excerpts:
When it comes to capital punishment, there is not much official mercy to be found in the state of Texas. As 537 death row inmates were executed there over the last 40 years, only two inmates were granted clemency. The last commutation to life in prison occurred nine years ago, when Gov. Rick Perry, despite his formidable tally of 319 executions, chose to make an exception and spare a man convicted of murder under the state’s arcane and patently unfair “Law of Parties.”
This law in effect holds that someone waiting outside at the wheel of a getaway car deserves the same capital punishment as his associate inside who shoots and kills a store clerk. This is the rough equation that now finds Jeffrey Wood on death row in Texas, 20 years after his involvement in just such a crime. The actual killer was executed in 2002; Mr. Wood faces execution next Wednesday as a somehow equally culpable party, unless the state commutes his sentence to life in prison.
The Law of Parties has been on trial as much as Mr. Wood has in the arduous criminal justice process in which he faces death. With an I.Q. of 80 and no criminal history, Mr. Wood, who was 22 then, was initially found by a jury to be incompetent to stand trial. But the state persisted, and he was convicted in a slipshod proceeding in which no mitigating evidence or cross-examination was attempted in his behalf during the crucial sentencing hearing....
The theory underpinning the Law of Parties — that an accomplice deserves to die even though he did not kill the victim — has been abandoned as difficult to apply if not unjust in most state jurisdictions in recent decades. It holds that an accomplice should have anticipated the likelihood of a capital murder and deserves the ultimate penalty. Since the death penalty was restored in 1976, there have been only 10 executions in six states under accomplice culpability laws, in which defendants did not directly kill the victim, according to Texas Monthly. Five of them have been in Texas. Jared Tyler, Mr. Wood’s lawyer, who specializes in the state’s death row cases, says he has never seen a sentence of execution “in which there was no defense at all on the question of death worthiness.”
This is just one of many grounds for the clemency that four dozen evangelical leaders have recommended to avoid a gross injustice. The state parole board would have to make this recommendation, with the final decision by Gov. Greg Abbott, who has not granted clemency in 19 executions.
The Law of Parties stands as a grotesque demonstration of how utterly arbitrary capital punishment is. The only true course for justice in Texas is for the law to be scrapped and Mr. Wood’s life to be spared.
UPDATE: For more interesting and timely coverage of this case, check out this new Texas Tribune article headlined "State Rep. Leach Tries to Stop Jeff Wood Execution." Here is how the article gets started:
It’s not often that a staunch conservative loses sleep over imposition of the death penalty, but state Rep. Jeff Leach, R-Plano, says he is up nights over the impending execution of Jeff Wood.
The two-term legislator has spent the past week poring over court documents and speaking with the governor’s office and Texas Board of Pardons and Paroles, hoping to prevent what would be the state’s seventh execution of the year. Wood is set to die by lethal injection Aug. 24. “I simply do not believe that Mr. Wood is deserving of the death sentence,” Leach told the Tribune. “I can’t sit quietly by and not say anything.”
Wednesday, August 17, 2016
Noting that the 2016 major Prez candidates seem disinclined to say much about the death penalty
The Guardian has this lengthy new article providing an interesting take on the modern realities of presidential politics and capital punishment. The article is headlined "Politics and the death penalty: for Clinton and Trump, safest stance may be silence: Neither candidate seems keen to take on the controversial topic of capital punishment in the 2016 election, despite waning public support for it." Here are excerpts:
Donald J Trump phoned in to Fox & Friends in May 2015, shortly after two police officers were shot dead in Mississippi. Presenter Steve Doocy wanted to know what an appropriate punishment for the killers would be. “Well, it’s the death penalty,” Trump said airily. “We have people who are, these two, animals who shot the cops … the death penalty, it should be brought back and it should be brought back strong.”
A month later, Trump announced he was running for president. He has barely said the words “death penalty” in public since, although a top adviser has called for Hillary Clinton’s execution, saying she “should be put in the firing line and shot for treason”.
Clinton only talks about capital punishment when pressed and then, clumsily. Unlike most of her own party — including running mate Tim Kaine — the Democrat supports death in the case of terrorists. She has said she would be happy if someone would outlaw execution. Someone else.
In campaign 2016, the safest stance on the ultimate punishment may be silence. Both candidates need to woo disaffected members of the other’s party. Neither can afford to lose their own loyal base. “Why bring it up if it’s going to stir the pot if you don’t have to?” said Sherry Bebitch Jeffe, senior fellow at the University of Southern California’s Sol Price School of Public Policy.
For the first time since 1972, the Democratic party platform advocates repealing the death penalty. Mainstream Republican opinion has begun to turn away from it, too. Executions and death sentences are down nationwide, while the number of exonerated death row inmates creeps upward.
The percentage of Americans who support the death penalty has been steadily declining since its high of 80% in the mid-1990s, although a comfortable majority — 61% according to Gallup, and 56% according to the Pew Research Center — still favor the use of capital punishment for a person convicted of murder. And California — with the biggest death row in the country — could become the sixth state in recent years to do away with executions as voters there face dueling ballot measures in November, one to repeal the death penalty, the other to streamline it.
Trump has increasingly positioned himself as a law and order candidate. He doubled down on fear of immigrant criminals in his speech to the Republican national convention and recently said he supported “extreme vetting” of people from other countries. Yet he has so far shied away from promising grisly execution for murderers. The main exception was a December speech to the New England Police Benevolent Association, a police officers’ union, in which he promised an executive order mandating death sentences for cop-killers. (This would not work out, in any case; mandatory death sentences were rendered unconstitutional by a 1976 supreme court decision.)...
The Republican platform, recently ratified at the party’s convention in Cleveland, contains just two sentences on the subject of capital punishment. “The constitutionality of the death penalty is firmly settled by its explicit mention in the Fifth Amendment,” it says. “With the murder rate soaring in our great cities, we condemn the Supreme Court’s erosion of the right of the people to enact capital punishment in their states.”...
In the 1980s and 90s, opposition to the death penalty was “political poison in most elections”, said Robert Dunham, executive director of the Death Penalty Information Center. “Now, you are seeing Republican legislators, many of them conservative Republicans, openly oppose the death penalty.” Still, most of the decline in death penalty support comes from Democrats, according to a 2015 study by Pew Research Center. Nearly 60% of Democrats oppose the death penalty, compared to just 25% in 1996.
Which may be part of the problem for Clinton, who was roundly criticized for her awkward responses to questions about the death penalty during the primary season. Both of her primary rivals — Vermont senator Bernie Sanders and former Maryland governor Martin O’Malley — opposed capital punishment. Now that the general election is under way, a Clinton challenge will be getting Sanders’ fervent and progressive supporters to the polls.
Monday, August 15, 2016
Poll suggests Nebraska voters will reject legislature's rejection of death penalty
As this local article reports, "poll results released Sunday by death penalty supporters suggest a majority of Nebraska voters favor repealing the bill that ended capital punishment in the state last year." Here is more from this press report:
In the poll of 600 likely general election voters conducted Aug. 7-10, 47.8 percent said they would definitely vote to keep the death penalty and another 10.5 percent said they probably would vote to keep the death penalty, Nebraskans for the Death Penalty said. Combined, voters favoring a vote to repeal the bill outpaced voters in support of the bill eliminating the death penalty by a 58.3-30.3 percent margin. The poll's margin of error is 4 percent.
“If the election were held today, Nebraskans would vote in overwhelming numbers to repeal LB268 in order to keep the death penalty,” Don Stenberg, honorary co-chair of Nebraskans for the Death Penalty, said in a news release. Stenburg is a former Nebraska attorney general and current state treasurer....
In a response to the poll, a spokesman for Retain a Just Nebraska said residents of the state are tired of spending millions of dollars on a failed government program. “This is a flawed poll and should not be viewed as an accurate measurement of how Nebraskans view the death penalty," Dan Parsons said. "It’s a push poll that misleads Nebraskans into thinking they have no other option than getting rid of the death penalty. When in reality, the question that will appear on the November 8 ballot asks voters if they wish to replace the death penalty with life in prison.
"Our polling and numerous others across the country show that when given that choice, voters chose life in prison.”...
According to the survey, support for the death penalty is strong among men and women, across all of Nebraska’s congressional districts and among members of different political parties. The Legislature passed LB268 last year over a veto by Gov. Pete Ricketts, but a successful petition drive last summer blocked the law until voters have their say in November.
Helpfully, we will have an actual vote in a few months and so will not have to figure out whether this poll is accurate or not as a reflection of Nebraskan voters' perspective on capital punishment.
Thursday, August 11, 2016
Could "conservative Latinos religious groups" become a significant voice and force in death penalty debates (at least in California)?
The question in the title of this post is prompted by this intriguing new Fox News Latino article headlined "Conservative Latino religious groups make big push to end death penalty." Here are excerpts:
A growing number of conservative Latino religious groups are beginning to shift their position on capital punishment, due in large part to a belief among them that it disproportionately affects minorities. “Given studies on how the death penalty is meted out, particularly for people of color, if it’s not a level playing field, we need to speak out,” Reverend Gabriel Salguero, founder of the national Latino Evangelical Coalition (NaLEC) told Fox News Latino.
“The needle has moved for Latinos and evangelicals," Salguero said. "Botched executions and advancements in DNA science have awakened us to a moral response."
According to the latest figures from the Bureau of Justice Statistics, Latinos represent a larger portion of those on death row than they did in the past. Half of new Latino death row inmates were from California, bringing their total to 157 inmates, the most in the country. Hispanics now represent 13.5 percent of the U.S. death row population – up from 11 percent in 2000.
A study conducted by University of Nebraska-Lincoln psychology and ethnic studies professor, Cynthia Willis-Esqueda and her colleague, Russ K.E. Espinoza of California State University, Fullerton, found that white jurors were more likely to impose the death penalty in cases where the defendant was Latino and poor. A study in California found that those who killed whites were over 3 times more likely to be sentenced to death than those who killed blacks and over 4 times more likely than those who killed Latinos.
“There’s an almost impossibly disproportionate number of Latinos incarcerated – a third of the labor force has a criminal record,” Juan Cartagena, president and general counsel of Latino Justice (PRLDEF), told Fox News Latino. “There’s easy acceptance that the criminal justice system is a racially skewed system,” Cartagena said.
In June, the National Hispanic Leadership Agenda (NHLA), a coalition of 40 prominent Latino organizations, joined several bipartisan groups calling for the end to the death penalty, saying that Latinos are “directly affected by its injustices.”...
This November, the death penalty will be on the California ballot. Proposition 62 seeks to repeal the statute. “There’s been a shift, not just attributed to religion, but a heightened understanding of the death penalty and its implicit bias in the criminal justice system,” Thomas Saenz, president and general counsel of MALDEF, and a nationally recognized civil rights attorney, told Fox News Latino. “The time is right, but it’s a ballot with 17 measures on it. Whether the issue gets the attention it deserves, who knows,” he added.
Salguero said it made sense for clergy to lead the charge on the fight to end the death penalty. “We’ve been pro-life all along, but what does that mean? If even one innocent person is killed, it’s too many,” Salguero said....
“The gospel teaches us that crime has a place, but God has the last word," Salguero said. "We’re against the ultimate role. We have ministries in prisons. If anyone has a moral platform it is the clergy. I think in my heart of hearts we can do better than executing people." “Christ was an innocent man who was executed. If there’s a possibility that we execute one innocent person we should have pause.”
Because Latinos make up nearly 40% of the population in California, how they general cast their votes in this November's death penalty reform/repeal initiative battle is going to play a huge rule in the future of the death penalty in the state. This press article from January 2016 reports on polling done around that time suggesting that Latino voters favored repealing the death penalty to speeding up executions by a margin of 54% to 42%. If the opposition within the Latino community has continued to grow (and certainly if it reaches the typical 2-1 opposition found in polling of African Americans), I think the repeal efforts of abolitionists in California might have a pretty good shot at carrying the day.
Wednesday, August 03, 2016
"It's Silicon Valley vs. law enforcement on California death penalty"
The title of this post is the title of this local press report on the alignment of various participants in the debate over the future of the death penalty in California, where voters will be considering reform initiatives this fall. Here are the details:
Two competing November ballot measures that aim to abolish or expedite California’s long-dormant death penalty each raised more than $3 million through the first half of the year, according to state campaign finance records, and largely drew their funding from a narrow group of major donors: Silicon Valley executives and law enforcement unions.
Proposition 62, which would replace capital punishment with life imprisonment without the possibility of parole, led its rival campaign with nearly $4.1 million raised through June 30, filings show. Proponents argue that executions are costly, inhumane and bound to kill wrongly convicted people.
The dozen top contributors, each of whom gave at least $50,000, are nearly all affiliated with the technology industry in the Bay Area. They include Salesforce CEO Marc Benioff, venture capitalist John O’Farrell, and data management company Integrated Archive Systems, which was founded by major Democratic donor Amy Rao. Netflix CEO Reed Hastings and Nicholas McKeown, a professor of electrical engineering and computer science at Stanford University who has started several technology companies, have each given $1 million to the effort so far. Laurene Powell Jobs, widow of Apple co-founder Steve Jobs, and Y Combinator CEO Paul Graham both put in $500,000.
Supporters of Proposition 66, an initiative to speed up the death penalty by putting the California Supreme Court in charge of a revised appeals process with strict time limits, raised almost $3.5 million through June 30, according to financial records. It currently can take decades for a death row inmate to exhaust their appeals, though California has not executed anyone since 2006 because of legal challenges to its lethal drug cocktail.
Nearly 80 law enforcement groups have given to the campaign, led by the California Correctional Peace Officers Association with $325,000, the Peace Officers Research Association of California with $305,000, the California Association of Highway Patrolmen with $250,000 and the Los Angeles Police Protective League with $225,000. Among the largest contributors, twenty of whom have donated more than $50,000 to the campaign, are a handful of individuals, including former Los Angeles Mayor Richard J. Riordan, Orange County businessman Henry T. Nicholas III, and A. Jerrold Perenchio, the former CEO of Univision....
California voters last weighed in on capital punishment in 2012, when another initiative to repeal the death penalty narrowly failed. A January Field Poll showed an even split, with 48 percent of respondents supporting speeding up the process and 47 percent favoring abolishing it. If both Proposition 62 and Proposition 66 pass in November, whichever has a higher number of votes will become law.
Prior related posts:
- California voters in November to have "mend it or end it" death penalty initiative options
- California initiative to reform death penalty officially qualifies for ballot (and will compete with repeal initiative)
- California DA makes the case for mending rather than ending California's capital punishment system
- "California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives."
Tuesday, August 02, 2016
In wake of Hurst, Delaware Supreme Court declares state's death penalty unconstitutional
The post-Hurst hydra took an especially big bite out the the death penalty in the First State this afternoon: as reported in this local article, via "a landmark decision, the Delaware Supreme Court has ruled that the state's death penalty statute is unconstitutional." Here are the basics:
A 148-page opinion released Tuesday afternoon said that the current law is a violation of the Sixth Amendment role of the jury. The decision of whether and how to reinstate the death penalty should now be left to the General Assembly, the opinion said.
The question before the top state court arose after the U.S. Supreme Court found in January that Florida's death penalty law was unconstitutional because it gave judges – not juries – the final say to impose a death sentence. Delaware and Alabama are the only other states that allow judges to override a jury's recommendation of life....
The last execution in the state was in 2012, when Shannon Johnson, 28, was killed by lethal injection. All pending capital murder trials and executions for the 14 men on death row are currently on hold while the court considered the constitutionality issue.
The full 148-page opinion in Rauf v. Delaware is available at this link. A brief per curiam summary kicks off the opinion, starting this way:
The State has charged the Defendant, Benjamin Rauf with one count of First Degree Intentional Murder, one count of First Degree Felony Murder, Possession of a Firearm During those Felonies, and First Degree Robbery. The State has expressed its intention to seek the death penalty if Rauf is convicted on either of the First Degree Murder counts. On January 12, 2016, the United States Supreme Court held in Hurst v. Florida that Florida‘s capital sentencing scheme was unconstitutional because "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." On January 25, 2016, the Superior Court certified five questions of law to this Court for disposition in accordance with Supreme Court Rule 41. On January 28, 2016, this Court accepted revised versions of the questions certified by the Superior Court and designated Rauf as the appellant and the State as the appellee.
In this case, we are asked to address important questions regarding the constitutionality of our state‘s death penalty statute. The Superior Court believed that Hurst reflected an evolution of the law that raised serious questions about the continuing validity of Delaware‘s death penalty statute. Specifically, Hurst prompted the question of whether our death penalty statute sufficiently respects a defendant‘s Sixth Amendment right to trial by jury.
Because answering the certified questions requires us to interpret not simply the Sixth Amendment itself, but the complex body of case law interpreting it, we have a diversity of views on exactly why the answers to the questions are what we have found them to be. But that diversity of views is outweighed by the majority‘s collective view that Delaware‘s current death penalty statute violates the Sixth Amendment role of the jury as set forth in Hurst. We also have a shared belief that the importance of the subject to our state and our fellow citizens, reflected in the excellent briefs and arguments of the parties, makes it useful for all the Justices to bring our various perspectives to bear on these difficult questions.
Charleston mass murderer now making mass attack on constitutionality of federal death penalty
As reported in this BuzzFeed News piece, headlined "Dylann Roof Challenges Constitutionality Of Federal Death Penalty Law," a notorious mass murderer filed a notable motion in federal court yesterday in an effort to prevent being subject to the ultimate punishment. Here are the details:
Lawyers for Dylann Roof on Monday filed a motion challenging the federal government’s intention to seek the death penalty in his murder trial, arguing that the penalty is unconstitutional. “[T]his Court should rule that the federal death penalty constitutes a legally prohibited, arbitrary, cruel and unusual punishment prohibited by both the Fifth and Eighth Amendments,” lawyers write in defense of Roof, who is charged with murder for the shooting deaths of nine people inside a historically black South Carolina church this past summer.
In the filing, the lawyers argue that the death penalty itself is unconstitutional, as is the federal death penalty law. “[T]he [Federal Death Penalty Act] may have been designed with as much care as possible under the circumstances, the capital sentencing process that the statute provides is constitutionally inadequate in practice,” the lawyers write. “The results of jurors’ good-faith grappling with the law — arbitrary, biased, and erroneous death verdicts — are intolerable as a matter of due process and proportional punishment.”
The challenge is only being brought, the lawyers write, because the federal government is seeking the death penalty in Roof’s case after rejecting his offer to plead guilty and accept multiple life sentences without the possibility of parole....
In addition to the two broad constitutional challenges, Roof’s lawyers are also challenging the jury selection process referred to as “death qualification” — finding a jury willing to impose the death penalty. As the lawyers note, “conscientious objectors to the death penalty are systematically excluded” from such juries. “Because the practice of death qualifying a jury has no constitutional or statutory underpinnings, distorts the jury function, introduces arbitrariness into capital sentencing and increases the influence of racism and sexism on the death determination, there is no justification for maintaining it,” the lawyers write.
The lawyers are also challenging related to the use of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA) in the prosecution, noting that the legislation considered including the death penalty as a punishment but ultimately rejected it. “[D]espite Congress’s deliberate decision not to provide for the death penalty in HCPA prosecutions, the government has effectively amended the statute to permit a death sentence to be imposed,” the lawyers argue.
The full 34-page filing seeking to "strike the death penalty as a possinle punishment" is available at this link.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
- Intriguing capital case tussle between South Carolina and feds in Dylann Roof prosecution
Monday, August 01, 2016
Will there be fewer than 20 executions in 2016?
As I changed the month on my calendars, I thought to take a looks at the Death Penalty Information Center's list of recent executions and list of scheduled executions. These lists confirmed my sense that, after a notable number of executions a notable number of states in the first part of 2016 (a total of 14 executions in five different states through early May), there is now almost a de facto moratorium on executions throughout nearly all of the United States.
Specifically, there has been only a single execution in summer 2016 (a few weeks ago in Georgia), and Texas appears to be the only state right now with any serious execution dates scheduled for the rest of 2016. And if only a couple of the remaining 2016 scheduled Texas executions get delayed, there will be the fewest executions in the US this year in a quarter-century.
With highly symbolic votes on the death penalty's future in California and Nebraska in November, I have already begun thinking about 2016 as a possible "tipping point" year for capital punishment. But this year's execution realities highlights that, for most functional purposes, the death penalty is continuing to die a slow death throughout the United States.
Saturday, July 30, 2016
"Rethinking 'Death Row': Variations in the Housing of Individuals Sentenced to Death"
The title of this post is the title of this interesting report authored by a group at Yale Law School and available via SSRN. Here is the abstract:
In 2015, individuals sentenced to death in the United States were housed in varying degrees of isolation. Many people were kept apart from others in profoundly isolating conditions, while others were housed with each other or with the general prison population. Given the growing awareness of the debilitating effects of long-term isolation, the placement of death-sentenced prisoners on what is colloquially known as “death row” has become the subject of discussion, controversy, and litigation.
This Report, written under the auspices of the Arthur Liman Public Interest Program at Yale Law School, examines the legal parameters of death row housing to learn whether correctional administrators have discretion in deciding how to house death-sentenced individuals and to document the choices made in three jurisdictions where death-sentenced prisoners are not kept in isolation. Part I details the statutes, regulations, and policies that govern the housing of those sentenced to death and reviews prior research on the housing conditions of death-sentenced prisoners. Part II presents an overview of decisions in three states, North Carolina, Missouri, and Colorado, where correctional administrators enable death-sentenced prisoners to have meaningful opportunities to interact with others. Given the discretion that correctional officials have over housing arrangements, these states provide models to house capital-sentenced prisoners without placing them in solitary confinement.
Thursday, July 28, 2016
"California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives."
The title of this post is the title of this lengthy report recently published by the Alarcón Advocacy Center at Loyola Law School, Los Angeles and co-authored by Professor Paula Mitchell, executive director of the Alarcón Advocacy Center, and Nancy Haydt, Board of Governors, California Attorneys for Criminal Justice. The perspective on whether to end or mend the California death penalty is somewhat predictable based on the past work of the authors, and this overview from the document itself provides a summary of its analysis:
California voters will decide the fate of the state’s death penalty this November. There is now a broad consensus that California’s death penalty system is broken. Voters will be asked to choose between two starkly different proposals to address its dysfunction and failures. Competing ballot initiatives will ask voters either to replace the death penalty with life without the possibility of parole, or to double down on the failed system by spending millions more to modify and expand it.
Voters can either support YES on Prop 62, which will replace the death penalty with life without parole and save the state $150 million per year. Or, voters can support Prop 66 to keep the death penalty system and implement multiple changes to how it operates. Each proposition would make substantial and far reaching changes to California’s criminal justice system. But only one can pass into law: if both propositions receive more than 50% of the vote, then the one with most votes will become law and the other will not.
This Report analyzes the competing initiatives. It looks at the current state of the death penalty system in California and analyzes how each initiative will work in practice. In particular it looks at whether the initiatives will achieve their stated goals, and whether there would be other, perhaps unintended, consequences to their passage into law.
This Report concludes that Prop 66’s proposed “fixes” to the current system will cost millions more than the already expensive death penalty system and will not speed up executions. In fact, Prop 66 will only make matters worse by creating more delays and further clogging the state’s over-burdened court system. Prop 66 will add layers of appeals to a system already facing an insurmountable backlog of decades of death penalty appeals waiting to be decided.
Prop 66 contains other provisions that proponents claim will speed up executions, such as keeping the lethal injection protocols secret and out of the public’s purview, exempting them from the Administrative Procedures Act. This and other key features of Prop 66 will certainly be subject to litigation challenging the provisions on constitutional and other grounds, should Prop 66 pass, adding yet more delays to death penalty cases.
The Report further finds that Prop 66 fails to make the constitutional changes required to deliver the results it promises. At the same time, its proposals are so convoluted that they are likely to create many new problems that will not only complicate the administration of the death penalty system, but will also impact and harm the rest of California’s legal system.
This Report finds that Prop 62, by contrast, is straightforward and transparent. It replaces the death penalty with life without the possibility of parole, saving the state $1.5 billion in the next ten years alone. Prop 62 requires inmates to work and increases the victim compensation rate. Prop 62 ensures that the state never executes an innocent person, without jeopardizing public safety.
Tuesday, July 26, 2016
"The Death Penalty and the Fifth Amendment"
The title of this post is the title of this essay authored by Joseph Blocker and just published online by the Northwestern Law Review. Here is part of the introduction:
Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?
The dueling opinions in Glossip v. Gross have brought renewed attention to the constitutionality of the death penalty. In a dissent joined by Justice Ginsburg, Justice Breyer identified “three fundamental constitutional defects” with the death penalty.... Justice Breyer’s dissent marked the first time that two members of the current Court have announced a belief that the death penalty is likely unconstitutional “in and of itself,” and the opinion has justifiably been treated as a significant development.
In a blistering concurrence, Justice Scalia (joined by Justice Thomas) wrote that the dissent was full of “gobbledy-gook,” and that “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.” Justice Scalia argued that the Fifth Amendment afforded a textual basis for the capital punishment’s continued constitutionality.... Announcing his concurrence from the bench, Justice Scalia made the point even more strongly, saying that “the death penalty is approved by the Constitution.” He and many others have made some version of this point...
The Fifth Amendment contains prohibitions, not powers, and there is no reason to suppose that it somehow nullifies other constitutional prohibitions — most importantly, the ban on cruel and unusual punishment. The real target of the Fifth Amendment Argument can only be the Court’s longstanding Eighth Amendment doctrine, which is not limited to the punishments considered cruel and unusual at the time of the Constitution’s framing. Unless and until that doctrine changes, the Argument itself carries no weight.
To be clear, the inverse argument would be equally faulty. The weakness of the Fifth Amendment Argument does not mean that the death penalty is unconstitutional, let alone “categorically” so, only that the “constitutional defects” Justice Breyer identifies cannot be dismissed out of hand. Glossip, along with other developments in law and practice, have made the continuing constitutionality of capital punishment a pressing question. That question should be answered without the distraction of the Fifth Amendment.
Thursday, July 21, 2016
California DA makes the case for mending rather than ending California's capital punishment system
The District Attorney of Sacramento County has this new commentary urging citizens of her state to vote for reform rather than repeal of the death penalty. The piece is headlined "California’s broken death penalty system can be fixed," and here are excerpts:
In 1978, California enacted today’s California death penalty statute, the so-called Briggs Initiative. Now, Ron Briggs supports repealing the statute his “family wrote,” but his argument reads more like a surrender to death penalty abolitionists (“Death penalty is destructive to California”; Forum, July 10). Instead of waving a white flag, Briggs should endorse Proposition 66, the Death Penalty Reform and Savings Act of 2016, as a worthy successor to his family’s work. This initiative deals with the concerns Briggs raises about California’s death penalty system.
The reason that no executions have occurred in California for 10 years is the state’s delay in drafting regulations for a method of execution. Otherwise, there could have been at least 15 sentences carried out during the past decade. It’s outrageous that victims’ families were forced to sue the state to draft these regulations. Proposition 66 will prevent biased and unsympathetic politicians and government bureaucrats from interfering with this process.
Proposition 66 also addresses concerns about how death row inmates occupy their time, requiring them to work or lose their privileges. If they owe restitution, it will come out of their wages. The proposal makes other significant reforms as well. It addresses the backlog of cases at the state level by expanding the pool of qualified counsel for death row inmates. The initiative expedites review of prisoners’ complaints by returning their cases to the original trial court and prompts the Judicial Council to develop standards for the completion of appeals in state court in five years. Victims’ families will have the right to sue to force them to meet deadlines.
Briggs believes abolition will benefit victims’ survivors by closing cases and sparing them further “wounds.” That is offensive and presumptuous. In our experience, most survivors want “justice” for the murderers of their family members. Repealing the death penalty will not heal these peoples’ wounds; it keeps them permanently open.
Briggs naively touts life without parole as a sufficient alternative to the death penalty. He forgets that the last murderer executed in California, Clarence Ray Allen, was sentenced to death for the murder of three people, which he planned while already serving a life sentence for murder. Life imprisonment was not enough to protect the public from Allen....
Finally, Briggs is dead wrong to assert that the death penalty has been conclusively shown not to deter crime. Experience and common sense confirm a deterrent effect. Briggs risks lives on the unproven idea that the death penalty does not deter murder and that life sentences will protect public safety. Rather than capitulating to abolitionist arguments, he should support his families’ legacy and endorse Proposition 66.
Prior related posts:
- California voters in November to have "mend it or end it" death penalty initiative options
- California initiative to reform death penalty in state qualifies for ballot (and will compete with repeal initiative)