Sunday, March 19, 2017

"Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution"

The title of this post is the title of this notable new paper authored by Charlie Eastaugh and available via SSRN. Here is the abstract:

In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication.  Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards — decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.

Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions — still visible across the nation — that intelligence is as straightforward as numerical fact.  It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.

In Moore v. Texas — for which an eight-Justice Court heard oral argument in November 2016 — SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution.  This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse — one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution.  Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long — often decade-long — stays on death row, invariably in extreme solitary confinement.

March 19, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19)

Friday, March 17, 2017

Capital debates in central Florida after new prosecutor says she will no longer bring capital charges

This lengthy local article, headlined "Gov. Scott appoints special prosecutor after Ayala says she won't pursue death penalty," reports on a set of interesting developments in the heart of Florida concerning the heart of prosecutorial discretion and application of the death penalty.  Here are the details:

Gov. Rick Scott on Thursday removed Orange-Osceola State Attorney Aramis Ayala from the case of accused cop killer Markeith Loyd after she announced that she would not pursue the death penalty in his or any other case during her tenure.

In an executive order, Scott gave the case to Lake County State Attorney Brad King. “Earlier today, I called on State Attorney Ayala to immediately recuse herself from this case,” Scott said in a statement.  “She informed me this afternoon that she refuses to do that. She has made it clear that she will not fight for justice, and that is why I am using my executive authority to immediately reassign the case.”  Scott cited a state law allowing Florida’s governor to appoint a different prosecutor if he finds a “good and sufficient reason” to take it away from the original prosecutor.

Ayala issued a statement late Thursday, implying that her office would abide by Scott’s order. “Upon receipt of any lawful order, my office will follow that order and fully cooperate to ensure the successful prosecution of Markeith Loyd,” she said.

Ayala created a firestorm of criticism Thursday morning when she announced she would not seek the death penalty against Loyd or anyone else. “I have determined that doing so is not in the best interest of the community or the best interest of justice,” she said.

During a Thursday afternoon press conference, law enforcement leaders and families of victims expressed disappointment in Ayala’s intentions. Orlando Deputy Police Chief Robert Anzueto stood in front of Clayton’s widower, Seth Clayton, and spoke on his behalf. “My closure will be when Markeith Loyd is six-feet under,” Clayton told Anzueto....

Ayala’s announcement was a surprise and a position she had not made public before, despite a five-month campaign for public office, during which she was repeatedly asked about her stance. It also ran counter to information her employees had provided the Orlando Sentinel as recently as Tuesday.

Reaction came swiftly from state and local law enforcement officials, who were sharply critical. Attorney General Pam Bondi called the announcement “dangerous” and “a neglect of duty.”

But Ayala’s decision was heralded by death penalty opponents. “Ending use of the death penalty in Orange County is a step toward restoring a measure of trust and integrity in our criminal justice system,” said Adora Obi Nweze, president Florida State Conference NAACP. Orlando pastor Gabriel Salguero said, “By naming a broken program, Ms. Ayala creates hope in the community for working together to find better alternatives." Salguero leads the Calvario City Church and is president of the National Latino Evangelical Coalition....

Law enforcement officials, meanwhile, expressed their anger with the decision. Demings said he supported Scott’s decision to take the case away from Ayala. “To put it bluntly, the law enforcement officers of Central Florida are outraged,” Demings said....

State attorneys have wide discretion in who to charge with a crime, what charge to file and what penalty to seek. State law does not require them to seek the death penalty.  Ayala, 42, has been state attorney for Orange and Osceola counties since Jan. 3.  She upset incumbent Jeff Ashton in a primary election in August with the help of $1.4 million in donations from a political action committee with ties to billionaire George Soros, a liberal activist.

Ashton said Thursday that when Ayala worked for him, she did not oppose the death penalty. He called her newly-declared position “ridiculous.”...  When he was her boss, she was assigned the capital murder case of David Lewis Payne, who’s accused of abducting his ex-girlfriend, putting her in the trunk of her car then killing her in 2015. “She came to me. She was really excited because she got her first death penalty case,” he said of Ayala.

During her news conference, Ayala cited several reasons she will not pursue the death penalty.  Studies have shown, she said, that it provides no public safety benefits, that it is not a deterrent and that it winds up costing the state more than cases in which a defendant is sentenced to life in prison. It also gives victims’ families false hope, she said.

“Some victims will support and some will surely oppose my decision, but I have learned that death penalty traps many victims’ families in decades long cycle of uncertainty,” she said. “ … I cannot in good faith look a victim’s family in the face and promise that a death sentence handed down in our courts will ever result in execution.”...

Former State Attorney Lawson Lamar, who served six terms prior to Ashton, and before that was Orange County Sheriff, had this reaction to Ayala’s announcement: “I, frankly, was flabbergasted. … When you don’t have a death penalty, bad things happen.” He predicted it would mean more homicides in Orange and Osceola counties. Murders, rapists and criminals whose crimes carry a life sentence now have an incentive to kill witnesses, knowing that they face no greater penalty, he said.

“I’ve been telling people, ‘Give Aramis a chance. … She’s smart. She’s well spoken.’ I think this is a big mistake. I hope the backlash from it causes her to reconsider, because in life, as an elected official, you’re supposed to protect, defend and represent the people.”

March 17, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Eleventh Circuit panel declares Alabama murderer incompetent to be executed

A panel of the Eleventh Circuit on Wednesday reached the rare conclusion that an Alabama death row prisoner was not competent to be executed.  The majority opinion authored by Judge Martin in Madison v. Commissioner, No. 16-12279 (11th Cir. March 15, 2017) (available here), gets started this way:  

Thirty years ago, the Supreme Court held that the Eighth Amendment prohibits the execution of a person who is incompetent.  Ford v. Wainwright, 477 U.S. 399, 409–10, 106 S. Ct. 2595, 2602 (1986).  The Court has since clarified that a person cannot be executed if he lacks a “rational understanding” of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60, 127 S. Ct. 2842, 2859–62 (2007).  This standard requires the prisoner to be able to rationally understand the connection between the crime he committed and the punishment he is to receive.  See Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir. 2013).  The Supreme Court told us that if the prisoner does not understand this connection, “the punishment can serve no proper purpose” and cannot be carried out. Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.

This habeas petitioner, Vernon Madison, is a 66-year-old man on death row for the murder of a police officer over three decades ago.  In recent years, Mr. Madison has suffered strokes resulting in significant cognitive and physical decline.  His lawyers argue here that he is mentally incompetent to be executed under Ford and Panetti.  Finding that Mr. Madison had made a substantial threshold showing of incompetency, an Alabama trial court held a competency hearing.  At the hearing, Mr. Madison presented unrebutted testimony from Dr. John Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder — the very act that is the reason for his execution.  To the contrary, Mr. Madison does not believe he ever killed anyone. Dr. Goff testified that due to his memory impairments, Mr. Madison does not have a rational understanding of why the state is seeking to execute him.  The State presented expert testimony from Dr. Karl Kirkland. Dr. Kirkland testified that Mr. Madison was able to accurately discuss his legal appeals and legal theories with his attorneys and — on pretty much this basis alone — concluded that Mr. Madison has “a rational understanding of [his] sentence.”  Accepting the testimony of Dr. Kirkland, the Alabama trial court decided that Mr. Madison is competent to be executed.  Mr. Madison argues that the trial court’s decision relied on an unreasonable determination of the facts and involved an unreasonable application of the law. We agree.

In so holding, we are mindful of the great deference due to state court decisions on federal habeas review, particularly when the state court is applying a general standard like the one in Panetti.  See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” (quotation omitted)).  But “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Panetti may set out a general standard for competency, but the focus of the inquiry is clear. Panetti doesn’t ask whether the prisoner can talk about the history of his case or legal theories with his attorneys.  Instead, Panetti requires courts to look at whether the prisoner is able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.  One of the experts testified that due to a mental disorder, Mr. Madison was not able to make this connection.  The other expert never addressed this question at all. This record is therefore wholly insufficient to support the trial court’s decision.  We conclude that the state court’s decision that Mr. Madison is competent to be executed rested on an unreasonable determination of the facts and involved an unreasonable application of Panetti. We therefore reverse the District Court’s denial of habeas relief.

A dissent authored by Judge Jordan gets started this way:

After reviewing the record, I believe that Vernon Madison is currently incompetent.  I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.

March 17, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Thursday, March 16, 2017

Focused look at midazolam as the latest (but not greatest) execution protocol drug

Earlier this week, the New York Times had this extended article about a recent development in modern execution protocols. The piece is headline "When a Common Sedative Becomes an Execution Drug," and here are excerpts:

[D]ecades after the drug, known as midazolam, entered the market, a product more often used during colonoscopies and cardiac catheterizations has become central to executions around the country and the debate that surrounds capital punishment in the United States....

The most recent controversy is the extraordinary plan in Arkansas to execute eight inmates in 10 days next month. The state is racing the calendar: Its midazolam supply will expire at the end of April, and given the resistance of manufacturers to having the drug used in executions, Arkansas would most likely face major hurdles if it tried to restock.

In Arkansas, where no prisoner has been put to death since November 2005, midazolam is planned as the first of three drugs in the state’s lethal injections. The drug is intended to render a prisoner unconscious and keep him from experiencing pain later in the execution, when other drugs are administered to stop the breathing and heart.

Supporters of midazolam’s use, which the United States Supreme Court upheld in a case from Oklahoma less than two years ago, say it is a safe and effective substitute for execution drugs that have become difficult to purchase. Death penalty critics, citing executions that they say were botched, argue that midazolam puts prisoners at risk of an unconstitutionally painful punishment because the condemned may be insufficiently numbed to the agony caused by the execution drugs.

A major legal test is in Ohio, where a federal appeals court heard arguments last week about the drug’s future there. “The states will be watching the legal proceedings out of Ohio, but also the on-the-ground experiences out of Arkansas, Virginia and elsewhere,” said Megan McCracken, who specializes in lethal injection litigation at the law school of the University of California, Berkeley. “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.”

States have resisted such critiques, and during arguments last week before a federal appeals court in Cincinnati, Eric Murphy, the Ohio state solicitor, said midazolam’s use in a three-drug protocol “does not create a substantial risk of pain that is sure or very likely to occur.”...

[T]he drug’s critics have found limited solace in the courts, including the Supreme Court, which last month declined to hear cases from Alabama and Arkansas, both of which include midazolam in their lethal injection protocols. Those moves amounted to reinforcement of a ruling in 2015, when Justice Samuel A. Alito Jr., writing for a divided court, noted that the court had found “that the Constitution does not require the avoidance of all risk of pain.” He continued: “After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”

Indeed, some supporters of the death penalty, including people who have witnessed executions that included midazolam, have defended lethal injections and any pain they might cause violent offenders. Proponents also acknowledge that midazolam is far from a drug of choice for executions, but they blame abolitionists for effectively leaving states with limited choices. “No state would use it if they could get the barbiturates,” said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation. “The opponents have created the situation where states are forced to use a drug that is not the optimum.”

March 16, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (10)

Tuesday, March 14, 2017

Florida law now officially requires jury unanimity for death verdicts

Roughly fourteen months after the Supreme Court in Hurst found constitutional problems with the way Florida operationalized juries in its capital punishment scheme, and after some legislative and litigation fits and starts, the state's lawmakers have now reformed its system to require jury unanimity at sentencing.  This local article, headlined "Gov. Rick Scott signs new unanimous jury standard for death penalty into law," reports on the basics:

It now takes a unanimous jury to sentence someone to death in the state of Florida. Gov. Rick Scott on Monday night signed into law a new requirement that raises the jury standard for death penalty cases from 10-2.  The legal change was made necessary by a Florida Supreme Court ruling in October that found the state's sentencing laws unconstitutional.

The Legislature passed the new rules (SB 280) overwhelmingly last week.  The death penalty fix is the first major law passed and signed in the 2017 session.  Florida joins most other states in requiring unanimous juries....  "Our goal was that the death penalty cases proceed in an orderly manner under a law that was constitutional," Senate President Joe Negron, R-Stuart, said last week.

Scott's signature also allows prosecutors to move forward with cases in which they plan to seek the death penalty.  Uncertainty around the court's order in Hurst vs. Florida put a pause on new death sentences.

In passing the death penalty fix, the Legislature opted not to address the hundreds of existing death row inmates whose cases were decided under sentencing laws thrown out by the courts.  Rep. Chris Sprowls, R-Palm Harbor, a former prosecutor and the House Judiciary chairman, said he wanted to deal with this issue and left it up to the courts to handle existing death cases decided by a nonunanimous jury.  Some of those inmates have already been granted a new sentencing hearing.

Just three lawmakers voted against the death penalty fix: Two House Democrats, Joseph Geller of Aventura and Robert Asencio of Miami, who oppose the death penalty on moral grounds; and Republican Rep. Blaise Ingoglia of Spring Hill. His was a protest vote, Ingoglia said.  "With a unanimous jury, you need all 12," he said Friday.  "You can have one activist and one vote and prevent the death penalty from kicking in."

March 14, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, March 08, 2017

Texas executes paid hit-man ... after Justice Breyer dissents from SCOTUS refusing to consider extended solitary death row stay

As this AP article reports, a "paid hit man was executed Tuesday night in Texas for gunning down a San Antonio woman in a life insurance scheme nearly a quarter-century ago." Here are a few more details about this latest execution:

Rolando Ruiz was given a lethal injection for fatally shooting Theresa Rodriguez, 29, outside her home in 1992 as she was getting out of a car with her husband and brother-in-law, who both orchestrated her murder. Ruiz was paid $2,000 to carry out the killing. Ruiz, strapped to the Texas death chamber gurney, looked directly at two sisters of his victim and their husbands and apologized profusely....

As the lethal dose of pentobarbital was administered, he took several deep breaths, then began snoring quietly. All movement stopped within about 30 seconds. Ruiz, 44, was pronounced dead 29 minutes later at 11:06 p.m. His execution was the third this year in Texas and the fifth nationally.

“It’s not going to bring her back, so it really doesn’t mean very much,” Susie Sanchez, whose daughter was killed in the contract murder, said Monday. Her daughters, who were among the witnesses Tuesday night, declined to comment afterward.

The execution was delayed for nearly five hours until the U.S. Supreme Court rejected three appeals attorneys had filed for Ruiz to try to stop the punishment. His lawyers argued to the high court that lower courts improperly rejected an earlier appeal that focused on whether Ruiz earlier had deficient legal help. They also contended Ruiz’s execution would be unconstitutionally cruel because he’s been on death row since 1995, had multiple execution dates and two reprieves. Attorney Lee Kovarsky blamed the long time between a San Antonio jury’s verdict and the punishment on the state’s failure to provide Ruiz with competent lawyers earlier in his appeals.

Justice Stephen Breyer said he would have stopped the execution to further examine the question of prolonged death row confinement.

Notably, as revealed here, Justice Breyer's solo dissent from the denial of a stay by SCOTUS was fairly substantive. Here is how it starts and ends:

Petitioner Rolando Ruiz has been on death row for 22 years, most of which he has spent in permanent solitary confinement. Mr. Ruiz argues that his execution “violates the Eighth Amendment” because it “follow[s] lengthy [death row] incarceration in traumatic conditions,” principally his “permanent solitary confinement.” Petition 25. I believe his claim is a strong one, and we should consider it....

Here the “human toll" that accompanies extended solitary confinement is exacerbated by the fact that execution is in the offing.  Moreover, Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty.  Further, the lower courts have recognized that Mr. Ruiz has been diligent in pursuing his claims, finding the 22-year delay attributable to the State or the lower courts.  Ruiz v. Quarterman, 504 F. 3d 523, 530 (CA5 2007) (quoting Ruiz v. Dretke, 2005 WL 2620193, *2 (WD Tex., Oct. 13, 2005)). Nor are Mr. Ruiz’s 20 years of solitary confinement attributable to any special penological problem or need. They arise simply from the fact that he is a prisoner awaiting execution. App. E to Petition 16.

If extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.  That is why I would grant a stay of execution, allowing the Court to examine the record more fully.

March 8, 2017 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (16)

Tuesday, March 07, 2017

Detailing how common a very long wait on death row has become

Slate has this notable short piece on the long wait many condemned have before execution.  The piece is headlined "40 Years Awaiting Execution: For many death row inmates, the long process leading to capital punishment is itself cruel — but not unusual."  Here are excerpts:

In 1979, Arthur Lee Giles, then 19 years old, was sentenced to death in Blount County, Alabama.  Nearly 40 years later, he is still waiting to be executed.  His glacial march to execution exposes a conundrum at the heart of America’s death penalty. Condemned prisoners often spend decades on death row before being executed — if the execution ever happens at all — a fact that undermines any retributive value capital punishment might provide.

Approximately 40 percent of the 2,739 people currently on death row have spent at least 20 years awaiting execution, and 1 in 3 of these prisoners are older than 50.  (This is according to data collected by the Fair Punishment Project and sourced from the NAACP’s Legal Defense Fund, the Federal Bureau of Prisons, and state corrections departments.)

According to a Los Angeles Times investigation, roughly two dozen men on California’s death row require walkers and wheelchairs, and one is living out his days in bed wearing diapers.  In North Carolina, nine death row prisoners have died of natural causes since 2006 — the same year the state last executed someone.  These delays suggest that executions must be sped up significantly.... 

With public support for executions at historic lows, death row delays seem likely to increase. Just 20 of the nearly 3,000 prisoners on death row nationwide were executed last year.

California is a prime example.  In 2014, a federal judge wrote that the state’s capital punishment system is actually a sentence of “life without parole with the remote possibility of death.”  The judge calculated that “just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years.”  That’s an unfathomable outcome in any state, much less in one that has not performed a single execution in more than a decade....

In an effort to combat these delays, California voters narrowly passed Proposition 66 in 2016, which promised to speed up executions by imposing more severe limitations on the death penalty appeals process. Yet Prop 66 has already faced significant constitutional challenges, and the California Supreme Court has stayed the initiative pending the outcome of a case filed by former state Attorney General John Van de Kamp and Ron Briggs, the two men who wrote the successful statewide proposition reinstating the death penalty in California 40 years ago.

March 7, 2017 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Monday, March 06, 2017

Could and will SCOTUS Pena-Rodriguez decision create new ways attack death sentences (and even other jury sentencing outcomes)?

The question in the title of this post was the first idea that jumped into my sentencing-addled mind as I was (too) quickly reviewing the Supreme Court's Sixth Amendment work today in Pena-Rodriguez v. Colorado (basics here, full opinion here).  Critically, the Pena-Rodriguez decision concerns a jury's deliberation about guily, and the opinion keeps referencing a juror's "vote to convict." But, in some cases in some states, jurors also have a role in sentencing, and this is most common and most consequential in the context of capital cases. And there is lots of dicta in Pena-Rodriguez that surely could, and I would guess often will, be stressed by capital defendants trying to throw shade on a jury's capital sentencing decision-making. Consider, as just one example, these passages:

[R]acial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.  This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy....

A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.

As those who follow debates over the death penalty know well, many who advocate abolition often assert that capital punishment's administration through often seemingly disparate jury verdicts reveals a certain kind of "racial bias [as] a familiar and recurring evil" that contributes to "a systemic loss of confidence in jury verdicts."  (Consider, for example, this page at the Death Penalty Information Center spotlighting racial patterns in death penalty administration.) In light of those views, as well as the obligation and zeal of defense attorneys to raise every non-frivolous argument to contest a death sentence, I have reason to think the capital defense bar could, should and will be making much of today's SCOTUS work in Pena-Rodriguez.

March 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Friday, March 03, 2017

"The Return of the Firing Squad"

The title of this post is the headline of this lengthy new US News & World Report article, which carries this subheadline: "The execution method is making a comeback — but some argue that means the end of capital punishment is near." Here are excerpts:

An ongoing shortage of lethal injection drugs — coupled with the grisly spectacle of botched executions and a number of legal challenges to the use of less-effective substitute drugs — has several states, and at least one inmate, calling for the return of the firing squad.

In 2015, Utah Gov. Gary Herbert, a Republican, signed a bill that established firing squads as an execution option, reversing an 11-year ban....  In Mississippi, a bill authorizing firing squads cleared the state House in early February before the state Senate shot it down. Firing squads are on the books in Oklahoma, and lawmakers in other Southern states are said to be considering similar legislation.

Meanwhile, in late February, the U.S. Supreme Court denied the request by Thomas Arthur, an Alabama death-row prisoner who wanted the state to fatally shoot him rather than subject him to the likelihood of a painful death from secret, experimental lethal-injection drugs.

But Supreme Court Justice Sonia Sotomayor excoriated her colleagues for tacitly endorsing execution methods that could reasonably be considered as cruel or inhumane — and she pointed to firing squads as the way to go.  "Some might find this choice regressive, but the available evidence suggests that a competently performed shooting may cause nearly instant death," Sotomayor wrote in a blistering dissent.  "In addition to being near instant, death by shooting may also be comparatively painless.  And historically, the firing squad has yielded significantly fewer botched executions."

Death penalty opponents, however, say firing squads aren't fail-safe, the condemned don't always die immediately and the procedure smacks of tin-horn dictatorships, undermining America's global standing as a champion of human rights. That states are looking to salvage the practice, they say, is yet another sign that capital punishment is on its way out.

"I think that the death penalty is in big trouble in the United States," says Austin Sarat, an associate dean and law and political science professor at Amherst College. "The legitimacy of capital punishment has been sustained in part by the belief that we could find a way of execution that would be safe, reliable and sane," says Sarat, the author of "Gruesome Spectacles: Botched Executions and America's Death Penalty."  He notes the same arguments officials are making for the firing squad — it's quick, it's humane, it's reliable — were the same ones proponents used for lethal injections as its more clinical, civilized replacement. "It's a back-to-the-future [method] that was replaced for a reason," Sarat says....

"The elusive search in the modern era for humane methods of execution was a reaction to the perceived barbarity of death by methods like the firing squad," Phyllis Goldfarb, a George Washington University law professor, writes in an email. "Death by firing squad is not pain- and botch-free," Goldfarb writes, noting some marksmen have missed the heart target and hit other parts of the body, while others have fired prematurely. "The condemned dies from blood loss and loses consciousness when blood supplied to the brain drops precipitously. Even when the people in the firing squad hit their target as intended, it may take at least a couple of minutes for the condemned to die and sometimes much longer."

To that point, firing-squad proponents have a quick retort: So what? "How could a civilized society place a man before a firing squad, [opponents] ask," writes Joseph R. Murray II, a guest columnist for the Jackson, Miss., Clarion Ledger, commenting on the debate over the state's proposal to have inmates die by the bullet.

"To these folks, that's third-world justice. But isn't a firing squad the most humane way to execute a criminal? Isn't death instantaneous?" Murray asks. "Where lethal injection could go awry, causing prolonged pain, and electrocution could not work effectively, there is no doubt multiple bullets do the job quickly and safely."

Goldfarb says if authorities want to be absolutely certain that an inmate dies instantly without pain or suffering, they can choose another target on the body.  "Firing a gun at point blank range into the head" is 100 percent effective, and "would cause a near-instantaneous death.  But it would be exceedingly violent and destructive," Goldfarb writes. "But could we ask someone to inflict that kind of violence on another as part of their job as a state employee?  If the state were to authorize such a gruesome spectacle in the name of law, how could we maintain our standing in the world as a protector of human rights?"

Still, she predicts the firing squad debate could go far in the current law-and-order climate ushered in with President Donald Trump's inauguration. "I see the present moment as one in which fair debate based on factual evidence is being threatened and 'fear of the other' who would use violence to harm 'us' is being fanned for political gain," she writes. "These are the emotional conditions that have allowed the death penalty to persist in America — providing a simple answer to a complex problem."

Still, "there may be pockets of renewed death penalty support, using whatever methods are permitted," writes Goldfarb. "But I don't think that approach will become widespread again, as it degrades us as a society and depends on rhetoric that is divisive, cynical, extremely racialized, and ultimately corrosive to America."

March 3, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Wednesday, March 01, 2017

Arkansas Gov signs proclamations that could lead to eight executions in less than two weeks in next month

There has so far been only four executions nationwide in 2017.  The just concluded month of February had no executions, and this Death Penalty Information Center list of upcoming executions suggests that there are only two serious execution dates (both in Texas) for March.  But this local article from Arkansas, headlined "Arkansas Governor schedules execution dates for 8 inmates," the Natural State could be poised for a record-setting April. Here are the details:

Arkansas’ governor on Monday set execution dates over a 10-day period in an attempt to resume the death penalty after a nearly 12-year hiatus, even though the state lacks one of three drugs needed to put the men to death.  Gov. Asa Hutchinson signed proclamations scheduling double-executions on four days in April for the eight inmates.  The quick schedule appears aimed at putting the inmates to death before another one of the state’s lethal injection drugs expire, and if carried out would mark the first time in nearly two decades a state has executed that many inmates in a month.

The move comes just days after the state’s attorney general told the governor the inmates had exhausted their appeals and there were no more legal obstacles to their executions. “This action is necessary to fulfill the requirement of the law, but it is also important to bring closure to the victims’ families who have lived with the court appeals and uncertainty for a very long time,” Hutchinson said in a statement.

The U.S. Supreme Court last week rejected the inmates’ request to review a state court ruling that upheld Arkansas’ lethal injection law. The state Supreme Court on Friday lifted the stay on its ruling, clearing the way for Arkansas Attorney General Leslie Rutledge to request the dates be set. Arkansas hasn’t executed an inmate since 2005 due to legal challenges and difficulties obtaining execution drugs.

The state’s supply of potassium chloride — one of three drugs used in lethal injections — expired in January. A prison system spokesman said Monday that the drug hasn’t been replaced, but Hutchinson’s office said officials were confident they could obtain more. And the state’s supply of midazolam lists an April 2017 expiration date, which pharmacy experts say is commonly accepted to mean the end of the month.  The state’s supply of vecuronium bromide expires on March 1, 2018.

The inmates late Friday filed an amended complaint in state court aimed at blocking the executions, again arguing the lethal injection law and the three-drug protocol are unconstitutional.  Attorneys for the inmates argued Monday in a letter to Hutchinson that the state Supreme Court’s stay is in place until that complaint is resolved. They said the current protocol “is almost certain to cause the prisoners excruciating suffering.”...

Since the U.S. Supreme Court reinstated the death penalty in 1976, only Texas has put eight people to death in a month — doing it twice in 1997.  Arkansas has had multiple executions in the past, including triple executions in 1994 and 1997.  At the time, the state Correction Department said multiple executions reduced stress on prison staff.

For a host of reasons, I will be surprised if Arkansas is able to move forward with eight executions over the last two weeks of April. But these developments certainly signal that the state is serious about getting its machinery of death up and running again ASAP.

March 1, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Wednesday, February 22, 2017

Supreme Court, voting 6-2, reverses Texas death sentence reached after defense attorney introduced expert who linked race and violence

The Supreme Court handed down three opinion this morning, and the big one for sentencing fans is the capital case from Texas, Buck v. Davis, No. 15-8049 (Feb. 22, 2017) (available here). The Chief Justice wrote the opinion for the Court, and here is that opinion's opening and some of its substantive analysis on the case's highest-profile issue:

A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.

Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it....

Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U. S. 862, 885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client....

Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race....

[W]e cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” 2014 WL 11310152, at *5. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. Ibid. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.

Justice Thomas authored a dissent in Buck, joined by Justice Alito, which gets started this way:

Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it.  But the majority’s focus on providing relief to petitioner in this particular case has at least one upside: Today’s decision has few ramifications, if any, beyond the highly unusual facts presented here.  The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.

February 22, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Tuesday, February 21, 2017

Reversing course, Florida Supreme Court allows capital prosecutions to proceed while state legislature still working through Hurst fix

As explained in this local article, on Monday the Florida Supreme Court issued a new ruling about the administration of the death penalty, and issue which has been a big mess for the state since the Supreme Court's Hurst ruling last year.  Here are the basics:

In what was described as an “about-face” after a previous ruling, the Florida Supreme Court on Monday ordered that death penalty cases can proceed, even with an unconstitutional law still on the books. The order came as the Legislature prepares to address a pair of Florida high court rulings last fall that struck down the state’s most recent death-penalty sentencing scheme as unconstitutional and effectively halted capital cases.

In a pair of October opinions, the state court ruled that a new law — passed in response to a U.S. Supreme Court decision in a case known as Hurst v. Florida — was unconstitutional because it required only 10 jurors to recommend death “as opposed to the constitutionally required unanimous, 12-member jury.” The October majority opinion in the case of Larry Darnell Perry also found that the new law “cannot be applied to pending prosecutions.”

But in a reversal of that decision Monday, the majority ruled that capital cases can move forward, even before lawmakers fix the statute. Attorney General Pam Bondi hailed the ruling, saying in a statement it “provides our courts with the clarification needed to proceed with murder cases in which the death penalty is sought.”...

The majority on Monday decided that the new law can be applied to pending prosecutions — and is constitutional — “if 12 jurors unanimously determine that a defendant should be sentenced to death.”

But in her dissent, Justice Barbara Pariente argued that what could be a “temporary” fix, until lawmakers address the issue, could lead to more litigation. “Such concerns are precisely why it is for the Legislature, not this (Supreme) Court, to enact legislation curing the act’s fatal 10-2 provisions, assuming the Legislature intends for the death penalty to continue to be imposed in Florida,” Pariente wrote in a dissent joined by Justice Peggy Quince.

But [House Judiciary Chairman Chris] Sprowls, R-Palm Harbor, said the decision “finally” tells lower courts they can proceed with capital cases. “That is what I think people within the criminal justice system would expect. What they did not expect is to have a paralysis created and that’s what the court had done. Today they have alleviated that paralysis by at least allowing cases to proceed,” he said.

Defense lawyers, however, took a harsher view. “As a society, we rely upon court precedent to determine how to interpret and apply the laws. The (Supreme) Court’s about-face within these opinions is confounding. They also seem incongruent with the court’s unanimous plea, in (a case known as) Steele, to the Legislature to fix what the court said it couldn’t,” 10th Judicial Circuit Assistant Public Defender Pete Mills, who also serves as chairman of the Florida Public Defenders Association Death Penalty Steering Committee, told The News Service. Mills was referring to a 2005 opinion in State vs. Steele in which the court urged the Legislature to require a unanimous jury vote, rather than the previous simple majority vote, in capital-case proceedings.

While Monday’s opinion may have resolved questions about how the courts can proceed, for now, it likely won’t slow down the Legislature’s rush to address the issue early in the session that begins March 7. “We still want to move it rapidly, get it up and out to make sure there’s no question that this is what the statute says and that we have a working death penalty scheme in the state of Florida,” Sprowls said.

Sprowls’ committee is slated to consider a measure (HB 527) Tuesday that would do away with the 10-2 jury recommendations and instead require unanimity for death sentences to be imposed. A Senate panel will give a final vetting to a similar proposal the following day. The issue deals only with the sentencing phase of death-penalty cases, after jurors unanimously find defendants guilty of crimes. House Speaker Richard Corcoran, R-Land O’ Lakes, and Senate President Joe Negron, R-Stuart, told The News Service — before the court’s decision Monday — they wanted to send a death penalty measure requiring unanimous jury recommendations to Gov. Rick Scott by the end of the session’s first week.

“My position on it is that you have about 200 death penalty cases that are in abeyance right now, because of the Supreme Court’s ruling, and I can’t think of anything more important to the family of victims and also to a person charged with a capital felony that their cases proceed justly and with due process through the criminal justice system,” Negron said Wednesday. “To me, it’s our responsibility as legislators to make sure that the law is appropriately enforced. That would be a top priority.” The cases “in abeyance” referred to more than half of Florida’s Death Row inmates who are eligible for new sentencing hearings under a separate state court ruling addressing retroactivity of the Hurst decision, which was predicated on a 2002 U.S. Supreme Court ruling in a case known as Ring v. Arizona.

The full Florida Supreme Court ruling discussed here is available at this link.

February 21, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Justice Sotomayor (joined by Justice Breyer) authors lengthy dissent to denial of cert in Alabama lethal injection protocol challenge

This morning, the US Supreme Court got back to work through the issuance of this lengthy order list.  The one cert grant was involves a federal criminal case, Class v. US, concerning whether a defendant who pleads guilty can still challenge the constitutionality his statute of conviction (SCOTUSblog case page here).  But the part of the order list likely to get the most attention is this lengthy dissent from the denial of certiorari  authored by Justice Sotomayor in a Alabama capital case concern lethal injection protocols.  Here is the start, heart and end of the extended opinion (which Justice Breyer joined in full):

Nearly two years ago in Glossip v. Gross, 576 U. S. ___ (2015), the Court issued a macabre challenge. In order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Id., at ___, ___ (slip op., at 13, 15).

Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative — death by firing squad.  The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip.  Because this decision permits States to immunize their methods of execution — no matter how cruel or how unusual — from judicial review and thus permits state law to subvert the Federal Constitution, I would grant certiorari and reverse.  I dissent from my colleagues’ decision not to do so....

The decision below permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment. Under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method.  This cannot be right....

The decision below is all the more troubling because it would put an end to an ongoing national conversation — between the legislatures and the courts — around the methods of execution the Constitution tolerates.  The meaning of the Eighth Amendment’s prohibition on cruel and unusual punishments “is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a maturing society.’” Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).  Evolving standards have yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time.  Science then reveals that — unknown to the previous generation — the States’ chosen method of execution causes unconstitutional levels of suffering.  A new method of execution is devised, and the dialogue continues.  The Eighth Amendment requires this conversation.  States should not be permitted to silence it by statute....

Twice in recent years, this Court has observed that it “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 553 U. S., at 48 (plurality opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same).  In Glossip, the majority opinion remarked that the Court “did not retreat” from this nonintervention strategy even after Louisiana strapped a 17-year-old boy to its electric chair and, having failed to kill him the first time, argued for a second try — which this Court permitted. Id., at ___– ___ (slip op., at 3–4).  We should not be proud of this history.  Nor should we rely on it to excuse our current inaction.

February 21, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Saturday, February 18, 2017

BYOD in Az: spotlighting Arizona's (cheeky?) drug acquisition provision in its latest execution protocol

This AP article reports on a notable an unusual provision in Arizona's new execution protocol.  The article is headlined "Arizona to death-row inmates: Bring your own execution drugs," and here are details:

The recent revelation that condemned prisoners in Arizona can now provide the lethal drugs to be used in their executions has received attention around the world and raised questions about the state's rules for the death penalty.

The novel policy has drawn sneers from defense attorneys who were puzzled as to why the state would think that they would assist in killing their clients.  It has inspired wisecracks about Arizona's penchant for taking on envelope-pushing criminal justice policies and left some readers on social media asking whether the bring-your-own-drugs policy was actually the product of a news parody website.

Criminal defense lawyers and death penalty experts say they have never heard of a state suggesting that condemned inmates can line up drugs to be used in their executions.  However unlikely it is that any of Arizona's 119 death-row inmates will take up the offer, the change is a reflection of the difficulties that Arizona, like other states, faces in finding execution drugs now that European pharmaceutical companies have blocked the use of their products for lethal injections.

Executions in Arizona have been on hold since the 2014 death of convicted killer Joseph Rudolph Wood, who was given 15 doses of the sedative midazolam and a painkiller and who took nearly two hours to die.  The state will not be able to carry out executions until the resolution of a lawsuit that alleges Arizona has abused its discretion in the methods and amounts of drugs used in past executions.

The state hasn't publicly explained its aim in taking on the new policy, which surfaced last month in the lawsuit. The Arizona Department of Corrections, which carries out executions, didn't respond to requests for comment. The Arizona Attorney General's Office, which is defending the state in the lawsuit, declined to comment.

Under the policy, the state's top prison official would be required, in one execution drug protocol, to use the barbiturate pentobarbital that's obtained by lawyers for inmates or someone acting on their behalf.  The corrections director also would have the choice of picking one of two drug protocols involving the sodium pentothal if the barbiturate is obtained on behalf of a prisoner....

Dale Baich, an assistant federal public defender who represents the inmates in the lawsuit,... explained that the policy is unfeasible because the Controlled Substances Act prohibits attorneys and inmates from getting the drugs. "As a lawyer, I just can't go to local Walgreens and pick up a couple of vials of pentobarbital," Baich said.

It's the responsibility of the state, not condemned prisoners, to carry out executions, Baich added. The policy would seem to appeal to inmates who have abandoned their appeals and want to speed up their executions. But Baich said the Controlled Substances Act would still prevent those prisoners from getting lethal-injection drugs.

Robert Dunham, executive director of the Death Penalty Information Center, which has been critical of the way executions are carried out in the United States, said the policy also raises ethical concerns. Death-penalty lawyers are supposed to zealously represent their clients and have a duty not to take actions that harm them, Dunham said. "No one has done it before, and the fact that it is impossible, impractical, illegal and unethical may have something to do with that," he said.

Timothy Agan, a longtime criminal defense lawyer in Phoenix who has handled several death penalty cases, said he can't imagine condemned prisoners lining up to seek their own execution drugs and couldn't foresee a situation in which the policy would be used.

Arizona's revised executions protocol is available at this link, and on page 28 one finds this language (with my emphasis added):

The Director shall have the sole discretion as to which drug protocol will be used for the scheduled execution. This decision will be provided to the inmate and their counsel of record in writing at the time the state files a request for Warrant of Execution in the Arizona Supreme Court. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are unable to obtain such pentobarbital, but are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical sodium pentothal in sufficient quantity and quality to successfully implement the one-drug protocol with sodium pentothal set forth in Chart B or the three-drug protocol with sodium pentothal set forth in Chart C, then the Director shall have the sole discretion as to which drug protocol (Chart B or Chart C) will be used for the scheduled execution.

February 18, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Tuesday, February 14, 2017

"The American Death Penalty Decline"

The title of this post is the title of this new paper recently posted to SSRN and authored by Brandon Garrett, Alexander Jakubow and Ankur Desai. Here is the abstract:

American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer argued today’s death penalty is unconstitutional, noting that from 2004 to 2006, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.”  That decline has become more dramatic.  Just fifty-one defendants were sentenced to death in 2015 in thirty-eight counties.  In 2016, just thirty defendants were sentenced to death in twenty-seven counties. In the mid-1990s, by way of contrast, over three hundred people were sentenced to death in as many as two hundred counties per year.

While scholars and journalists have increasingly commented on this decline and speculated as to what might be causing it, empirical research has not examined it.  This Article reports the results of statistical analysis of data hand-collected on all death sentencing, by county, for the entire modern era of capital punishment, from 1990 to 2016.  This analysis of death sentencing data from 1990 to 2016, seeks to answer the question why a few counties, but not the vast bulk of the others, still impose death sentences.  We examine state and county-level changes in murder rates, population, victim race, demography, and other characteristics that might explain shifting death sentencing patterns.

We find that death sentences are strongly associated with urban, densely populous counties.  Second, we find that death sentences are strongly associated with counties that have large black populations.  Third, we find homicide rates are related to death sentencing in three ways: contemporaneously within and between death sentencing counties, lagged within and between death sentencing counties. and that counties with more white victims of homicide have more death sentencing.  Fourth, we find that death sentencing is associated with inertia or the number of prior death sentences within a county.  These results suggest what remains of the American death penalty is quite fragile and reflects a legacy of racial bias and idiosyncratic local preferences.  We conclude by discussing the practical and legal implications of these trends for the much-diminished death penalty and for criminal justice more broadly.

February 14, 2017 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

Saturday, February 11, 2017

Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation

As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:

The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.

The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.

"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."

Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.

Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.

The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.

Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.

February 11, 2017 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Friday, February 10, 2017

Mississippi taking steps to have firing squad, electric chair and gas chamber as execution methods again

As reported in this new Fox News piece, "Mississippi lawmakers want to bring back the firing squad, electric chair and gas chamber as execution methods, a step three other states have taken recently, but for a different reason." Here is more:

Oklahoma reintroduced the gas chamber, Utah the firing squad and Tennessee the electric chair in response to a nationwide scarcity of lethal injection drugs for death row inmates.

Mississippi legislator Andy Gipson said he introduced House Bill 638 in response to lawsuits filed by “liberal, left-wing radicals” challenging the use of lethal injection drugs as cruel and unusual punishment. "I have a constituent whose daughter was raped and killed by a serial killer over 25 years ago, and that person's still waiting for the death penalty. The family is still waiting for justice," Gipson told the Associated Press.

Gipson’s bill passed the House Wednesday, 74-43, and moves to the Senate for more debate.

Mississippi hasn't been able to acquire the execution drugs it once used, and it last carried out an execution in 2012. The state has 47 people on death row, and some have been there for decades.

The 33 states with the death penalty all have lethal injection as the primary method of execution, according to the Death Penalty Information Center and its executive director, Robert Dunham. The center says only Oklahoma and Utah have firing squads as an option; eight states have electrocution, five have the gas chamber, and three have hanging.

The firing squad became an option in Utah in 2015. That same year, Oklahoma Gov. Mary Fallin signed legislation to use nitrogen gas as an option. Tennessee enacted a law bringing back the electric chair in 2014.

“It’s interesting that what we anticipated would happen is happening,” Dunham told FoxNews.com Friday. “As states are having difficulty obtaining drugs for lethal injections, they’re looking at different options.” He expects legal challenges in states that reintroduce old execution methods. “What you will see is when states change their method of execution, there are invariably legal challenges that arise,” Dunham said.

Jim Craig, an attorney who is suing Mississippi over lethal injection drugs, told The Associated Press on Wednesday that each of the proposed new methods of executions would be challenged in court. "Every single one, in essence, just injects a whole new series of issues in the existing case," said Craig, who is with the New Orleans-based Roderick & Solange MacArthur Justice Center. He said with the firing squad, for example, the state would have to set protocols and procedures to reduce the risk of torture, and he doubts the Department of Corrections has prepared to do that....

Oklahoma officials told Fox 25 in November they haven’t established protocols to use nitrogen gas as a backup execution method but have heard from a company offering pain-free and mistake-free gas chamber executions. The company sent a letter to Oklahoma Department of Corrections guaranteeing the “demise of any mammalian life within four minutes,” according to the station.

February 10, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15)

Third Circuit finds death row inmates granted resentencing stuck in solitary confinement have protected liberty interests

A unanimous panel ruling by the Third Circuit yesterday in Williams v. Secretary of PA Dep't of Corrections, No. 14-1469 (3d Cir. Feb. 9, 2017) (available here) spotlights an interesting connection between death row and solitary confinement.  Here is the start of the opinion and a key paragraph from its heart:

We are asked to decide whether there is a constitutionally protected liberty interest that prohibits the State from continuing to house inmates in solitary confinement on death row after they have been granted resentencing hearings, without meaningful review of the continuing placement.  For the reasons set forth below, we conclude that there is and that the Due Process Clause of the Fourteenth Amendment therefore limits the State’s ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative.  However, we also hold that, because this principle was not clearly established before today, the prison officials (“Defendants”) in this consolidated appeal are entitled to qualified immunity.

Accordingly, we will affirm the district courts’ grants of summary judgment in favor of Defendants based on qualified immunity. In reaching this conclusion, we stress that this liberty interest, as explained more fully below, is now clearly established....

In our ruling today, we now explicitly add our jurisprudential voice to this growing chorus [of concerns about the use of solitary confinement]. In doing so, we rely, in part, upon the scientific consensus and the recent precedent involving non-death row solitary confinement. Those decisions advance our inquiry into the unique, yet analogous, scenario presented here. Inmates in solitary confinement on death row without active death sentences face the perils of extreme isolation and are at risk of erroneous deprivation of their liberty.  Accordingly, they have a clearly established due process right under the Fourteenth Amendment to avoid unnecessary and unexamined solitary confinement on death row.  The State must therefore afford these inmates procedural protections that ensure that continuing this level of deprivation is required for penological purposes, and is not reflexively imposed without individualized justification.

February 10, 2017 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, February 07, 2017

"The Death Penalty & the Dignity Clauses"

The title of this post is the title of this notable new article by Kevin Barry, and here is its abstract:

“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide.  Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.

Now, 40 years after Gregg, the question is being asked once more.  But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes.  The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional.  No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.

Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in United States v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments — which have long shared a commitment to dignity — and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article.

This Article suggests that dignity embodies three primary concerns — liberty, equality, and life.  The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law.  Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty.  If dignity means anything, it must mean this.

In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence.  It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.

February 7, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Florida legislature finally moving toward really fixing its capital procedures after Hurst

As reported in this AP article, "with death penalty cases grinding to a halt across the state, the Florida Legislature is finally taking its first — and probably only steps — to fix the law so prosecutors can resume cases once again." Here is more:

Legislators are moving ahead with a measure that would require a unanimous jury verdict in cases where the death penalty is being sought. Just a year ago legislators rejected the idea, but the state Supreme Court last October struck down a 2016 law that said the death penalty could be imposed after a 10-2 jury vote.

A Senate panel on Monday approved a bill requiring a unanimous jury verdict and a similar measure is being considered in the state House. The legislation could be among the first bills passed and sent to Gov. Rick Scott when the session officially kicks off in March.

"It is important that we have an orderly system of justice in place for both families of victims and individuals charged with serious crimes," said Sen. Randolph Bracy, an Ocoee Democrat who sponsored the bill. "This legislation removes ambiguity from our death penalty statute, which will help reduce delays in due process for all parties involved in death penalty cases."

Bracy's bill, however, doesn't address other questions raised by recent court decisions, including whether or not the state's nearly 400 current death row inmates deserve a new sentencing hearing if a jury did not unanimously recommend the death penalty. Katie Betta, a spokeswoman for Senate President Joe Negron, said he wants to keep the legislation narrow to get it passed quickly....

Bracy wanted to amend his bill so all current death row inmates would be treated the same but said he didn't have the votes to get the proposal adopted. Sen. Jeff Clemens, a Lake Worth Democrat, complained that legislators should be taking a comprehensive look at the death penalty to avoid having to deal with the issue year after year. But he said that some legislators are concerned they would look "weak" on the death penalty.

The Senate Criminal Justice Committee reported that there are more than 300 death penalty cases pending across the state, including 66 that are now ready for trial. Prosecutors have put some of these trials on hold while they wait for the Legislature to act.

February 7, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, February 06, 2017

The hardest of cases for death penalty abolitionists: convicted murderer who keeps murdering while in prison

This local news report of an apparent murder by an Ohio inmate already convicted in two other murders serves as a reminder that there are limits on how much you can incapacitate some persons who seem intent on being violent.  The article is headlined "Two-time murderer suspected of killing another inmate, " and here are the ugly details:

A two-time murderer is suspected of killing another inmate, a Franklin County man, aboard a prison transport bus while it traveled south on Rt. 23 from Columbus on Wednesday evening.  The body of David L. Johnson, 61, was found in the Ohio Department of Rehabilitation and Correction bus on Thursday evening when it stopped to deliver him to the Ross Correctional Institution, said Ross County Prosecutor Matthew Schmidt.

Johnson, who was serving an eight-year sentence for sexual battery, apparently was strangled; Casey Pigge, 28, is "absolutely the suspect" in the death, Schmidt said. Other inmates also were locked into a caged section of the bus with Johnson and Pigge, but apparently did not alert the guards and driver at the front of the bus of the assault, Schmidt said. The guards apparently cannot see back into all sections of the bus, he said.  The inmates were wearing handcuffs, and perhaps belly chains, but could move around, the prosecutor said.

Inmates, including from the Southern Ohio Correctional Facility near Lucasville and the Ross Correctional Institution near Chillicothe, were taken aboard the bus to Columbus for medical treatment on Thursday and were on the return leg of the trip south when the apparent slaying occurred.

Pigge is serving a 30-year to life sentence at the Lucasville prison for the 2008 murder of Rhonda Sommers, 52, the mother of his then-girlfriend. Pigge was convicted of stabbing the woman and then setting her apartment on fire.  Last week, Pigge pleaded guilty to using a cement block last year to repeatedly strike to kill his cellmate, Luther Wade, 26, of Springfield, at the Lebanon Correctional Institution in Warren County. Wade, serving a 10-year sentence for aggravated burglary, was repeatedly struck in the head. Pigge faces another life sentence in the slaying.

Schmidt... questioned Pigge having access to other inmates aboard the bus given his history of violence. Investigators are working to determine if Johnson died in Franklin County, Pickaway County or Ross Country as the bus traveled south, Schmidt said. "He crushed his cellmate's head with a cinder block. You would think the sensible thing to do would be to make sure he doesn't have free access to other inmates at any time.  Apparently that is not an issue for the folks at DRC," Schmidt said.

Given that Pigge is seemingly due to get an LWOP sentence for previously having "crushed his cellmate's head with a cinder block," he would be essentially getting a "free" murder if he were not at least potentially subject to something worse than LWOP for his latest murder.  Moreover, given than Pigge has now slaughtered two fellow inmates during his first decade of incarceration, the only real public safety options for him would seem to be long-term solitary confinement or the death penalty. 

I am not asserting that folks like Pigge make the death penalty a must, but I am saying that it seems quite difficult to figure out what a just and effective punishment is for a murderer who seems keen and able to keep killing even while incarcerated.

February 6, 2017 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (8)

Saturday, February 04, 2017

"The Death Penalty as Torture From the Dark Ages to Abolition"

9781611639261The title of this post is the title of this new book authored by John Bessler about to be published by Carolina Academic Press.  Here is the blurb from the Press webpage:

During the Dark Ages and the Renaissance, Europe’s monarchs often resorted to torture and executions. The pain inflicted by instruments of torture — from the thumbscrew and the rack to the Inquisition’s tools of torment — was eclipsed only by horrific methods of execution, from breaking on the wheel and crucifixion to drawing and quartering and burning at the stake. The English “Bloody Code” made more than 200 crimes punishable by death, and judicial torture—expressly authorized by law and used to extract confessions—permeated continental European legal systems. Judges regularly imposed death sentences and other harsh corporal punishments, from the stocks and the pillory, to branding and ear cropping, to lashes at public whipping posts.

In the Enlightenment, jurists and writers questioned the efficacy of torture and capital punishment. In 1764, the Italian philosopher Cesare Beccaria — the father of the world’s anti–death penalty movement — condemned both practices. And Montesquieu, like Beccaria and others, concluded that any punishment that goes beyond absolute necessity is tyrannical. Traditionally, torture and executions have been viewed in separate legal silos, with countries renouncing acts of torture while simultaneously using capital punishment. The UN Convention Against Torture strictly prohibits physical or psychological torture; not even war or threat of war can be invoked to justify it. But under the guise of “lawful sanctions,” some countries continue to carry out executions even though they bear the indicia of torture.

In The Death Penalty as Torture, Prof. John Bessler argues that death sentences and executions are medieval relics. In a world in which “mock” or simulated executions, as well as a host of other non-lethal acts, are already considered to be torturous, he contends that death sentences and executions should be classified under the rubric of torture. Unlike in the Middle Ages, penitentiaries—one of the products of the Enlightenment—now exist throughout the globe to house violent offenders. With the rise of life without parole sentences, and with more than four of five nations no longer using executions, The Death Penalty as Torture calls for the recognition of a peremptory, international law norm against the death penalty’s use.

February 4, 2017 in Death Penalty Reforms, Recommended reading | Permalink | Comments (6)

Thursday, February 02, 2017

"The Predictable Disarray: Ignoring the Jury in Florida Death Penalty Cases"

The title of this post is the title of this new paper now available via SSRN authored by Michael Radelet and G. Ben Cohen. Here is the abstract:

Both the United States Supreme Court, and the Florida Supreme Court have now made it clear that the Florida death penalty statutes that have been in use over the past 45 years are unconstitutional.  This result has been predicted since the original adoption of the statutes, and made clear by the Supreme Court's decisions in Sullivan v. Louisiana, Apprendi v. New Jersey, and Ring v. Arizona.

How the courts address the 393 prisoners currently on Florida's death row, sentenced to death under an unconstitutional statute, is yet to be determined. This paper reviews the history of the Florida death penalty statutes and provides a census of cases in Florida.

February 2, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, February 01, 2017

"Constitutional Liberty and the Progression of Punishment"

The title of this post is the title of this notable new article authored by Robert J. Smith and Zoe Robinson. Here is the abstract:

The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants.  This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.

This Article challenges these assumptions.  It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause.  The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.

Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment.  Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence.  Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty.  Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences, and the prolonged use of solitary confinement.

February 1, 2017 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Missouri completes fourth execution in US in 2017

As reported here by the AP, "nearly 19 years to the day that Susan Brouk and her two children were taken to a Missouri pond and killed, one of the men responsible for the crime was put to death Tuesday." Here is more:

Mark Christeson was given a lethal injection -- Missouri’s first execution since May. Christeson, 37, was hours away from execution in 2014 when the U.S. Supreme Court granted a temporary stay. This time, though, the court allowed the execution to proceed, and Gov. Eric Greitens declined a clemency request for Christeson, the first inmate to be put to death since the Republican took office.

As the execution drug was administered, Christeson appeared to mouth “I love you” a couple times to people who were gathered to watch the lethal injection on his behalf.  Soon, the inmate’s eyes closed.  He was pronounced dead at 7:05 p.m. CST, eight minutes after the lethal injection, a Department of Corrections spokesman said.

The killings of Brouk, her 12-year-old daughter, Adrian, and 9-year-old son, Kyle, traumatized the rural area around the south-central Missouri town of Vichy.  “It was a heinous crime. I’m just happy to see justice finally served,” said Maries County Sheriff Chris Heitman, who witnessed Christeson’s execution.  “I have regrets for the family that it took so long, but I hope it provides closure to them.” ...

The U.S. Supreme Court intervened in 2014 amid concerns about the ineptitude of Christeson’s earlier lawyers, who missed a 2005 deadline to file a federal appeal of his death sentence -- standard procedure in death penalty cases. Attorneys for Christeson again argued that he deserved a federal court review, and raised concerns about his mental competence, claiming he had an IQ of 74. But this time, the courts declined to step in.

Missouri executed 16 men from 2014 to 2015, second only to the 23 executions in Texas over the same two years.  Last year, Missouri had just one execution, largely because most of the 25 men on the state’s death row have appeals remaining or are unlikely to be executed due to medical or mental health concerns.

I have flagged that this execution was the fourth in the US in January 2017 because that is the most in a single month since last January.

February 1, 2017 in Death Penalty Reforms | Permalink | Comments (1)

Friday, January 27, 2017

Texas completes its second execution of 2017

As reported in this AP piece, a "man convicted of a fatal robbery at a Dallas-area Subway shop just weeks after he was fired from his job there was executed Thursday night." Here are a few more details:

Terry Edwards, 43, received lethal injection for the $3,000 holdup at a Subway restaurant where two employees were shot to death in 2002. Asked by a warden if he had a final statement, Edwards replied: "I'm at peace with God. I hope y'all find peace in this." As the lethal dose of pentobarbital was administered, he began snoring quickly. Within about 30 seconds, all movement stopped.

He was pronounced dead at 10:17 p.m. CST, 23 minutes after the sedative began flowing into his arms. Edwards never looked at five relatives of the two murder victims who stood a few feet from him, looking through a window.

Edwards' execution, the second this year in Texas and the third nationally, was delayed about four hours until the U.S. Supreme Court rejected multiple last-day appeals that sought to halt his punishment. Lawyers for Edwards wanted to reopen his case to investigate claims that a court-appointed lawyer earlier in the appeals process provided deficient help by abandoning him. Attorneys also contended Dallas County prosecutors at his trial incorrectly portrayed Edwards as the shooter, that he was innocent of the shootings, that prosecutors manipulated evidence and testimony at his trial and improperly excluded black people from the jury. Edwards was black....

Mickell Goodwin, 26, and Tommy Walker, 34, were each shot in the head in the holdup. Walker, the store manager, had seven children and stepchildren. Goodwin was mother of two daughters. No one else was inside the store. "Tonight is a time for us to remember Mickey and Tommy," their families said in a statement following the execution. "Though this chapter of our journey is now over, we will always feel the loss of them in our lives."...

Edwards was on parole at the time of the shootings. He'd been released in October 1999 after prison time for car theft and possession with intent to deliver cocaine. The second man involved, Edwards' cousin, Kirk Edwards, turned himself in to police a day after the shootings. He had a previous criminal record for burglary and theft and now is serving 25 years for aggravated robbery for the sandwich shop case.

January 27, 2017 in Death Penalty Reforms | Permalink | Comments (32)

Thursday, January 26, 2017

Federal magistrate judge rules Ohio's new 3-drug lethal injection protocol is unconstitutional and blocks coming scheduled executions

As reported in this local piece, a "federal magistrate judge on Thursday barred the use of a three-drug cocktail the state of Ohio planned to use to execute death-row inmates, declaring the method the state prefers to be unconstitutional." Here is more about the opinion:

Magistrate Judge David Merz of Dayton also halted the executions of three inmates scheduled to be executed in the coming months, two of which came from Northeast Ohio. Merz, in his 119-page order, ruled that there were enough problems with all three of the drugs Ohio intends to use in its execution protocol to warrant this disallowance. Two states, Arizona and Florida, have discontinued the use of one of the drugs, named midazolam.

"The Court concludes that use of midazolam as the first drug in Ohio's present three-drug protocol will create a 'substantial risk of serious harm' or an 'objectively intolerable risk of harm' as required by (Supreme Court precedent)," Merz wrote.

The ruling is a success for the inmates challenging Ohio's execution protocols and anti-death-penalty advocates who have sought to chip away at the state's ability to execute people since executions resumed in 1999. It may be short lived, though, as the ruling is all but guaranteed to be appealed. A spokeswoman for Ohio Attorney General Mike DeWine's office said the office is reviewing the decision.

Ohio hasn't executed anyone since January 2014, when it took killer Dennis McGuire 25 minutes to die from a previously unused execution drug combination. McGuire was administered a cocktail that included midazolam. Witnesses said he appeared to gasp several times during his execution and made loud snorting or snoring sounds.

State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October. The challenge that led to Merz's ruling Thursday was also borne out of McGuire's execution. During a hearing earlier this month, Merz heard testimony on all three drugs. His ruling Thursday said that the state cannot use any cocktail that contained potassium chloride or rocuronium bromide, a paralytic agent, since the state told a court in a previous proceeding that it would not use such drugs during future executions....

Ohio has had trouble in recent years getting drugs to use for lethal injections in part because pharmaceutical companies don't want their products used for killing people. In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs. That law was challenged, though courts have declined to declare the law unconstitutional.

The full 199-page opinion In re Ohio Execution Protocol Litigation, No. 2:11-cv-1016 (S.D. Ohio Jan 26, 2017), is available at this link.  I have an inkling that the state of Ohio may get around to appealing the decision even before I get around to reading it in full because the state likely is eager to preserve the scheduled Feb 15 execution date for child murderer Ronald Phillips.

January 26, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (13)

Wednesday, January 25, 2017

"Pro-Con: Death Penalty Exemption For Severly Mentally Ill"

The title of this post is the label given by a Cleveland paper to these two dueling commentaries addressing the recommendation from the Ohio Death Penalty Task Force (on which I had the honor of serving) to create a statutory exemption from capital punishment for people with serious mental illnesses. Here are the headlines and links to the commentaries:

January 25, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (2)

Questions about guilt phase theory of case and misconduct surround Texas death row inmate schedule for next execution

Texas is scheduled to carry out its second execution of 2017 tomorrow, but there are some seemingly serious questions about the guilty theory of the case and the prosecution's conduct.  A local article and a Slate commentary provides the particulars:

January 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (20)

Monday, January 23, 2017

SCOTUS denies cert on handful of Alabama cases raising Hurst and other issues

This most recent Relist Watch posting by John Elwood at SCOTUSblog noted that the Supreme Court had relisted a few times a few cases from Alabama raising various challenges to how that state rolls its tide toward death sentences.  But this new Supreme Court order list, released this morning, has all of the relisted Alabama capital cases now on a certiorari denied list.

Interestingly, it appears that a few method-of-execution cases that were previously relisted are not on the latest cert denied list.  My guess would be that this is because someone is working on a dissent from denial of cert, but you never know just what SCOTUS is up to.

January 23, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, January 19, 2017

Noting that two death row inmates were among the latest batch of commutations by Prez Obama

I am intrigued and a bit surprised that there has not been more media attention surrounding the fact that two of the persons granted clemency by Prez Obama earlier this week were murderers on federal death row.   This posting at the Death Penalty Information Center reports on the basics, with also interesting links to some clemency materials:

On January 17, 2017, President Barack Obama commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th.

Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty.

In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment."

Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die.

Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.

This new Marshall Project piece, headlined "How Obama Disappointed on the Death Penalty: Two commutations this week was less than many had hoped for," discusses these two clemencies while also suggesting that they provide only a little succor to the capital abolitionist community.

January 19, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Using execution protocol with midazolam, Virginia completes second execution of 2017

As reported in this Reuters piece headlined "Virginia inmate executed despite arguments against drug 'cocktail'," Virginia carried out an execution last night that was notable in part because of the type of lethal injection drugs acquired and utilized.  Here are the details:

Ricky Gray, 39, died by lethal injection at 9:42 p.m. at the Greensville Correctional Center, Virginia Department of Corrections spokeswoman Lisa Kinney said in an emailed statement.

Gray's lawyers filed an emergency petition with the Supreme Court on Tuesday, saying that the three-drug combination could cause Gray unnecessary suffering and thereby violate constitutional guarantees against cruel and unusual punishment.  Kinney told reporters after the execution there did not appear to be any complications with the injection.

According to Gray's stay request, the execution marks the first time a U.S. state has used two of the drugs — midazolam and potassium chloride — provided by a compounding pharmacy. Gray's lawyers argue that compounding pharmacies typically follow an informal recipe attempting to approximate the patented process approved by the U.S. Food and Drug Administration....  Gray's attorneys say that midazolam has already failed to render prisoners unconscious during executions in Alabama, Arizona, Ohio and Oklahoma.

Pharmaceutical manufacturers have stopped making some drugs available for use in executions, and Virginia state law allows the vendor's identity to remain secret. Arizona last month reached a settlement with lawyers for death row inmates that would bar midazolam from use in executions.

Gray was sentenced to die for the 2006 slayings of sisters Ruby Harvey, 4, and Stella Harvey, 9, in Richmond. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39. His accomplice, Ray Dandridge, was sentenced to life. The pair also killed Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys as well as her mother, Mary Tucker, 47, and stepfather Percyell Tucker, 55.

Gray has said he is willing to die by firing squad, which is not an option for executions in Virginia. Gray's execution marks the second in the United States this year.

I believe the execution protocol used in Virginia in this instance is similar to the protocol that Ohio wants to use to get back into the execution game next month, and thus I suspect Ohio correction officials are hoping this execution sets a precedent allowing Ohio to move forward. Ohio, notably, has had only one execution over the last three years because of problems acquiring lethal injection drugs. But if they get these problems worked out, there is every reason to suspect the state may get back into the habit of completing five or more executions every year because it has dozens of death row inmates with "serious" execution dates.

January 19, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, January 18, 2017

Making a provocative case for constitutional amendments to enable more executions to drive down crime

I just noticed this recent commentary by Karl Spence titled "How Donald Trump and Friends Can Crush the Great Crime Wave" with the subheadline "A law-and-order constitutional amendment would speed up the process of justice." The piece is provocative and meandering and a bit dated as it suggests that constitutional protections given to criminals, especially with respect to the death penalty, accounts for the nation's crime problems. I recommend the piece in full because of its notable range of historical and rhetorical flourishes, and here is a taste:

Between 1960 and 1991, the per capita murder rate doubled. Property crime tripled. Robbery and forcible rape more than quadrupled, and aggravated assault — boosted by the same advances in emergency trauma care that retarded the murder rate — more than quintupled. Even after receding from its crest of the early ’90s, violent crime remains twice what it was two generations ago. And today, the mayhem is resurgent.

In the last half-century, crime has killed more Americans than died in all our country’s wars combined, save the Civil War.  Its toll dwarfs that of 9/11 — it even dwarfs that of the terrible Indian Ocean tsunami of 2004....

Enter Donald Trump. I was thrilled to hear him pronounce himself “the law-and-order candidate.” Such defiance of the PC gods helped him gain a convincing victory over Hillary Clinton. What remains to be seen is whether Trump will go from talking to thinking about crime, and then to actually doing what is necessary to reach the goal he set forth while accepting the party’s nomination: “The crime and violence that today afflicts our nation will soon — and I mean very soon — come to an end.”...

For decades, some two-thirds of Americans have told pollsters they favor the death penalty for murder. Yet it’s capital punishment’s opponents who get their way nearly all the time.  In the past half-century, fewer than 1,500 murderers have been put to death in America; murderers, meanwhile, have killed more than 900,000 of us.

How many of those 900,000 innocent lives were lost needlessly?  How many could have been saved by a credible and effective deterrent? Studies have repeatedly shown that the death penalty can be such a deterrent when — and only when — it is actually enforced.  Those studies have been rebutted but not refuted, and the stakes in the dispute are these: If the deniers of deterrence are mistaken, then their interference with capital punishment is itself a death sentence for future murder victims....

What of the fact that most criminals stop short of murder? ... How do you reach those people? With a rope. That’s because most robbers depend on the threat of murder to secure their victims’ compliance, as do many rapists. And aggravated assault is, in many if not most cases, simply unsuccessful murder. Hang murderers, and every hoodlum in the land will notice. And, like the outlaws who fled the vigilantes, they will change their behavior....

The ratification of such an amendment [to overturn Fifth and Eighth and Fourteenth Amendment precedents impeding capital punishment] would free the deep-red states to ramp up enforcement of the death penalty until they achieved results even more dramatic and unmistakable than those seen in Texas, where executions increased from zero in 1980 to a record 40 in 2000 — and the murder rate plunged by almost two-thirds, while murder in non-death-penalty states fell only 21 percent. Seeing crime collapse in places where death for murder had become the rule, people elsewhere would clamor for their states to follow suit, and liberals would immolate themselves in a vain attempt to preserve the crime-ridden status quo, with all its injustice, pain, and horror.

Call it the Madison-Roosevelt-Cardozo Amendment. Donald Trump may be fond of boasting, “I alone can fix it,” but if he really wants to restore law and order, “and I mean very soon,” he’ll need all the help he can get.

January 18, 2017 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Tuesday, January 17, 2017

Some notable local death penalty headlines from two very different localities

These two local capital punishment headlines and stories caught my eye this afternoon:

The Georgia story is just a report on an advocacy group that surely faces an uphill battle getting the Peach State to consider seriously the repeal of the death penalty.  But abolitionists should be revved up about the Washington story as it seems political forces are lining up to make repeal there a real possibility.

January 17, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Thursday, January 12, 2017

New report spotlights five Florida counties often condemning to death murderers have mental impairments

A few weeks ago, as noted in this prior post, Harvard Law School's Fair Punishment Project (FPP) released a report detailing and lamenting the composition of Oregon's death row under the title "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments."  Today, FPP has this new report bringing a similar analysis and criticism to a portion of a different state.  This new report is titled "Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments in Five Florida Counties,"  and here are excerpts from the introduction:

The Florida Supreme Court recently held that the state’s capital punishment statute is unconstitutional. Approximately 380 people sentenced to death under the now-invalidated sentencing scheme remain on the death row. While litigation is still pending over whether the decision applies to all Florida death sentences, the Court has clarified that the approximately 150 people who were convicted after the Ring v. Arizona decision in 2002 must have their sentences reconsidered. Roughly one-third of these individuals convicted since 2002 come from just five of Florida’s 67 counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas.

This report examines the 48 invalidated death sentences from these five Florida counties. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Florida who are familiar with the individuals on death row.

Our research revealed that 63 percent of these individuals exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Florida’s death row population is significant when evaluating whether the death penalty was the appropriate sentence. Although all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders. Even then, the Constitution and established Supreme Court doctrine have limited application of the death penalty to adults who exhibits mental and emotional functioning that is equal to or exceeds that of the typically developed adult. So, for example, the U.S. Supreme Court has held that, regardless of the severity of the crime, the death penalty cannot be imposed upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults. To do otherwise would be so disproportionate as to violate his or her “inherent dignity as a human being.”

January 12, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, January 11, 2017

Texas completes first execution of 2017

As reported in this new AP piece, "Texas has executed death row inmate Christopher Wilkins, who was convicted of killing two men after one of them mocked him for falling for a phony drug deal."  Here is more:

The lethal injection of the 48-year-old Wilkins Wednesday is the nation’s first execution this year.  Twenty were carried out in the U.S. last year, the lowest number since the 1980s.  Wilkins explained to jurors at his capital murder trial in 2008 how and why he killed his friends in Fort Worth three years earlier, saying he didn’t care if they sentenced him to death.

The Supreme Court declined to block Wilkins’ execution about three hours before the scheduled lethal injection. Wilkins’ attorneys had argued to the Supreme Court that he had poor legal help at his trial and during earlier appeals and that the courts improperly refused to authorize money for a more thorough investigation of those claims to support other appeals and a clemency petition.

In their unsuccessful appeal to the high court, Wilkins’ attorneys contended he had poor legal help at trial and during earlier appeals and that the courts improperly refused to authorize money for a more thorough investigation of his claims.  State attorneys said courts have rejected similar appeals and that defense lawyers are simply employing delaying tactics.

Wilkins was released from prison in 2005 after serving time for a federal gun possession conviction. He drove a stolen truck to Fort Worth, where he befriended Willie Freeman, 40, and Mike Silva, 33.  Court records show Freeman and his drug supplier, who wasn’t identified, duped Wilkins into paying $20 for a piece of gravel that he thought was a rock of crack cocaine.  Wilkins said he shot Freeman on Oct. 28, 2005, after Freeman laughed about the scam, then he shot Silva because he was there. Wilkins’ fingerprints were found in Silva’s wrecked SUV and a pentagram matching one of Wilkins’ numerous tattoos had been carved into the hood.

Wilkins also testified that the day before the shootings, he shot and killed another man, Gilbert Vallejo, 47, outside a Fort Worth bar in a dispute over a pay phone, and about a week later used a stolen car to try to run down two people because he believed one of them had taken his sunglasses. “I know they are bad decisions,” Wilkins told jurors of his actions. “I make them anyway.”...

Twenty convicted killers were executed in the U.S. last year, the lowest number since the early 1980s. That tally includes seven executions in Texas — the fewest in the state since 1996.  Wilkins is among nine Texas inmates already scheduled to die in the early months of 2017.

January 11, 2017 in Death Penalty Reforms | Permalink | Comments (2)

Tuesday, January 10, 2017

Charleston Church shooter Dylann Roof sentencing to death by federal jury

As reported in this local article, only "a few hours after he told a crowded courtroom 'I still feel like I had to do it,' a federal jury sentenced Dylann Roof to death for carrying out a cold, calculated massacre inside Charleston's Emanuel AME Church in a bid to spark a race war." Here is more about an unsurprising verdict:

The 12-member panel – three white jurors, nine black – deliberated for a little less than three hours before unanimously deciding that the 22-year-old white supremacist should die for his crimes rather than spend his life in prison without the possibility of parole.

It will be up to the presiding judge to formally impose that sentence, but he is bound by law to follow the jury’s decision. U.S. District Judge Richard Gergel has scheduled the formal sentencing hearing for 9:30 a.m. Wednesday.

Roof, who sat stone-faced and silent through most of his hate crimes trial, betrayed no emotion as the jury’s verdict was read. During his closing argument earlier in the day, he passed on the chance to argue for his life, saying “I’m not sure what good that will do anyway.”

After the jury announced its verdict, Roof stood and asked the judge if he would appoint him new lawyers to help him file a request for a new trial. Gergel told Roof a significant amount has been spent on the current legal team that Roof sidelined for the trial's penalty phase, a team led by noted capital defense lawyer David Bruck. The judge said he would be "strongly disinclined" to bring in new lawyers at this point, but he will listen to any motions Roof wants to make during Wednesday's proceedings.

Earlier in the day, Roof told the jury that prosecutors don't understand him or the meaning of hate in their quest to put him to death for the June 2015 church massacre. “Anyone, including the prosecution, who thinks I am filled with hate has no idea what real hate is,” Roof said, speaking to jurors from a podium about eight feet away from the jury box. “They don’t know anything about hate."

After Assistant U.S. Attorney Jay Richardson delivered a two-hour closing statement, Roof walked to the podium with a single sheet of yellow notebook paper. He appeared to read from it, pausing at times to glance down. His remarks lasted less than five minutes.

January 10, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Monday, January 09, 2017

Will new Trump Justice Department seek death penalty for Fort Lauderdale airport mass murderer given apparent mental illness?

The question in the title of this post emerges from the news of federal charges filed and a planned court appearance for Esteban Santiago.  This Reuters article, headlined "Florida airport shooting suspect due in court Monday, could face death penalty," provides the details:

The 26-year-old Iraq war veteran accused of killing five people at a busy Florida airport in the latest U.S. gun rampage was due to appear in a federal court on Monday on charges that could bring him the death penalty.

Esteban Santiago, who had a history of erratic behavior, has admitted to investigators that he planned Friday's attack in Fort Lauderdale and bought a one-way ticket from his home in Alaska to carry it out, according to a criminal complaint.

Authorities say they have not ruled out terrorism as a motive and that they are investigating whether mental illness played a role.  In November, Santiago went to a Federal Bureau of Investigation office in Anchorage and told agents he believed U.S. spies were controlling his mind.

Bond for Santiago, who is being held at the Broward County Jail in Fort Lauderdale, may be set at the hearing scheduled for 11 a.m. EST on Monday near Fort Lauderdale, and he would be assigned a public defender if he cannot afford his own lawyer.  He could face the death penalty if convicted on charges of carrying out violence at an airport, using a firearm during a violent act, and killing with a firearm.  But it may be months before prosecutors reveal what lies in Santiago's future.

"They've then got two weeks to indict him, and then they've got to go through the whole death penalty review," said former federal prosecutor David Weinstein, who is now a partner with Miami law firm Clarke Silverglate.  Executions have been on hold in Florida since the U.S. Supreme Court struck down the state's death penalty laws a year ago.  The Florida Supreme Court overturned a rewritten version in October....

Information surfaced over the weekend that police in Alaska took a handgun from Santiago in November after he told FBI agents there his mind was being controlled by a U.S. intelligence agency.  They returned it to him about a month later after a medical evaluation found he was not mentally ill....

Santiago served from 2007 to 2016 in the Puerto Rico and Alaska national guards, including a deployment to Iraq from 2010 to 2011, according to the Pentagon. Relatives have said he acted erratically since returning from Iraq.

The on-going federal capital trial of the Charleston church mass murderer Dylann Roof has prompted a number of folks, especially those in the abolitionist community, to be talking about mental illness and the inappropriateness of sentencing a mentally disturbed individual to death.  Those discussions and debates would surely reach another level if (dare I say when) the incoming Trump Administration and its new Attorney General decide to pursue capital charges against Esteban Santiago.

January 9, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, January 06, 2017

"Facing the Firing Squad"

The title of this post is the title of this notable new piece by Andrew Jensen Kerr available via the Georgetown Law Journal website. Here is the abstract:

The recent Supreme Court decision in Glossip v. Gross affirmed the legality of midazolam for use in lethal injection.  The 5–4 majority opinion reads the Constitution to require an available form of execution.  But it does little to counter Professor Denno’s claim in “Lethal Injection Chaos Post-Baze” that pragmatic supply-side concerns should dismantle the economy for lethal injection.  Off-brand substitutes for lethal injection drugs have led to recent high-profile botches.  Both Utah and Wyoming have proposed a return to the firing squad.  Lethal injection is comparatively sanitary and bureaucratic.  But I respond that the firing squad is more coherent with death penalty administration heuristic concerns of retribution and dignity.  The visibility of the firing squad also serves an abolitionist, information-forcing function by requiring a candid look at death penalty process from the perspective of the executed.

January 6, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Wednesday, January 04, 2017

Florida Supreme Court adds to the mess that is the current Florida death penalty limbo

These three headlines spotlight the remarkable (and still unclear) story surrounding an important death penalty ruling by the Florida Supreme Court which was released and then withdrawn today:

"Typo upends Florida Supreme Court’s death penalty ruling"

"Florida's High Court Takes Puzzling Turn on Death Penalty"

"Florida Supreme Court: Prosecutors can't seek death penalty - or can they?"

Here are the basics from the first of these linked reports:

Just hours after declaring prosecutors could not seek death sentences under existing state law, the Florida Supreme Court on Wednesday rescinded the order, an uncommon move that casts fresh uncertainty on the state’s death penalty.

The reason: A typo.

In a 5-2 ruling Wednesday morning, the court rejected Attorney General Pam Bondi’s request to let prosecutors seek the death penalty as long as juries voted unanimously. The court threw out the state’s revamped death sentencing law in October because it required only a 10-2 super majority of the jury to put someone to death.

Then at 1 p.m., the Supreme Court rescinded the order, saying it was “prematurely issued,” and deleted it from the court’s website. The Wednesday morning ruling was vacated because of a “clerical error,” said Craig Waters, a spokesman for the court.

Makes me think of the famous words of one of my favorite philosophers.

January 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Why Dylann Roof Has a Right to the Death Penalty" ... OR "Why Dylann Roof Representing Himself Is A Constitutional Tragedy"

The title of this post is the headline of this effective and timely new NBC News commentary authored by Andrew Cohen.  Here are excerpts:

Dylann Roof has a constitutional right not to try to spare his own life....

In the end, despite the drama of a closed hearing in the middle of a capital trial, it likely wasn't a close call as a matter of law to allow Roof to continue to represent himself.  The standard for "competency" in these circumstances is low, on purpose, to give defendants the chance to control their own fates.  Roof has consistently shown he understands the nature of the proceedings against him.  The truth is that Roof's decision not to present mitigating evidence seems entirely consistent with his racist beliefs and with his evident antipathy toward psychiatry and psychology.  He wrote in the past that he is "morally opposed to psychology," calling it a "Jewish invention."

Roof also appears to share the mentality of other notable murderers who for one reason or another eschewed a defense their lawyers would have chosen for them. For example, Theodore Kaczynski, the Unabomber, rejected his attorneys' plans for an insanity defense on his behalf before accepting a plea deal that spared him the death penalty.  Oklahoma City bomber Timothy McVeigh gave up the rest of his appeals following his capital conviction and opted for an expedited execution, which took place at the federal death chamber in Terre Haute, Indiana, on June 11, 2001. The Beltway Sniper, John Allen Muhammad, also sparred with his own lawyers in Virginia before he was convicted and sentenced to death.

For all the hand-wringing over the constitutionality (and morality) of self-representation in a capital case, for all the arguments that every capital defendant should always present every non-frivolous defense at trial, the truth is that Roof has a constitutional right not to present a defense, to choose to increase the likelihood he'll get the death penalty instead of a life sentence without the possibility of parole.

It is not necessarily a sign of mental illness, or mental instability, or mental incompetence, to take responsibility for one's murderous actions rather than blame them, in some fashion, on some sort of mental disease or defect. Some killers, like McVeigh, saw it as one final act of control over their lives. This may be why Roof on Wednesday in his first direct interaction with jurors chose not to beg for his life but rather to tell the panel: "There is nothing wrong with me psychologically."

Nor is it necessarily a sign of mental incompetency to chose to want to die sooner, rather than later, after spending years in solitary confinement in a federal prison — which is where Roof will be headed no matter what his jury decides. If he doesn't want to save himself, in other words, or if he doesn't want the world ever to perceive him as having been mentally ill when he killed those innocent people inside that church, there is nothing his lawyers can do to save him so long as he's judged competent.

Finally, a point that's been under-reported these past few days: Just because Roof won't put on any mitigating evidence doesn't guarantee he'll get the death penalty. All it would take for the jury to preclude a capital sentence for Roof is for one juror to decide that consigning the 22-year-old defendant to 50 or 60 or 70 years in ADX-Florence, the federal prison in Colorado that Roof soon will call home, is a punishment worse than a death penalty. That, too, is not an unreasonable position to take.

UPDATE: Not more than an hour after I posted the Andrew Cohen commentary above, I learned of this new Huffington Post commentary by lawprof Scott Sundby which has the headline I have added to the title of this post.  Here are this piece's final two paragraphs:

The Supreme Court has justified the current death penalty regime on the premise that the jury will act as the conscience of the community. Jurors can only carry out this sacred function, however, if they hear all of the evidence, both for and against imposing a death sentence. Jurors often feel betrayed in cases when they later learn that a defense lawyer’s ineffectiveness meant they did not hear compelling evidence about a defendant’s mental illness or abusive childhood. And well they should. The justice system asked them to make a profoundly difficult moral and spiritual decision and then failed to give them the information that they needed to carry out their mandate.

In Roof’s case, the court may believe that its ruling furthers certain values, but it has missed a far more important constitutional principle: a death sentence should never be imposed unless we have complete confidence that the jury’s decision is a reliable and knowing one based on all of the facts. With Dylann Roof representing himself, that outcome is simply impossible. We owe it to the jurors and to ourselves as the society for whom the jurors speak that they hear all about Roof’s life before we ask them whether he should be sentenced to death.

January 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

"Texas sues feds over confiscated execution drugs"

The title of this post is the headline of this notable new Dallas Morning News article reporting on some notably different kind of execution drug litigation. Here are the details:

For nearly a year and a half, the U.S. Food and Drug Administration has detained a shipment of about 1,000 vials of execution drugs headed for Texas' death chamber. On Tuesday, Texas officials demanded an end to the delays, filing a lawsuit that seeks to force the feds to turn over the drugs. "My office will not allow the FDA to sit on its hands and thereby impair Texas' responsibility to carry out its law enforcement duties," Texas Attorney General Ken Paxton said in a statement.

Texas and other states that still execute inmates have been hard-pressed to find lethal injection drugs in recent years. American companies have stopped making the drugs, and European makers have stopped selling them to the U.S. Amid the drug shortage in 2012, Texas switched from the three-drug cocktail it used since 1982 to a single overdosing injection of pentobarbital, a barbiturate, but that drug, too, is in short supply.

In July 2015, the FDA intercepted about 1,000 vials of sodium thiopental, also a barbiturate, that Texas was attempting to import from a foreign seller at the George Bush Intercontinental Airport in Houston. FDA officials said that the drugs lacked the required warnings and directions for use and that they needed federal approval. The state responded to the FDA, explaining that the drugs were legal for importation for law enforcement use. In April 2016, the FDA issued a tentative decision denying admission of the drugs. But since then, the agency hasn't issued a final decision and has kept the drugs.

In the lawsuit filed Tuesday, Paxton argued the delays are unwarranted and should come to an end. "Because FDA's delay is unreasonable, TDCJ requests the Court to declare that the delay is unlawful and compel FDA to render a final admissibility decision," the lawsuit states.

As execution drugs have become harder to obtain, the state has turned to compounding pharmacies to make them, has sought drugs from foreign providers and has sought to restrict public access to information about where and how it gets drugs used in lethal injections....

"The Texas Department of Criminal Justice lawfully ordered and obtained the necessary license to import drugs used in the lethal injection process, yet the Food and Drug Administration stopped the shipment and continues to hold it without justification. This has left the agency with no other recourse than to challenge the unjustified seizure in court," Texas Department of Criminal Justice spokesman Jason Clark said in a statement.

Clark said the TDCJ has enough drugs on hand to complete the nine executions scheduled for the first six months of this year. "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process," Clark said.

January 4, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, January 03, 2017

Death penalty in Pennsylvania so dysfunctional that it cannot complete long-overdue report on its dysfunction

Unless and until the newly enacted reform ballot initiative magically fixes a whole bunch of problems, California will still be able to lay claim to having the most dysfunctional death penalty system in the United States.  But this new local article, headlined "Three years late, seminal death penalty report still unfinished," highlights why Pennsylvania come in a pretty close second. Here are excerpts: 

Already three years behind schedule, a committee studying flaws in Pennsylvania's death penalty is still a long way away from issuing its much-anticipated report.  The stakes for the Senate's Advisory Committee on Capital Punishment are high, ever since Gov. Tom Wolf vowed nearly two years ago to block executions until its recommendations are issued and acted upon.

But elevated from obscurity by Wolf's moratorium, the all-volunteer committee has no individual budget and no dedicated staff members, and has consistently seen its time line pushed further and further into the future, much to the unhappiness of death-penalty backers.  The new year will see "meaningful, significant progress" in the panel's work, said Steve Hoenstine, a spokesman for state Sen. Daylin Leach, D-Montgomery, a point man in the effort.  But Hoenstine wouldn't commit to the report being completed this year, given the scope of the questions being tackled.  "The goal isn't to produce something as quickly as possible that may or may not be correct," said Hoenstine, whose boss is a staunch opponent of capital punishment. "Studying bias in Pennsylvania's death penalty, it is just an enormous undertaking."

Wolf, a Democrat, announced his moratorium in February 2015, when he called the death penalty "error prone, expensive and anything but infallible." He has since issued reprieves to five inmates facing the death chamber, including Lehigh Valley mass murderer Michael Eric Ballard, who stabbed to death four people in a Northampton home in 2010 while on parole for a prior killing. Even without issuing findings, the advisory committee has proven controversial to death-penalty supporters, who charge the makeup of its 27 members is weighted against capital punishment.

Given the moratorium, it is no surprise that the report continues to be delayed, said Northampton County District Attorney John Morganelli, a Democrat who is a vocal death penalty backer. With executions halted, there's no incentive for the committee to finish its work, he said. "I don't think it is ever going to come," Morganelli said. "Why would they release it?"

The committee, approved by the Senate in 2011, is looking into 17 aspects of capital punishment, including its cost, its impact on public safety, its potential for racial or economic bias, and whether there are sufficient safeguards against the innocent being executed.  The report originally was due in December 2013. The panel includes judges, defense attorneys, prosecutors, clergy members, college professors, a relative of a murder victim, victims advocates, officials from the American Civil Liberties Union and two other nonprofits, and police and corrections representatives.

Hoenstine said delays have nothing to do with the moratorium.  He noted the committee was established while Wolf's predecessor, Tom Corbett, a Republican former prosecutor, was governor.  "This is something that happened long before Gov. Wolf took office and, therefore, long before this moratorium took place," Hoenstine said. "It is a bipartisan search for the truth. It is nothing but that."

Like much of the nation, the state has contentiously debated capital punishment, under which scores of Pennsylvania inmates have seen their sentences reversed. None have been executed here against their will since John F. Kennedy was president.

The committee's work is spearheaded by the Joint State Government Commission, a research wing of the Legislature, with assistance from a state commission on fairness in the courts and by researchers from Penn State University.  Glenn Pasewicz, executive director of the Joint State Government Commission, has said research has proven laborious, given the need for data collectors to go from county courthouse to county courthouse gathering statistics about homicide cases, when the death penalty is sought and when it is imposed.  According to Hoenstine, that work is ongoing. "We want it to be data driven and based on clean data, reliable data," Hoenstine said. "That's a time-consuming process."...

Pennsylvania has 175 prisoners on death row, but it rarely performs an execution, going back well before Wolf's moratorium. Just three men have been put to death in the modern era of capital punishment, and all were volunteers who abandoned legal challenges to their sentences. The last was Philadelphia "house of horrors" murderer Gary Heidnik, who was lethally injected in 1999.

January 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, January 02, 2017

Understanding why Dylann Roof will not present penalty phase evidence at his capital trial

Last week in this post I noted the news that Dylann Roof, at a hearing before the penalty phase of his capital trial, told the district judge that "he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life." This new New York Times article, headlined, "Dylann Roof Himself Rejects Best Defense Against Execution," provides some explanatory backstory.  Here is how the lengthy piece begins:

Twenty-two pages into the hand-scribbled journal found in Dylann S. Roof’s car — after the assertions of black inferiority, the lamentations over white powerlessness, the longing for a race war — comes an incongruous declaration.

“I want state that I am morally opposed to psychology,” wrote the young white supremacist who would murder nine black worshipers at Emanuel A.M.E. Church in Charleston, S.C., in June 2015. “It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they dont.”

Mr. Roof, who plans to represent himself when the penalty phase of his federal capital trial begins on Tuesday, apparently is devoted enough to that proposition (or delusion, as some maintain) to stake his life on it. Although a defense based on his psychological capacity might be his best opportunity to avoid execution, he seems steadfastly committed to preventing any public examination of his mental state or background.

“I will not be calling mental health experts or presenting mental health evidence,” he wrote to Judge Richard M. Gergel of Federal District Court on Dec. 16, a day after a jury took only two hours to find him guilty of 33 counts, including hate crimes resulting in death, obstruction of religion and firearms violations. At a hearing on Wednesday, Mr. Roof told the judge that he planned to make an opening statement but not call witnesses or present evidence on his behalf.

The testimony presented by prosecutors during the guilt phase of Mr. Roof’s trial detailed with gruesome precision how he had plotted and executed the massacre during a Wednesday night Bible study in the church’s fellowship hall. It was less satisfying in revealing why he had done it. With his choice to sideline his legal team and represent himself, the second phase — when the same jury of nine whites and three blacks will decide whether to sentence him to death or to life in prison — may prove little different.

Death penalty experts said it was exceedingly rare for capital defendants to represent themselves after allowing lawyers to handle the initial part of a case. Mr. Roof, who also faces a death penalty trial in state court, has not publicly explained his reasoning. But legal filings strongly suggest a split with his court-appointed defenders about whether to argue that his rampage resulted from mental illness.

January 2, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, December 31, 2016

Split Sixth Circuit ruling upholding protective order concerning lethal injection drugs might(!?!) enable Ohio to get back into execution game

As this local article reports, in the afternoon of the last business day of 2016, a Sixth Circuit panel "upheld a protective order shielding the state of Ohio from having to disclose the names of those who make or use the state's lethal-injection drugs."  Here is more about the ruling and its context:

In a 2-1 decision, the appeals court panel ruled that a district court judge was justified in issuing the secrecy order, which was made on the grounds that it was needed to protect lethal-injection drugmakers from public intimidation and harassment. The lawsuit, brought by more than 65 death-row inmates, contended that the state shouldn't be allowed to use drugs procured from anonymous suppliers and evaluators.

Ohio had postponed its next three executions by several weeks at the behest of a federal magistrate, who feared the appeals court wouldn't make this ruling before a Jan. 3 court hearing for the first three inmates scheduled to die. As a result, Gov. John Kasich delayed the resumption of executions from Jan. 12 to Feb. 15, starting with convicted child killer Ronald Phillips of Akron. It's unclear whether that revised schedule will stay in place now that the appeals court has ruled....

Ohio hasn't executed anyone since January 2014, when killer Dennis McGuire took 25 minutes to die from a previously unused execution drug combination. State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October....

In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs.

The full ruling is available at this link, and the fact that the panel opinion included a dissent could entail further en banc or SCOTUS appeals on just this semi-procedural issue involving a protective order. Even without further appeals, though, there is an evidentiary review on tap for the first week of January concerning Ohio's new execution drug protocol, and that litigation has already led in part to a short delay of scheduled executions. In other words, this Sixth Circuit panel ruling may clear one obstacle for Ohio resuming executions, but there are additional litigation road-blocks still ahead.

December 31, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, December 29, 2016

Will Ohio get back in the business of state killing in 2017?

The question in the title of this post is prompted in part by my awareness of lots of messy on-going litigation in the Buckeye State over execution protocols and in part by this new local AP article headlined "Court weighs challenge of order blocking Ohio execution info."  Here are excerpts from the AP piece:

A federal appeals court is weighing a challenge by attorneys for death row inmates of a judge's order blocking them from information about Ohio's new lethal injection process. The pending decision by the 6th Circuit Court of Appeals will help determine whether Ohio will proceed with its first executions in three years beginning in February.

Ohio plans to execute Ronald Phillips on Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another execution is scheduled for April.

At issue are new efforts the state is making to shield information about lethal injection in hopes of jumpstarting executions in Ohio, which have been on hold since January 2014. That's when it took condemned inmate Dennis McGuire 26 minutes to die from a never-before-used two-drug method while he repeatedly gasped and snorted.

For example, a 2015 law blocks anyone from getting information about individuals or entities participating in executions, including companies that make or mix drugs. The 6th circuit last year upheld that law while rejecting free speech allegations raised by death row inmates.

What's before the appeals court now is a protective order issued by a federal judge last fall that bars the release of information about lethal injection requested by attorneys for Phillips and two other inmates scheduled for execution in 2017.  That order, by retired Judge Gregory Frost, held that the state's need to obtain the drugs outweighs concerns by death row inmates that the information is needed to meaningfully challenge the source of the drugs, such as names of the manufacturers.

Federal Magistrate Judge Michael Merz in Dayton cited the current 6th Circuit case earlier this month when he put executions on hold. He said the hold could be lifted after the court rules. Attorneys for death row inmates argue they can't meaningfully challenge the use of the drugs without the information. They also said the secrecy protections are unnecessary given the history of lawsuits over lethal injection in Ohio....

The Department of Rehabilitation and Correction in October announced plans to use a new three-drug combination — midazolam, rocuronium bromide and potassium chloride — for at least three executions. Phillips and other inmates want to block the new procedure, arguing that it will result in a painful and barbaric death.

December 29, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Federal military execution seemingly on track for mass rapist/murderer

This CNN article, headlined "US military could carry out first execution in over 50 years," reports on some notable developments in a notable federal capital setting. Here are the interesting details:

A former US Army soldier who has been on death row since 1988 for raping and murdering several women could now face execution after a judge denied his bid for another stay of execution. Judge J. Thomas Marten of the US District Court for the District of Kansas wrote last week that a previously granted stay of execution to Ronald Gray was "no longer in effect," denying his request to further block the military from carrying out the death sentence.

If Gray is put to death, it will be the first military execution since 1961, when John Bennett was hanged at Fort Leavenworth prison in Kansas after he was convicted of raping and attempting to kill an 11-year-old Austrian girl. The current military method of execution is lethal injection.

Gray is one of six former servicemen currently on the military's death row at Fort Leavenworth. The most recent addition to that group is former Army Maj. Nidal Hasan, who was convicted of 13 counts of murder and 32 counts of attempted murder after his 2009 shooting rampage in Fort Hood, Texas.

Gray was convicted and condemned to death in military court in 1988 for two murders and three rapes in the Fayetteville, North Carolina, area while stationed at Fort Bragg and serving as a cook. He pleaded guilty in civilian courts to two other killings and five rapes....

Gray came close to being put to death in 2008, when then-President George W. Bush signed a warrant authorizing his execution. But a federal court gave Gray a last-minute temporary stay.

In 1983, a military appeals court found the death penalty to be unconstitutional because of problems with the armed forces' sentencing guidelines, but President Ronald Reagan soon after reinstated capital punishment in the military. The President has the power to commute a death sentence and no service member can be executed unless the President confirms the death penalty.

While no execution date has yet been set, Army regulations state that a could be set sometime in the next 30 days. Gray's lawyer could not be reached for comment.

December 29, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Wednesday, December 28, 2016

Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial

As reported in this new AP story, "Dylann Roof told a judge Wednesday he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life for killing nine black worshippers at a Charleston church in a hate crime." Here is more:

But there also is mystery evidence that Roof is working hard to make sure the public never sees in his federal death penalty trial.

Roof, who is acting as his own attorney in the penalty phase to prevent what he thinks would be further embarrassment to himself or his family, again was warned by U.S. Judge Richard Gergel at a hearing Wednesday that being his own lawyer was a bad idea. "That's your decision," Gergel told Roof. "I think that highlights my advice to you that you aren't served by being your own counsel."

Gergel told Roof to talk to his grandfather, who is a lawyer, and other family members one last time. He told Roof he has until the start of the penalty phase Tuesday to change his mind and hire his high-powered, publicly funded defense team back.

The same jurors who convicted Roof earlier this month on 33 counts including hate crimes and obstruction of religion will return next week to decide if he faces life in prison without parole or the death penalty.

Roof spoke for less than 10 minutes of the 35-minute hearing Wednesday. He told Gergel he does plan an opening and closing statement. He then told the judge he objects to prosecutors' plans to present a photograph of evidence in the court's possession. Roof, Gergel and assistant U.S. Attorney Jay Richardson all carefully tiptoed around saying what that evidence was. Gergel did say there was a hearing in which he decided it could be admitted in the penalty phase.

Roof also wanted a jailhouse statement left out of the penalty phase and evidence that involved his mother. No specifics were given. Gergel told Roof to go back to jail and write a motion for him to consider. Roof's ankle chain clanked as he walked back to the defense table in his jail jumpsuit.

Prosecutors also laid out their case. Most of the penalty phase will involve up to 38 people related to the nine people killed and the three people spared when Roof went into Emanuel African Methodist Episcopal Church on June 17, 2015, sat through a 45-minute Bible study in the fellowship hall, then fired 77 shots as many of the worshippers hid under tables.

Gergel, who complained during the guilt phase that prosecutors were repeating themselves at times with witnesses, said he will allow Richardson to call as many witnesses related to the victims as he wants. "The statute provides broad leeway for the victims to be heard, and I plan on honoring that," the judge said....

Gergel spent much of the hearing going over the format of the penalty phase with Roof, warning him several times he was likely doing himself no favors leaving his defense team as just advisers to file briefs. After saying he planned no witnesses, Roof told Gergel he was just answering the same question the judge had asked prosecutors. Gergel said that wasn't necessary. "Don't do them any favors," the judge said. "They aren't going to do you any."

December 28, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Tuesday, December 27, 2016

New York Times made yet another editorial pitch for judicial abolition of the death penalty

Today's New York Times has this editorial headlined "The Continuing Collapse of the Death Penalty." Here are excerpts:

Piece by piece, the death penalty continues to fall apart. Last week, the Florida Supreme Court invalidated between 150 and 200 death sentences — nearly half of all those in the state — because they were imposed under a law the United States Supreme Court struck down as unconstitutional in January.  The law, which required judges and not juries to make the factual findings necessary to sentence someone to die, violated the Sixth Amendment’s guarantee of a jury trial. “A jury’s mere recommendation is not enough,” Justice Sonia Sotomayor wrote for an 8-to-1 majority.

The Florida decision is the most recent sign, in a year full of them, that the morally abhorrent practice of capital punishment is sliding into the dustbin of American history — where it should have been long ago.

Juries around the country imposed 30 death sentences in 2016, a 40 percent drop from last year and fewer than at any time since the Supreme Court reinstated capital punishment in 1976, according to a report by the Death Penalty Information Center, a research group that opposes capital punishment.  Twenty people were executed this year, the lowest number in a quarter-century.

The practice is not only increasingly rare, it is concentrated in an extremely narrow slice of the country. Only five states carried out executions in 2016, the report found, and only five imposed more than one death sentence. California sentenced nine people to die, the most of any state, but no one has been put to death there since 2006.

Public support for the death penalty keeps dropping, too — falling below 50 percent for the first time in more than four decades, according to a Pew Research survey. Support falls even further when respondents are given the alternative of a long prison term like life without parole.  Though voters in California, Nebraska and Oklahoma last month preserved the death penalty, the overall trend is toward growing discomfort with state-sanctioned killing.

The total abolition of capital punishment, however, will depend on the Supreme Court’s reading of the Eighth Amendment’s ban on cruel and unusual punishments.  So far, only one current member of the court, Justice Stephen Breyer, a regular critic of the death penalty, has expressed openness to examining this question....  Justice Breyer is asking the right questions. It is up to a majority of his colleagues to listen closely and bring the only just result: the permanent abolition of capital punishment in America.

December 27, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (13)

Thursday, December 22, 2016

Florida Supreme Court brings back to life some older death sentences

As reported in this local article, headlined "Florida Supreme Court: Death penalty cases finalized before 2002 will stand," it now appears that there is a little bit of life left in some old Florida death sentences.  Here are the basics: 

Some of the nearly 400 prisoners waiting on Florida's death row will not be allowed a re-sentencing under new death penalty laws, the state Supreme Court ruled Thursday.

The 6-1 ruling in a death sentence appeal by Mark James Asay says that death row inmates are not entitled to a re-sentencing unless their case was finalized after the 2002 ruling in Ring vs. Arizona, which required juries to find aggravating factors to impose the death penalty.

The court also lifted a stay on Asay's execution, previously scheduled for March of this year. It appears executions could commence soon.

Florida's death penalty has been under siege for the past year. In January, the U.S. Supreme Court ruled the state's death penalty scheme unconstitutional in Hurst vs. Florida, prompting the Legislature to re-write sentencing laws.  Then, in October, the Florida Supreme Court found that the Hurst ruling required a unanimous vote by the jury to sentence someone to death, rather than a majority or supermajority required under old and existing laws. It was not clear until Thursday's ruling whether these changes entitled people already on death row to a re-sentencing hearing.

The lengthy Florida Supreme Court in Asay v. Florida is available at this link. Here is the key concluding paragraph from the majority opinion:

After weighing all three of the above factors, we conclude that Hurst should not be applied retroactively to Asay’s case, in which the death sentence became final before the issuance of Ring. We limit our holding to this context because the balance of factors may change significantly for cases decided after the United States Supreme Court decided Ring. When considering the three factors of the Stovall/Linkletter test together, we conclude that they weigh against applying Hurst retroactively to all death case litigation in Florida. Accordingly, we deny Asay relief.

There can be little doubt that this ruling will be appealed to the US Supreme Court, though there can and should be much doubt about whether SCOTUS will take up the issue.

UPDATE: A helpful tweeter made sure I did not miss this additional ruling from the Florida Supreme Court that reaches this companion conclusion for cases in which a death sentence was imposed after 2002:

After weighing all of the considerations essential to a faithful Witt analysis, we conclude that Hurst should be applied retroactively to Mosley.  The purpose of the holdings in Hurst v. Florida and Hurst is to prevent a violation of the fundamental and critically important right to a trial by jury. See Hurst, 202 So. 3d at 50-51, 55.

December 22, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)