Sunday, July 06, 2014
Robert Blecker suggests "5 ways to improve the U.S. death penalty"
New York Law School's Professor Robert Blecker is one of the most vocal academic defenders of capital punishment, but he is quick to acknowledge that application of the death penalty in the US could and should be improved. In this recent CNN commentary, Blecker sets out five suggested improvements, and here are excerpts from the piece:
1. Let's have better definitions for who should die.
I've spent decades visiting prisons and interviewing convicted killers and corrections officers. I'm convinced that states with the death penalty can and should morally refine their statutes. My crime and punishment memoir, "The Death of Punishment," details many changes and suggests a model death penalty statute, reserved for especially heinous, atrocious and cruel killers....
2. Let's be more certain that they are guilty.
Western culture has essentially committed us to a presumption of life, of innocence and we have long required special proof of guilt before we punish with death. "Super due process" requires vigorous defense counsel challenging the prosecution to prove guilt beyond a reasonable doubt to a unanimous jury. Death (or life without parole) as society's ultimate punishment demands even more, however. A jury should not only be convinced beyond a reasonable doubt that the condemned did it, but also that they deserve their punishment....
3. Let's choose a better execution method....
The execution scene I witnessed resembled final goodbyes at a hospital or hospice for the terminally ill. The dying person lies on a gurney, wrapped in white sheets, an IV attached, surrounded by medical technicians with loved ones in attendance. We should oppose lethal injection, not because it might cause pain, but because it certainly causes confusion, wantonly merging punishment and treatment. The firing squad seems to me the best of traditional methods, but a state might give a member of the victim's family a choice among available constitutional options.
4. Let's take a hard look at inmates' prison lifestyle.
Most vicious killers a jury condemns to die will never be executed. And even those we do kill, will live out much of their lives on death row. For the worst of the worst whom we have condemned, daily life on death row should be their punishment.... Specifically, within constitutional bounds, those we condemned to die or live a life in prison with no chance of parole -- the worst of the worst -- should be allowed only the minimum constitutionally mandated exercise, phone calls, or physical contact. They should not be permitted any communal form of recreation or play. For the rest of their lives, their food should be nutraloaf, nutritionally complete and tasteless. Photographs of their victims should be posted in their cells, out of reach, in visibly conspicuous places....
5. And when mistakes are made?...
In the unusual but real case where we later discover an innocent person has been condemned to die or imprisoned for life without parole, the state shall not only release that victim, but also pay substantial reparations to the wrongly condemned or surviving family, regardless of whether any public official intentionally or recklessly miscarried justice.
Saturday, July 05, 2014
High-profile ex-con (who is also an ex-Gov) eager to keep pushing for death penalty abolition
As reported in this AP article, headlined "Ex-Illinois governor Ryan wants to continue anti-death penalty work," the death penalty abolitionist community now has another high-profile advocate newly free to preach the gospel. Here are some excerpts from an interesting article:
George Ryan, an ex-Illinois governor and now an ex-convict, says he’d like to re-engage with the cause he left behind when he went to prison in 2007 — campaigning for the end of the death penalty in the U.S. “Americans should come to their senses,” Ryan said this week, in an hourlong interview at his kitchen table.
Newly free to speak after a year of federal supervision that followed his more than five years in prison for corruption, Ryan appeared to have recovered some of his old voice and feistiness, in contrast to the subdued figure that emerged a year ago from the federal penitentiary in Terre Haute, Ind., and ducked briefly into a Chicago halfway house.
At his home in Kankakee, south of Chicago, the Republican, 80, held forth on capital punishment, the state of American politics and the criminal justice system — though not the difficult details of his own corruption case.
He said he’d like to spend some time on the national circuit to encourage other states to follow Illinois’ lead in abolishing capital punishment. That move came in 2011 and stemmed from Ryan’s decision to clear death row in 2003. While he was treated as a champion by death penalty opponents at the time, he acknowledged some public figures now may have trouble openly associating with him. “I’m an ex-convict,” he said. “People tend to frown on that.”
Ryan, who was governor from 1999 to 2003, was indicted in 2003 and convicted in 2006 on multiple corruption counts, including racketeering and tax fraud. He said he does not plan to discuss the details of the criminal case — to which he always maintained his innocence — though he might in an autobiography he is writing....
He also lashed out at the U.S. justice system, calling it “corrupt” and bluntly contending that the fervor with which he was prosecuted was due in part to his nationally prominent campaign to end the death penalty. “It put a target on my back when I did what I did,” he said, adding that even prison guards derided and mocked him. “It certainly didn’t win me any favor with the federal authorities.”
It’s unclear whether Ryan’s re-emergence on the public scene will be welcomed. But at least one former federal prosecutor balked at Ryan’s contention that he may have been singled out because of his death penalty stance. “It’s absurd,” said Jeff Cramer, a former U.S. attorney in Chicago, noting that four of Illinois’ last seven governors have gone to prison. “It wasn’t his political stand that made him a target. It is what he did. ... He’s trying to rewrite history.”...
[Ryan] also expressed some sympathy for his Democratic successor, Rod Blagojevich, saying the 14-year prison sentence the former governor is serving in Colorado for trying to sell President Barack Obama’s old Senate seat and other pay-to-play schemes was excessive. The sentence is under appeal. “I wasn’t a fan” of Blagojevich, he said. “Irrespective, his sentence was out of line.”
But Ryan displayed the most passion while discussing capital punishment. Once a fervent advocate of the death penalty, he said he agonized about approving the last execution in Illinois before he issued a ban in 2000. “I killed the guy,” he said of the man who had raped, kidnapped and murdered a 21-year-old Elmhurst woman. “You can’t feel good about that.”
As he contemplated commuting all death sentences in 2003, he said he felt increasing pressure not to do it, including from one influential politician whom he remembers asking him directly not to spare one man convicted of murdering a friend’s daughter. After the commutations, Ryan said the politician never spoke to him again.
Tuesday, July 01, 2014
Detailing a notable capital punishment surge in the Sunshine State
This lengthy recent Gainesville Sun article, headlined "Gov. Scott stands strong on death penalty," provides a detailed report on the recent state of capital punishment in the state of Florida. Here are excerpts:
Gov. Rick Scott in 2010 ran on a platform of creating more jobs and reviving Florida's economy. How well he accomplished that will be at the center of the debate of his re-election this fall. But Scott has already cemented one legacy that won't be debated and he did not even contemplate in his initial bid for public office four years.
Scott has presided over 18 executions, including 13 in the last two years, the most executions carried out by any Florida governor in a single term since the death penalty was reinstated in the 1970s....
Shortly before the June 18 execution of John Henry, a Pasco County man who stabbed his wife and stepson to death in 1985, Scott described the death penalty as “a solemn duty of the governor.”
“It's not something I thought about when I was going to run,” Scott said. “But I uphold the laws of the land. When I think about the executions I think about the families, the stories of what happened to these individuals. I think about them.”...
Florida continues to outpace most other states in carrying out the death penalty and may even reach parity — if only briefly — with Texas, which has long been the national death penalty leader. On July 10, Florida is scheduled to execute Eddie Wayne Davis for the kidnapping, rape and murder of an 11-year-old girl in Polk County. It would be the seventh execution carried out this year and put Florida in the unusual position of having the same number of executions as Texas.
Texas is likely to exceed Florida by the year's end, with another five executions already scheduled. And last year, Texas executed 16 prisoners compared to Florida's seven. But Florida's relative parity with Texas signals that the state continues to embrace the death penalty despite a national trend away from its use. Florida and Texas are among only six states this year that have executed prisoners.
Other signs that Florida is aggressively using the death penalty include:
• Florida annually condemns more prisoners to Death Row than nearly every other state. In 2013, Florida sentenced 14 prisoners to death, exceeding Texas' nine death sentences. Only California, with 24 death sentences, had more, although California has not had an execution since 2006.
• In 2012, Florida sent 20 prisoners to Death Row, nearly reaching the combined total of 22 death sentences in Texas and California, two larger states.
• Florida has the second largest Death Row in the country, with 396 prisoners....
But don't expect capital punishment to become an issue in this year's governor's race. Scott's likely opponent, former Gov. Charlie Crist's tough-on-crime stance once earned him the nickname “Chain Gang Charlie.” The state's apparent tolerance to capital punishment is reflected in few protests and little media coverage surrounding executions.
In addition, Scott's actions are line with state lawmakers who overwhelmingly support the death penalty. “Gov. Scott has taken his responsibility to sign death warrants very seriously and I commend him for that,” said House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach.
Gaetz said Florida “is a death penalty state for a good reason," pointing to a 42-year low in the crime rate as well as one-third reduction in violent crimes in the last six years. “Something we're doing must be working and I don't think Floridians are too up for wholesale changes to a criminal justice system that has dramatically reduced the crime rate,” Gaetz said.
Gaetz and other lawmakers bolstered Florida's support for the death penalty last year when they passed the Timely Justice Act. Among other provisions it requires the Supreme Court to notify the governor when Death Row prisoners have exhausted their initial state and federal appeals.
Saturday, June 28, 2014
Despite ugly execution, Oklahomans still strongly support death penalty
The new article from the Tulsa World, headlined "Most Oklahomans strongly favor death penalty, poll shows," highlights that public opinion has not turned against the death penalty in Oklahoma in the wake of the state's recent struggles with lethal injection. Here are the details:
Most Oklahomans favor the death penalty and find it “morally acceptable,” although a smaller percentage think it deters crime, according to a new Oklahoma Poll. About 74 percent of those surveyed said they favored the death penalty for those convicted of murder. That figure includes about 23 percent of respondents who said they “somewhat favor” the death penalty.
Support for the death penalty is higher in Oklahoma than in the nation as a whole. A 2013 Gallup poll found that 60 percent of Americans favored the death penalty. The national number has declined from a peak of 80 percent support in 1994.
The state also has a higher proportion of conservatives, who tend to favor the death penalty in greater numbers than the nation as a whole. Nearly 83 percent of Oklahoma Poll respondents who identified themselves as conservative said they favored the death penalty. Only about 12 percent of respondents in the Sooner Poll said they “strongly oppose” the death penalty. However, that figure varied with respondents’ age. Almost 40 percent of people from 18 to 44 years old said they opposed the death penalty, while less than 18 percent of those 65 and older were opposed.
The botched April 29 execution of Clayton Lockett apparently did little to influence views on the death penalty, according to the poll results. Nearly 70 percent said the execution did not cause them to begin questioning their views on the death penalty. People younger than 45 were more likely to say Lockett’s execution has influenced their views....
Of those Oklahomans surveyed, only 37 percent said they strongly agreed that the death penalty serves as a deterrent to crime. Nearly 22 percent surveyed said they strongly disagreed with that statement, indicating that at least some respondents support the death penalty even if they don’t believe it deters crime....
Almost 70 percent of Oklahomans polled said they believed the death penalty was “morally acceptable” regardless of whether they thought it should be legal, according to the poll. About 20 percent said they viewed it as “morally wrong.”
A majority of those polled — 58 percent — said lethal injection was the most humane method of execution, compared to 10 percent who favored firing squad. About 9 percent favored the electric chair, and 5 percent advocated for hangings.
Friday, June 20, 2014
"Ignoring Issues of Morality or Convicting the Innocent, Is Capital Punishment a Good Idea or a Bad Idea?"
The question in the title of this post is the title of this intriguing little essay by Ron Allen now available via SSRN. Here is the abstract:
The conventional debate over the risk of executing an innocent person is examined and shown to be vacuous. More innocent lives, by orders of magnitude, are lost through incarceration (the alternative to a death penalty) than could possibly have result from executing innocent defendants. This is an instance of the deadly dilemma of governing, which inevitably involves tradeoffs of social goods and costs, often of precisely the same variable.
Thursday, June 19, 2014
Florida completes third uneventful US execution in less than one day
As reported in this CNN piece, a "double murderer was executed in Florida Wednesday night, becoming the third man put to death in an American prison during a 24-hour period." Here are the basics:
John Ruthell Henry, 63, was declared dead at 7:43 p.m. ET at the Florida State Prison in Starke, according to CNN affiliate WFLA, which had a media witness inside the prison. Henry fatally stabbed his wife and her 5-year-old son from a previous marriage in December 1985.
In Georgia, Marcus A. Wellons, 59, was declared dead at 11:56 p.m. ET Tuesday. Wellons was convicted in 1993 of raping and killing India Roberts, 15, in Cobb County, just outside Atlanta. In Missouri, John Winfield was declared dead at 12:01 a.m. CT Wednesday, the state Department of Public Safety said....
Those three executions were the first in the United States since the botched execution of an Oklahoma man in April. The Oklahoma execution raised questions about how prisons use drugs in lethal injections.
Wednesday, June 18, 2014
Should feds agree to moving capital trial of Boston Marathon bomber?
As discussed in this USA Today article, headlined "Lawyers for Boston bombing suspect want trial elsewhere," the most notorious federal capital defendant is likely to seek to be tried in a jurisdiction outside the community he helped terrorize. Here are the basic details, after which I explain why I think federal prosecutors might seriously consider agreeing to a change of venue:
Attorneys for Boston Marathon bombing suspect Dzhokhar Tsarnaev are due in federal court today in Boston, where they are expected to ask a judge to move their client's November trial.
Judge George A. O'Toole Jr. last week denied a motion that would have given attorneys Miriam Conrad and Judith Clarke until August to make their case for changing venues. At issue is whether Tsarnaev can receive a fair trial in the city where two bombs went off near the Marathon finish line on April 15, 2013, leaving three dead and more than 260 wounded....
Questions of venue came up last month in three related obstruction of justice cases. Judge Douglas Woodlock said at the time that media coverage in Boston hasn't made it impossible to impanel local juries that will be fair to three friends of Tsarnaev who allegedly interfered with bombing investigations. "I don't find it to be the kind of press coverage that on the whole creates presumptions," Woodlock said.
He added, however, that "the proof of the pudding is in the selection of the jury." If impartial jurors can't be found in Boston, then the upcoming trials of Azamat Tazhayakov, Dias Kadyrbayev and Robel Phillipos could be moved to Springfield, Mass. Tsarnaev's trial is scheduled to begin Nov. 3.
I wonder if the feds have thought about agreeing to a change of venue, and also urging the new venue to be a nearly jurisdiction with some history with the death penalty like Connecticut or New York. I fear that, absent a change of venue, Tsarnaev's defense team will have a potent appeal issue for challenging a death sentence for many years to come. A venue change seems the only way to avoid years of litigation on this front, and such a venue change might arguably make it easier for the feds to ultimately secure the conviction and death sentence prosecutors are seeking.
Notably, a change of venue was granted in the other historic and horrific federal capital bombing trial of recent vintage: US. District Judge Richard Paul Matsch ordered that the venue for the trial of the Oklahoma City bomber Tim McVeigh be moved to Denver based on concerns he would be unable to receive a fair trial in Oklahoma. Given that history and precedent, I think the feds would be wise to agree rather than oppose the defense effort to have the trial moved.
Georgia and Missouri complete uneventful executions, Florida up next
As reported in this AP article, "Within an hour, Georgia, then Missouri carried out the nation’s first executions since a botched lethal injection in Oklahoma in April raised new concerns about capital punishment." Here is more:
Neither execution had any noticeable complications. Another execution, the third in a 24-hour span, is scheduled Wednesday evening in Florida.
Georgia inmate Marcus Wellons, 59, who was convicted of the 1989 rape and murder of a 15-year-old girl, received a single-drug injection late Tuesday night after the U.S. Supreme Court denied his late appeals. His sentence was carried out about an hour before John Winfield, who was convicted of the 1996 killing two women, was executed early Wednesday in Bonne Terre, Missouri.
Looks like at least two states have their machineries of death up and running smoothly again.
Tuesday, June 17, 2014
"Six Reasons Why Support for the Death Penalty Is Evaporating"
The title of this post is the sub-headline of this new Slate commentary by William Saletan. Here is how the piece previews six reasons that follows:
For 40 years American politicians have assumed that favoring the death penalty is a winning political position. Is that era coming to an end? Is support for capital punishment, like opposition to gay marriage, evaporating?
We can’t be sure. But we’re seeing the first signs that it could happen.
Death penalty support peaked at 80 percent in 1994 in the Gallup poll and the National Opinion Research Center’s General Social Survey. Since then, it has been sliding. In the most recently published GSS sample, taken in 2012, support fell to 65 percent, the lowest number since the question was introduced in its current form four decades ago. If it falls any further, it’ll be in new territory. The latest Gallup sample, taken last year, found that support was down to 60 percent for the first time in 40 years.
In a Pew survey taken a year ago, support for executing murderers dropped to 55 percent, 3 points down from Pew’s previous low. Last month, in a CBS News survey, the support level fell to 59 percent (4 points down from the previous low) while the percentage of respondents who opposed the death penalty rose to 33 percent (6 points above the previous high). It’s the first time in the 26 years CBS News has asked this question that the support number has fallen into the 50s or the opposition number has climbed into the 30s.
A Washington Post/ABC News poll released this month points in the same direction. Given a choice between two punishments for murder, only 42 percent chose the death penalty. Fifty-two percent preferred life imprisonment without parole. That’s an 8-point drop in support for capital punishment since the previous Post/ABC poll in 2006. It’s the first time in recent history a majority has chosen life over death.
Why is enthusiasm for the death penalty declining? Will it keep falling? Let’s look at what has changed
Monday, June 16, 2014
"Lethal Injection Secrecy and Eighth Amendment Due Process"
The title of this post is the title of this timely new article by Eric Berger now available via SSRN. Here is the abstract:
The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure with which the state plans to kill them.
This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, thereby effectively insulating it from judicial review.
As in other constitutional contexts, then, due process norms require that the inmate be permitted access to information necessary to protect his other constitutional rights. These same norms likewise require courts, rather than administrative agencies, to judge the execution procedure’s constitutionality. Indeed, judicial recognition of this due process right would not only protect Eighth Amendment values but would also encourage states to make their execution procedures more transparent and less dangerous. Just as importantly, judicial recognition would also discourage secretive governmental practices more generally, thereby promoting openness and fair process as important democratic values.
After two-month hiatus, will Georgia and Florida get US machineries of death back on line this week?
A few days after the ugly execution in Oklahoma at the end of April, I wondered in this post whether all the attention and controversy that one execution generated would impact death penalty administration outside the Sooner State. Now, with nearly two months having gone by without any subsequent executions completed anywhere in the United States (and it seems only a handful of executions now scheduled for the coming summer months), I am prepared to assert that Oklahoma's woes have had a national impact.
While litigation over lethal injection protocols and various drug shortages had slowed the pace of executions down considerably, before the ugly Oklahoma execution the pace was starting again to pick back up. Indeed, over the first 4 months of 2014, the US completed on average five executions each month and was on pace for the highest yearly total of executions in more than a decade. But with everything seemingly slowing down after the Oklahoma mess, it now seems possible the US will have the fewest executions in 2014 than in any year in over two decades.
For those who pay very close attention to the death penalty and wonder about its future in the US, this coming week is one to watch real closely. As detailed in local press reports here and here, both Gerogia and Florida have executions schedule for the next few days. If these executions go forward and lethal injections proceed without a hitch, there is a greater likelihood that the US will be starting its return to execution business as usual. But if one or both of these executions get stayed or end up being botched in some manner, I suspect US death penalty and execution realities will remain quite dyanmic and unpredictable for the months and perhaps years ahead.
Some recent related posts:
- First of two planned Oklahoma executions botched, though condemned dies of heart attack after getting execution drugs
- Ugly Oklahoma execution leading to calls for national moratorium
- Sampling of reactions and commentary in wake of Oklahoma's execution problems
- New details emerge concerning ugly Oklahoma execution
- Other than perhaps in Oklahoma, will this week's ugly execution change any death penalty dynamics?
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- Has the ugly execution in Oklahoma succeeded in slowing US machineries of death?
Thursday, June 12, 2014
Florida Supreme Court upholds state law to speed up capital appeals
As reported in this local article, headlined "‘Timely justice’ death-penalty law upheld," the Florida Supreme Court had a notable state capital appeals ruling today. Here are the basics:
The Florida Supreme Court on Thursday upheld the constitutionality of a 2013 law that legislative supporters said would reduce delays in carrying out the death penalty. Justices, in a unanimous decision, rejected arguments that the so-called “Timely Justice Act” would be an unconstitutional infringement on the court system’s authority and separation of powers, and violate due-process and equal-protection rights.
In a concurring opinion, Justice Barbara Pariente emphasized that the law would not affect the Supreme Court’s “solemn responsibility” to block executions if necessary to ensure that defendants’ rights are protected.
“[This] court is still constitutionally entrusted with the duty to issue a stay of execution if there is a meritorious post-conviction claim pending or, if at the time the warrant is signed, the defendant brings a successive post-conviction challenge that casts doubt on his or her guilt, the integrity of the judicial process, or the validity of the death sentence imposed. . . . In my view, that remains the essential fail-safe mechanism this court may utilize when necessary to ensure that the ultimate punishment of the death penalty is inflicted in a manner that fully comports with the constitution,” wrote Pariente, who was joined in the concurring opinion by justices Jorge Labarga and James E.C. Perry.
With some convicted murderers on Death Row for 30 years or longer, lawmakers in 2013 said the changes would help carry out justice more quickly. After Gov. Rick Scott signed the bill, for example, House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach, posted a Twitter message that said, “Several on death row need to start picking out their last meals.”
But the details of the law, which touched on issues such as death warrants, the clemency process and legal representation for Death Row inmates, have proved to be far more complex than the legislative debate. Scott also pushed back against characterizations that the law would “fast-track” death-penalty cases through the court system.
Attorneys for dozens of Death Row inmates filed the constitutional challenge last year, with the case focusing on four disputed parts of the law, according to Thursday’s opinion, which was written by Justice R. Fred Lewis. A key issue focused on a requirement that the Supreme Court clerk notify the governor when Death Row inmates have exhausted initial state and federal appeals. The law orders the governor to sign death warrants for such inmates within 30 days and to direct the warden to schedule their executions within 180 days — but only after the executive clemency process has been completed.
The full ruling can be accessed at this link.
Wednesday, June 11, 2014
In wake of ugly lethal injection, Oklahoma legislator talking up "firing squad, hanging and electric chair"
As reported in this AP article, headlined "Republican Oklahoma lawmaker seeks study on adding firing squad, other death penalty options," at least one state legislator is talking about moving sooner rather than later to new execution methods in the Sooner State. Here are the details:
A Republican lawmaker reacting to an Oklahoma inmate's botched lethal injection said Tuesday he wants to explore giving condemned prisoners the option of death by firing squad, hanging or the electric chair.
State Rep. Mike Christian said he's formally requesting a legislative hearing on the state's death penalty procedures following the April 29 death of Clayton Lockett, whose vein collapsed prompting prison officials to halt his punishment and note the execution drugs weren't administered properly. Lockett died of an apparent heart attack about 43 minutes after the execution began.
Christian, a former state highway patrolman from Oklahoma City, said he believes a firing squad would be the most logical second option after lethal injection. "Firing squad, hanging and electric chair. I think those are the three that are definitely constitutional," said Christian, who earlier this year called for the impeachment of state Supreme Court justices who supported a temporary stay of execution for Lockett. "I think just about anybody in Oklahoma would support some of these ideas we're talking about." Christian has said previously he wouldn't care if condemned inmates in Oklahoma were beheaded or fed to lions....
Under Oklahoma law, if lethal injection is declared unconstitutional, the state would switch to electrocution. If both of those methods are determined unconstitutional, a firing squad is a third option. Christian said he intends to explore whether to change the law to make a firing squad the second option, and if inmates should be allowed to select the method. He said any law change likely wouldn't apply to the 50 Oklahoma inmates already sentenced to die by lethal injection.
State Rep. Aaron Stiles, a Norman Republican and chairman of the House Judiciary Committee, said he's interested in Christian's study. He has said in the past that he supports looking at alternative options for executions, including a firing squad.
Christian plans to solicit testimony from experts in Utah, the last state to use a firing squad when it executed inmate Ronnie Lee Gardner in 2010. Five executioners armed with .30-caliber rifles stood about 25 feet from Gardner and fired at a white target pinned to his chest. One rifle was loaded with a blank so no one knows who fired the fatal shot.
Sunday, June 08, 2014
"The Failure of Mitigation?"
The title of this post is this notable new paper by Robert J. Smith, Sophie Cull and Zoe Robinson now available via SSRN. Here is the abstract:
A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders. For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma? The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime.
This Article begins to fill the mitigation knowledge gap by describing the social histories of the last hundred offenders executed in America. Scouring state and federal court records, this Article documents the presence of significant mitigation evidence for eighty-seven percent of executed offenders. Though only a first step, our findings suggest the failure of the Supreme Court’s mitigation project to ensure the only offenders subjected to a death sentence are those with “a consciousness materially more depraved” than that of the typical murderer. Indeed, the inverse appears to be true: the vast majority of executed offenders possess significant functional deficits that rival — and perhaps outpace — those associated with intellectual impairment and juvenile status; defendants that the Court has categorically excluded from death eligibility.
Thursday, June 05, 2014
New poll purports to show "New Low in Preference for the Death Penalty"
This new ABC News article, which has the headline quoted above, reports that a "majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls." Here is more about the latest findings from this latest poll:
Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty – the fewest in polls dating back 15 years. The result follows a botched execution by lethal injection in Oklahoma in late April.
Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That’s down sharply from 80 percent in 1994....
Another result finds that most supporters of capital punishment hold that position even if lethal injections became unavailable or were outlawed. Just 16 percent of death penalty supporters say either of those would constitute grounds for doing away with capital punishment; eight in 10 would shift to another method, e.g., the electric chair or gas chamber....
Support for the death penalty is higher in the 32 states that have it, 64 percent, vs. 54 percent elsewhere. In a wider gap, people in death-penalty states divide about evenly in their preference for capital punishment vs. life without parole, while in other states life imprisonment is preferred by a 20-point margin....
Views on capital punishment range among groups. Fifty-six percent of women support the death penalty, rising to 66 percent of men. And women prefer life in prison to the death penalty by 57-37 percent, while men are evenly divided.
There’s also a vast gap by race; whites are more likely than nonwhites to support the death penalty, and to prefer it over life in prison, by 23- and 22-point margins. The gaps are widest comparing whites to blacks, a group that’s generally skeptical of the criminal justice system. Their support for the death penalty is lower than that of any other group.
Among other groups, support for the death penalty peaks among evangelical white Protestants and Republicans, at eight in 10 each, dropping to 47 percent among Democrats. It’s 20 points higher among conservatives than liberals. Preference for capital punishment over life in prison follows similar patterns, peaking at 65 percent among evangelical white Protestants (vs. 36 percent of their non-evangelical counterparts). It’s 30 points higher among Republicans than Democrats, and 25 points higher among conservatives than liberals.
In terms of change, preference for the death penalty vs. life in prison is down by 8 points since 2006, with the most pronounced drops (by 10 to 20 points) among non-evangelical white Protestants, seniors, nonwhites, less-educated adults, liberals and independents.
Tuesday, June 03, 2014
After botching the first attempt, should Ohio be allowed a second chance to execute Romell Broom?
The old saying goes, "If at first you don't succeed, try, try again." But, as reported in this new AP article, the Ohio Supreme Court is going to considerwhether, after the state was unable to suceed in executing Romell Brown back in 2009, it will be permitted to try again. The AP article is headlined "Ohio Court to Weigh Repeat Execution Attempt," and here are excerpts:
Ohio's top court has agreed to hear arguments that the country's only survivor of a botched lethal injection would face cruel and unusual punishment and double jeopardy if the state again attempts to put him to death.
Romell Broom, 57, was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.
His 2009 execution was stopped by then-Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein. Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed. An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try — again, unsuccessfully — to find a vein.
Broom's appeals in federal court are on hold while the state court hears the constitutional arguments. Broom has been back on death row since. No new execution date has been set.
In 1947, Louisiana electrocuted 18-year-old Willie Francis by electric chair a year after an improperly prepared electric chair failed to work. The U.S. Supreme Court ruled 5-4 to allow the second execution to proceed, rejecting double jeopardy arguments. A state's administration of its criminal law isn't affected by due process rights, when "an accident, with no suggestion of malevolence, prevents the consummation of a sentence," the court ruled at the time.
Broom suffered more than inmates during "a normal execution," meaning a second attempt would punish him twice for the same offense, defense attorneys Tim Sweeney and Adele Shank told the state Supreme Court in a May 2012 filing.... The state argues that Broom never underwent the execution process since the procedure was called off before the drugs could be introduced into his veins.
For a number of reasons, the precedental force of the split SCOTUS ruling on this issue way back in 1947 is somewhat shaky. In addition, the Ohio Supreme Court might rely on state constitutional law to block giving Ohio officials another shot at completing Broom's death sentence. But I suspect the state will argue forcefully that it still can and should be allowed to carry out Broom's imposed sentence. Stay tuned.
Empirical explorations of modern capital clemency
Michael Heise has recently posted on SSRN two intriguing pieces concerning the modern patterns of capital clemency. Here are links and abstracts:
While America’s appetite for capital punishment continues to wane over time, clemency for death row inmates is all but extinct. Moreover, what little clemency activity that persists continues to distribute unevenly across gender, racial and ethnic groups, geography, governors’ political affiliation, and over time. Insofar as courts appear extremely reluctant to review — let alone interfere with — clemency activity, little, if any, formal legal recourse exists. Results from this study of clemency activity on state death rows (1973-2010) suggest that potential problems arise, however, to the extent that our criminal justice system relies on clemency to function as coherent extrajudicial check.
Conventional wisdom notes persistent regional differences in the application of the death penalty, with southern states’ appetite for capital punishment exceeding that of non-southern states. Scholars analyzing the distributions of death sentences and state executions find a geographic influence. Less explored, however, is a possible regional difference in the distribution of executive clemency even though clemency is an integral component of a criminal justice system that includes capital punishment. If geography influences the distribution of the death penalty, geography should also influence the distribution of clemency. Data, however, reveal some surprises. Using a recently-released data set of all state death row inmates from 1973 to 2010, this paper considers whether clemency is exercised in southern and non-southern states in systematically different ways. No statistically significant differences exist between southern and non-southern states when it came to clemency, even though southern states were more prone to execute and less prone to disturb death sentences through reversal on appeal than northern states. When it comes to the influence of geography in the death penalty context, the findings provide mixed support and convey a complicated picture.
Monday, June 02, 2014
Is midazolam the key problem drug in recent lethal injection experiments?
The question in the title of this post is prompted by this informative new Wall Street Journal article headlined "Lethal-Injection Drug Is Scrutinized: Midazolam, Used in Botched Oklahoma Execution, Tied to Two Other Cases Seen as Troubling." Here are excerpts:
Anesthesiologists say midazolam works like a dream. A few milligrams of the sedative calms patients' preoperative anxiety, while leaving them alert enough to talk with doctors and nurses before the more potent drugs kick in.
Reviews of its newer role as part of states' lethal-injection protocols aren't as unanimous. The drug, made by several companies in the U.S., has come into the spotlight with April's high-profile botched execution in Oklahoma, the first in that state to use midazolam. State officials injected Clayton Lockett, convicted of kidnapping and murdering a 19-year-old woman, with 100 milligrams of midazolam to render him unconscious. They then injected another drug to paralyze him and a third to stop his heart....
The drug has been used in nine executions since last fall, and lethal-injection experts have voiced concerns about three of those—the Oklahoma case, one in Florida and another in Ohio.
In the past, executioners would typically use thiopental and pentobarbital, which belong to a class of drugs known as barbiturates. Anesthesiologists say thiopental, which has largely been phased out of use, was aimed mostly at preventing a patient from feeling stimuli that would typically be painful. Pentobarbital is still used, they say, mostly to induce comas.
The makers of thiopental and pentobarbital, worried about the drugs being associated with capital punishment, cut back their availability for executions, leading some states to turn to midazolam. It belongs to a drug class known as benzodiazepines, which anesthesiologists say are most often used to sedate or calm patients, not anesthetize them. Anesthesiologists say they typically administer midazolam to a patient only a few milligrams at a time and therefore know little about the effects of much larger doses, like those given in lethal-injection protocols.
There is little agreement about how much to use in executions. Florida uses 500 milligrams, while Oklahoma used 100 milligrams on Mr. Lockett. Ohio used only 10 milligrams of midazolam in a January execution, but in April announced that it would change to 50 milligrams. None of the three states would comment on why they chose midazolam or how they settled on dosages.
"It's uncharted territory," said David Waisel, an anesthesiologist at Boston Children's Hospital who has testified on behalf of death-row inmates. "States literally have no idea what they're doing to these people." Dr. Waisel and others say that even when administered properly and at high doses, it is unclear whether midazolam sufficiently anesthetizes the sensations caused by the other drugs often used alongside it, such as vecuronium bromide, a muscle relaxant that causes paralysis, and potassium chloride, which stops the heart. Both of those drugs were used on Mr. Lockett.
Sunday, June 01, 2014
"Death penalty in Kansas: Will the state ever execute another prisoner?"
The title of this post is the headline of this lengthy article in the Lawrence Journal World. And though focused on the modern story of capital administration in the Sunflower State, there are likely at least a dozen other states which still have the death penalty on the books and a number of prisoners on death row (ranging from California to Pennsylvania, from North Carolina to Washington) for which the same question could be reasonably asked given the lack of execution in these states for more than half a decade. Here are excerpts abut the modern capital story in Kansas that is similar (though with distinct facets) to what happen in a number of states :
Moments before he was hung to death, George York expressed contrition for his sins....
The state of Kansas had not forgiven York, convicting him of one of several murders he had confessed to as part of a cross-country killing spree with fellow Army deserter James Latham. So on June 22, 1965, York was led up the 13 steps of the gallows at the Kansas State Penitentiary in Lansing. A prison chaplain read from the 23rd Psalm as the noose was placed around York's neck. At 12:53 a.m., the trap door dropped. The 22-year-old was pronounced dead 19 minutes later.
York was the last person executed by the state of Kansas. In recent years, several states have banned capital punishment. It is on hiatus in some states because of problems obtaining the drugs used in lethal injections, which has led to botched executions, mostly recently in Oklahoma. But in Kansas, the death penalty is in a sort of legal limbo: still on the books, just not being carried out.
There have been no executions in the 20 years since the death penalty was reinstated in Kansas, due, observers say, to an exhaustive appeals process, a cautious state Supreme Court dealing with a fairly new and restrictive law, and the state's relatively low murder rate. Nine men are currently on death row in Kansas.
Only two other states besides Kansas — Nebraska and California — have a lethal injection chamber that has never been used. The only death penalty state that has gone longer without an execution is New Hampshire, which last killed a prisoner in 1939 and has only one person on death row. Kansas doesn't even have lethal injection drugs in stock because a possible execution is so far in the future....
Earlier this year, the Kansas legislature debated a bill that proponents said would speed up the appeals process in capital cases. The legislation didn't pass. One of its supporters, state Sen. Greg Smith, R-Olathe, was asked why there have been no executions in Kansas in recent years. "Four words: the Kansas Supreme Court," he said. "It's not that we don't use the death penalty in Kansas. It's that the Kansas Supreme Court refuses to apply the law and allow a lawful sentence to be carried out."
Smith, whose daughter was murdered in Missouri in 2007, refuses to name death row inmates, instead invoking the names of victims when discussing cases. "What we tend to forget is the people who do this had zero mercy for the people they killed," he said. "The people who are murdered go through hell. After they're murdered, we forget about the victim. People say, let's not be inhumane, but what about the people they killed?" He said the drawn-out appeals process puts families of victims "right back into that emotional mess they were in when they loved ones were killed."
The state's top prosecutor, Attorney General Derek Schmidt, also supported the changes, saying the Supreme Court should review only the sentencing rather than the whole case and that defendants' ability to file successive, unnecessary motions clogs up the appellate system. "Attorney General Schmidt has a long record of supporting Kansas’ narrowly tailored death penalty," said his spokesman, Clint Baes. "In addition, our office this year supported a legislative proposal which would have held the courts accountable to their own procedural rules. A lack of adherence to these rules by our appellate courts has led to the long delays in death penalty appeals."
The state Supreme Court not only declared Kansas' death penalty statute unconstitutional in 2004 (a decision later reversed by the U.S. Supreme Court), it has overturned the death sentences in all five of the modern capital cases it has issued opinions on....
Some legal experts say the Supreme Court takes so much time reviewing death penalty cases because the law in its current form has only existed for 20 years....
Jeffrey Jackson, a Lawrence attorney and law professor at Washburn University, said he believes that the death penalty statute has a deterrent effect. The state's murder rate has declined since capital punishment was reinstated, from 170 in 1994 to 84 in 2012, though that mirrors a similar drop in homicides across the country.
He also noted that as the state Supreme Court continues to work through the issues surrounding Kansas' death penalty statute, the appeals process will likely quicken. "Unless the Legislature repeals the death penalty, I think there will eventually be an execution," he said. (A recent bill to abolish capital punishment in Kansas would not have applied to the nine men already on death row). "The more cases you have, the better the judges get at figuring out how to do these things. They're still going to take a lot of time, but it's not going to increase. It's almost assured that we will have an execution as long as the statute is in place."
That execution, if it comes, probably won't be happening in the near future. Even if the Kansas' high court affirms a death sentence, it will then have make its way through the federal appeals system. "The death penalty is by far the most complex set of laws there could be in criminal law," said Ron Wurtz, the former chief of the state's Death Penalty Defense Unit, who doesn't see a Kansas inmate being put to death anytime soon. "It's not even close right now. I'd say it's probably 10 more years out, at the very least."
Saturday, May 31, 2014
Looking at some killers benefiting from SCOTUS Eighth Amendment ruling in Hall
As I noted earlier this week when the Supreme Court's handed down its ruling in Hall v. Florida (opinion here, basics here), the Justices' Eighth Amendment decision will be a big deal for the administration of capital punishment in those states with lots of murderers on death row and/or for those states that have been applying Atkins in restrictive ways. Following up these themes, today's New York Times has this lengthy front-page article looking at some of the death row defendants likely to be grateful for the decision. The piece is headlined "On Death Row With Low I.Q., and New Hope for a Reprieve," and here are excerpts:
For Ted Herring, who has spent 32 years on Florida’s death row for murdering a store clerk, signs of intellectual disability arose early and piled up quickly: He repeated first grade and got D’s and F’s through fourth grade. He read like a fourth grader at 14 and did not know that summer followed spring....
His intellectual disability was even obvious to a Florida judge, who found him “mentally retarded” and took him off death row 18 years after his original sentence. At 19, in 1981, Mr. Herring murdered a Daytona Beach 7-Eleven clerk, robbed the store and walked away with $23.84. But because Mr. Herring’s I.Q. scores were 72 and 74, just over the “bright line” cutoff of 70 used by Florida to determine intellectual aptitude, the Florida Supreme Court returned him to death row.
When the Supreme Court ruled this week that states can no longer rely on a fixed I.Q. score cutoff to decide intellectual competency, it increased the likelihood that Mr. Herring and other death row inmates like him will have a chance to avoid execution. Fewer defendants are also less likely to wind up on death row in the future because their claims of intellectual disabilities will be not be as readily discounted by the courts.
The ruling affects roughly 30 death row inmates. The number is low because the vast majority of states follow modern standards of determining intellectual disabilities, going beyond using a single number to be considered disabled. But in those states that will be affected, death row inmates with low, but not low enough, I.Q. scores that have been previously rejected or never put forward can now seek to have their sentences reconsidered....
In Florida, 15 to 20 inmates — perhaps the largest number in the country — will probably seek to overturn their death sentences because of the decision... “Florida has the third largest death row in the country and was the state that was the leader in doing this — the bright-line cutoff,” said William Henniss III, who said he had two clients who would most likely seek redress. “Expect there to be more cases like this.”
In Kentucky, five of 34 death row inmates are also likely to ask for new hearings based on the decision, said David Barron, an assistant public advocate who handles post-conviction cases.
Some of them, like Thomas Bowling, who was sentenced to death after killing a married couple in 1990, are likely to explore what the new I.Q. range will be in Kentucky, where 70 has been the cutoff. Mr. Bowling, who claimed on appeal that he was intellectually disabled, repeated the ninth grade several times before dropping out. But the appeals court rejected his claim because his most recent scores, the ones they viewed as most reliable, were in the 80s....
In Virginia, Alfredo R. Prieto is likely to seek a hearing based on is low I.Q. scores, which ranged between 70 and 75, said his lawyer, Cary B. Bowen. Those scores, Mr. Bowen said, “kind of fall in line” with the I.Q. range described in the Supreme Court decision as the kind that should not be rejected simply because they do not meet a cutoff. Mr. Prieto, who is from El Salvador and whose lawyers argued that he was scarred by the violence he saw there during the country’s civil war, is on Virginia’s death row for the 1988 murders of two people. He faces the death penalty for a murder in California, as well, and has been linked to others.
Recent posts on Hall:
- Big criminal justice decision day for SCOTUS, including 8th Amendment reversal of Florida's Aktins approach
- "Intellectual disability is a condition, not a number. See DSM–5, at 37."
- Will Hall have import or impact other then when states seek to execute the possibly disabled?