Sentencing Law and Policy

Death penalty repeal moves forward in Delaware while faltering in Colorado

The latest sign of the sentencing times is that death penalty repeal bills are getting extended consideration in many states.  And, as these two local article reveal, the fate of these bills are often unpredictable.  Here are the headlines and leads from the latest developments in two states:

From Delaware, "Delaware Senate votes to repeal death penalty":

Senate Bill 19, an act to repeal the death penalty in Delaware, narrowly passed the state Senate Tuesday with a vote of 11-10.  A discussion spanning almost three hours in the Senate Chamber garnered impassioned testimonies from police officers, legislators and families as well as state attorneys of either support or opposition for the death penalty.

The bill’s primary sponsor, Karen E. Peterson, D-Stanton, issued an amendment to the bill which she introduced that afternoon.  The amendment removed the retroactive provision which stated that “any person who has been sentenced to death prior to the effective date of this act shall instead be punished by imprisonment for the remainder of the person’s natural life without benefit of probation or parole or any other reduction.”  Meaning, the 17 men on Delaware’s Death Row would still get the death penalty.

From Colorado, "Death penalty repeal effort blocked by two Democrats":

Two Democrats broke ranks Tuesday and voted against a bill to repeal Colorado’s death penalty, killing the measure and ending a week-long legislative soap opera surrounding it.

A week after the House Judiciary Committee delayed a vote on House Bill 1264 after hearing nine hours of public testimony, the panel took up the measure again Tuesday afternoon.  Even as the hearing began, the sponsors scrambled to determine whether they had the votes to pass the legislation out of the committee; and, upon realizing they did not, they pushed ahead with an up or down vote anyway rather than tabling the measure.

After an hour of discussion, the measure went down on a 4-6 vote with two Democrats, Reps. Lois Court of Denver and Brittany Pettersen of Lakewood joining the panel’s four Republicans and voting no.

New group opposing death penalty emerges at CPAC

US News and World Report has an this interesting report on a notable new group that emerged at last week's CPAC meetings.  The piece is headlined "Small Government Conservative? Group Says You Should Oppose Death Penalty," and here are excerpts:

Squeezed amid the dozens of stalls you'd expect to find last week at CPAC — stalls that were pro-gun, pro-life and pro-liberty — sat a group that was more unexpected: Conservatives Concerned About the Death Penalty....

But that stereotype no longer holds true.  As Maryland prepares to become the 18th state to ban the death penalty, CCADP advocacy coordinator Marc Hyden tells [Us News] the reaction the group is getting from conservatives is: "Where have you been for so long?"

Hyden says hundreds of people at CPAC signed up to join the group, which officially launched at the conference. For those who didn't sign up, Hyden, who previously worked for the NRA, came ready with reasons why they should.  He says he sways some conservatives with the pro-life, religious argument, but more often Hyden talks about the cost.

"It is widely accepted that [the death penalty] is so much more expensive than life without parole," Hyden says.  "If there is a cheaper alternative, we as fiscal conservatives should embrace it."

It may be no surprise, then, that the group has also been greeted with open arms by libertarians, whose political stars, Ron and Rand Paul, both oppose the death penalty. Several bigger names have also jumped aboard the CCADP team, including Jay Sekulow, a top litigator of free speech and religious liberty cases.  Sekulow tells [US News] he's been concerned about the death penalty from a legal perspective for years, but that there was never one conservative group that concentrated on the issue.

"We're in the infancy stages of a movement to galvanize awareness," says Sekulow, noting that several Republican governors have come out against the issue in recent years, such as Gov. Sam Brownback, R-Kan.  "This issue now crosses political lines."

Bill to abolish death penalty advances in Nebraska legislature

As reported via this local article, in Nebraska the unicameral legislature's "Judiciary Committee voted 7-0 Tuesday to advance a bill (LB542) by Sen. Ernie Chambers of Omaha to change the death penalty to life in prison without the possibility of parole." Here is more:

Chambers, the most ardent death penalty opponent in the Legislature, was re-elected to his North Omaha seat in November after sitting out four years because of term limits. Each year from 1973 to 2008, he introduced a bill to abolish the death penalty. In 1979, his bill passed but was vetoed by then-Gov. Charles Thone.

Among those supporting this year's effort at a recent hearing was the Nebraska Innocence Project, which is part of a national network that gives free legal representation to people wrongly convicted of crimes....

Among those speaking against the bill was Douglas County Attorney Don Kleine, who appeared on behalf of the Nebraska County Attorneys Association. Kleine said some murders were so heinous the death sentence was warranted. Lancaster County Attorney Joe Kelly also spoke against the bill on behalf of the association.

This month, the Maryland Legislature passed a bill to replace the death penalty with life without parole. If signed into law, Maryland will become the sixth state in six years, and the 18th overall, to abandon capital punishment. With that action, 32 states, the U.S. government and the U.S. military still have the death penalty.

Eleven men are on Nebraska's death row.

Gov O'Malley explains his reasons for seeking Maryland's death penalty repeal

In Politico, Maryland Governor Martin O'Malley has this new opinion piece headlined "Repealing Maryland's death penalty." Here are excerpts:

In Maryland, we govern by results: when a public policy works, we choose to invest in it. On the other hand, when a public policy does not produce results, we invest our limited resources instead in things that are proven to work.

Capital punishment is expensive and the overwhelming evidence tells us that it does not work as a deterrent.

Therefore, rather than continuing to throw taxpayers’ money at an ineffective death penalty, our state has chosen – with bipartisan support – to replace capital punishment with a more effective and cost efficient public policy: life without parole. We are the first state below the Mason-Dixon line to do so, but I believe other states will follow suit.

Capital punishment is not a deterrent, it is not fool-proof, it is administered with great racial disparity, it costs three times as much as life without parole, and there is no way to reverse a mistake when an innocent person is wrongly convicted.

In 2011, the average murder rate in states where there is a death penalty was 4.9 per 100,000 people. In states without it, the murder rate was lower. It was 4.1 per 100,000 people.

Between 2000 and 2011, an average of 5 death row inmates were exonerated every year. In Maryland, between 1995 and 2007, our state’s reversal rate for the death penalty was 80 percent.

By 1999 the city of Baltimore had become the most violent and drug addicted city in America. Through all the preceding decades of rising violence, the death penalty was on the books and did absolutely nothing to prevent this from happening. Effective policing, expanded drug treatment, smarter strategies, new technologies to solve crime and target repeat violent offenders — these are the things that work to drive down violent crime.

Just as the death penalty did not prevent Baltimore from becoming the most violent city in America in the 1990s, it also contributed nothing at all to Baltimore’s historic reductions in crime over the last decade. Nor has the death penalty had any positive impact on our more recent statewide success in Maryland, in driving down violent crime and homicides to three-decade lows.

Every dollar we throw at maintaining an ineffective death penalty is a dollar we are not investing in the strategies and tactics that actually work to save lives. If we want better results, we must make better choices. We have a responsibility to do more of the things that work to save lives. So too, do we have a responsibility to stop doing things that are wasteful, expensive, and do not work....

Improving public safety is the most fundamental responsibility of our government. The death penalty does not make us stronger or more secure as a people. It is expensive, ineffective, and wasteful as a matter of public policy; it is unjust as historically applied; and its imperfections can and do result in the occasional killing of innocent people. That is why, in Maryland, we have replaced the death penalty with the punishment of life without parole.

Recent related posts:

• Maryland legislature moves one step closer to repealing state's death penalty
• New poll indicates most Maryland citizens do not support death penalty repeal efforts
• After state senate vote, Maryland appears poised to repeal its (already dormant) death penalty
• As Maryland takes another step toward capital repeal, limbo looms for five on state's death row
• Will Maryland voters even get a chance to reconsider repeal of state's death penalty?

Lots of notable death penalty news and notes from both coasts

The biggest death penalty news to close out this week would appear to be the repeal news out of Maryland,  highlighted by this new AP article headlined, "Md. Poised to Be 18th State to Ban Death Penalty."  But, thanks to links of lots of coverage from How Appealing, here are some other notable capital stories coming from the other end of the country:

• "Convictions of woman on Ariz. death row overturned"

• "Gary Haugen plea for execution: Don't let him over-rule governor, state warns"

As Maryland takes another step toward capital repeal, limbo looms for five on state's death row

As reported in this AP article, the Maryland House "on Wednesday night advanced legislation to repeal the death penalty in Maryland after delegates rejected nearly 20 amendments, mostly from Republicans, aimed at keeping capital punishment for heinous crime." Here is more:

The Senate approved the measure earlier this month. A final House vote on the legislation, a top legislative priority of Democratic Gov. Martin O’Malley, could come as soon as Friday.

Amendments defeated on the House floor would have maintained the death penalty in some cases, including acts of terrorism, for mass murderers, lawbreakers who kill police officers or firemen in the line of duty and for kidnappers who kill.   “We can’t get into the business of this crime is worse than another,” said Delegate Samuel Rosenberg, a Baltimore City Democrat who supports the measure.  “These are terrible cases, but the death penalty is not the way to go.”

With the repeal of the death penalty now nearly a done deal, the next interesting legal and policy question concerns what should become of the five murderers current on Maryland's death row.  That issue is the subject of this lengthy new Stateline article, headlined "Death Row Inmates In Limbo As Maryland Moves to Repeal Death Penalty." Here are excerpts:

After a years-long fight, Maryland is about to become the sixth state in as many years to repeal its death penalty. Gov. Martin O’Malley, who championed the repeal, says he will sign it into law. But the Democrat still faces a tough choice — what to do about the five remaining Maryland inmates on death row? The repeal bill makes no provision for the five men sentenced to death, which even after a repeal of the death penalty could legally still be executed, should they exhaust all of their appeals.

In 2011, Illinois Gov. Pat Quinn, a Democrat, commuted the sentences of all 15 death row inmates before signing a bill repealing the death penalty in his state. New Jersey Gov. Jon Corzine, also a Democrat, did the same for eight death row inmates before signing a death penalty repeal bill in 2007. But governors in Connecticut and New Mexico left their states’ death row inmates subject to the death penalty when they signed their states’ repeal bills.

In Maryland, the governor has virtually unlimited power to pardon or commute sentences, and many death penalty opponents have encouraged O’Malley to simply clear death row if he is morally opposed to the death penalty. The Maryland Senate added an amendment to the repeal bill expressing its will that all death row inmates have their sentences commuted to life in prison without parole. The executive clemency decision, however, is solely up to O’Malley.

O’Malley has three clemency options, says spokesperson Raquel Guillory: He can immediately commute all five death sentences, commute each sentence on a case by case basis, or do nothing. He is not expected to make a decision until after the legislative session ends in April.

O’Malley has been notably reluctant to commute any sentences or grant pardons during his seven-year tenure. He’s only granted 50 pardons out of 690 requests as of last December, according to The Washington Post. And he’s only commuted two sentences, one where an accomplice served three times as long as the shooter, and another where a witness recanted testimony that sent a man to prison for nearly 30 years.

O’Malley’s clemency record is in line with his overall stance of being tough on crime, stemming from his background as a Baltimore prosecutor. The majority of governors have broad, nearly unrestricted clemency power to pardon or commute sentences as they see fit. But few exercise that power regularly.

As Stateline has previously reported, governors contemplating higher office—and O’Malley is contemplating a presidential bid in 2016—have been wary of using their executive clemency powers. Well-publicized missteps by Govs. Michael Dukakis of Massachusetts, Mike Huckabee of Arkansas and Tim Pawlenty of Minnesota allowed their opponents to paint them as soft on crime.

Even though O’Malley’s clemency record is less than generous, his support for the repeal of the death penalty has brought him national attention. He’s not the only governor who’s opposed the death penalty, but he’s made it a central part of his political agenda and sold it as a public safety issue, says Shari Silberstein, executive director of Equal Justice USA, which advocates for the abolition of the death penalty.

“I think his actions are symbolic of changing national conversation surrounding the death penalty,” says Silberstein. “It’s not the third rail of politics anymore, and politicians aren’t going to have to ask themselves if they should take the risk (to oppose the death penalty) because it’s not a risk anymore. Politicians are finding that they’re not being hurt in polls.”...

Legislators in Colorado, Oregon, Kansas and Delaware are currently debating repealing the death penalty, and legislators in Montana gave a hearing to a death penalty repeal bill earlier this session. Colorado Gov. John Hickenlooper, a Democrat, is facing pressure to commute the sentences of two death row inmates nearing execution, and his commitment to the death penalty is wavering....

If O’Malley does not commute the sentences of Maryland’s death row inmates, he’ll be following the examples of Connecticut and New Mexico. But in those states, the remaining death row inmates have filed multiple appeals based on the legislature’s decision that death is no longer an acceptable sentence. The litigation stemming from the confusion could last years and there has been no ruling concerning all remaining death row inmates in either state.

Will Maryland voters even get a chance to reconsider repeal of state's death penalty?

One reason I have been following closely the march in Maryland toward repeal of the state's death penalty has been because Maryland has a well-established process for voter referendum as a means to create a populist veto of any law passed by the state's legislature.  If Maryland's legislature repeals its death penalty and then there is a subsequent referendum on that repeal, the state-wide campaign for such ballot initiative would likely be quite interesting and the the vote outcome would likely be quite uncertain.  But this new local article, headlined "Death penalty repeal may not be petitioned onto ballot," suggests that Maryland voters might not even get a chance to vote in a referendum after death penalty repeal in the state. Here is why:

Del. Neil C. Parrott, chairman of petition website MDPetitions.com, said petitioning Gov. Martin O’Malley’s death penalty repeal to the 2014 general election ballot isn’t a foregone conclusion. That’s even though some opponents of the repeal, including Senate President Thomas V. Mike Miller Jr., D-Calvert, have said they think a referendum vote likely.

But “there’s no talk about” such a petition drive at the grass-roots, Parrott said. “It’s probably not going to be petitioned.” Parrott indicated he’s more interested in leading a petition drive against House Bill 493, the Referendum Integrity Act — a measure he believes could choke off future referendums if it passes.

The Washington County Republican led petition drives that placed on the 2012 ballot three measures passed by the General Assembly: legalizing same-sex marriage, in-state tuition for some illegal immigrants, and the state’s congressional redistricting plan. All three challenges failed.

Parrott said a drive to overturn the death penalty repeal would involve a long, difficult campaign all the way up to the 2014 election. And such efforts take money — something MDPetitions.com is “not very flush with,” Parrott said. “There’s going to be serious consideration whether we do one or not, because it is so difficult,” he said....

Parrott’s MDPetitions.com website makes it easier for people to generate signatures that match the way their names are rendered on the state’s voter rolls, so that they can’t be invalidated by elections officials. Before the website, only one referendum to overturn a state law made it onto the ballot in 20 years, a 1992 attempt to overturn Maryland’s abortion law. That attempt failed....

Parrott said O’Malley has introduced several “radical” measures — one of which, he said, is the death penalty repeal, Senate Bill 276. That bill has passed in the Senate. On Friday, the bill made it through a House committee. It is expected to pass in the full chamber. “Honestly, I hope (death penalty repeal) stops in the House,” Parrott said. “At this point, we’re just looking to see what happens.”

O’Malley said that even if the death penalty repeal goes to referendum, the voters will ultimately uphold it. “The people of our state want us to do the things that work and that actually reduce crime,” he said.

Recent related posts:

• Maryland legislature moves one step closer to repealing state's death penalty
• New poll indicates most Maryland citizens do not support death penalty repeal efforts
• After state senate vote, Maryland appears poised to repeal its (already dormant) death penalty

Fascinating fight over death penalty realities and clemency rights gets to Oregon Supreme Court

As reported in this new local article, headlined "Oregon Supreme Court to hear Haugen death penalty case," this top court in Oregon is due to hear arguments this week in a very interesting case concerning both clemency rights and application of the death penalty. Here are the basics:

The next step in Gary Haugen’s request to be executed is up to the Oregon Supreme Court. When the seven justices hear oral arguments Thursday, they will consider only whether the twice-convicted murderer can legally reject an unconditional reprieve issued by Gov. John Kitzhaber on Nov. 22, 2011. Kitzhaber’s action blocked the execution two weeks before it was scheduled to take place.

Haugen won the first round Aug. 3 in Marion County Circuit Court, where visiting Judge Timothy Alexander ruled that Haugen could refuse the reprieve. The Supreme Court accepted Kitzhaber’s appeal directly.

In written arguments filed with the court, Kitzhaber said Haugen has no legal right to reject a reprieve based on three main reasons: the text of the Oregon Constitution; the historical circumstances of clemency; and previous court decisions about the governor’s clemency powers.

Haugen argued through his lawyer that Kitzhaber’s action was not a true reprieve, previous court decisions support his right to refuse it, and a reprieve deprives him of federal constitutional rights such as a ban on cruel and unusual punishment.

The newspaper account of this upcoming argument provides a brief review of the parties' arguments, as well as links to some brief. Included therein is a brief with a link to a filing by the ACLU. Upon seeing the link, I was unsure which side the ACLU should and would support, given my understanding that the ACLU opposes the death penalty but also supports a person's right to die. I will leave it to readers to guess (or figure out) which commitment proved more important to the ACLU in this notable setting.

After state senate vote, Maryland appears poised to repeal its (already dormant) death penalty

As reported in this extended Washting Post article, earier today the "Maryland Senate voted 27 to 20 to repeal the state’s death penalty Wednesday after four days of heated and emotional debate, putting Gov. Martin O’Malley (D) on the brink of a long-sought legislative victory." Here are more details and context:

Supporters of the legislation argued that capital punishment is not an effective deterrent, is costly and creates the risk of executing innocent people.... Opponents countered that the death penalty can be an important law-enforcement tool and should be kept on the books for heinous cases, several of which were recounted in graphic detail on the Senate floor....

The bill moves next to the House of Delegates, where repeal advocates say they are confident they have the votes. The Senate had long been viewed as the tallest hurdle for the legislation.   O’Malley’s repeal bill was introduced this session with 67 co-sponsors in the House, leaving supporters just four delegates to sway to get a majority. Del. Samuel I. Rosenberg (D-Baltimore), a champion of the legislation, said he is confident his side has the votes to prevail in coming weeks.

Maryland voters could have the final say on the issue, however.  If the bill passes the House, opponents have vowed to make use of a provision in the state Constitution that allows citizens to petition recently passed laws to the ballot, as happened with same-sex marriage last year.  The outcome of a death penalty referendum would be far from certain.

A Washington Post poll released last week showed that a majority of Marylanders want to keep the death penalty on the books despite widespread skepticism across the state about whether capital punishment is a deterrent to murder or is applied fairly.

O’Malley’s bill would replace death sentences with life in prison without the possibility of parole. It would not affect the five inmates currently on death row in Maryland, leaving it to the governor to determine whether to commute their sentences....

Maryland would become the 18th state to abolish the death penalty, and the sixth in six years, reflecting new momentum for repeal efforts nationally. The NAACP has put a priority on the issue and is focused heavily on Maryland this year.

Maryland has has not carried out an execution since 2005, when O’Malley’s Republican predecessor, Robert L. Ehrlich Jr., was in office.  The state has had an effective moratorium on capital punishment since December 2006, the month before O’Malley took office, when Maryland’s highest court ruled that regulations on lethal injection had not been properly adopted.

The O’Malley administration has yet to implement new regulations, and the shortage of a drug prescribed in Maryland for executions could complicate the efforts of any future governor to resume executions.  Some opponents of the repeal harshly criticized O’Malley for failing to move forward during the past several years. “It’s hard to say something doesn’t work if you don’t use it,” Colburn argued.

Two Republicans joined 25 Democrats in the chamber in voting for the repeal on Wednesday. The measure was opposed by 10 Republicans and 10 Democrats.

Debate on the measure was dominated by efforts to create exceptions to the repeal. Bill supporters fended off more than a dozen amendments, including provisions that would have allowed executions to continue for people who kill law-enforcement officers, for people who kill while in prison and people who rape their victims before killing them.

Recent related posts:

• Maryland legislature moves one step closer to repealing state's death penalty
• New poll indicates most Maryland citizens do not support death penalty repeal efforts

Ohio completes its 50th execution in modern era

As reported in this new AP report, headlined "Ohio executes man who fatally shot security guard," my own great state of Ohio has this morning reach a notable modern death penalty milestone. Here are the basics:

A man who fatally shot an adult bookstore security guard in 1994 at the end of a multistate crime spree was executed on Wednesday.

Frederick Treesh received a single powerful dose of pentobarbital and was pronounced dead at 10:37 by Donald Morgan, warden of the Southern Ohio Correctional Facility in Lucasville. Treesh was sentenced to die for killing Henry Dupree in Eastlake east of Cleveland on Aug. 27, 1994.

Treesh, in a last statement, apologized for the death of Dupree, but said he wouldn't say he was sorry to family members of a video store clerk killed in Michigan who were witnessing the execution. "I've never been tried, I've never been charged," he said. After a few more comments he said, "If you want me murdered, just say it."

Treesh was the 50th inmate put to death by the state since it resumed executions in 1999.

Gov. John Kasich denied Treesh clemency last week, following the recommendation of the state parole board, which ruled unanimously last month that the evidence showed Dupree was seated when shot and hadn't shown any sign of being a threat to Treesh. The board also said Treesh's decision to shoot a clerk in the face as he left the store suggests Treesh's "murderous intent" when coming to the store. Treesh and his co-defendant "gratuitously brutalized, humiliated and killed innocent people, most of whom, like Dupree, posed no real or perceived threat to them," the board said.

Prosecutors say Treesh, 48, and the co-defendant robbed banks and businesses, committed sexual assaults, stole cars, committed carjackings and shot someone to death in a Michigan robbery during a spree that also took them to Indiana, Iowa, Minnesota and Wisconsin.

Just a decade ago, Ohio was among a number of large industrial and western states with a fairly large death row but few actual executions. States still in that category include California, Nevada and Pennsylvania and used to include Illinois.

But now Ohio in among the ranks of mostly southern states that have completed more than 50 executions in the post-Furman modern death penalty era. Via this page at the Death Penalty Information Center, here is a list of the states that Ohio has now joined (with their total modern executions in parentheses):

Texas (493)

Virgina (110)

Oklahoma (102)

Florida (74)

Missouri (68)

Alabama (55)

Georgia (53)

"The left’s austerity strategy for the death penalty"

The title of this post is the headline of this new MSNBC piece, which reports on a segment that ran on that network yesterday. Here are highlights:

In an age when trimming budgets and reducing deficits has become politically popular, some liberals are brewing a new strategy on old issues.  Democrats and left-leaning groups are increasingly trying to use austerity arguments to pass their progressive agendas.

Maryland’s Democratic Gov. Martin O’Malley has long sought to have the death penalty abolished in his state.  As a Roman Catholic, he has used a moral argument against the death penalty in the past.  But now he is emphasizing the financial benefits of making the maximum sentence a life in prison without parole...

Rather than funnel all of their focus into moral and social arguments, the bill’s supporters have been making their point partly in economic terms.  The cost of prosecuting a death row case in Maryland can be as much as three times what it costs for a case seeking a life sentence without parole.

A study by the Urban Institute in 2008 found that the average cost to taxpayers for one death sentence was $3 million, about $1.9 million more than it cost for a case when the death penalty wasn’t sought.  These numbers include the criminal investigation, trial costs, appeals, and incarceration....

For elected officials who can’t be tough enough on crime, NYU law professor Bryan Stevenson said, “you need a narrative that allows people to retreat from that and cost is just a very effective one.”

On Sunday’s Up with Chris Hayes, Stevenson also addressed the fears of many voters that abolishing capital punishment could lead to a higher crime rate, explaining that the economic arguments could also benefit public safety:

“Maryland’s bill actually will give money and resources to the families of people who’ve lost loved ones.  California’s bill was actually directly aimed at helping to solve the 34% of homicides that aren’t resolved in an arrest, 46% of rapes that aren’t resolved in an arrest, mostly in poor and minority communities.  I think if you’re concerned about public safety, these economic arguments actually make links that we have to make.”

If it passes, Maryland will be the sixth state in six years to abolish the death penalty, after New Jersey, New Mexico, New York, Illinois, and Connecticut....

While they acknowledged the financial advantages, the Up with Chris Hayes panelists emphasized that decades of talking about the death penalty’s moral and social implications cannot be ignored.

“If the economic argument is the one that tips the scales, then I need not worry that we haven’t couched the debate enough in moral terms,” said Mattea Kramer of the National Priorities Project.  “You keep your eyes on the prize.” Stevenson added, “I don’t actually think that the economic arguments would be effective today if we hadn’t shown over the last 15 years that we’re putting a lot of innocent people on death row.”

"Chinese TV Special on Executions Stirs Debate"

The title of this post is the headline of this notable new New York Times article, which gets started this way:

During a two-hour television broadcast that was part morality play, part propaganda tour de force, the Chinese government on Friday sent four foreign drug traffickers to their deaths after convicting them of killing 13 Chinese sailors two years ago as they sailed down the Mekong River through Myanmar.

Although the live program ended shortly before the men were executed by lethal injection, it became an instantly polarizing sensation, with viewers divided on whether the broadcast was a crass exercise in blood lust or a long-awaited catharsis for a nation outraged by the killings in October 2011.  Some critics said the program recalled an era not long ago when condemned prisoners were paraded through the streets before being shot in the head.

“Rather than showcasing rule of law, the program displayed state control over human life in a manner designed to attract gawkers,” Han Youyi, a criminal law professor, wrote via microblog.  “State-administered violence is no loftier than criminal violence.”  One prominent rights lawyer, Liu Xiaoyuan, insisted that the show, by the national broadcaster CCTV, violated Chinese criminal code by making a spectacle of the condemned.  “I found it shocking,” he said in an interview.

The program largely focused on Naw Kham, the Burmese ringleader of a drug gang who was accused of orchestrating the brutal execution of the sailors and then making the crime appear drug related.  In a nation where millions work overseas, sometimes in dangerous corners of the world, the killings were especially unsettling.  Last April, six men, including Mr. Naw Kham, were apprehended in Laos by a team of investigators that included officers from China, Thailand, Laos and Myanmar.

Mr. Naw Kham and his accomplices were convicted last November during a two-day trial in China’s southwest Yunnan Province.  The condemned men, including a Laotian, a Thai and a third of “unknown nationality,” reportedly confessed to the crime.

The two other men who escaped execution received long prison terms.  Last month a Chinese public security official told a newspaper that Beijing had considered using a drone strike to kill Mr. Naw Kham but later decided to capture him alive.  Given the considerable viewership on Friday, that decision proved to be a public relations coup.

The program included interviews with triumphant police officers, images of the condemned men in shackles and the sort of blustery talking heads that would be familiar to American cable television audiences.  The graphic elements that flashed behind the CCTV news anchor featured the tagline “Killing the Kingpin.”...

In a commentary posted on Sina Weibo, the Chinese equivalent of Twitter, CCTV defended the program, saying it demonstrated China’s commitment to justice.  “There were no glimpses of the execution.  We only saw the drug ringleaders’ weaknesses and fear of death,” it said.  “In contrast to brutal murder by his gang, the methodical court trial and humane injections have shown the dignity and civilizing effects of rule of law.”

Shortly before the men were led from their cells to the van that would take them to the death chamber, a reporter asked Mr. Naw Kham to talk about his family and then taunted him by showing him photos of the victims’ relatives.  “I want to raise my children and have them educated,” Mr. Naw Kham said with a faint smile on his face.  “I don’t want to die.”

I think one could have lots distinct reactions to this notable effort to make more public and prominent the administration of capital justice in China.  But, especially in light of on-going US controversies concerning drone warfare, I find especially interesting the report that this programming was only made possible because China decided not  using a drone strike to kill Mr. Naw Kham while he was in another country.  I wonder if folks who are most troubled by the US use of drone strikes will be quick to praise China for employing a notable different (and much more public and transparent) means to achieve a form of international justice.

New poll indicates most Maryland citizens do not support death penalty repeal efforts

This new article, headlined "Washington Post poll finds most Marylanders in favor of death penalty," reveals that the on-going effort by many elected Maryland representatives to repeal the state's death penalty runs contrary to current public opinion in the state. Here are the basic (which includes a link to the poll data):

A majority of Marylanders want to keep the death penalty on the books despite widespread skepticism across the state about whether capital punishment is a deterrent to murder or is applied fairly, a new Washington Post poll has found.

Sixty percent of adults in the poll say that Maryland law should allow for the death penalty, while 36 percent support replacing it with life in prison without the possibility of parole....

Gov. Martin O’Malley (D) has made repeal of the death penalty a top priority in the 90-day legislative session. Debate could begin in earnest on the issue later this week in the Senate, where a narrow majority of members are on record supporting O’Malley’s repeal bill. Prospects in the House of Delegates are also considered strong.

Some of the arguments O’Malley is making appear to resonate among Marylanders. By nearly 2 to 1, those polled say that the death penalty is not a deterrent to murder and does not lower the murder rate.  And most who respond that way say they feel strongly about their view.  Moreover, nearly one-third of Marylanders — including nearly a half of African Americans — say capital punishment has been applied unfairly in the state. That’s another argument O’Malley has advanced in a state where five men sit on death row but no executions have taken place since 2005.

Yet even when those arguments are stated explicitly, as well as questions that critics have raised about the morality of capital punishment, support for repeal is tepid among the public — which could ultimately decide the issue.  If a repeal bill passes the General Assembly, opponents are expected to take advantage of a provision in the state Constitution that allows citizens to petition new laws to the statewide vote.  If enough signatures are collected, the issue would appear on the ballot in November 2014....

There are deep divisions over the death penalty based on party affiliation, race, gender and other demographics.  More than half of Democrats oppose capital punishment, while three-quarters of Republicans support it.  About six in 10 men support the death penalty, while women are nearly evenly divided. Whites support capital punishment by a margin of about 2-to-1, while a majority of African Americans are opposed....

The Post poll was conducted Feb. 21-24, among a random sample of 1,156 adult residents of Maryland. The results from the full survey have a margin of error or plus or minus 3.5 percent.

"Living Death: Ambivalence, Delay, and Capital Punishment"

The title of this post is the title of this interesting looking new paper by Marianne Mimi Wesson now available via SSRN. Here is the abstract:

Most discussions about capital punishment in the United States treat the distinct phenomena of death sentencing and execution as joined: in the ordinary case, it is assumed, the first will lead eventually to the second.  But in fact it is exceptional for a death sentence to cause the death of the individual sentenced.  During the entire modern death penalty era, since 1976, the ratio of death sentences pronounced in the U.S. to those carried out has been about six to one.

This Article seeks to investigate the causes of the disparity.  It surmises that our tolerance for it grows out of political and institutional ambivalence about capital punishment, and undertakes to identify which actors and processes enact this ambivalence and thus hinder the conversion of death sentences into executions.  My research assistants and I chose a small number of jurisdictions that we found representative in which to study the post-sentence careers of death row inmates.  We considered the roles of death while in prison, executive clemency, and federal habeas corpus intervention in creating attrition from death row, but taken together these events failed to account for all (indeed, even very much) of the disparity.  We investigated in more detail the frequency of sentence reversal by postconviction appeal or collateral state remedies, but contrary to expectation, we found that these processes could not account for the disparity we had observed.

We then undertook a more granular study, following the careers of a cohort of death row inmates, all of whom resided on death row in 1995 (and nearly half of whom still reside there today).  Our findings suggest that the most powerful explanation was simply delay. Our study population consists entirely of prisoners who have been under sentence of death for seventeen years or longer, yet more of them (in some of our jurisdictions many more) are still alive and under sentence of death than have been executed.  To be sure, necessary and expected legal processes consumed some of the intervening years, and the Article investigates and discusses the developments in capital punishment law that have contributed to impeding the march of execution.

A variety of measures have been designed to hasten the processing of capital cases between sentence and execution, but they have been unsuccessful.  Since 1976, the typical interval between sentence and execution has grown markedly over time, cannot really be explained by necessity, and begins to resemble a permanent feature of the system of capital punishment. Although predicting the outcome of individual cases is difficult, it appears that many death sentences that have not been carried out will never be carried out, and that we have accommodated ourselves to this reality.

In closing, the Article discusses the implications of these observations for our national conversation about capital punishment, considers the recent landscape of explicit death penalty abolition activity (especially in California), and makes some predictions about the future of capital punishment.

Maryland legislature moves one step closer to repealing state's death penalty

As reported in this Baltimore Sun article, the Maryland "General Assembly took an important step toward repealing Maryland's death penalty Thursday night when a key committee, for the first time in decades, approved a bill to end capital punishment."  Here is more on this development and Maryland's textured modern capital punishment story:

The Senate Judicial Proceedings committee voted 6-5 to send Gov. Martin O'Malley's death penalty bill to the Senate floor, with Sen. Robert A. Zirkin, a Baltimore County Democrat, dropping his long-held opposition to repeal of capital punishment and providing the decisive vote....

The bill repealing the death penalty is expected to go before the full Senate next week. Advocates say they have the votes there and in the House of Delegates to pass it, and they welcomed Thursday's action by a committee that has been seen as an obstacle to their position.

"I'm elated that the committee has come to a place where they recognize it's time to have this vote on the floor," said Jane Henderson, executive director of Citizens Against State Executions.  Henderson said the NAACP's push for repeal in Maryland was "instrumental" in changing the dynamic this year.

With Zirkin's vote, she said, repeal advocates count at least 26 Senate votes for the bill — two more than needed.  Henderson said she's confident the Senate would muster the 29 votes needed to end a filibuster if one is attempted.

Before casting his vote, Zirkin told the committee he would probably never be comfortable with his decision no matter which way he came down.  He said he was torn between his emotional response toward brutal murderers and the "legal and practical" arguments that the death penalty system doesn't work.  "As heinous and awful as these individuals are, I think it's time for our state not to be involved in the apparatus of executions," he said....

The Judicial Proceedings vote for repeal was the first for that committee since 1969, when the measure was defeated on the Senate floor, according to the Assembly's library staff. The panel temporarily blocked repeal in 2009, but the measure was brought to the floor in a rarely used parliamentary maneuver.  The bill was amended on the floor that year to retain the death penalty but to allow it only in cases where the prosecution could meet one of the highest evidentiary standards in the country.

Five men, all convicted murderers, remain on death row in Maryland for killings that go back as far as 1983.  The state has not executed a prisoner since 2005.  The Maryland Court of Appeals imposed a de facto moratorium in 2006 when it threw out the rules under which executions are carried out.  Those regulations have not been replaced amid complaints from death penalty supporters that the O'Malley administration has been dragging its feet....

On the death penalty, [a recent] poll found that Marylanders are closely divided — with 48 percent opposing repeal and 42 percent favoring it.  Other polls have found that when voters are asked whether life without parole would be an acceptable alternative, a majority say yes.

Death penalty repeal supporters have said they were determined to bring a "clean" bill to the Senate floor — that is, without any amendments creating exceptions for certain types of murders....

Senate President Thomas V. Mike Miller has said he expects that if the General Assembly approves a repeal law, opponents will gather enough signatures to petition the measure to a vote in the November 2014 election.  He said nothing should be included in the bill that could keep the issue from the voters.

Japan's new government embraces death penalty via three new executions

As reported in this new piece from The Guardian, headlined " Japan executions resume with three hangings: Hopes dashed of reprieve under Shinzo Abe's government with first sentences carried out since September 2012," Japan new government carried out its first set of executions this week.  Here are details on the latest executions and concerning Japan's recent capital punishment history:

Japan has carried out three executions -- the first since the country's conservative prime minister, Shinzo Abe, was elected last December, and a sign that Tokyo will defy international pressure to abolish the death penalty.

The justice ministry said the executions were carried out in the early hours of Thursday in three different locations.  One of the condemned men, Kaoru Kobayashi, had been sentenced to death for the abduction, sexual assault and murder of a seven-year-old schoolgirl in 2004.  He sent a photograph of the murdered girl to her mother.

The executions, the first since September 2012, could signal a return to more regular hangings under the current justice minister, Sadakazu Tanigaki.  "I ordered the executions after giving them careful consideration," Tanigaki told reporters.  "These were extremely cruel cases in which the victims had their precious lives taken away for very selfish reasons."

Amnesty International Japan condemned the executions. "The Japanese government cannot be excused from abiding by international human rights standards, just by citing opinion among the public," it said in a statement.  Opinion polls put support for capital punishment among the Japanese at about 80%.

Earlier this year Tanigaki indicated he would have no hesitation in signing execution orders; some previous holders of the post had refused to approve them, leading to a de facto moratorium.  "I will have to do what needs to be done according to the rule of law," he told journalists, adding that the secrecy surrounding hangings would continue.  Inmates are given very little notice before they are led to the gallows and their families are informed only after the executions have taken place.  "Even death row inmates have guarantees of privacy and we have to consider the feelings of their relatives," Tanigaki said. "I don't think it is necessarily a good idea to release more information."

At the end of last year Japan had 133 inmates on death row, the highest number since records were first kept in 1949.  They include Shoko Asahara, leader of the doomsday cult behind the 1995 sarin gas attacks on the Tokyo subway in which 13 people died and thousands were made ill.

The previous government, led by the left-of centre Democratic party of Japan (DPJ), executed nine people during its three years and three months in office.  That included an 18-month period from July 2010 in which no hangings took place.  In the three years to 2008 there were 28 executions under LDP administrations.

The DPJ raised hopes among abolitionists in 2010 when it established a panel to look into Japan's use of capital punishment but the body was disbanded without reaching a conclusion in January 2012.

Is Georgia likely to carry out tonight's scheduled execution of Warren Lee Hill, who is likely mentally retarded?

I have not blogged much about the possible execution of Warren Lee Hill, which is scheduled to be killed by the state of Georgia later tonight.  Given the considerable evidence that Hill is likely mentally retarded and that his lawyers now have more doctors prepared to testify to this fact, I had thought there was a real good chance that a federal court would step in and now reconsider Hill's claims that he is not constitutionally eligible for execution under the Supreme Court's 2002 Atkins ruling.

However, as detailed via this lengthy Atlanta Journal-Constitution article and this new New York Times posting reveals, we are now just hours away from Hill's execution hour and all systems in Georgia seem a go for this punishment.  The NY Times piece provides this update of the latest case developments:

Warren Lee Hill, an intellectually disabled inmate with an I.Q. of 70, is scheduled for execution today in Georgia at 7 p.m.

In 2002, the Supreme Court banned capital punishment for the intellectually disabled. But, alone among the states, Georgia requires a defendant to prove such a disability beyond a reasonable doubt — a heavy a burden of proof because it is so easy for a state to cast doubt on evidence concerning mental capacity.

Last Thursday, Mr. Hill’s lawyers announced what should be crucial news in the case. The three experts for the state who said in 2000 that Mr. Hill did not meet the criteria for intellectual disability have reversed their views....

These reversals of opinion are “the equivalent of an exoneration,” as Mr. Hill’s lawyers have explained: experts for Mr. Hill and for the state now agree that he is intellectually disabled beyond a reasonable doubt.

Last Friday, the lawyers asked the Georgia clemency board to review his case and presented the new evidence to a state trial judge in Georgia, in a plea for a stay of execution.  On Monday, when the state trial judge dismissed the plea, the lawyers immediately appealed to the Georgia Supreme Court.

I have long thought it problematic that the US Supreme Court has been willing, for now more than a decade since its Atkins Eighth Amendment ruling, to let each individual jurisdiction make up its own distinctive procedures for implementing Atkins.  And I have long believed that SCOTUS would have to take up this issue if and when a particular defendant appears headed to execution despite strong evidence of mental retardation.  Thus, I continue to think SCOTUS will jump in at the last minute if the Georgia clemency board and the Georgia Supreme Court both deny Hill any relief or any stay this afternoon. But time is now sure running short for Hill and his lawyers.

UPDATE: Just after hitting publish on this post, I saw this new development via the local papers:

The Georgia Supreme Court has voted 5-2 to deny Warren Hill a stay of execution.

Chief Justice Carol Hunstein and Justice Robert Benham dissented from the state Supreme Court’s decision to deny Hill a stay of execution.

Hill’s attorneys have yet to hear from the State Board of Pardons and Paroles on Hill’s most recent plea for clemency.  Hill also is asking the U.S. Supreme Court to stay his execution.

"Koch Death Penalty Arguments Still Persuasive"

The title of this post is the headline of this interesting new commentary noting one aspect of the life of the famous former NYC mayor Ed Koch.  Here is how the commentary starts:

The passing of former New York Mayor Ed Koch on February 1 brings to mind one of the most controversial things he ever did as a Democrat in the heart of American liberalism. In 1985, the three-term (January 1, 1978 - December 31, 1989) mayor wrote an essay defending the death penalty. He even had the temerity to declare, "Life is indeed precious and I believe the death penalty helps to affirm that fact."

Though it outraged liberals and "progressives" among the nation's esteemed "intelligentsia," Koch's essay reflected the convictions of most Americans, then as now, as opinion polls have consistently shown a substantial majority in favor of the death penalty.

Though this new commentary did not link to the old Ed Koch essay being referenced, I found this reprinting of the Koch essay on-line.  This link reports that the essay ran under the headline "Death and Justice: How Capital Punishment Affirms Life," and first appeared in The New Republic in April 1985.

Ohio execution process under review as drug procurement issues create new looming problems

I have been strongly disinclined to blog at all about any aspects of my on-going work as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (background here).  But there was some very interesting news presented at yesterday's public meeting of the Task Force which I thought important to cover in this space.  Part of the story is revealed via this AP article headlined "Ohio wants doctors at executions":

Ohio's prison agency says it wants doctors or other medical professionals to assist with executions, saying it will help promote humane procedures.   Prisons attorney Greg Trout also says state law should be changed to protect any doctor who helps with an execution from sanctions by the state medical board.  Trout said that assistance from a doctor or nurse is unlikely without such protection.

Trout also told a state Supreme Court committee reviewing Ohio's death penalty law that protection should be offered pharmacies that mix supplies of execution drugs.

Trout said in remarks Thursday that without such protection Ohio might not be able to obtain drugs to carry out future executions. The state's current supply of its execution drug runs out in September.

The Ohio DP Task Force has been spending its time and energies considering only the law and practices for the imposition and review of death sentences and had not, before yesterday, given any attention to the actual execution process.  I thought this was a sensible decision given (1) the extensive (and, I believe, still on-going) federal litigation over Ohio's execution protocols, and (2) my belief that Ohio was among the few states without major problems procuring the drugs needed to carry out executions.

But the comments by Greg Trout at the public Ohio DP Task Force meeting yesterday made clear that, as of this writing, Ohio is only going to be able to use its current drug supply to carry out, at most, the four executions scheduled before the end of September 2013 (details here); some other execution plans are going to be needed for the state to be able to carry out the nine subsequent scheduled executions.

Unspoken at yesterday's meeting, but well known to regular readers of this blog, any changes in execution protocols in Ohio (or elsewhere) are sure to be heavily litigated. In other words, stay tuned while dusting off your post-Baze litigation files.

Some related posts concerning Ohio's most recent lethal injection litigation: 

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• Ohio ready to try to get its machinery of death back in operation
• Federal judge again halts Ohio execution because state not following its own protocol
• Ohio completes "the most documented execution in the United States" 
• Ohio finally gets its execution protocol in order (and praised)

Notable account of capital realities when death penalty is truly rare

In California and some other states, various challenges presented by the administration of the death penalty might be traced to the fact that there are too many capital cases and not sufficient human resources to deal with them all soundly.  This new AP story from New Hampshire, in contrast, discusses challenges presented by having so very few capiral cases.  The piece is headlined "NH officials discuss the prospect of execution," and here is how it starts:

New Hampshire — which last executed an inmate more than 70 years ago, by hanging — would likely carry out an execution in a prison gymnasium rather than construct a costly death chamber for its lone death row prisoner, Corrections Commissioner William Wren said Wednesday.

Addressing a symposium on the death penalty at the University of New Hampshire School of Law, Wren said he and his staff are ‘‘dusting off’’ execution protocols from the 1930s but the $1.8 million needed to build a lethal injection chamber isn’t in the cards in a state where inmates are so rarely condemned to death.

The symposium offered a rare, behind-the-scenes look at the case of Michael Addison, sentenced to death in 2008 for gunning down Manchester Police Officer Michael Briggs following a violent crime spree. If the state’s highest court upholds his conviction and death sentence, Addison could be the first convict executed in New Hampshire since 1939.

Wren said Addison doesn’t really live on "death row" because the state no longer has one. He is housed in the state prison’s maximum security unit, living alongside other convicts.

The last person executed in New Hampshire was Howard Long, an Alton shopkeeper who molested and beat a 10-year-old boy to death. He was hanged — still a viable form of execution in New Hampshire if lethal injection is not possible.

Panelists made it clear Addison’s case threw a curve at a state criminal justice system that had no modern-day experience with capital litigation.

Attorney Chris Keating, who supervised Addison’s defense, said there was no legal "infrastructure" in place for a death penalty case — no bank of motions built from other cases, no expertise and a severe dearth of resources to handle the astronomical costs of such a case. He likened it to being told to build a nuclear bomb for the first time. "The stakes are really high if I get it wrong," he said.

Keating said he and former Attorney General Kelly Ayotte had to approach the Executive Council to fund their case. "The difference was, Ayotte was welcomed and people were very anxious to provide her with the funding necessary," Keating said. "I had to sheepishly ask for my $137,000 for initial spending."