Friday, January 24, 2014

How could AG Eric Holder justify refusing to authorize the death penalty process for Boston Marathon bomber, Dzhokhar Tsarnaev?

The question in the title of this post is my reaction to this new New York Times article headlined "U.S. Weighs Pursuit of Death Penalty for Suspect in Boston Bombing."  I really mean this question to be more of a friendly suggestion and challenge to readers who are strongly opposed to the death penalty in all cases, in part because I suspect AG Holder would have a hard time developing a sound (and politically effective) public justification for not starting the federal death penalty process.  So, abolitionists, use the comments to ghost write a speech for AG Holder to justify not authorizing a capital prosecution in this case.  Here is the start of the NY Times article to provide for all the essential background for this question and challenge:  

Since the federal death penalty was reinstated, in 1988, attorneys general have authorized it for about 500 defendants. By the end of the month there may be yet another: the accused Boston Marathon bomber, Dzhokhar Tsarnaev.

Attorney General Eric H. Holder Jr. must decide by Jan. 31 whether to pursue the death penalty, but even if he does so, it is far from certain that Mr. Tsarnaev would actually face execution.  Of those 500 defendants, only three have been executed, the last one a decade ago, according to the Federal Death Penalty Resource Counsel.

Still, Mr. Holder’s job is not to weigh the probabilities of Mr. Tsarnaev’s execution. Instead, he must decide whether the aggravating factors that might justify death in this case, like the indiscriminate killing and maiming of innocent people, outweigh any mitigating factors, such as the possibility that Mr. Tsarnaev, who was 19 at the time, was under the sway of his older brother.  

While Mr. Holder has said he does not personally support the death penalty, he has authorized its use several times, and many legal experts expect he will do so again in this case.

Some prior related posts:

January 24, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, January 21, 2014

Notable early legislative responses to Ohio's recent lethal injection struggles

Ohio GAAs repotted in this new local article, headlined "Legislative Democrats push anti-death penalty bills following controversial execution," at least a few member of the Ohio General Assembly have a few ideas about how the state should respond to its recent execution challenges. Here are the basics:

In the wake of Dennis McGuire's controversial execution last week, legislative Democrats are ramping up efforts to halt —€” or at least modify — the death penalty in Ohio.

State Sen. Edna Brown, a Toledo Democrat, called for an immediate moratorium on the death penalty and announced she would introduce legislation to abolish its practice in the state. Brown sponsored a similar bill in 2011.

In addition, Democratic state Rep. Bob Hagan of Youngstown said in a release that he's introducing a bill that would require the governor and the state'€™s prisons chief to be personally present during all future executions.

Both bills come after McGuire, convicted of raping, choking and stabbing a 22-year-old woman in 1989, was the first person in the United States to be put to death using a new and untried lethal-injection cocktail involving midazolam, a sedative, and hydromorphone, a morphine derivative. McGuire made several loud snorting sounds during his execution last Thursday, which took more than 15 minutes and was one of the longest executions since Ohio resumed using capital punishment in 1999....

In addition, an already-introduced House bill to abolish the death penalty will come before the House Judiciary Committee on Wednesday. House Bill 385 would substitute capital punishment with life imprisonment, with parole options after 20 or 30 years for some of those who plead guilty to or are convicted of aggravated murder.

Cleveland-area Democratic Reps. Dan Ramos of Lorain and Nickie Antonio of Lakewood introduced the legislation last month. Ramos and Antonio have cited reasons such as DNA evidence testing and racial disparities in sentencing as reasons to abolish capital punishment.

All three Democratic bills face an uphill climb in the Ohio General Assembly, as Republicans have significant majorities in both the House and Senate....

The Department of Rehabilitation and Correction will conduct a review of Ohio'€™s death penalty procedures, as is standard policy after every execution, according to department spokeswoman JoEllen Smith. Smith said she wasn'€™t sure when that review would be completed, though she anticipated it would be done by March 19, when Gregory Lott of Cleveland is scheduled to become the next death row inmate to be executed.

Lott, convicted in 1987 of robbing and murdering an 82-year-old East Cleveland man, is also planning to file a federal lawsuit challenging the use of Ohio's new lethal-injection drugs, his attorney said last week.

As this article highlights, a number of political realities likely ensure Ohio is unlikely to abolish the death penalty anytime soon. But the national and international attention garnered by last week's Ohio execution surely means that those looking to repeal or curtail Ohio's capital punishment system will garner a lot more attention in the days and weeks ahead.

While I am not expecting too much of legal consequence to happen in Ohio on the legislative front, I expect there will be a lot of consequential developments in the weeks ahead emerging from the executive and judicial branches.  Governor john Kasich has shown a willingness to use his clemency powers to delay executions or commute death sentences for a number of reasons. And as this press release reveals, the ACLU of Ohio has already publicly urge the Governor to impose a moratorium on executions. Here is how the press release starts: "[On Sunday], the ACLU of Ohio sent a letter to Ohio Governor John Kasich, asking him to use his executive authority to declare an immediate halt to executions in Ohio. The letter comes on the heels of the state’s fourth botched execution in less than ten years."

Om the judicial side, there is still on-going federal litigation over the constitutionality of Ohio's execution methods (as well as a new lawsuit threated by the McGuire family).  Moreover, in the wake of all the new troubles with the new lethal injection protocol, I cannot help but wonder if advocates for death row prisoners or others interested in abolition of the death penalty might now try to bring some state civil rights litigation in order to require the Ohio Supreme Court to consider and addresss how the state is now administering the punishment of death. 

Recent related posts:

January 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, January 19, 2014

Lots of notable reactions to and predictions after Ohio's latest struggles with lethal injection

20141813-firing-squad-2As reported here and here, Ohio's experiment with a new and novel two-drug execution protocol this past week did not look as peaceful as most everyone wants.  While the reaction by the family of the executed murderer is to talk up a possible lawsuit against the state of Ohio, reactions of lots of others are varied as evidenced in some of the quotes found within this sampling of recent media stories:

From the AP here, "Unclear Future for Executions After Ohio's Longest"

From the AP here, "Missouri, Wyoming lawmakers open to allowing executions by firing squad"

From CNN here, "Family, experts: Ohio execution snafu points to flaws in lethal injection"

From the Los Angeles Times here, "Prolonged execution renews debate over death by lethal injection"

From Reuters here, "U.S. states could turn to firing squads if execution drugs scarce"

From the New York Times here, "After a Prolonged Execution in Ohio, Questions Over 'Cruel and Unusual'"

Recent related posts:

January 19, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Friday, January 17, 2014

"Family to file lawsuit after troubled execution"... seeking what remedy?

The title of this post is the headline of this breaking news from my own Columbus Dispatch coming less than 24 hours after the great state of Ohio carried out an execution using a novel two-drug execution protocol.  Here are the details:

The family of Dennis McGuire will file a federal lawsuit against the state of Ohio over his troubled execution yesterday. Amber and Dennis McGuire, the executed man’s children, scheduled a press conference this morning in Dayton to announce their intention to go to court. The suit will claim McGuire’s 8th Amendment rights under the U.S. Constitution to avoid “cruel and unusual punishment” were violated when he gasped for air, choked and struggled against his restraints for about 10 minutes before being declared dead at 10:53 a.m.

“Shortly after the warden buttoned his jacket to signal the start of the execution, my dad began gasping and struggling to breathe,” Amber McGuire said in a statement. “I watched his stomach heave. I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fist. It appeared to me he was fighting for his life but suffocating.” McGuire’s children were witnesses at his lethal injection at the Southern Ohio Correctional Facility near Dayton.

McGuire, 53, was executed for the brutal 1989 murder of Joy Stewart, 22, who was newly married and 30 weeks pregnant at the time of her death. McGuire raped Stewart vaginally and anally, choked her, stabbed her in the chest, and slit her throat. He dumped her body in the woods near Eaton, Ohio, where it was found the next day by two hikers.

There was no clear indication that the drug combination — never before used in a U.S. execution — triggered McGuire’s death struggles. But Allen Bohnert, one of McGuire’s federal public defenders, called the execution a “failed, agonizing experiment by the state of Ohio.” McGuire died from an injection of midazolam, a sedative, and hydromorphone, a morphine derivative. The two drugs had never been used before in an execution in the U.S. The state switched to the new drugs because pentobarbital, the single drug used before, is no longer available as manufacturers will not sell it for use in executions....

Ohioans to Stop Executions called for an immediate death-penalty moratorium after what it called the “horrific events.”

I will be very interested to see the specifics of this federal lawsuit, and I am especially interested in the remedy that will be sought in this matter. Because the person whose constitutional rights were allegedly violated is now dead, I do not think any kind of injunction concerning future executions would be a possible remedy to seek. In addition, the family cannot make a wrongful death claim because McGuire's death was his lawful punishment. Consequently, it would seem the family can only be making a claim for damages based on the alleged pain McGuire suffered over a twenty minute period. (And, I do not believe the family can seek any kind of punitive damages under usual federal civil rights laws for state constitutional violations.)

Recent related post:

January 17, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (33) | TrackBack

Thursday, January 16, 2014

Ohio completes execution using novel two-drug lethal injection protocol... UPDATED with media reports of problems

As reported in this new local article, headlined "Dennis McGuire executed using new 2-drug combination," the great state of Ohio has yet again pioneered and used a brand new execution protocol. Here are the details:

Dennis McGuire and his attorneys wanted his death to be pain-free. His lethal injection at 10:53 a.m. today appeared to be relatively calm and free of the panic and agony that McGuire’s attorneys feared would occur from the combination of drugs used together for the first time in a U.S. execution.

McGuire’s quiet, almost surreal death in a small, windowless room at the Southern Ohio Correctional Facility stood in bleak contrast to the violent, terrifying death suffered by his victim, Joy Stewart.

Stewart, 22, of West Alexandria, a small town about 20 miles west of Dayton, was about 30-weeks pregnant when McGuire raped her, choked her, and slashed her throat so deeply it severed both her carotid artery and jugular vein. At the same point, her unborn child died, too, probably in the woods in the rural area of Preble County where her body was found the next day by two hikers.

McGuire, 53, died from an injection of midazolam, a sedative, and hydromorphone, a morphine derivative. The combination, never before used in a U.S. execution, was chosen by the Ohio Department of Rehabilitation and Correction because pentobarbital, the single drug previously used, is no longer available. McGuire's attorneys argued unsuccessfully that the drugs could cause him to struggle for breath though something known as “air hunger,” and die painfully, a violation of a U.S. constitutional ban against cruel and unusual punishment.

Dennis McGuire's adult children, Amber and Dennis, along with Dennis’ wife, were among those who watched his execution. The inmate had a tearful visit with his children Carol Avery, the victim’s sister, also witnessed.

The execution had an unusually large media contingent on hand; in recent years, the media had dwindled away as executions became almost routine since Ohio re-instated in the death penalty in 1999. Outside, a handful of anti-death penalty protestors demonstrated as temperatures remain in the low 20s even after sunrise this morning.

UPDATE:  Intriguingly, I have now seen that this CNN report on today's Ohio execution starts with this very different account of how it went:

Ohio inmate Dennis McGuire appeared to gasp and convulse for roughly 10 minutes before he finally died Thursday during his execution by lethal injection using a new combination of drugs, reporters who witnessed it said.

And the article I linked above from my own Columbus Dispatch as of 2:40pm now carries a much different headline and lead:

Killer struggles, gasps repeatedly under new 2-drug combination

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today.

The 24-minute execution process was a “failed, agonizing experiment by the state of Ohio,” said one of the killer’s attorneys, Allen Bohnert, a federal public defender. “The people of the state of Ohio should be appalled by what was done in their name.”

McGuire’s death by lethal injection at 10:53 a.m. may have been marked by the “air hunger” that McGuire’s attorneys feared would occur from the combination of drugs used for the first time in a U.S. execution.

“What we suggested to the court did happen,” said Bohnert, who refused to speculate on whether McGuire suffered. He also would not say whether further legal action would be pursued under the U.S. constitutional ban against cruel and unusual punishment.

January 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, January 13, 2014

Federal judge refuses to stop Ohio's plans to use novel execution method

As reported in this new AP piece, it looks now like Ohio is going to be able to go forward with its first planned execution of 2014. Here is why I was not sure about this before today:

A federal judge today refused to stop the upcoming execution of a condemned Ohio killer facing a never-tried lethal injection process that the inmate’s attorneys say will cause him agony and terror.  Judge Gregory Frost’s ruling moved Dennis McGuire one step closer to execution by the two-drug method developed after supplies of Ohio’s former execution drug dried up. Gov. John Kasich and the Ohio Parole Board have both rejected McGuire’s plea for clemency.

The judge said McGuire had failed to present evidence that he would suffer breathing problems alleged by his attorneys — a phenomenon known as “air hunger” — and said the risk to McGuire is within Constitutional limits. “The evidence before this court fails to present a substantial risk that McGuire will experience severe pain,” Frost said.

The judge rejected a similar request last year by death row inmate Ronald Phillips, who was set to become the first to die by the new method until Kasich delayed his execution to study the feasibility of Phillips’ donating organs to family members.

McGuire, 53, is scheduled to die Thursday for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio....

McGuire also asked the U.S. Supreme Court to delay the execution on the grounds that the jury that sentenced him to die never got to hear the full extent of his chaotic and abusive childhood. In the lethal injection appeal, McGuire’s lawyers had asked Frost to delay the execution while they challenge the proposed two-drug system....

The state opposed any delay, presenting evidence that disputed the air hunger scenario. They called McGuire’s appeal an eleventh-hour request that was years too late....

Supplies of Ohio’s former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions. Ohio’s Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.

Other death penalty states are being challenged by supply shortages. Missouri gave up attempts to use propofol over concerns the move could create a shortage of the popular anesthetic if the European Union, which opposes the death penalty, restricted its export. In Georgia, the state’s attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.

The combination of drugs Ohio intends to use has never been used in a U.S. execution. They are included in Kentucky’s backup execution method, and Florida uses midazolam as part of its three-drug injection process.

January 13, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

A few 2014 headlines reflecting the state of, and debates over, the death penalty

I have not done too many death penalty posts lately because the subject (and the usual comments it generates) often gets tiresome for me, and lots and lots of other coverage is always provided by the MSM and new media outlet. But because I will be starting a death penalty until in my Sentencing Law course later this month, I have been reading more carefully my news feed on the topic lately.  And here are a few recent reports and commentary pieces that may serve as a bit of a summary of some capital punishment topics making the papers in early 2014:

January 13, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, January 07, 2014

Another new legal challenge as Ohio prepares to conduct an execution with another new protocol

As reported in this AP piece, headlined "Attorneys cite 'agony and terror' in untried execution method," Ohio has an execution scheduled for next week that is generate a new round of litigation because of a new execution method. Here are the basics:

Ohio's untried execution method, the first of its kind in the nation, will cause the condemned killer of a pregnant woman "agony and terror" as he struggles to breathe, attorneys trying to stop the execution argued in federal court.

The two-drug combination won't sedate death row inmate Dennis McGuire properly, and he will experience a suffocation-like syndrome known as air hunger, the attorneys said in filings Monday and Tuesday. The drugs were chosen because of a shortage of other lethal injection drugs.

Lawyers had also asked Gov. John Kasich to spare McGuire on the grounds that a jury never got to hear the full details of his chaotic and abusive childhood and abuse. Kasich rejected that request without comment Tuesday. The governor typically does not give a reason when he turns down clemency requests by death row inmates.

McGuire, 53, is scheduled to die Jan. 16 for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. McGuire's lawyers asked federal judge Gregory Frost to delay the execution while they challenge the proposed lethal injection system. "McGuire will experience the agony and terror of air hunger as he struggles to breathe for five minutes after defendants intravenously inject him with the execution drugs," the inmate's attorneys said in a Monday court filing.

They also said McGuire exhibits several symptoms of sleep apnea, which could exacerbate the problem. The dose planned for McGuire isn't enough to properly sedate him, meaning he'll experience "the horrifying sensation" of being unable to breathe, Harvard anesthesiology professor David Waisel said in a Tuesday filing in support of the inmate.

A message was left with the Ohio attorney general's office, which was expected to oppose McGuire's filing. Frost scheduled a Friday hearing. Supplies of Ohio's former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions. It's a challenge facing other death penalty states as well.

Missouri gave up attempts to use propofol over concerns the move could create a shortage of the popular anesthetic if the European Union, which opposes the death penalty, restricted its export. In Georgia, the state's attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.

Instead, Ohio's Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.

That combination of drugs has never been used in a U.S. execution. They are included in Kentucky's backup execution method, while Florida uses midazolam as part of its three-drug injection process.

Regular readers know that there is a long history of notable developments in Ohio as a result of federal court litigation over new execution methods. It will be interesting to watch how this round of the litigation plays out.

January 7, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

Notable (and amusing?) account of an execution method gone to the dogs

In various settings, some folks are quick to point out that the United States is uniquely punitivie in its use of imprisonment compared to all other nations in the world and also that the United States is one of the few nations in the western world to make continued and somewhat regular use of the death penalty.  And advocates for sentencing and corrections reform (myself included) sometimes contend that the US ought to try to learn from the policies and practices of other nations.  These realities came to mind when I read this notable recent article sent my way by a helpful reader reporting on a recent high-profile sentencing and punishment in another part of the world:

The execution of Jang Song Thaek, the No. 2 man in North Korea, took Beijing by surprise and will adversely affect bilateral relations. Beijing's displeasure is expressed through the publication of a detailed account of Jang's brutal execution in Wen Wei Po, its official mouthpiece, in Hong Kong, on Dec 12.

According to the report, unlike previous executions of political prisoners which were carried out by firing squads with machine guns, Jang was stripped naked and thrown into a cage, along with his five closest aides.  Then 120 hounds, starved for three days, were allowed to prey on them until they were completely eaten up. This is called "quan jue", or execution by dogs.

The report said the entire process lasted for an hour, with Mr Kim Jong Un, the supreme leader in North Korea, supervising it along with 300 senior officials. The horrifying report vividly depicted the brutality of the young North Korean leader. The fact that it appeared in a Beijing-controlled newspaper showed that China no longer cares about its relations with the Kim regime.

Amusingly, as this new Reuters piece reports, it now appears that the "international media frenzy over reports that North Korean leader Kim Jong Un's uncle had been executed by throwing him to a pack of dogs appears to have originated as satire on a Chinese microblogging website."  Here is more:

One of the pitfalls of reporting on North Korea is that few independent media have offices there and visiting media are tightly controlled in a country which ranks among the lowest in global surveys of press freedom. Because of the lack of first hand information, many lurid stories about the country gain credence.

Trevor Powell, a Chicago-based software engineer, who first spotted the link to the Weibo post and reported it on his own blog said that analysts and experts were "still all missing the obvious fact that the original source of the Wen Wei Po story was a tweet from a known satirist or someone posing as him/her." Powell blogged about the post here.

January 7, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (23) | TrackBack

Friday, January 03, 2014

Pennsylvania task force struggling through comprehensive review of state's death penalty

As reported in this local article, headlined "PA Task Force Delays Deadline For Possible Death Penalty Reforms," folks in the Keystone State are struggling through an effort to better understand the state's death penalty. Here are the details:

Thirty-two states, including Pennsylvania, have the death penalty. Since 1976 when the U.S. Supreme Court reinstated capital punishment, Rhode Island (1984), New York (2007), New Jersey (2007), New Mexico (2009) Connecticut (2012), and Maryland (2013) have abolished it. But the repeal in the last three states was not retroactive so they still have prisoners on death row. Massachusetts' death penalty statute was nullified in 1984 by court rulings.

Could Pennsylvania become the next state to abolish capital punishment? The Pennsylvania Task Force and Advisory Committee on Capital Punishment is nearing the end of a two-year comprehensive study of all aspects of the death penalty. “No one has ever done this before in Pennsylvania,” said state Sen. Stewart Greenleaf (R-Montgomery), whose legislation created the commission.

The Penn State Justice Center for Research, the Inter-branch Commission on Gender, Racial and Ethnic Fairness and the Joint State Government Commission are researching all aspects of capital punishment for the task force. They were supposed to report findings and make recommendations this month but have asked for an extension to spring to complete what Greenleaf calls a “very laborious and time-consuming” process, which involves examining death penalty cases in every county of the state.

Three prisoners have been executed in the commonwealth since 1976, two in 1995 and the other in 1999. During that same 37-year period, 1,352 prisoners were put to death in the U.S.

Greenleaf said the researchers are looking at policies, procedures and impact of the death penalty including whether it’s being applied disproportionately based on race. “They’re having primary concerns themselves with statutory aggravators and mitigators; they’re the factors that come into play when a jury decides whether they give the death penalty or not,” Greenleaf said.

Of the 189 inmates on Pennsylvania’s death row, 101 are black — 53 percent. Louisiana has the highest rate of blacks on death row at 70 percent. Nationwide, 41 percent of those awaiting execution are black. The task force is also looking at everything from intellectual disabilities of inmates to the appeals process, from the use of lethal injection to the impact of the process on victims’ families.

Greenleaf, a former prosecutor, said the panel could suggest eliminating the death penalty in Pennsylvania. “We have to look at the report, but, of course, it could result in abolishing it or it could result in some changes or modifications of the process, everything is on the table right now," he said. "We want to see what their recommendations are.”

He added that the commonwealth’s adoption of DNA testing several years ago, which resulted in the exoneration of one death row inmate, is a pivotal factor in the basic question. “Is it more important that we convict every guilty person and execute them or is it more important that we never execute an innocent person?" Greenleaf said. "Our founding fathers said that it’s better to acquit a few guilty people than it is to convict one innocent person.”

January 3, 2014 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, December 30, 2013

NY Times editorial talks of "Slow Demise of Capital Punishment"

The title of this new New York Times editorial, "The Slow Demise of Capital Punishment," is probably better viewed as wishful thinking rather than a sound prediction. Nevertheless, as excerpted below, the New York Times editorial board makes its most potent pitch against the death penalty in this piece:

More states are coming to recognize that the death penalty is arbitrary, racially biased and prone to catastrophic error. Even those that have not abolished capital punishment are no longer carrying it out in practice.

In 2013, Maryland became the sixth state to end capital punishment in the last six years. Eighteen states and the District of Columbia have abolished the penalty, and it is dormant in the federal system and the military. Thirty states have had no executions in the last five years.

As it becomes less frequent, the death penalty also becomes more limited to an extremely small slice of the country, and therefore all the more arbitrary in its application. All 80 death sentences in 2013 came from only about 2 percent of counties in the entire country, and all 39 executions — more than half occurred in Texas and Florida — took place in about 1 percent of all counties, according to a new report by the Death Penalty Information Center. Eighty-five percent of all counties have not had a single execution in more than 45 years.

Public support for the death penalty — an important factor in the Supreme Court’s consideration of its constitutionality — is at its lowest level in four decades, and 40 percent of people surveyed by Gallup say they do not believe it is administered fairly....

Of course none of this matters to, say, Troy Davis or Cameron Todd Willingham, both of whom were executed in recent years despite deep doubts about their guilt. Nor is it of much use to the 3,100 people still sitting on death row around the country.

The argument is not that all of these people are innocent, or that they deserve to be released. Most would be justly imprisoned for most if not all of their life. But the death penalty as applied in America now — so thoroughly dependent on where the defendant lives and how much money he can spend on his defense — violates the constitutional guarantees of due process and equal protection, and no longer can overcome the Eighth Amendment’s ban on cruel and unusual punishments.

The dishonor and shame of capital punishment are further highlighted by the current shortage of lethal-injection drugs, a “crisis” resulting from the refusal of European drug makers to provide them for executions. As a result, states that use lethal injection have turned to unregulated compounding pharmacies, and have even passed laws to hide the identity of those pharmacies and the chemical makeup of the drugs. This only underscores the fact that when it comes to the death penalty, the United States is virtually alone in the Western world.

Actually, all of these developments are in fact of great "use to the 3,100 people still sitting on death row around the country." Given that all these developments help explain why the US now averages less than 50 executions each year (and only a few dozen outside of Texas), the vast majority of murderers serving death sentences now should know that they are far more likely to die of old age in prison rather than in an execution chamber. (And, perhaps better yet for these murderers, their legal appeals are far more likely to get extra attention from lawyers and judges than the tens of thousands of defendants serving life sentences for lesser crimes.)

December 30, 2013 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

Monday, December 23, 2013

Reviewing the state of the death penalty in the Buckeye state

One of many reasons I am so very grateful to be able to teach and research sentencing law and policy at The Ohio State University Moritz College of Law is because Ohio is an especially interesting and dynamic state with respect to its application of the death penalty.  And this local article, headlined "Ohio executes inmates more than most states: State is 4th among 32 with death penalty, while support, availability of drugs wane," provides an effective review of the state of the death penalty in the state these days. Here are excerpts:

Three ... executions occurred in Ohio [in 2013], which ranked fourth in executions behind Texas, Florida and Oklahoma.... Those executed were Frederick Treesh for the 1984 murder of Henry Dupree in Lake County; Steven T. Smith for the 1998 murder of Autumn Carter in Richland County; and Harry Mitts Jr. for the 1994 murders of John Bryant and Sgt. Dennis Glivar in Cuyahoga County. Billy Slagle was set to be executed this year for the 1988 murder of Mari Anne Pope in Cuyahoga County, but he committed suicide just days before the scheduled date.

Mitts was the last prisoner executed before the state’s supply of pentobarbital expired. Ohio’s new policy would use a never-tested combination of midazolam and hydromorphone if pentobarbital became unavailable.

Convicted murderer Ronald Phillips was scheduled to be the first recipient of the drug combination, but Gov. John Kasich delayed Phillips’ execution until July to see whether the inmate could donate his organs to ailing relatives.

Now, Dennis McGuire, who raped and fatally stabbed a pregnant woman, is set to be the first executed with the new combination. He is seeking a reprieve of his execution, which is scheduled for Jan. 16....

The number of inmates on Ohio’s death row, currently 140, has declined every year since 2003, according to December population counts from the state prison system.

A task force assembled by the Ohio Supreme Court and Ohio State Bar Association in 2011 to review Ohio’s use of the death penalty has made several suggestions for changes to state law. Those include eliminating the death penalty for inmates with serious mental illness during the time of the offense and standardizing pay for attorneys defending capital cases....

Several bills introduced this year address the death penalty, yet none has received a committee vote. One introduced by House Democrats would abolish the death penalty, whereas another backed by Senate Democrats would spare anyone sentenced to death because of race. A Cincinnati Republican wants to expand the death penalty to repeat sex offenders....

Ohio has executed 52 inmates since 1999 — all were men and nearly two-thirds were white. The highest number of executions in a year since Ohio reinstated the death penalty in 1981 was eight in 2010, according to the Ohio Department of Rehabilitation and Correction. Ohio has set six executions for 2014, six for 2015 and one for 2016.

Eleven prisoners have been executed during Kasich’s tenure compared with nine in the first three years of predecessor Gov. Ted Strickland, a Democrat, and two in the first three years of Republican Bob Taft’s tenure. Kasich has commuted four death row inmates’ sentences to life in prison without parole; Strickland commuted five death sentences over four years.

None of the states that surround Ohio executed a prisoner in 2013. Michigan and West Virginia are among the 18 states that do not have a death penalty.

December 23, 2013 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, December 19, 2013

Death Penalty Information Center releases annual report on capital punishment developments in 2013

This morning, the Death Penalty Information Center released its annual report on death penalty developments under the sparkling title, "The Death Penalty in 2013: Year End Report." The eight-page report is available at this link, and here are its list of "key findings" followed by the first part of the report's conclusion:

The number of executions, the size of death row, and the number of death penalty states all declined in 2013. Death sentences were near their lowest level since the reinstatement of the death penalty in 1976. Even many southern states, including South Carolina, Virginia, Tennessee, and Louisiana, had no death sentences in 2013. With Maryland’s repeal of capital punishment, the number of states without the death penalty grew to 18. Public support for the death penalty is at a 40-year low.

It is likely these trends will continue as more state legislatures consider repealing what has become a very expensive and unpredictable punishment. Nevertheless, over 3,000 people remain on death row, and some states like Florida and North Carolina have taken measures to expand the use of the death penalty.

The problems of mistakes, unfairness, and even the method of execution have exasperated many supporters of the death penalty, contributing to less reliance on capital punishment. Death sentences in Texas have declined by almost 80% since 1999. When examined on a county basis, only 2% of U.S. counties are responsible for the majority of executions and prisoners on death row. Because of restrictions by drug manufacturers, states have been forced to try new combinations of lethal drugs, some obtained from questionable sources, to carry out executions.

Though the DPIC's work is always impacted by its anti-death-penalty perspectives, I am always impressed by and grateful for the various ways the group collected and disseminates important information about the application of the death penalty throughout the United States.

December 19, 2013 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (34) | TrackBack

Tuesday, December 17, 2013

National Coalition to Abolish the Death Penalty lists top capital stories from 2013

Regular reasons may recall that I am a sucker for end-of-year lists and reports, and thus I was excited to see that the National Coalition to Abolish the Death Penalty has this extended blog post setting out a view of "important stories from 2013" concerning capital punishment in the United States. Here are the items on the list, and folks should click through to see the explanations provided by NCADP:

I would add to this list the decision of the Supreme Court to finally take up the issue of permissible state procedures for implementing its Atkins Eighth Amendment ruling. But, since we will not get oral argument or a decision in this SCOTUS case until next year, I suppose this is more properly considered a 2014 story.

December 17, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, December 15, 2013

In praise of sentencing and drug war coverage at The Atlantic and Reason.com

Thanks especially to columnists like Andrew Cohen and Jacob Sullum, sentencing fans need to make sure to make regular visits to The Atlantic and Reason.com.  Below I provide just a sampling of what has appeared in these spaces over the last week.

From The Atlantic:

From Reason.com:

December 15, 2013 in Death Penalty Reforms, Drug Offense Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Friday, December 13, 2013

Splitting 5-4 along party lines, SCOTUS vacates stay to allow Mizzou to complete novel execution

Distracted by other stories yesterday, I only now discovered that the US Supreme Court issued late Wednesday night this order (which, as I will explain below, strikes me as a pretty big deal):

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on December 9, 2013, presented to Justice Alito and by him referred to the Court, is granted.

Justice Ginsburg with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting. 

I would deny the application to vacate the stay of execution entered by the Court of Appeals.  See Bowersox v. Williams, 517 U.S. 345, 347 (1996) (GINSBURG, J., dissenting) (“At the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Appeals’ [stay] order.  Appreciation of our own fallibility, and respect for the judgment of an appellate tribunal closer to the scene than we are, as I see it, demand as much.”).

The start and end of this lengthy AP article about the execution which followed this SCOTUS ruling accounts for why I think this order is a pretty big deal:

Allen Nicklasson once recalled the "euphoria" he felt after fatally shooting a kindly businessman who stopped to help when he saw Nicklasson's car stalled on Interstate 70 near Kingdom City, Mo., in 1994.

Late Wednesday night, Nicklasson was put to death for Richard Drummond's killing — nearly 23 hours after he was originally scheduled to die. It was the second execution in Missouri in three weeks after a nearly three-year hiatus. Racist serial killer Joseph Paul Franklin was executed Nov. 20.

The executions also were the first since Missouri switched from a three-drug protocol to use of a single drug, pentobarbital. Nicklasson, 41, was pronounced dead at 10:52 p.m. Wednesday, eight minutes after the process began.  His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about 2 minutes into the process. He offered no final words....

Nicklasson's execution was originally scheduled for 12:01 a.m. Wednesday.  But an appeals court panel granted a stay of execution Monday, citing concerns about his counsel at trial and sentencing in 1996.

When the full appeals court refused to take up the case Tuesday, Missouri Attorney General Chris Koster appealed to the U.S. Supreme Court.  It did not return its 5-4 decision to vacate the stay until 10:07 p.m. Wednesday, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting.  Gov. Jay Nixon refused to grant clemency.

Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments.  The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy — the Missouri Department of Corrections declines to say who makes the drug, or where.

My general sense and understanding is that it is relatively rare for the Supreme Court, especially at the last minute, to vacate a lower court's stay in a capital case, especially if and when that stay was entered by a circuit which does not have a long history of getting in the way of state executions.  Moreover, in addition to the legal issues that led to the stay, I think the defendant here was also seeking a stay in order to be able to question and assail Missouri's new lethal injection drugs and method.

Given that the four more liberal Justices were obviously eager to allow the stay of this execution to remain in place, I find it notable and seemingly important that the more conservative Justices were able to get swing Justice Kennedy to vote to vacate the stay and enable the Mizzou execution to be carried out.  Particularly given that, over the last few years, aggressive lower-court litigation has probably played more of a role in reducing the total number of executions than many other factors, I cannot help but wonder if this decision represents a kind of (indirect?) statement by a majority of the Supreme Court that, at least for brutal killers who've already gotten to live on death row for decades, enough is enough.

Especially because this SCOTUS order is only an order and has not generated much attention at all, I may be guilty of trying to make this decision more of a big deal than it is.  Nevertheless, especially as another year filled with capital habeas litigation winds to a close, I cannot help be think this may be an interesting and telling sign of future SCOTUS capital rulings to come.

December 13, 2013 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, December 12, 2013

Brave New Death Penalty World: brain scans used to defeat death sentence

This new Wired piece, headlined "Did Brain Scans Just Save a Convicted Murderer From the Death Penalty?" suggests that defense lawyers in a recent federal capital trial devised another clever way to encourage jurors not to return a death verdict.  Here are the basic details:

John McCluskey escaped from an Arizona prison in July, 2010. A few days later, he and two accomplices — one of whom was both his cousin and fiancee — carjacked Linda and Gary Haas, a vacationing Oklahoma couple in their 60s.  McCluskey shot the Haases inside the camping trailer they were towing behind their truck, and set the trailer on fire with their bodies still inside. McCluskey was convicted for the carjacking and two murders in federal court on Oct. 7.

Yesterday the jury charged with deciding his sentence announced that it had been unable to come to a unanimous decision on the death penalty. That means he’ll get life without parole.

Perhaps it’s little wonder the jury couldn’t agree — they’d been given a lot to consider. McCluskey’s defense team had tried to convince them that he has several brain defects that, combined with other factors, contributed to his crimes and should be considered mitigating circumstances. The defense presented the results of several types of brain scans and various psychological tests, as well as testimony from neurologists and other experts....

In the sentencing phase of the trial, McCluskey’s lawyers argued that, as a result of his brain abnormalities — as well as a slew of other unfortunate circumstances ranging from a breech birth, to abuse as a child, to drug and alcohol addiction — he was incapable of “a level of intent sufficient to allow consideration of the death penalty.”  Essentially, they argued that his acts were impulsive, that he would have been incapable of planning such things.

December 12, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Wednesday, December 11, 2013

Poland asks Connecticut not to send murderer to death row

I just saw this intriguing domestic death penalty story from Connecticut with a notable international spin.  The piece is headlined "Poland's president challenges state's death penalty," and here are excerpts:

In what could spark an international incident, the president of Poland is demanding the state not execute a former Trumbull man for the terrifying 2006 murders of a city woman, her 9-year-old daughter and a Milford landscaper.

"We strongly believe the death penalty should not be imposed," Agniestka Torres, vice consul and head of the legal section for the Polish consulate general in New York, told Hearst Connecticut Newspapers. "It doesn't matter what crimes he committed."

The government of the Republic of Poland this week notified Gov. Malloy and the Chief State's Attorney Kevin Kane that it objects to Richard Roszkowski -- whose parents were Polish -- getting the death penalty. Torres said the appeal comes directly from their president, Bronislaw Komorowski, who recently signed a law banning the death penalty in all circumstances.

Roszkowski was born in the U.S., but both his parents, who are now dead, emigrated from Poland and Roszkowski visited Poland when he was a child. "As far as we are concerned Mr. Roszkowski is a Polish national and is covered by our laws," Torres said....

This latest development adds to an already controversial status for the state's death penalty. In the last 60 years only one person, convicted serial killer Michael Ross, has been executed in this state and that was in February 2005.

Last year Malloy, an opponent of the death penalty, signed a law abolishing it for any new crimes. However, the law left in place the 10 men currently on death row. That portion of the law is currently under appeal.

Last week jury selection was completed for the death penalty hearing against the 48-year-old Roszkowski. His hearing is set to begin Jan. 7.

In May 2009 a Bridgeport jury found Roszkowski guilty of two counts of capital felony, three counts of murder and one count of criminal possession of a firearm for the Sept. 7, 2006, shooting deaths of 39-year-old Holly Flannery, her daughter, Kylie, and 38-year-old Thomas Gaudet.

Although the same jury that convicted Roszkowski of the crime subsequently found he should get the death penalty, the verdict was overturned on a technicality and a new penalty hearing was ordered. At least one of the jurors selected for the new death penalty hearing appears to be of Polish heritage....

Roszkowski's lawyers did not deny he killed the victims but presented nationally recognized medical experts and death penalty opponents who testified Roszkowski has brain damage caused by earlier car crashes, hepatitis and long-term drug use.  The families of the victims declined comment because they are expected to testify in the upcoming hearing.

Among other interesting questions raised by this story concerns whether and how the defense lawyers for this mass murderer ought to be able to bring up these international issues during the penalty trial. Could and should Roszkowski's lawyers be able to argue to the jurors that sentencing Roszkowski to death would cause an international incident and hurt US-Polish relations? Could and should Roszkowski's lawyers be able to have members of the Polish consulate general testify for the defense at the penalty trial?

December 11, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (23) | TrackBack

Tuesday, December 10, 2013

Some final squabbling over some of the final executions slated for 2013

This new Reuters piece, headlined "Oklahoma to execute inmate; Missouri execution stayed," provides a run down of some of the final aspects of some of the final executions scheduled for 2013.  Here are the details:

Oklahoma on Tuesday was scheduled to execute a man convicted of raping and murdering two elderly women in the 1980s, while a federal appeals court panel has stayed a Missouri execution planned for hours later.

Missouri appealed the 2-1 ruling by the Eighth Circuit U.S. Court of Appeals panel to stay the execution of Allen Nicklasson, 41, who was found guilty of killing a stranger who offered him roadside assistance.  Nicklasson has raised claims that his trial and appeals counsel were ineffective.  The full Eighth Circuit was expected to hear arguments and rule Tuesday morning on the state's request to lift the stay of Nicklasson's execution, which is set for early Wednesday at a Missouri prison.

The Missouri Department of Corrections is proceeding with its plans for the execution unless instructed differently by the state attorney general, spokesman Mike O'Connell said. Oklahoma is scheduled to execute Ronald Clinton Lott, 53, by lethal injection at a state prison after 6 p.m. Central Time (0000 GMT) on Tuesday.

If carried out, the executions of Lott and Nicklasson would be the 37th and 38th in the United States this year, according to the Death Penalty Information Center.

Lott was convicted of raping and killing Anna Laura Fowler, 83, in 1986 and Zelma Cutler, 90, in 1987 in their Oklahoma City homes after DNA evidence linked him to the crimes.... Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998.

Lott would be the fifth man executed in Oklahoma in 2013. The state is also scheduled to execute Johnny Dale Black, 48, on December 17 for his conviction in the 1998 stabbing death of Ringling, Oklahoma, horse trainer Bill Pogue.

In the Missouri case, Nicklasson was found guilty of murder for the August 1994 shooting of motorist Richard Drummond, who stopped on a highway to help Nicklasson and two other men whose car had broken down. The men had burglarized a home where they stole guns and ammunition before their vehicle broke down. When Drummond stopped to offer a ride, the men abducted him, took him to a wooded area and shot him in the head, according to court records. One of the men, Dennis Skillicorn, was executed in 2009. The other man, Tim DeGraffenreid, was 17 at the time. He pleaded guilty to second-degree murder and received a reduced sentence.

Nicklasson and Skillicorn were also convicted of killing an Arizona couple while they were on the run after killing Drummond. Nicklasson would be the second person executed in Missouri this year.

Nicklasson had been scheduled to die October 23, but Missouri Governor Jay Nixon halted the execution due to broad criticism over the state's planned use of the drug propofol, widely used as an anesthetic in medical procedures. The case is one of many caught up in a nationwide debate over what drugs can or should be used for executions as capital punishment opponents pressure pharmaceutical companies to cut off supplies of drugs for executions. Missouri in November used pentobarbital, a short-acting barbiturate, mixed by a compounding pharmacy to execute serial killer Joseph Paul Franklin.

Because the executions discussed in this piece are the only ones likely to be carried out this month, it appears very likely that there will be less than 40 executions in the United States in 2013. This is only the second time in nearly two decades in which there were less than two score execution throughout the nation, and the last time (in 2008) no executions had been carried out for the first three months of the year as everyone awaited a result in Baze concerning the constitutionality of lethal injection protocols.

December 10, 2013 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Saturday, December 07, 2013

"How should states decide if someone convicted of a crime has an intellectual disability, when the answer means life or death?"

The title of this post is the first sentence of this lengthy USA Today article headlined "Supreme Court to revisit death penalty for mentally disabled."  Here is more from an effective review of the challenging capital procedure issues now before SCOTUS:

In its 6-3 decision in Atkins v. Virginia, authored by Justice John Paul Stevens, the court prohibited states from executing anyone with "mental retardation."  Mental health professionals define it as substantial limitations in intellectual functions such as reasoning or problem-solving, limitations in adaptive behavior or "street smarts," and evidence of the condition before age 18.  (Mental retardation is the term used in law, but most clinicians and The Associated Press refer to the condition as intellectual disability.)

After the decision, most states stuck with the three-pronged clinical definition, but Florida, Georgia, Mississippi and Texas set their own standards. Under Florida's law, if you have an IQ over 70, you're eligible for execution regardless of intellectual function or adaptive behavior.

Freddie Lee Hall, who has been on Florida's death row for more than 30 years and scored in the mid-70s on IQ tests, is arguing the state's standard amounts to unconstitutional punishment.  Most likely, the case won't result in a dramatic shift in national criminal justice policy, but will further clarify who should and should not be eligible for execution, said Ronald Tabak, an attorney who has represented multiple clients with intellectual disabilities and chairs the American Bar Association's death penalty committee....

The court's makeup has shifted since the 2002 Atkins decision.  But if the justices split along ideological lines, the vote could favor Hall, assuming that swing vote Justice Anthony Kennedy sides with Hall, as he did with Atkins in 2002.  Arguments are set for March 3.

Similar cases are percolating beyond Florida.  In Georgia, death row inmate Warren Hill is fighting execution based on substantial evidence that he is intellectually disabled. In Texas, where the courts use an anecdotal seven-part test largely based on the characteristics of the fictional character Lennie from John Steinbeck's novel "Of Mice and Men" to determine intellectual disability, multiple prisoners have been executed in recent years even when they've scored well below 70 on IQ tests.

Last year, Texas executed Marvin Wilson, who was convicted of murder in 1994, even though he had an IQ of 61.  In 2010, Virginia executed Teresa Lewis for her role in a murder-for-hire scheme, even though she had an IQ of 72 and her co-conspirators admitted Lewis did not plan the murder....

Still, the Atkins decision has had an impact on executions. At least 98 people have had their death sentence changed since 2002 by proving that they were intellectually disabled, according to data from the Death Penalty Information Center.  By their count, in the 18 years before the Atkins decision, at least 44 people who likely suffered from intellectual disabilities were executed.

December 7, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (19) | TrackBack