Thursday, May 01, 2014
Sampling of reactions and commentary in wake of Oklahoma's execution problems
Thanks largely to coverage and links provided by How Appealing and The StandDown Texas Project, I can do a quick sample of some of the reactions and commentary emerging this week in response to Oklahoma's ugly execution:
From Politico here, "White House expresses dismay over botched Oklahoma execution
From Politico also here, "Tom Coburn: Botched executions rare"
From Roll Call here, "Inhofe: Botched Oklahoma Execution Shouldn’t Change Death Penalty"
From Andrew Cohen at The Atlantic here, "How Oklahoma's Botched Execution Affects the Death-Penalty Debate
From Sam Kleiner at The New Republic here, "Clayton Lockett's Botched Execution Adds Credibility to Court Fight Over Drug Secrecy"
From Dahlia Lithwick at Slate here, "When the Death Penalty Turns Into Torture: Oklahoma's botched execution was the grim but predictable result of a state more concerned with vengeance than justice"
Wednesday, April 30, 2014
Ugly Oklahoma execution leading to calls for national moratorium
Not surprisingly, the failing of government agents in Oklahoma to effectively and efficiently carry out a sentence of death yesterday (basics here) is now prompting new calls for a mortorium on all executions around the country. This lengthy new Washington Post article, headlined "Botched Oklahoma execution reignites death penalty debate," provides lots of details about last night's dysfunction in Oklahoma's machinery of death and the early reactions thereto. Here are the basics:
Tuesday night’s botched execution in Oklahoma, which resulted in an inmate’s writhing death from a heart attack 43 minutes after he received what was supposed to be a lethal injection, was just one in a series of bungled execution attempts the past few years. It’s prompting calls for a moratorium on capital punishment from death penalty opponents....
Patton told reporters Lockett’s vein line had “blown.” When asked what he meant, Patton said the vein had “exploded.”
Soon afterward, an alarmed Oklahoma Gov. Mary Fallin stayed for 14 days the other execution that was scheduled for Tuesday night.... “I have asked the Department of Corrections to conduct a full review of Oklahoma’s execution procedures to determine what happened and why during this evening’s execution of Clayton Derrell Lockett,” Fallin said. “I have issued an executive order delaying the execution of Charles Frederick Warner for 14 days to allow for that review to be completed.”
Ryan Kiesel, executive director of the American Civil Liberties Union of Oklahoma, also called for an investigation as well as an immediate moratorium on all executions in the state, saying, “In Oklahoma’s haste to conduct a science experiment on two men behind a veil of secrecy, our state has disgraced itself before the nation and world.” And National Coalition to Abolish the Death Penalty responded in a statement: “This night will be a catalyst for those aggrieved and outraged to continue to fight to abolish the death penalty in Oklahoma and every other state in America.”
Executions have become increasingly difficult for states to carry out over the past two years because of similar incidents.... These controversies have begun a whole new phase in the decades-long struggle over capital punishment. For years, opponents of the death penalty fought about its fundamental fairness under the Constitution. When they lost that fight, they attacked the capacity of the criminal justice system to actually mete out the death penalty reliably and without racial bias. They lost that fight, too, in the 1980s.
Now the battle concerns not who dies, but how they die, and the competence of states to carry out executions humanely. The visibility and drama of Oklahoma’s trouble Tuesday night is likely to intensify that conflict, though, there has been no doubt about the guilt of these two condemned men. Lockett, 38, was convicted of shooting a teenager and watching as she was buried alive. Warner, 46, was convicted of raping and murdering his girlfriend’s 11-month-old baby. Both were set to be executed Tuesday, Lockett at 6 p.m. Central time and Warner at 8 p.m.
Lockett’s execution was halted when it appeared the lethal injection administered to him was ineffective. Contrary to the description from media eyewitnesses, officials said he remained unconscious and passed away in the execution chamber at 7:06 p.m. “There was some concern at that time that the drugs were not having that [desired] effect, and the doctor observed the line at that time and determined the line had blown,” Patton said in a news conference. “After conferring with the warden, and unknown how much drugs went into him, it was my decision at that time to stop the execution.” Still, 43 minutes after the first injection, Lockett suffered a heart attack and died....
After Tuesday’s failure, Lockett’s attorney David Autry questioned the amount of the sedative, midazolam, that was injected, saying he thought the 100 milligrams called for in the Oklahoma’s execution protocol was “an overdose quantity.” He said he was also skeptical of the department’s determination that Lockett’s vein had failed. Tuesday was the first time the state had administered midazolam as the first drug in its execution protocol.
Earlier this year, the state attorney general’s office announced that a deal to obtain pentobarbital and vecuronium bromide, a muscle relaxer, had fallen through, and Lockett and Warner’s executions were delayed. The new protocol was identified in court papers and included the combination of midazolam and hydromorphone....
Regarding Warner’s scheduled execution, federal public defender Madeline Cohen, one of his attorneys, told the Washington Post, “Oh, we will be pursuing further action.”
No matter what is revealed during the "full review of Oklahoma’s execution procedures" ordered by Oklahoma's Governor, I would be very surprised if Oklahoma succeeds in going forward with Warner's execution in the next two weeks. And I have seen this morning press releases from the ACLU and the NACDL urging a national moratorium on executions nationwide in response to what happened in Oklahoma last night. I doubt that any other state Governors will be quick to announce execution moratorium in states that regularly carry out death sentence, but I also doubt that various groups will let up on the pressure to halt executions.
According to this DPIC "Upcoming Executions" page, there are serious execution dates scheduled in May in the states of Texas, Missouri and Ohio. Notably, as reported in this local article (which I will discuss in a later post), clemency has now been recommended in the Ohio case, and I predict it will be granted. So the states to watch real closely for execution debate an action over the next month are Missouri and Texas.
Recent related posts:
- Split Oklahoma Supreme Court stays executions based on drug secrecy concerns
- Oklahoma Supreme Court allows executions to get back on track
- Double execution scheduled for tonight in Oklahoma drawing international interest
- First of two planned Oklahoma executions botched, though condemned dies of heart attack after getting execution drugs
Tuesday, April 29, 2014
First of two planned Oklahoma executions botched, though condemned dies of heart attack after getting execution drugs
As reported in this CNN article, an "Oklahoma inmate died Tuesday evening of an apparent heart attack after authorities botched the delivery of drugs and stopped his execution. Another execution scheduled for the same day was postponed." Yikes. Here are the details:
Convicted murderer Clayton Lockett was sedated and then given the second and third drugs in the protocol, Oklahoma Department of Corrections Director Robert Patton told reporters. "There was some concern at that time that the drugs were not having the effect, so the doctor observed the line and determined that the line had blown," he said. When asked what he meant by "blown," Patton said that Lockett's vein had "exploded."
"I notified the attorney general's office, the governor's office of my intent to stop the execution and requested a stay for 14 days for the second execution scheduled this afternoon," said Patton, referring to the execution of Charles Warner.
Lockett later suffered what appeared to be a heart attack and died, the director said. Gov. Mary Fallin issued an executive order granting a stay for Warner and ordered an investigation. Lockett remained unconscious after the drugs were administered and died in the execution chamber at 7:06 p.m., according to her office.
"I have asked the Department of Corrections to conduct a full review of Oklahoma's execution procedures to determine what happened and why during this evening's execution of Clayton Derrell Lockett," Fallin said in a statement. "I have issued an executive order delaying the execution of Charles Frederick Warner for 14 days to allow for that review to be completed."...
"Something went horribly awry," Warner's attorney told CNN late Tuesday. "Oklahoma cannot carry out further executions until there's transparency in this process," said Madeline Cohen.
Recent related posts:
- Split Oklahoma Supreme Court stays executions based on drug secrecy concerns
- Oklahoma Supreme Court allows executions to get back on track
- Double execution scheduled for tonight in Oklahoma drawing international interest
UPDATE: As he does so well, Howard Bashman in posts at How Appealing here and here effectively collects lots of press reports on Oklahoma's execution struggles, which seems sure to be the biggest US death penalty story over the next few days and weeks (and months and years, perhaps).
Double execution scheduled for tonight in Oklahoma drawing international interest
As reported in this Tulsa World article, "Oklahoma's rare dual execution Tuesday is drawing international attention, with reporters from Japan, the United Kingdom and the Netherlands requesting to serve as media witnesses, prison officials say." Here is more about tonight's plans in the Sooner state:
Barring any last-minute court rulings in their favor, inmates Clayton Lockett and Charles Warner will be executed Tuesday at 6 p.m. and 8 p.m., respectively, at the Oklahoma State Penitentiary in McAlester. Jerry Massie, a spokesman for the state Department of Corrections, said 17 news organizations, including 12 from Oklahoma, have requested media credentials to cover the executions.
Media outlets from outside the state requesting to witness the executions are The New York Times, The Guardian, Esquire Magazine UK, Kyoto (Japan) News and NRC, a newspaper based in the Netherlands. The Department of Corrections allows up to 12 media witnesses, with preference given to The Associated Press and to Oklahoma media outlets, including the Tulsa World, The Oklahoman and local newspapers where the crimes occurred. Because more than that have requested credentials, the DOC likely will hold a lottery to select the media witnesses for each execution, Massie said.
Lockett was sentenced to die for killing 19-year-old Stephanie Neiman of Perry during a botched home-invasion robbery in 1999. Warner received the death penalty for raping and killing 11-month-old Adrianna Waller in Oklahoma City in 1997.
The executions have drawn wide interest following a complicated legal battle by the inmates to throw out the state's execution-secrecy law. The law shields the identities of those who supply and administer drugs during the execution process. States including Oklahoma have passed such laws in reaction to shortages of execution drugs....
Two executions on the same day weren't a rare occurrence in Oklahoma in the 1930s. The last double execution was June 11, 1937. On four separate occasions, Oklahoma put three men to death on the same day. On Sept. 20, 1935, it took only 14 minutes to execute three self-confessed murderers in the electric chair at the Oklahoma State Penitentiary, according to Tulsa World archives.
Massie said the prison has developed procedures for the dual execution, including having more staff on hand than usual. Both inmates will be moved into single adjoining cells next to the death chamber on Tuesday morning, he said.
This New York Times article about the two planned executions includes this account of why tonight's activities have drawn more than the usual modern execution attention:
The planned executions of Clayton D. Lockett, 38, and Charles F. Warner, 46, dramatized the growing tension nationally over secrecy in lethal injections as drug companies, saying they are fearful of political and even physical attack, refuse to supply drugs, and many states scramble to find new sources and try untested combinations. Several states have imposed secrecy on the suppliers of lethal injection drugs, leading to court battles over due process and the ban on cruel and unusual punishment.
“Tonight, in a climate of secrecy and political posturing, Oklahoma intends to kill two death row prisoners using an experimental new drug protocol, including a paralytic, making it impossible to know whether the executions will comport with the Eighth Amendment’s ban on cruel and unusual suffering,” said Madeline Cohen, a federal public defender for Mr. Warner. “We have serious questions — were these drugs imported, are they counterfeit, what is the expiration date, are they tainted?”
But the appeals were over as Gov. Mary Fallin, expressing the sentiment of many here, said: “Two men that do not contest their guilt in heinous murders will now face justice.”
Recent related posts:
- Split Oklahoma Supreme Court stays executions based on drug secrecy concerns
- Oklahoma Supreme Court allows executions to get back on track
Ohio concludes condemned murderer experienced no pain during troubled execution
As reported in this Columbus Dispatch article, headlined "Inmate did not experience pain during execution, report says; State to continue using same drugs but in higher doses," a three-month investigation of a seemingly problematic Ohio execution has led the state to conclude on a tweak in the execution protocol is needed. Here are the details:
Ohio prison officials will use the same drugs, but in much higher dosages, as those used in the troubled execution of Dennis McGuire on Jan. 16. A report issued yesterday by the Ohio Department of Rehabilitation and Correction concluded that McGuire “did not experience any pain or distress. The massive doses of drugs given to McGuire rendered him unconscious before any of the irregular bodily movements were observed.”
Witnesses observed that McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints for 10 minutes after the administration of two drugs, midazolam and hydromorphone, before being pronounced dead at the Southern Ohio Correctional Facility near Lucasville. It was the first time that those drugs were used in an execution in the United States.
The prison review said McGuire’s reactions were “consistent with the effects of the drugs, his obesity and other body characteristics, and involuntary muscle contractions associated with the ending of respiratory function.” The report concluded: “DRC is confident that Inmate McGuire was not conscious beginning a few minutes after the drugs were administered. He did not experience pain, distress or air hunger after the drugs were administered or when the bodily movements and sounds occurred.”
However, because of concerns about McGuire’s execution, the agency will boost the dosage of midazolam, a sedative, to 50 milligrams from 10 milligrams, and increase the dosage of hydromorphone, a powerful painkiller, to 50 milligrams from 40 milligrams. In addition, the revised policy calls for having a third syringe ready containing 60 milligrams of hydromorphone; other syringes will be prepared and available “if needed.”
The next execution, of Arthur Tyler of Cuyahoga County, is scheduled for May 28.
McGuire was executed for the murder of 22-year-old Joy Stewart in 1989. The condemned man’s attorneys warned in advance that using the two drugs might result in “air hunger” as his body struggled in the final death gasps. State officials dismissed that claim at the time and in yesterday’s report.
Some recent related posts on Ohio's recent controversial execution:
- Ohio completes execution using novel two-drug lethal injection protocol... UPDATED with media reports of problems
- "Family to file lawsuit after troubled execution"... seeking what remedy?
- Lots of notable reactions to and predictions after Ohio's latest struggles with lethal injection
- Notable early legislative responses to Ohio's recent lethal injection struggles
- "Officials investigate whether executed killer faked suffocation"
Monday, April 28, 2014
New study concludes "conservative estimate" of erroneous US capital convictions has been over 4%
As reported in this new AP article, headlined "Study: 1 in 25 death cases likely innocent," a notable new report makes a notable new claim about the number of innocent persons who have been sent to death row in the United States. Here are the basics:
About one in 25 people imprisoned under a death sentence is likely innocent, according to a new statistical study appearing in the Proceedings of the National Academy of Sciences. And that means it is all but certain that at least several of the 1,320 defendants executed since 1977 were innocent, the study says.
From 1973 to 2004, 1.6 percent of those sentenced to death in the U.S. — 138 prisoners — were exonerated and released because of innocence. But the great majority of innocent people who are sentenced to death are never identified and freed, says professor Samuel Gross of the University of Michigan Law School, the study’s lead author.
The difficulty in identifying innocent inmates stems from the fact that more than 60 percent of prisoners in death penalty cases ultimately are removed from death row and resentenced to life imprisonment. Once that happens, their cases no longer receive the exhaustive reviews that the legal system provides for those on death row.
Gross and three other researchers, including a biostatistics expert, looked at the issue using a technique often used in medical studies called survival analysis. Yale University biostatistics expert Theodore Holford, who wasn’t part of the study, said the work done by Gross “seems to be a reasonable way to look at these data.” Because of various assumptions, it might be best to use the margin of error in the study and say the innocence rate is probably between 2.8 percent and 5.2 percent, said University of South Carolina statistics professor John Grego, who wasn’t part of the study.
The study is the first to use solid and appropriate statistical methods to address questions of exoneration or false convictions, an important subject, said Columbia Law School professor Jeffrey Fagan, who also is a professor of epidemiology at the Mailman School of Public Health. The research combines data from three independent sources, a rigorous approach used by few studies on capital punishment, he said....
The study concluded that the number of innocent defendants who have been put to death is “comparatively low. ... Our data and the experience of practitioners in the field both indicate that the criminal justice system goes to far greater lengths to avoid executing innocent defendants than to prevent them from remaining in prison indefinitely.”...
Death sentences represent less than one-tenth of 1 percent of prison sentences in the U.S., but they account for 12 percent of known exonerations of innocent defendants from 1989 to 2012. One big reason is that far more attention and resources are devoted to reviewing and reconsidering death sentences....
The study estimates that if all defendants sentenced to death remained in that status, “at least 4.1 percent would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”
The full report is available via this link. The authors are Samuel R. Gross, Barbara O’Brien, Chen Hu, and Edward H. Kennedy, and the paper's official title is "Rate of false conviction of criminal defendants who are sentenced to death."
Sunday, April 27, 2014
"What botched executions tell us about the death penalty"
The title of this post is the headline of this lengthy new Boston Globe op-ed by Austin Sarat. Here are excerpts:
[I]n keeping its death penalty, New Hampshire did preserve a strange distinction: It is one of three states where hanging still is a legal method of execution.
If it seems surprising, even brutal, that hanging would still be technically legal in 2014, that’s because the evolution of the death penalty in America has been so closely entwined with our belief in technological progress. As executions have evolved from one method to the next—from hanging to electrocution, from electrocution to lethal gas, from electrocution and gas to lethal injection — supporters have proclaimed the dawning of an era of more humane executions while denouncing previous methods as barbaric and unreliable. The story of execution in the United States is partly a story of technology making a final punishment less painful and cruel.
But has it? Using newspaper accounts and a database of all American executions, my collaborators and I recently completed the first comprehensive study of botched executions in the United States and documented the ways that different methods of execution go wrong. We examined every execution from 1890 to 2010 and found that no technology has been able to ensure that capital punishment would not, on occasion, become either a gruesome spectacle of suffering or a messy display of incompetence.
During the time period covered by our research, 3 percent of all executions were botched, from the decapitations that happened at hangings to the “high tech” electric chair in which condemned criminals have caught on fire. Botched executions have not disappeared since America has adopted the current state-of-the art method of lethal injection. In fact, executions by lethal injection are botched at a higher rate than any of the other methods employed since the late 19th century, 7 percent.
This history of botched executions suggests whatever benefits we think we are bringing when we invent and deploy new execution methods may be illusory. A close look at executions in America suggests that despite our best efforts, pain and potential for error are inseparable from the process through which the state extinguishes life — and that the conversation about capital punishment needs to take that fact into consideration.
Friday, April 25, 2014
"How America can — and will — abolish the death penalty"
The title of this post is the subheadline of this new commentary from The Economist with the main headline "Dismantling the machinery of death." Here are excerpts:
America is unusual among rich countries in that it still executes people. It does so because its politicians are highly responsive to voters, who mostly favour the death penalty. However, that majority is shrinking, from 80% in 1994 to 60% last year. Young Americans are less likely to support it than their elders. Non-whites, who will one day be a majority, are solidly opposed. Six states have abolished it since 2007, bringing the total to 18 out of 50. The number of executions each year has fallen from a peak of 98 in 1999 to 39 last year.
Many people regret this. Some feel that death is the only fitting punishment for murderers: that it satisfies society’s need for retribution. Some find a religious justification, such as the line in Exodus that calls for: “life for life, eye for eye, tooth for tooth”. Such appeals to emotion or faith are hard to answer, although the Bible also has passages about not casting the first stone, and many conservative evangelicals have ended up in the odd position of prizing life when it comes to abortion, but not when it comes to prisoners (the Catholic church is pro-life on both counts). However, in a secular democracy a law of such gravity must have some compelling rational justification, which the death penalty does not.
Its advocates insist that it deters murderers, thereby saving lives. If this were true, it would be a powerful argument, but there is scant evidence that it is. The murder rate is far higher in America than in the European Union, which has no death penalty. It is also higher in American states that carry out executions than in states that do not. Granted, some studies have found that, if you control for other factors that also influence crime rates, you can make the case that each execution prevents three murders, or five, or even 18. But such studies are based on thin data and questionable assumptions. There were nearly 15,000 murders in America in 2012. The chance of any individual killer being executed is thus microscopic — and distant, since the appeals process can grind on for decades.
Against the death penalty’s uncertain benefits must be set its certain defects. Juries, being human, are fallible. If they jail an innocent man he can be freed and compensated, but he cannot be brought back to life. Since the Supreme Court lifted its suspension of the death penalty in 1976, there are no proven cases where America has executed an innocent. But there are at least ten that look horribly like it. Cameron Todd Willingham, for example, was put to death for starting a deadly fire, although experts blamed faulty wiring.
To avoid miscarriages of justice, America has erected elaborate safeguards. Capital cases are subject to multiple appeals; teams of lawyers haggle over them for years. An unintended consequence of this is that executing a murderer is now perhaps three times more expensive than locking him up for life. The money spent on the machinery of death would probably do more to improve public safety if it were spent on better policing, to catch the ones who currently get away. Put simply, the death penalty looks like a colossal waste of taxpayers’ money, which conservative politicians would normally denounce.
Of late, abolitionists have put a lot of effort into lawsuits to make it harder for states to get hold of the drugs used in lethal injections. This is more likely to delay executions than to end them. A more democratic approach would be to persuade voters that capital punishment is not just barbaric but also costly, ineffective and prey to human error, and that they should therefore back politicians who oppose it. That is how New Mexico, Oregon, Illinois, Connecticut, Maryland, Colorado and Washington stopped or suspended it. New Hampshire will try again. State by state, abolitionists will prevail. America is a nation founded on the principle that governments should not be trusted with too much power; that should include the power to strap people to a gurney and poison them.
The Economist also has this companion article about execution trends headlined "The slow death of the death penalty; America is falling out of love with the needle."
Thursday, April 24, 2014
Oklahoma Supreme Court allows executions to get back on track
As reported in this local article, headlined "Oklahoma Supreme Court lets executions go forward; Justices lift stay after ruling inmates don’t have right to know source of drugs," a controversial execution stay put in plae in the Sooner State earlier this week will no longer mean executions in the states have to come much later. Here are the basics:
The Oklahoma Supreme Court Wednesday evening ruled two convicted murderers’ executions can go forward. Justices had voted 5-4 Monday to halt the executions — until a legal challenge could be resolved.
Justices on Wednesday ruled unanimously against the inmates on that legal issue and let the executions proceed. Clayton Derrell Lockett and Charles Frederick Warner are now scheduled to be put to death by lethal injection next Tuesday.
Both complained in February that they need to know who was supplying the execution drugs. They contended they needed the information in order to challenge their executions as cruel and unusual punishment. Under state law, the identity of the drug supplier is confidential. An Oklahoma County judge in March — ruling in favor of the murderers — declared that law unconstitutional.
The Supreme Court Wednesday reversed the Oklahoma County judge’s ruling, saying the secrecy provision does not violate the inmates’ constitutional right of access to the courts. Justices noted that “the inmates have been provided with the identity of the drug or drugs to be used in the executions and with the dosages to be injected.”
The ruling Wednesday appears to put an end to what Attorney General Scott Pruitt had called a constitutional crisis. The Supreme Court had never before in its history blocked an execution. Both Gov. Mary Fallin and the attorney general complained after Monday’s ruling that the Supreme Court had overstepped its constitutional authority.
Normally, in Oklahoma, the Supreme Court handles civil issues and the Court of Criminal Appeals handles criminal matters. The Court of Criminal Appeals had not blocked the executions and Lockett was supposed to be put to death Tuesday. Faced with conflicting court orders, the governor on Tuesday rescheduled Lockett’s execution for next week.
Lockett, now 38, was convicted of the 1999 fatal shooting of Stephanie Neiman. Warner, 46, was convicted of killing his girlfriend’s baby daughter, Adriana Waller, in 1997.
In a strongly worded concurring opinion Wednesday, Supreme Court Justice Steven Taylor called the inmates’ challenge frivolous and a complete waste of the court’s time and resources. Taylor has repeatedly contended the Supreme Court never should have taken up the inmates’ challenge at all. He contends justices should have sent the issue to the Court of Criminal Appeals.
He wrote Wednesday the inmates had no right to information about where the execution drugs came from. “If they were being executed in the electric chair, they would have no right to know whether OG&E or PSO were providing the electricity,” he wrote. “If they were being hanged, they would have no right to know whether it be by cotton or nylon rope; or if they were being executed by firing squad, they would have no right to know whether it be by Winchester or Remington ammunition.”
Wednesday, April 23, 2014
Split Fourth Circuit panel hold that Confrontation Clause does not apply in penalty phase of federal capital case
Today in US v. Umaña, No. 10-6 (4th Cir. Apr. 23, 2014) (available here) a Fourth Circuit panel affirms a federal capital conviction and sentence over numerous challenges. Here is how the panel majority opinion starts:
Alejandro Enrique Ramirez Umaña shot and killed two brothers, Ruben and Manuel Salinas, at point-blank range in a restaurant in Greensboro, North Carolina, because Umaña perceived that the brothers had insulted Umaña’s gang, Mara Salvatrucha, commonly known as MS-13. A jury convicted Umaña of all counts for which he was charged, including two counts charging him with murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), and two counts charging him with committing murder while using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and (j)(1). The convictions on those charges subjected Umaña to a maximum sentence of death.
Following the verdict of conviction, the same jury returned a verdict that Umaña was death eligible on the four capital counts, as provided in 18 U.S.C. §§ 3591-3596. The jury found that two statutory aggravating factors applied: (1) that Umaña had created a grave risk of death to one or more persons in addition to each victim, and (2) that he had killed more than one person in a single criminal episode.
Finally, in the sentence selection phase of trial, the jury imposed the death penalty, finding that four additional nonstatutory aggravating factors applied: (1) that Umaña had killed the two brothers to protect and maintain the reputation of MS-13 and to advance his position in that gang; (2) that Umaña had caused injury and loss to the brothers’ family and friends; (3) that Umaña had earlier intentionally committed several murders in Los Angeles; and (4) that Umaña posed a continuing and serious threat to the lives and safety of others, as evidenced by his lack of remorse, his allegiance to MS-13, his lack of rehabilitation, and his pattern of violence. The jury also found several mitigating factors. After weighing the aggravating and mitigating factors, the jury imposed the death penalty.
On appeal, Umaña challenges every phase of the proceedings below. After carefully considering each of Umaña’s arguments, we reject them and affirm the convictions and sentence.
Here is how the dissent by Judge Gregory gets started:
The majority opinion denies Mr. Umaña the right to confront his accusers in a jury proceeding to determine whether he lives or dies. The right to confront one’s accusers is a right as old as it is important. Cf. Acts 25:16 (“[I]t is not the Roman custom to hand over anyone before they have faced their accusers...”). The Sixth Amendment guarantees a defendant the right “to be confronted with the witnesses against him” “in all criminal prosecutions.” U.S. Const. amend. VI. It also guarantees the right to an attorney, jury factfinding, notice of the crimes of which a defendant is accused, and a trial in the venue where the crime was committed. Id.
The last four of these Sixth Amendment rights -- counsel, jury, venue, and notice -- are not at issue today, nor are they controversial. During Federal Death Penalty Act (“FDPA”) proceedings, a defendant cannot be sentenced to death without these Sixth Amendment rights. However, under the majority’s holding today, capital defendants are denied the right to confront their accusers throughout certain stages of an FDPA proceeding. In contravention of the history and text of the Confrontation Clause, and in spite of modern Supreme Court jurisprudence emphasizing the importance of the Confrontation Clause, the majority strips Umaña of the Sixth Amendment right most important for ensuring the accuracy of trial outcomes during the most important proceeding of his life.
SCOTUS reinstates Kentucky death sentence based on AEDPA deference
Via a 6-3 opinion in White v. Woodall, No. 12-794 (Apr. 23, 2014) (available here), the Supreme Court this morning reversed a Sixth Circuit opinion reversing a Kentucky death sentence. Justice Scalia wrote the majority opinion which starts and ends this way:
Respondent brutally raped, slashed with a box cutter, and drowned a 16-year-old high-school student. After pleading guilty to murder, rape, and kidnaping, he was sentenced to death. The Kentucky Supreme Court affirmed the sentence, and we denied certiorari. Ten years later, the Court of Appeals for the Sixth Circuit granted respondent’s petition for a writ of habeas corpus on his Fifth Amendment claim. In so doing, it disregarded the limitations of 28 U.S.C. §2254(d) — a provision of law that some federal judges find too confining, but that all federal judges must obey. We reverse.
Because the Kentucky Supreme Court’s rejection of respondent’s Fifth Amendment claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ. We therefore need not reach its further holding that the trial court’s putative error was not harmless. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Justice Breyer authored a joined by Justices Ginsburg and Sotomayor, which starts this way:
During the penalty phase of his capital murder trial, respondent Robert Woodall asked the court to instruct the jury not to draw any adverse inferences from his failure to testify. The court refused, and the Kentucky Supreme Court agreed that no instruction was warranted. The question before us is whether the Kentucky courts unreasonably applied clearly established Supreme Court law in concluding that the Fifth Amendment did not entitle Woodall to a no-adverse-inference instruction. See 28 U. S. C. §2254(d)(1). In my view, the answer is yes.
Tuesday, April 22, 2014
Ohio prosecutors author lengthy minority report assailing work of death penalty task force
As reported in this local article, headlined "Critics: Supreme Court task force's death penalty recommendations would create legal 'nightmares'," Ohio prosecutors involved with the work of a task force created by the Ohio Supreme Court and the Ohio Bar Association have now circulated a lengthy draft minority report in response to the lengthy draft task force's report recommending 56 modifications to the administration of capital punishment in the state. The local article provides this summary the basics of this capital battle, along with links to both documents:
A series of capital punishment reforms being considered by a state Supreme Court task force would “render Ohio’s death penalty inoperable,” according to a draft report being circulated by critics on the panel, including many county prosecutors.
Earlier this month, the task force released a list of draft recommendations that, among other things, called for limits on when the death penalty could be sought, heightened evidence requirements, and the creation of a panel that would have to approve death penalty charges before cases could proceed.
According to the task force’s draft minority report, released Tuesday by the Ohio Supreme Court, many of the recommendations “would establish a series of procedural and legislative nightmares.”
“Some of the recommendations would tie the death-penalty system up in knots, creating procedural and litigative traffic jams that would potentially tie up particular cases in litigation even more than is already occurring,” the report stated.
Franklin County Prosecutor Ron O'Brien, along with representatives of Cuyahoga County Prosecutor Timothy McGinty and Hamilton County Prosecutor Joseph Deters, were involved in preparing the task force's dissent.
Here are are the first two paragraphs from the opening of the draft minority report:
The Joint Supreme Court/Ohio State Bar Association Task Force to Review the Administration of Ohio’s Death Penalty (hereinafter “Task Force”) was tasked with the assessment of whether the death penalty in Ohio is administered in the most fair and judicious manner possible; and to determine if the administrative and procedural mechanisms for the administration of the death penalty in Ohio are in proper form or in need of adjustment. The Task Force’s mandate specifically provided that “[t]he task force shall not review or report on the issue of whether Ohio should or should not have the death penalty.”
In several of its recommendations, however, the Task Force veered off its narrow mandate and is making recommendations that are anti-death penalty. The work of the Task Force was strongly influenced by a pro-defense majority bent on an agenda of abolition, not fairness.
Monday, April 21, 2014
Split Oklahoma Supreme Court stays executions based on drug secrecy concerns
As reported in this AP article, headlined "Oklahoma Court Stays Executions of 2 Inmates," a lack of transparency about execution drugs has prompted court action in the Sooner state. Here are the basics:
A sharply divided Oklahoma Supreme Court on Monday stayed the execution of two death row inmates who have challenged the secrecy surrounding the source of the state's lethal injection drugs.
In a 5-4 decision, the state's highest court issued the stays just one day before death row inmate Clayton Lockett was scheduled to be executed for the 1999 shooting death of 19-year-old Stephanie Nieman. The second inmate, Charles Warner, was convicted in the 1997 death of his roommate's 11-month-old daughter. He was scheduled to die on April 29.
Oklahoma County District Judge Patricia Parrish last month struck down the state's execution law in a ruling that said the protocol that prevented the inmates from seeking information about the drugs used in lethal injections violated their rights under the state constitution....
On Friday, the Oklahoma Court of Criminal Appeals denied the inmates' request for a stay in spite of a ruling by the Supreme Court earlier in the week that the appeals court had the authority to issue a stay or reschedule an execution.
"The 'rule of necessity' now demands that we step forward," the Supreme Court's majority opinion says. "We can deny jurisdiction, or we can leave the appellants with no access to the courts for resolution of their 'grave' constitutional claims.
"As uncomfortable as this matter makes us, we refuse to violate our oaths of office and to leave the appellants with no access to the courts, their constitutionally guaranteed measure."
The full opinions in this matter appear to be available at this link.
Friday, April 18, 2014
Effort to repeal death penalty in New Hampshire falls one vote short
As reported in this New York Times piece, headlined "Measure to Repeal Death Penalty Fails by a Single Vote in New Hampshire Senate," a tie vote yesterday in the Granite State will keep the death penalty alive there for now. Here are the details:
In a tie vote, the New Hampshire Senate deadlocked Thursday on whether to repeal the death penalty, leaving the current law intact and New Hampshire as the lone state in New England that allows the execution of anyone convicted of a capital crime.
Only one person here is on death row, but his fate had as much to do with the vote as anything else. That inmate, Michael Addison, was convicted in 2008 in the shooting death of a Manchester police officer in 2006.
Proponents of the death penalty want him executed, but his case has been tied up in legal appeals. State senators opposed to the death penalty said that they understood the visceral feelings against Mr. Addison and that their measure would still allow his execution even as it abolished the law authorizing it. Death penalty supporters said that the bill posed constitutional problems and that Mr. Addison’s life could end up being spared.
“Trying to have it both ways was problematic for proponents of the bill — execute one person but repeal it prospectively,” Senator Jeb Bradley, a Republican and the majority leader, said in an interview after the vote. “That was a bridge too far for a lot of people,” said Mr. Bradley, who opposed repeal....
New Hampshire’s action on Thursday stalled for now what had appeared to be momentum toward the abolition of the death penalty. The State House of Representatives approved the repeal 225 to 104 last month, and Gov. Maggie Hassan, a Democrat, had been prepared to sign it. Repeal would have made New Hampshire the 19th state to abolish the death penalty and the last in New England. And it would have been the seventh state in seven years to do so. New Hampshire’s last execution was in 1939.
But the State Senate, where Republicans outnumber Democrats 13 to 11, split 12-to-12 on Thursday, and tie votes are considered defeats. Party leaders had freed their members for what they said would be a vote of conscience. Two Republicans broke with their party and voted for the repeal, and one Democrat voted against it....
Death penalty opponents were disappointed and said they would continue to lobby senators in hopes of bringing up the bill again before the legislative session ends June 30. Arnie Alpert, spokesman for the New Hampshire Coalition to Abolish the Death Penalty, said that many people “evolve” on the issue over the years and that there was still hope of changing minds.
Senator Bette Lasky, a Democrat and the chief sponsor of the bill, said she regretted that she did not have a chance to talk to all of her colleagues. “Many senators were so inundated, even when it came to colleagues talking to them, that they shut down,” she said.
Ms. Lasky said she would bring the bill up again if she knew she had the votes to pass it. Mr. Bradley, the majority leader, said it was hard to say whether supporters of the repeal could get enough votes to bring the measure back. “At 12-12, it could come off the table, but I suspect it won’t,” he said.
Tuesday, April 15, 2014
"Secret Drugs, Agonizing Deaths"
The title of this post is the headline of this New York Times op-ed published yesterday. Authored by Megan McCracken and Jennifer Moreno, here is how it starts:
Facing a critical shortage of lethal injection drugs, prison officials in a number of states have recently engaged in an unseemly scramble to obtain new execution drugs, often from unreliable and even illegal sources. Not only does this trend raise serious questions about the constitutionality of executions, it also undermines the foundations of our democratic process. In the name of security, states are now withholding vital information about their death penalty procedures — from death row prisoners’ lawyers and from judges, whose stamp of approval they need to impose the ultimate sanction, as well as from the public, in whose name the sentence is carried out.
States have long shielded the identities of executioners, a reasonable policy that should not interfere with judicial review of execution procedures. But in the past year, Georgia, Missouri, Tennessee and other states have expanded the reach of their secrecy laws to include not just the execution drugs used, but even the pharmacies that supply them.
These laws hide the information necessary to determine if the drugs will work as intended and cause death in a humane manner. For states to conceal how they obtain the execution drugs, whether those purchases comply with the law and whether the drugs themselves are legitimate prevents courts from analyzing the legality and constitutionality of death penalty procedures. And that deprives the public of informed debate.
Saturday, April 12, 2014
"Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy"
The title of this post is the title of this symposium foreword authored by Paul Litton and now available via SSRN. Here is the abstract:
This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper.
First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly explores whether there is a principled reason for the Court to invoke Woodson but not Roper from its capital jurisprudence.
Second, the Court does cite Roper for its “foundational principle,” which is, according to the Court, “that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” However, this principle cannot be the bedrock of Roper. Since Lockett, state capital sentencing schemes have not proceeded as though juvenile offenders were not children. Juvenile capital defendants could introduce their youth and accompanying characteristics in mitigation. Roper, therefore, is based on a much stronger principle, one that requires categorical removal of juveniles from the universe of death-eligible defendants and, thus, should imply the same for penalties equivalent to death.
This Foreword also provides a guide to the symposium’s wonderful contributions by Nancy Gertner, Will Berry, Frank Bowman, Josh Gupta-Kagan, Michael O’Hear, Clark Peters, Mary Price, and Mae Quinn. In doing so, it highlights a fascinating theme running through many authors’ answer to whether Miller represents a “bombshell or babystep”: Miller’s implications for the Court’s methodology for conducting proportionality analyses and, specifically, for the role of “objective indicia” of public attitudes in such analyses.
April 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Friday, April 11, 2014
Is New Hampshire on the verge of becoming the next state to abolish the death penalty?
As reported in this local AP article, headlined "On revote, N.H. Senate panel endorses death penalty repeal measure," the Granite State appears to have now moved a step closer to possible repeal of capital punishment. Here are the details:
The Senate Judiciary Committee yesterday revisited the idea of repealing New Hampshire’s death penalty and recommended that it pass, setting up a potentially historic vote in the chamber next week. The bill represents the most energetic recent effort to repeal the state’s centuries-old death penalty. It passed the committee by a 3-2 vote, days after the same panel issued a tie vote that could have sounded the death knell on the repeal effort.
The House has voted resoundingly for repeal, and the governor supports it. The Thursday vote in the Republican-controlled Senate is said to be too close to call. “I think it will be a tight vote,” Senate Majority Leader Jeb Bradley told the Associated Press. “I think it will not break down all that much on party lines.”...
The Senate Judiciary Committee voted 2-2 Tuesday with one member absent, an outcome that would have automatically sent a message to the Senate to kill the repeal measure. The committee reconsidered the issue yesterday in deference to Democrat Donna Soucy of Manchester, who missed Tuesday’s meeting due to a family medical issue. There was no debate.
Sens. Bette Lasky, a Nashua Democrat, Sam Cataldo, a Farmington Republican, and Soucy voted for repeal. Sens. Sharon Carson of Londonderry and David Boutin of Hooksett, both Republicans, voted against it.
The state is the closest to repealing the death penalty that it’s been since 2000, when both houses of the Legislature approved repeal, but then-Gov. Jeanne Shaheen vetoed it. Democratic Gov. Maggie Hassan has said she would sign the repeal measure, because it wouldn’t affect the death sentence of Michael Addison – convicted of killing Manchester police Officer Michael Briggs in 2006. Addison is the only death row convict in the state, which has not seen an execution since 1939.
Death penalty opponents greeted yesterday’s vote with cautious optimism. Rep. Renny Cushing, a Hampton Democrat whose father and brother-in-law were murdered in separate crimes, has not wavered in his opposition to the death penalty through nearly two decades of sponsoring repeal measures.
“Everybody’s a swing vote,” Cushing said after yesterday’s vote. “It’s not a party issue,” he added. “There are a lot of senators genuinely wrestling with this.”
The House last month voted 225-104 in favor of repeal. The vote in the 24-member Senate – with 13 Republicans and 11 Democrats – could come down to a one-vote margin. A tie vote would kill the measure.
Thursday, April 10, 2014
"Death Delayed Is Retribution Denied"
The title of this post is the title of this notable new article by Russell Christopher now available via SSRN. Here is the abstract:
Does death row incarceration for upwards of thirty years or more impermissibly impose the suffering of additional punishment or permissibly bestow the benefit of death delayed and thus the enjoyment of life extended? Most commentators conceive of it as an unconstitutional additional punishment that is either cruel and unusual or disproportionally excessive. Most courts construe it as a constitutional nonpunishment that the death row prisoner opts for and benefits from. Sparking a long-running debate at the Supreme Court, Justices Stevens and Breyer view prolonged death row incarceration as unconstitutional additional punishment. Terming their view as “meritless” and “a mockery of our system of justice,” Justice Thomas finds it constitutional.
Attempting to break this impasse, this Article undertakes the first comprehensive assessment of death row incarceration under what the Supreme Court enthrones as the primary justification for the constitutionality of capital punishment — retributivism. Assuming that retributivism does justify capital punishment per se, this Article demonstrates that the combination of capital punishment plus substantial death row incarceration violates retributivism. Whether such incarceration constitutes additional punishment aggravating capital punishment or a life-extending, beneficial mitigation of capital punishment, the combination is unjustified under retributivism and thus perhaps unconstitutional.
Tuesday, April 08, 2014
NY Times debates "What It Means if the Death Penalty Is Dying"
Last week, lawmakers in New Hampshire heard testimony on a bill outlawing the death penalty. If passed, the law would make New Hampshire the 19th state to abolish capital punishment. The United States, the only country in the Americas to practice the death penalty last year, executed 39 people, four fewer than the year before, and Texas accounted for 41 percent of them, according to Amnesty International.
As executions become concentrated in fewer and fewer states and racial disparities continue, does the application of capital punishment make it unconstitutionally cruel and unusual?
Here are the contributions, with links via the commentary titles:
"Rare and Decreasing" by Richard Dieter
"Punishment Needs to Be Punishment" by Robert Blecker
"No Justice for Victims of Color" by Khalilah Brown-Dean
"Of Course, It’s Cruel and Unusual" by Kirk Bloodsworth
"Claims of Racial Disparity Are Misleading" by John McAdams
"The Most ‘Unusual’ It’s Ever Been" by Paul Butler
Saturday, April 05, 2014
"Is the Death Penalty Starting to Make a Global Comeback?"
The title of this post is the headline of this intriguing Slate commentary. Here are excerpts:
An Indian court today sentenced three men to death for the horrific gang rape of a photojournalist in Mumbai last year. They are the first to be sentenced under India’s tough new anti-rape law.
The sentence hammers home something that’s been obvious for some time now: After appearing to be on the verge of abolishing the death penalty entirely, India has now firmly rejoined the ranks of the world’s executioners. It’s one of a number of countries — including some of the world’s largest democracies — that have recently re-embraced capital punishment.
A 1983 Indian Supreme Court decision allows for capital punishment in only the “rarest of the rare” cases, and from 2004 to 2011 the country didn’t carry out any executions at all. From 1995 to 2012, it carried out only three. Then in 2012, Ajmal Kasab, the last surviving gunman of the 2008 Mumbai terror attack, was hanged in secret in what appeared to be an unusually swift and haphazard execution. The Kashmiri militant Afzal Guru was hanged under similar circumstances last year. Seventy-two people in total were sentenced to die in India last year, including four of the men involved in the gang rape and murder of a 23-year-old medical student in Delhi in 2012 — a case that shocked the country and prompted the drafting of laws aimed at speeding up the prosecution of rapists.
India’s not the only country heading in this direction. Amnesty International’s 2013 death penalty report noted that executions were up 15 percent last year — and that’s not even counting China, where the number of executions is a state secret. Just three countries — Iran, Iraq, and Saudi Arabia — accounted for 80 percent of executions, but to my mind, the most interesting recent trend has been been the countries that, like India, have been bucking the general global movement away from the death penalty.
In 2012 Japan carried out its first executions since 2010. Under Prime Minister Shinzo Abe, four rounds of “secret executions” have taken place. Nigeria carried out its first executions in seven years last year and Indonesia its first in five years. Vietnam resumed them after an 18-month pause with the execution of seven people by lethal injection.
It’s true that in terms of number of countries, the world is moving away from the death penalty. According to Amnesty’s numbers, 37 countries had the death penalty in 1994, compared with 22 today. In Europe and Latin America, the practice has essentially been entirely banished and an increasing number of African countries are reviewing their laws.
On the other hand, with the exception of Brazil, where it’s banned, and Russia, where it’s legal but abolished in practice, the world’s 10 biggest countries are all death penalty states. With India, Japan, and Indonesia rejoining the U.S., the world’s largest democracies are death penalty countries and the practice has heavy popular support in all of them.
UPDATE: This interesting international article highlights related death penalty developments under the headline "Vietnam is sentencing corrupt bankers to death, by firing squad."