Wednesday, March 18, 2015
Death penalty symbolism and Robert Durst
Everyone interested in pop culture criminal law is now busy talking about the seeming confession of infamous real estate figure Robert Durst during the final episode of the HBO documentary series "The Jinx: The Life and Deaths of Robert Durst." Though I find interesting the debate over the potential meaning and use of Durst's statement that he "killed them all," as a sentencing fan I find even more notable this headline about these headlines about case:
- From NPR: "Robert Durst Charged With Murder, May Face Death Penalty"
- From Reuters: "Satisfaction over prospect of accused US killer Durst facing justice"
Because Durst is aged 71 and California has not executed anyone in nearly a decade, the odds that Durst would be sentenced to death and executed before he dies of natural causes are about the same as the odds that a 16 seed will win the NCAA basketball tournament. But, as in true in so many cases, here a death penalty penalty charge is not really about seeks a true punishment but rather about symbolically sending a message that Durst is among the worst of the worst criminals.
I am always ambivalent about the value of state actors spending lots of time, money and energy on seeking a form of punishment that will never actually be carried out. But the Durst case serves as a great example of why the death penalty (and sometimes other punishments like Bernie Madoff getting 150 years in prison) is often much more about criminal justice symbolism than punishment reality.
Might Utah's gov veto the effort to provide for a firing squad execution back-up plan?
The question in the title of this post is prompted by this AP piece headlined "Death Penalty Opponents Urge Veto of Utah Firing Squad Bill." Here are the basics:
Death penalty opponents are urging Utah Gov. Gary Herbert to veto a bill allowing execution by firing squad if the state cannot obtain lethal injection drugs. Ralph Dellapiana of Utahns for Alternatives to the Death Penalty delivered a petition and a letter to Herbert's office Tuesday. Dellapiana calls firing squads archaic and barbaric.
Herbert, a Republican, has declined to say if he will sign the proposal but says it could offer Utah a backup if it cannot get execution drugs. Utah lawmakers passed the bill last week as states struggle to obtain lethal injection drugs amid a nationwide shortage.
Republican Rep. Paul Ray of Clearfield sponsored the proposal and says a team of trained marksmen is faster and more humane than the drawn-out deaths that occur when lethal injections are botched.
Tuesday, March 17, 2015
Notable empirical review of what happens to most death sentences
This new Washington Post piece by two researchers provides an interesting review of the state and fate of most modern death sentences. The piece is headlined "Most death penalty sentences are overturned. Here’s why that matters," and here are excerpts:
If a person is given a death sentence, what is his or her chance of actually being executed? Based on a review of every death sentence in the United States since 1973, the beginning of the modern era of the death penalty, we have found that the most likely outcome isn’t being executed or even remaining on death row as an appeal makes its way through the courts. In fact, the most common circumstance is that the death sentence will be overturned....
From 1973 to 2013, 8,466 sentences of death were handed down by U.S. courts, and 1,359 individuals were executed — only 16 percent. Even excluding those who remained on death row as of 2013, only about 24 percent of condemned inmates have been executed. Those sentenced to death are almost three times as likely to see their death sentence overturned on appeal and to be resentenced to a lesser penalty than they are to be executed. Here is a summary of the outcomes:
- 8,466 death sentences were imposed across the United States from 1973 through 2013.
- 3,194 were overturned on appeal, composed as follows. For 523, the underlying statute was declared unconstitutional. For 890, the conviction was overturned. For 1,781, the death penalty was overturned, but guilt was sustained.
- 2,979 remain on death row as of Dec. 31, 2013.
- 1,359 were executed.
- 509 died on death row from suicide or natural causes.
- 392 had their sentence commuted by the governor to life in prison.
- 33 had some other outcome or a miscellaneous reason for being removed from death row.
Execution is in fact the third most likely outcome following a death sentence. Much more likely is the inmate to have their sentence reversed, or to remain for decades on death row....
In the early years of the modern death penalty, many were removed from death row because the underlying statute under which they were condemned was ruled unconstitutional. In fact, of 721 individuals sentenced between 1973 and 1976, just 33 were eventually executed. Other reversals have come because inmates’ individual convictions were overturned, and some were exonerated entirely.
But by far the most likely outcome of a U.S. death sentence is that it will eventually be reversed and the inmate will remain in prison with a different form of death sentence: life without the possibility of parole.
Why would reversal of the sentence be the single most common outcome of a death sentence? Capital trials have many unusual characteristics, but a key one is that there is an automatic (or “direct”) appeal through the state appellate courts and, if the death sentence is not overturned by the state appellate or supreme court, a review by a federal judge....
States differ greatly in the degree to which they carry out their legal promise of death, but most operate systems consistent with the trends above: They sentence far more inmates to death than they actually execute....
The average state has a 13 percent likelihood of carrying out a death sentence. Some states — such as Texas, South Dakota, Missouri, and Oklahoma — significantly higher rates, though none of these states reaches a level of 50 percent. In fact, only one state, Virginia, has executed more than half of the inmates it has condemned....
Texas, Florida, and California have all condemned more than 1,000 individuals to death in the modern period. However, the numbers of executions in these states are 508, 81, and 13, respectively. Virginia has sentenced 152 individuals to die, and 110 have been put to death.
I find these numbers notable and interesting, but I find not at all compelling the reasons stated in this commentary (and left out of the excerpt above) for why we should find these numbers troubling. If lawmakers and voters want to have a death penalty system that works very hard to ensure only the worst of the worst get executed after providing the accused with a form of super due process, it makes sense that the system will, through checking and double checking of every death verdict, screen out any and all suspect cases. This is a costly and time-consuming process for all involved, but so is every aspect of American government if and when we devote extraordinary resources to making sure everything has been done just right.
In addition, it bears noting that there were roughly 800,000 murders in the United States from 1973 to 2013. Thus, arguably far more remarkable than the relatively few executed from among those given a death sentence is the amazingly few murderers given a death sentence during this period. Because only a little over 1% of all murderers were given death sentences, I am not sure why I should be especially troubled that only a portion of these condemned actual were executed.
Monday, March 16, 2015
"The free-market case for opposing the death penalty"
The title of this post is the headline of this new piece from The Week magazine. Here are excerpts:
There are lots of ways to execute a prisoner. But in the U.S., at least, the 32 states that still execute prisoners have decided on lethal injection. On its face, lethal injection seems like a clinical, modern, hopefully low-pain, and usually low-key way to kill somebody. Except when it isn't, as we saw in last year's crop of botched executions.
The prolonged, evidently painful deaths of Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Dennis McGuire in Ohio were tied to experimental drug cocktails necessitated by a shortage of traditional death drugs. This shortage is due largely to a ban by European countries on exporting certain drugs to U.S. states that practice capital punishment. The free market is making a case against capital punishment. So far, the states that actively execute prisoners have been willfully plugging their ears....
With just a single dose of pentobarbital left and 317 inmates on death row, Texas is stocking up on midazolam. It's not clear if Texas can't get pentobarbital because the compounding pharmacies are refusing to sell it to them, or because they can't get the raw ingredients — the Professional Compounding Centers of America told The Texas Tribune that it stopped providing pentobarbital ingredients to its customers in January 2014.
Most compounding pharmacies aren't regulated by the Food and Drug Administration, and their products are uneven. Which compounding pharmacies are Texas, Oklahoma, Ohio, Georgia, Missouri, and other states buying drugs from? They're not saying. Why not? "Disclosing the identity of the pharmacy would result in the harassment of the business and would raise serious safety concerns for the business and its employees," Texas Department of Criminal Justice spokesman Jason Clark explained to The Texas Tribune last month....
Providing lethal injection drugs to state prisons is so toxic that no European country will do it and no American company is willing to do it openly. Gunmakers and abortion clinics advertise their services, but pharmacies and drugmakers won't publicly associate with a form of punishment approved of by 63 percent of Americans. That's the market talking, and it's saying it wants no part of this.
New York Times editorial assails death decided "by a single vote" in Alabama and Florida
This new New York Times editorial, headlined "Death Sentences, With or Without a Jury," uses the recent Supreme Court cert grant in Hurst to assail a capital punishment system it views as "warped by injustice and absurdity." Here are excerpts:
In Florida and Alabama, death row inmates are challenging perverse state laws on the jury’s role in capital trials. The Supreme Court, which has been intervening more often in death penalty cases, last week agreed to review the Florida law.
In death penalty trials, juries that reach a guilty verdict are usually required in the trial’s subsequent penalty phase to make factual findings, such as whether the crime was especially heinous, that will determine whether the defendant is sentenced to death.
But Florida lets the judge make these findings, and does not require that the jury be unanimous in voting for a death sentence. After Timothy Lee Hurst was found guilty of a 1998 murder of a coworker in Pensacola, his jury split 7 to 5 in favor of executing him, with no record of whether the majority even agreed on the reason. (Mr. Hurst claims he is intellectually disabled and thus ineligible to be executed.) In other words, Mr. Hurst was effectively condemned by a single vote by an unidentified juror.
Alabama also allows death to be decided by a single vote: that of the judge, who may override a jury verdict of life in prison and replace it with a death sentence, relegating the jury’s status to that of an advisory body. The Supreme Court declined to hear a challenge to the Alabama law in 2013, prompting a sharp dissent from Justice Sonia Sotomayor. She concluded that the state’s judges, who are elected — and who have unilaterally imposed death sentences 101 times after the jury voted for life — “appear to have succumbed to electoral pressures.”
The Alabama law, Justice Sotomayor wrote, undermines “the sanctity of the jury’s role in our system of criminal justice,” and very likely violates the court’s own rulings requiring juries, not judges, to find any fact that would increase a defendant’s sentence. Two new challenges to that law are before the court — one involving a death sentence imposed by a judge after a jury voted 12 to 0 for life — but it hasn’t decided whether to take them up.
This disregard for the jury’s role is all the more offensive given the Supreme Court’s reliance on jury verdicts as a key measure of America’s “evolving standards of decency,” the test it uses to decide whether a punishment is so cruel and unusual that it violates the Constitution. How can those “evolving standards” be accurately measured if the “verdicts” for death are so deeply divided or are in fact imposed by a judge who is rejecting the jury’s call to spare a life?
The Florida and Alabama jury laws are only more proof of the moral disgrace of capital punishment in this country. In Georgia, officials hide their lethal-injection drug protocol behind state-secret laws. Missouri has executed an inmate before the Supreme Court ruled on his final appeal. Texas has been trying for years to kill a man suffering from paranoid schizophrenia.
Prior related posts:
- SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring
- What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?
Saturday, March 14, 2015
"Death of the death penalty by lethal injection shortage?"
The question in the title of this post is the headline of this notable recent Chicago Tribune column. Here is how it starts:
A reliable supply line is crucial to any business. That's no less true when the business is death. States can't carry out death sentences if their prisons can't stock the lethal sedatives needed for court-sanctioned lethal injections. And that has become a serious problem of late.
Pharmaceutical companies such as Lake Forest-based Hospira in recent years have moved — pushed by activists and overseas regulators — to keep their drugs from being co-opted in the executioners' cocktails. The well is running dry.
Just in the last week:
• Texas' pantry is quite nearly bare. The state reportedly is left with a single dose of pentobarbital because European manufacturers of the anesthetic are prohibited from allowing it to be used by prisons.
• Georgia postponed its first execution of a woman in 70 years because the blend to be injected appeared unusually cloudy.
• And Utah's legislature sent the governor a bill that would authorize the return of firing squads when the state can't get its hands on the requisite toxins.
Friday, March 13, 2015
"Jones, Lackey, and Teague"
The title of this post is the title of this notable new article by J. Richard Broughton now available via SSRN. Here is the abstract:
In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane.
By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making the case for applying the bar, this paper adds to, and challenges, the existing literature on capital punishment, Lackey claims, and Teague doctrine. This paper dissects the Jones ruling on the application of Teague, examining the Supreme Court’s “new rule” case law and concluding that Lackey claims, when viewed at the appropriate level of generality, propose a new rule. It then addresses the more complicated aspect of applying Teague in this context, recognizing that the first Teague exception poses the most likely basis for avoiding the Teague bar on a Lackey claim. At a minimum, Lackey claims (like Miller v. Alabama claims, now the subject of substantial Eighth Amendment litigation on collateral review) sit at the intersection of procedural and substantive rules. Nonetheless, this paper makes the case for viewing the claim as procedural and therefore Teague-barred. Ultimately, then, this paper emphasizes a point that could substantially influence existing litigation: litigators and federal judges should take the Teague bar more seriously when considering Lackey claims on federal habeas review, particularly when viewed in light of modern habeas rules and doctrine that limit relief and protect the interests of the states. But the paper also emphasizes an important point about death penalty policy and politics: if the state is to have a death penalty at all, it should be prepared, and willing, to ensure that death sentences are actually carried out.
Wednesday, March 11, 2015
Colson Task Force highlights " biggest driver of growth in the prison population is in federally sentenced drug offenders"
As reported in this Crime Report piece, the Charles Colson Federal Corrections Task Force has just released this notable new research brief titled "Drivers of Growth in the Federal Prison Population." Here are excerpts from the document (with emphasis in original):
The federal prison population has grown by 750 percent since 1980, resulting in rapidly increasing expenditures for incarceration and dangerous overcrowding. In response, Congress created the Charles Colson Task Force on Federal Corrections to examine trends in correctional growth and develop practical, data-driven policy responses. Following the example of many states that have recently engaged in criminal justice reform, the first step for the Task Force is to understand the underlying drivers of growth in the prison population.
The biggest driver of growth in the prison population is in federally sentenced drug offenders, almost all of whom were convicted of drug trafficking. In fiscal year (FY) 2013, there were almost 50,000 more drug offenders in federal prisons than there were in FY 1994. Incarceration for drug offenses disproportionately affects nonwhite offenders: in FY 2013, over 75 percent of all drug offenders in federal prison were black or Hispanic....
The population growth is driven by both the number of people who are admitted to prison for drug crimes every year and the length of their sentences. In FY 2013, more people were admitted to federal prison for drug crimes than any other crime type, and the average sentence for those entering prison was almost six years. Every year, about 95 percent of federally sentenced drug offenders receive a term of incarceration as part of their sentence, up from about 76 percent in the year before the passage of the Anti-Drug Abuse Act in 1986, which established mandatory minimum penalties for certain drug offenses.
In particular, length of stay for drug offenders, often dictated by statutory mandatory minimum penalties, has driven most of the recent growth. Though the number of admissions has remained largely constant over time, the number of drug offenders in federal prison has increased because of people serving longer sentences.
Mizzou lawyers spotlight problems poised by rapid pace of executions
As reported in this Kansas City Star article, headlined "Attorneys struggle to keep up with Missouri’s execution pace," the Show Me State's recent pattern of showing condemned inmates to the execution chamber on a regular basis has prompted a notable expression of concern from lawyers. Here are the details:
[F]or the small group of lawyers who take on the burdens of defending inmates on the cusp of execution in Missouri, the sheer volume of cases is overwhelming their ability to do that work.
That’s the message four law professors and lawyers delivered to the Missouri Supreme Court this week as they called for execution procedure changes that would give lawyers more time for each client. “These amendments are necessary because the capital defense bar is in crisis because of its recent workload,” the group wrote.
Since November 2013, Missouri has executed 13 men. A handful of lawyers who specialize in capital litigation have represented most of them. They also represent most of Missouri’s other defendants with a pending execution date or who soon are expected to see one set.
The state’s fast execution pace — Missouri tied Texas for most in the country last year with 10 — has left those lawyers struggling to meet their legal obligations to multiple clients at the same time, according to the letter by members of an American Bar Association death penalty assessment team that recently studied Missouri’s execution system. “The legal proceedings in death penalty cases are notoriously lengthy and complex,” they wrote. “Establishing a detailed understanding of those proceedings is a time consuming task and a basic prerequisite to competent performance.”
In addition, the cases take an intense emotional toll on attorneys who get to know the clients intimately before watching them die, the letter said. “No matter how professional the relationship between a death-sentenced client and his counsel, having a client executed is a uniquely taxing professional experience,” the letter stated. One attorney has represented five of the last nine men executed and has two other clients with an “imminent risk of execution,” the letter noted....
The four members of the assessment team who sent the letter to the Supreme Court — University of Missouri law professor Paul Litton, St. Louis University law professor Stephen Thaman, retired Missouri Court of Appeals Judge Hal Lowenstein and Douglas Copeland, a partner in a St. Louis law firm — recommended three amendments to the state’s rules.
The first would limit any one lawyer from representing a client who has an execution date set within six months of any of the lawyer’s other clients. Second, they also ask that a minimum notice of six months be given before an execution can be carried out. The third proposal would allow lawyers to prioritize caseloads to concentrate on cases with pending execution dates while being granted more time to deal with other clients’ cases.
“These are common-sense solutions to a serious problem affecting virtually every scheduled execution,” according to the letter.
The problems have mounted only recently in Missouri, where the lawyers pointed out that only two executions took place in the seven years from 2006 through 2012. But this has been a long-term issue in other death penalty states. “For decades it has been widely recognized … that unreasonable workloads among capital litigators can severely challenge the effectiveness of their representation,” said national death penalty expert Deborah Denno, a professor at the Fordham University School of Law.
Though it will be up to the Missouri Supreme Court to adopt or reject the rule changes, the court has shown some flexibility in the past. Last July, it changed the rules to limit executions to no more than one per month.
And last August, the court withdrew an execution warrant it had issued the previous month after the inmates’ attorneys said they wouldn’t have enough time to do everything required in the case while balancing work they had in other pending cases. They were given additional months before that man’s execution was carried out in November....
Jennifer Herndon, a St. Louis-area lawyer who has represented several death row inmates, said the proposals are all good ideas that are badly needed. “People don’t understand the pressure, particularly in the last 30 to 45 days before an execution,” she said. “If you don’t work on it 24 hours a day, you’re thinking about it 24 hours a day.” Facing that same kind of pressure month after month makes it virtually impossible to operate at 100 percent “no matter how hard you try,” she said.
The helpful folks at The Marshall Project have uploaded a copy of the letter reference in this article at this link.
Utah legislature brings back firing squad as alternative execution method
As detailed in this Reuters piece, "lawmakers in Utah voted on Tuesday to bring back executions by firing squad if lethal injections are unavailable, which would make it the only state in the country to permit the practice." Here is more:
Utah used firing squads for decades before adopting lethal injections in 2004. The Republican-sponsored bill, which passed the state Senate by 18-10, was introduced amid national concerns about the efficacy of lethal injections.
The measure, approved last month by the Utah House of Representatives, says a firing squad should be used if "the state is unable to lawfully obtain the substance or substances necessary to conduct an execution by lethal intravenous injection 30 or more days" before the date set for the procedure.
Several U.S. states have had to search for new drugs for their lethal injection cocktails after many pharmaceutical companies, mostly in Europe, imposed sales bans about four years ago because they objected to having medications made for other purposes being used in executions.
Supporters of the legislation said three states - Oklahoma, Ohio and Arizona - recently carried out lethal injections that led to inmates' physical distress and drawn-out deaths, and that death by firing squad was more humane.
Republican state Representative Paul Ray of Clearfield, the bill's sponsor, said someone executed by gunfire typically dies in three to five seconds. "It's a quick bleed-out," he said.
Utah previously used firing squads, including in the execution of Gary Gilmore, a convicted murderer who in January 1977 became the first person to be put to death in the United States in 10 years, after insisting the sentence be carried out....
The last person to be executed in Utah by firing squad was Ronnie Lee Gardner in 2010. Gardner was convicted of murdering a lawyer inside a Salt Lake City courthouse in 1985.
The bill now goes to Utah Governor Gary Herbert. In a statement, a spokesman for the Republican governor said he had not yet decided whether to sign the measure.whether to sign the measure.
Tuesday, March 10, 2015
Might drug shortages in Texas grind its machinery of death to a halt?
The question in the title of this post is prompted by this new article headlined "Dearth Row: Texas Prisons Scrambling to Find More Execution Drug." Here are excerpts:
Texas' prison agency is scrambling to find a supplier to replenish its inventory of execution drugs, which will be used up if the state goes forward with two lethal injections scheduled for this week and next. Prison officials only have enough pentobarbital for the scheduled executions of Manuel Vasquez on Wednesday and Randall Mays on March 18, but they don't know how they will conduct lethal injections on four others scheduled for April.
The Texas Department of Criminal Justice declined to say why it has not been able to obtain more pentobarbital from the same compounding pharmacy that provided the current batch of the powerful sedative last March. The state switched to that source several months after its previous supplier cut ties, citing hate mail and potential litigation after its name became public through an open records request from The Associated Press.
Prison officials have since waged a legal battle to keep the name of its latest supplier secret, but it's unclear how much longer they can do so after a state judge last year ordered the agency to divulge the source. That ruling is on hold pending the outcome of the state's appeal....
Although Texas, traditionally the nation's busiest death penalty state, faces the most imminent deadline for replenishing its pentobarbital supply, other states are experiencing similar problems. Texas has executed a nation-leading 521 inmates since 1982, when it became the first state to use lethal injection. It's now been nearly three years since Texas began using pentobarbital as its only capital punishment drug, switching in July 2012 after one of the chemicals in the previous three-drug mixture no longer was available.
The last 17 Texas executions, stretching back to September 2013, have used compounded pentobarbital, and the last nine from compounding pharmacies the state has refused to identify. Texas officials have insisted the identity should remain secret, citing a "threat assessment" signed by Texas Department of Public Safety director Steven McCraw that says pharmacies selling execution drugs face "a substantial threat of physical harm." Law enforcement officials have declined to elaborate on the nature of those threats.
The U.S. Supreme Court, meanwhile, has refused to block punishments based on challenges to secrecy laws. However, the high court is reviewing Oklahoma's lethal injection method, resulting in a hold on executions there, after a punishment using the sedative midazolam followed by two other drugs went awry. Oklahoma lawmakers now are considering a switch to nitrogen gas as the first alternative to injection while officials in other states are considering a return to firing squads or the electric chair.
Despite all the controversies over lethal injection protocols and problems with drug supplies nationwide in recent years, Texas has been able to keep its machinery of death humming. And because so many executions take place in Texas (basic DPIC data here), a halting of executions in that one state would functionally diminish the overall number of US executions quite significantly.
Given that Texas has a long modern history of finding ways to move forward with executions, this drug story is especially interesting and dynamic because it might lead the Lone Star State to get serious about other possible execution methods. I assume some officials in Texas are already quietly exploring the possibility of executions using nitrogen gas or firing squads, and perhaps a Texas discussion of such matters will become public at some point soon if the state struggles to secure needed execution drugs.
Monday, March 09, 2015
What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?
As noted in this post, this morning the US Supreme Court today finally decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring. But, as this new SCOTUSblog post about the cert grant spotlights, it actually is not entirely clear just what the Supreme Court has decided to decide:
The Florida death penalty case now up for review involves Timothy Lee Hurst of Pensacola, who faces a death sentence for the 1998 murder of a woman who was an assistant manager at a Popeye’s fast-food restaurant where Hurst also worked.
Hurst’s public-defender lawyers asked the Court to rule on two broad questions: one about the jury’s role when an accused individual claims a mental disability, and one about the jury’s role in the death-sentencing process, including an issue of whether its verdict must be unanimous. (His jury split seven to five in recommending death.) The second question was based on a claim that Florida courts fail to follow a 2002 Supreme Court decision on death sentencing, Ring v. Arizona.
In agreeing to rule on the case, the Court rewrote the question it will consider in an apparent attempt to simplify it: whether Florida’s approach to death sentencing violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.”
Because the Ring decision is all about the Sixth Amendment, and the role of the jury in deciding whether a murder was committed in an “aggravated” form, it is not clear just what the Court had in mind in linking an Eighth Amendment issue to the Ring precedent. It could be, although this was not plain from the order, that the Court is looking at Hurst’s case on Eighth Amendment grounds on his claim of mental disability, on the lack of jury unanimity, and on the general fairness of a death sentence for this particular individual. Presumably, that will become clearer as the briefs are filed in the case in coming months.
Helpfully, this extended post at Crime & Consequences reviews some of the legal background and possible implication of the Hurst case, which includes these observations:
The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure. Therefore, there is no limitation on the Court's authority to create new law in this case. The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States. Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States. However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.
Because of the maelstrom of potential legal issues raised by this particular Florida case, I am not sure what to expect from the Justices. I am sure any and everyone who does not like how Florida does its capital sentencing (including the nearly 400 murderers currently on Florida's death row) may be inclined to present varied constitutional arguments to SCOTUS to urge a reversal of the death sentence in this intriguing new case.
SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring
One big question that arose way back in 2000 when the Supreme Court issued its landmark Apprendi decision was whether capital sentencing schemes that incorporated judicial death penalty determinations were still constitutional. In 2002, in Ring, the Supreme Court somewhat clarified matter when it found Arizona's capital sentencing scheme problematic in light of Apprendi. Now, finally and remarkably, the Supreme Court has decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring.
This new SCOTUS order list has just one new cert grant, and here it is:
HURST, TIMOTHY L. V. FLORIDA: The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002).
Notably, according to the Death Penalty Information Center's data, Florida has carried out 39 executions since the Supreme Court handed down its ruling in Ring in 2002, and I suspect a good number of those Florida condemned (and now dead) murderers asserted that their death sentencing violated the Sixth Amendment and/or the Eighth Amendment in light of Ring. If there is some kind of afterlife for executed murderers, I expect there will now be some interesting SCOTUS talk in the Florida section of that netherworld.
Sunday, March 08, 2015
"Questions raised about the death penalty in Ohio"
The title of this post is the headline of this lengthy front-page article appearing today in my own home-town Columbus Dispatch. The subheading of the piece summarizes its themes: "Dozens of inmates sentenced to die have been removed from Death Row in the past 12 years. Add that to botched executions and lingering questions about lethal-injection drugs, and it raises questions about the death penalty in Ohio." Here is how the extended article gets started:
The Cincinnati man had ordered his last meal and was going to be executed the next day when the governor spared his life largely because the DNA on his shoes did not match the blood of the victim.
A Cleveland man, originally sentenced to Death Row, was freed from prison after serving nearly 40 years when a witness confessed that he lied at the original trial about seeing the killing.
An Akron man was sentenced to die but spared from execution after officials confirmed that he was mentally disabled and had the intellect of a second-grader.
In the wake of such cases and other questions about the death penalty, key Ohio lawmakers say that while there’s no movement to eliminate capital punishment from Ohio’s criminal-justice books, some have proposed changes in the law.
Ohio has removed 20 inmates from Death Row since 2003 because investigations or evidence raised questions about their guilt, they were found to be mentally disabled or governors granted them clemency.
Another five men, who were removed from Death Row in the 1970s when Ohio abolished the death penalty for a short period, have been exonerated and released during the past 12 years. There were another 28 men spared from execution during the same period whose cases involved constitutional violations and procedural issues.
All of this has contributed to a slowdown in executions. Last year, for example, 35 people were executed across the U.S., the lowest number in 20 years. And while Ohio has executed 53 inmates since 1999 — an average of slightly more than three a year — it put to death only four in the past two years. The next execution is set for January 2016.
This all raises issues that should be addressed by the legislature, said Sen. Bill Seitz, R-Cincinnati, but are not reasons to kill the death penalty. “I won’t say never, but right now there is no way (abolishing it) is going to happen,” Seitz said. “But if we’re going to retain the death penalty, and I’m firmly committed to its retention, we ought to take away most of the serious objections.”
Lawmakers are poised to introduce new laws in the next few weeks. Seitz and Sen. Sandra Williams, D-Cleveland, are working on four bills incorporating 14 of the 56 recommendations made by the Ohio Supreme Court Death Penalty Task Force in April 2014. The bills focus on significant recommendations: preventing execution of seriously mentally disabled inmates; establishing a statewide indigent death-penalty litigation fund in the Ohio Public Defender’s office; requiring certification for coroner’s offices and crime labs, and prohibiting convictions based solely on uncorroborated information from a jailhouse informant.
Seitz said he expects “tough sledding” in the legislative debate, adding that it’s too soon to predict whether any of the bills will become law. But he was clear that the debate likely won’t include ending executions because a majority of state lawmakers support the death penalty.
Friday, March 06, 2015
Examining some statistical realities behind federal death penalty administration
This intriguing Voactiv piece, headlined "Here Are The Odds The Boston Bomber Will Get The Death Penalty," draws on the Boston bomber federal capital trial as an opportunity to looks at some basic federal capital sentencing data. The piece is subheaded "Turns out, it's pretty hard to get a jury to vote for execution," and here are excerpts:
As the [Tsarnaev] trial wraps up its first week, we looked at how often the U.S. Attorney General has asked for the death penalty over the past two decades, and how often it has been able to get the jury to agree. Between 1989 and 2009, some 2,795 cases were eligible for the death penalty. Of those, the federal government brought 262 death- cases to trial and only 70, or about 25 percent, ended in a death sentence, according to the most recent statistics from the Federal Death Penalty Resource Counsel. In the vast majority of the 262 cases, the juries recommended a life sentence instead.
Many death-penalty cases, another 201, never saw the inside a courtroom because they were settled before the trial.... [And] the federal government rarely pursues it even in cases that are eligible. The U.S. Attorney General has approved death penalty prosecution for only 15 percent of all eligible cases over the past 20 years....
Even if Tsarnaev does get the death penalty, the execution isn’t likely to happen any time soon: Of the 70 people who have been sentenced to death in federal trials around the country in the last two decades, most are still waiting on death row. Only three people have been executed since 1977, the latest in 2001. Some defendants have been waiting on death row for over 20 years.
Thursday, March 05, 2015
Despite spending many millions, Arizona prosecutors again fail to convince a sentencing jury to send Jodi Arias to death row
I have been interested in the Jodi Arias case from Arizona since she was found guilty of murder two years ago, not principally because of all the media attention her case generated, but because of the extraordinary efforts Arizona prosecutors were prepared to make AT TAXPAYER EXPENSE to try to get Arias on to the state's death row. Last year in this post, I guessed that Arizona prosecutors were spending more than $5,000,000 in taxpayer funds in their effort to have Jodi Arias sent and kept on death row rather than in another part of Arizona's prison system.
As this new AP report from Arizona highlights, all those taxpayer costs created by the prosecutors in this one state capital case have now officially achieved nothing:
Convicted murderer Jodi Arias was spared the death penalty Thursday after jurors deadlocked on whether she should be executed or sent to prison for life for killing her lover in 2008.
It marked the second time a jury was unable to reach a decision on her punishment — a disappointment for prosecutors who argued for the death penalty during a nearly seven-year legal battle. It means the judge will sentence Arias on April 13 to either life in prison or a life term with the possibility of release after 25 years.
Family members of victim Travis Alexander wept when the judge announced that jurors couldn't reach a decision after deliberating for about 26 hours over five days. The family sobbed as they left the courtroom, with one covering her eyes as she walked out. Arias' mother, Sandra, received a hug from a friend moments after the verdict was read....
Arias' 2013 trial became a sensation with its tawdry revelations about her relationship with Alexander and that she shot him in the head and slit his throat so deeply that he was nearly decapitated. It was broadcast live and TV audiences heard how Arias had stabbed and slashed Alexander nearly 30 times then left his body in his shower at his suburban Phoenix home, where friends found him about five days later.
The jury convicted her of first-degree murder but deadlocked on punishment, prompting the sentencing retrial that began in October. Prosecutors say they don't regret trying again to send Arias to death row. Maricopa County Attorney Bill Montgomery, who decided to seek the death penalty a second time, told reporters that "regret is a place in the past I can't afford to live in."
Arias initially courted the spotlight after her arrest, granting interviews to "48 Hours" and "Inside Edition." She testified for 18 days at her first trial, describing her abusive childhood, cheating boyfriends, relationship with Alexander and her contention that he was physically abusive. She did more media interviews after the jury convicted her of murder.
Spectators lined up in the middle of the night to get a coveted seat in the courtroom for the first trial. However, attention was dampened during the penalty retrial after the judge ruled cameras could record the proceedings but nothing could be broadcast until after the verdict.
The proceedings revealed few new details about the crime and dragged on months longer than expected amid a series of expert witnesses and a surprising late October decision by Judge Sherry Stephens to remove reporters and spectators from the courtroom so Arias could testify in private. A higher court halted the testimony on its second day after complaints from news organizations. At the end of the retrial, Arias passed up a chance to address the jury. She said she wanted to make such comments but refused to do so unless the courtroom was cleared. She cited potential personal safety threats in declining to speak in the open courtroom.
I am not at all surprised to hear the Arizona prosecutors now "say they don't regret trying again to send Arias to death row." After all, these prosecutors got the opportunity to work for two more years on a high-profile and exciting case and they likely will not suffer any professional consequences for wasting an extraordinary amount of taxpayer resources now twice failing to convince a jury that Jodi Arias ought to die for her crimes.
Especially because, as I said before in prior posts, it was extremely unlikely Arias would ever be executed even if she had been sentenced to death, this case is now for me exhibit #1 in the extraordinary misallocation of resources that the death penalty can often engender because prosecutors generally get all the political benefits and suffer none of the true economic costs of capital punishment systems. The folks who should really regret how this case has been handed are crime victims and others in need of social services and programming in Arizona. As I noted in a prior post, the Arizona Crime Victims Programs — which is under the authority of the Arizona Criminal Justice Commission and "provides support to all agencies that assist and compensate the victims of crime" — has an annual budget of around $5,000,000. I feel pretty confident a lot more good throughout Arizona could have been done if state tax resources were allocated to doubling the funds for crime victim programming rather than enabling prosecutors to keep seeking a death verdict for Jodi Arias (which itself was never likely to get carried out).
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Jodi Arias now pleading for a life sentence before sentencing jury
- Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
- Arizona poised to take second (costly) run at death sentence for Jodi Arias
- Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias
March 5, 2015 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack
"Evolving Standards of Domination: Abandoning a Flawed Legal Standard and Approaching a New Era in Penal Reform"
The title of this post is the title of this provocative new paper by SpearIt now available via SSRN. Here is the abstract:
This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social control. This evolutionary model was thus betrayed by Court opinions that allowed states nearly unfettered authority over prison sentencing and use of solitary confinement, a self-fulfilling prophecy — a deep irony in the expanded incarceration of poor, uneducated, minorities — the very population that might be expected under an evolutionary frame.
The Article urges the Supreme Court to abandon evolving standards as a flawed and pernicious concept, and simultaneously, accept the duty to reinterpret the Eighth Amendment for prison sentencing and solitary confinement. Looking forward, the Article advances a blueprint for employing research and science as a means of reimagining the scale of imprisonment. It challenges the Court to do something never done before in American penal history — justify the length of prison sentences with more than just random and arbitrary figures. The Court has been trying to implement objective standards to guide punishment practices for decades, but has constantly fallen prey to its own subjective inclinations. This Article suggests that the objectivity the Court has been seeking all along is there for the taking, provided it abandons the sociological myth of “survival of the fittest” along with the idea that American society is ever-progressing in humane decency. The Court must move beyond its obsessive tinkering with the death penalty and focus on the realities of “doing time” in America.
Wednesday, March 04, 2015
Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania
As reported in this local article, folks in Pennsylvania unhappy with "Gov. Tom Wolf's moratorium on the death penalty gathered at the state Capitol on Wednesday to criticize that decision that they say was reached without input from crime victims or law enforcement officers." Here is more:
They came together on the day that death row inmate Terrence Williams was scheduled to be executed; his being the first death sentence to be reprieved as a result of the moratorium.
"Pennsylvania crime victims deserve justice. What they are receiving from the governor is politics," said Rep. Mike Vereb, R-Montgomery, at the news conference. "He could approach the Legislature to try to get the law changed or he could have filed a lawsuit in court and seek an injunction in death penalty cases. The governor chose to pursue neither of those options."
Instead, with the stroke of his pen on Feb. 13, he signed an executive order to put capital punishment in Pennsylvania on hold until he reviews a Senate-ordered study of the issue that is due later this year....
Many are awaiting the outcome of the lawsuit filed by Philadelphia District Attorney Seth Williams challenging Wolf's authority to impose the moratorium. The Supreme Court on Tuesday agreed to hear the case.
In the meantime, Vereb has introduced a resolution calling on the governor to reverse his decision and obey the law that now exists in Pennsylvania allowing for capital punishment. While he admits that won't carry the force of law, Vereb said it at least sends a message to the governor.
House Judiciary Committee Chairman Ron Marsico, R-Lower Paxton Twp., said he plans to have at least two committee hearings on the issue of capital punishment, starting with one in Philadelphia on March 26 and the other scheduled for June. This month's hearing will focus on testimony from family members of murder victims.
Throughout the news conference, legislators along with the crime victims and district attorneys standing in front of a line of photos of murder victims criticized Wolf for failing to seek their input....
York County District Attorney Tom Kearney said victims are best suited to explain the impact of Wolf's actions. He then proceeded to read a letter from Pauline Smith, whose mother June Rose Ohlinger, was murdered in 1995 in Schuylkill County by serial killer Mark Spotz who is among the 186 inmates now on death row. In her letter, Smith described the governor's decision as "a slap in the face to all of the victims of heinous crimes."
Prior related posts:
- Pennsylvania Gov declares moratorium on state death penalty
- Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"
- Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium
Cloudy with (less of) a chance of executions in Georgia
As reported in this Time piece, headlined "Georgia Postpones 2 Executions Over ‘Cloudy’ Drugs," the forecast in the Peach State just got peachier for those on the state's death row as the state deals with uncertainty concerning its execution drugs. Here are the details:
Georgia's supply of lethal injection drug pentobarbital may have gone bad. Georgia indefinitely postponed two executions Tuesday to allow officials to analyze its current batch of lethal injection drugs, which “appeared cloudy” prior to an execution that had been scheduled Monday night.
The execution of Kelly Gissendaner, who would’ve been the first woman put to death in the state in 70 years, was called off by the Georgia Department of Corrections Monday night after the state discovered its supply of pentobarbital, a short-acting barbiturate, looked murky. Georgia officials made the decision after consulting with a pharmacist, according to The New York Times, even though state officials said that its pentobarbital supply had been tested and was cleared for use.
The state then announced Tuesday that the executions of both Gissendaner and Brian Keith Terrell, who was set to die by lethal injection on March 10 for the 1992 murder of John Henry Watson, were indefinitely postponed. Gissendaner was convicted of arranging the 1997 murder of her husband, Douglas Gissendaner.
A number of states have had trouble carrying out executions due to problems obtaining drugs.... Like many states, Georgia has turned to compounding pharmacies, which are not under federal oversight, for their drug supplies while also passing a secrecy law that keeps participating pharmacies anonymous. Georgia has not released the name of its drug supplier, and it’s unclear when its current batch of pentobarbital was due to expire.
Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium
As reported in this local article, headlined "Pennsylvania Supreme Court to take death penalty moratorium case: Philadelphia DA calls governor’s actions lawless and unconstitutional," a fascinating case concerning state executive powers in the Keystone State is officially to be considered by the state Supreme Court. Here are the details:
The Pennsylvania Supreme Court on Tuesday agreed to take a case filed by the Philadelphia district attorney’s office challenging Gov. Tom Wolf’s moratorium implemented last month on capital punishment in the state. District Attorney R. Seth Williams asked the court to take up the matter involving a defendant named Terrance Williams, who was scheduled for lethal injection today.
Although Seth Williams asked that the court take the case on an expedited basis, the court refused, and it will be heard on a standard calendar, which means that both sides will file briefs and replies over the next several months, and oral argument will be scheduled at a date in the future.
It will probably be more than a year before any decision is reached, and University of Pittsburgh law professor John Burkoff said it could be even longer if the court decides it wants two new justices, who will be elected later this year, to consider the case as well.
Mr. Wolf announced on Feb. 13 that he was instituting a moratorium on the death penalty in Pennsylvania, saying that it was not an “expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes.” Instead, he continued, it was “based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive.” He cited nationwide statistics that show 150 people have been exonerated from death row, including six in Pennsylvania....
But in his filing, Seth Williams argues that Mr. Wolf’s action was lawless and unconstitutional. “Merely characterizing conduct by the governor as a reprieve does not make it so,” the prosecutor’s filing said.
Instead, it continued, “At all times in Pennsylvania history a reprieve has meant one thing and only one thing: a temporary stay of a criminal judgment for a defined period of time, for the purpose of allowing the defendant to pursue an available legal remedy. The current act of the governor is not a reprieve. Nor, indeed, could it be. There is no remaining legal remedy available to defendant. He received exhaustive state and federal review. He sought pardon or commutation and it was denied. There is nothing legitimate left to pursue and no remedy to wait for.”
To halt the imposition of the death penalty on a defendant, the district attorney’s office continued, the sentence must be commuted, which can be done only with unanimous agreement by the state Board of Pardons. Seth Williams accused the governor of usurping judicial function.
But in the governor’s response, his attorneys said what he was doing is temporary — a reprieve — and requires no input from the Board of Pardons. “The governor has ‘exclusive authority’ and ‘unfettered discretion to grant a reprieve after imposition of sentence and on a case by case basis,’ ” they wrote, quoting an earlier court case.
Prior related posts:
- Pennsylvania Gov declares moratorium on state death penalty
- Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"