Friday, May 15, 2015
"America’s Deadliest Prosecutors"
The title of this post is the main headline of this notable new Slate piece, which highlights the central role that different prosecutors can and do play in the administration of the death penalty. Here are excerpts:
“I think we need to kill more people,” Dale Cox, a prosecutor in Caddo Parish, Louisiana, said recently. He was responding to questions about the release of Glenn Ford, a man with Stage 4 lung cancer who spent nearly three decades on death row for a crime he did not commit. Cox acknowledged that the execution of an innocent person would be a “horrible injustice.” Still, he maintained of the death penalty: “We need it more now than ever.”
Cox means what he says. He has personally secured half of the death sentences in Louisiana since 2010. Cox recently secured a death sentence against a father convicted of killing his infant son, despite the medical examiner’s uncertainty that the death was a homicide. Rather than exercising caution in the face of doubt, Cox told the jury that, when it comes to a person who harms a child, Jesus demands his disciples kill the abuser by placing a millstone around his neck and throwing him into the sea.
The nation suffered more than 10,000 homicides last year, yet only 72 people received death sentences — the lowest number in the modern era of capital punishment. The numbers have been steadily declining for the better part of a decade. Most states are abandoning the practice in droves. Even in states that continue its use, capital prosecutions are being pursued in only a few isolated counties.
What distinguishes these counties from neighbors that have mostly abolished the death penalty, in fact if not in law? Perhaps the biggest factor is the presence of a handful of disproportionately deadly prosecutors who represent the last, desperate gasps of a deeply flawed punishment regime. Most of their colleagues are wisely turning away from a practice that has revealed itself to be ineffective at deterring crime, obscenely expensive, inequitably administered, and not infrequently imposed upon the innocent. But America’s deadliest prosecutors continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned.
Cox is one of them. Jeannette Gallagher of Maricopa County, Arizona, is another. She and two colleagues are responsible for more than one-third of the capital cases — 20 of 59 — that the Arizona Supreme Court reviewed statewide between 2007 and 2013. Gallagher recently sent a 19-year-old with depression to death row even though he had tried to commit suicide the day before the murder, sought treatment, and was turned away. She also obtained a death sentence against a 21-year-old man with a low IQ who was sexually abused as a child, addicted to drugs and alcohol from a young age, and suffered from post-traumatic stress disorder. She then sent a U.S. military veteran with paranoid schizophrenia to death row. Her response to these harrowing mitigating circumstances has not been to exercise restraint, but rather to accuse each of these defendants of simply faking his symptoms. The Arizona Supreme Court has found misconduct in three of her cases, labeling her behavior as “inappropriate,” “very troubling,” and “entirely unprofessional.”...
Meanwhile, in Duval County, Florida, Bernie de la Rionda has personally obtained 10 death sentences since 2008. (He failed to secure the conviction of George Zimmerman, however, for chasing down and shooting teenager Trayvon Martin.) The Florida Supreme Court reversed three of those cases; one for law enforcement misconduct and two after concluding that death was too severe a punishment. That court also reversed an earlier death sentence because de la Rionda repeatedly harped about the defendant’s sexual preferences and views on homosexuality, despite the trial court’s warning that the evidence was irrelevant....
Not surprisingly, death sentences drop precipitously after these prosecutors leave office. Bob Macy sent 54 people to Oklahoma’s death row before retiring in 2001. Over the past five years, Oklahoma County has had only one death sentence. Lynne Abraham secured 45 death sentences as the Philadelphia district attorney. Since she retired in 2010, the new district attorney has obtained only three death sentences. Joe Freeman Britt, dubbed the deadliest prosecutor in America, secured 42 death sentences during his tenure in Robeson County, North Carolina. Last year DNA evidence led North Carolina officials to release two intellectually disabled half brothers, Henry Lee McCollum and Leon Brown, each of whom served 30 years — with McCollum under a sentence of death — for a rape and murder they did not commit. Britt is the prosecutor who sent McCollum, a man with the mental age of a 9-year-old, to death row. Britt retired in the 1990s, and the county has imposed only two death sentences in the past decade.
Thursday, May 14, 2015
Any predictions about how long the capital jury will need to deliberate in the Boston bombing case?
As this Boston Globe article reports, "jurors began deliberating Wednesday on the sentence of Dzhokhar Tsarnaev, sorting through a complex 24-page verdict slip meant to help them decide whether the Boston Marathon bomber should be sentenced to life in prison or death." Here is more details about where matters now stand as a set-up to the question in the title of this post:
The jurors were left with only 45 minutes to meet Wednesday after receiving instructions from the judge and hearing closing arguments from both sides. Prosecutors used their time to depict the 21-year-old defendant as a remorseless terrorist who participated in the bombing to make a political statement; defense attorneys portrayed Tsarnaev as the troubled follower of an older brother who brainwashed him into joining his violent plan.
Both sides also reminded jurors — the same panel that convicted Tsarnaev last month — of the emotionally charged testimony and graphic photos presented during the 10 weeks of testimony. Yet they recommended contrasting methods of weighing whether Tsarnaev deserved to be put to death.
In her closing argument, Judy Clarke, Tsarnaev’s attorney, delivered a surprising concession, telling jurors they could quickly endorse some of the sections of the verdict slip that refer to the factors that permit, but do not require, the imposition of the death penalty for her client. “Check them off,” she said with a dismissive flick of the wrist.
Clarke acknowledged there was ample evidence presented during the trial that Tsarnaev, among other things, intended to kill, that his crime was premeditated, and that it was especially cruel and heinous — all factors that make his offenses subject to capital punishment.
But prosecutors urged a more careful review of each section of the verdict form, calling on the 12 jurors to study the long list of Tsarnaev’s actions and each question they must answer in reaching their decision. They called on jurors to remember that they promised to remain open to the death penalty if the government proved its case. “I urge you to take your time with each one,” said prosecutor William Weinreb, who gave the rebuttal closing after Clarke’s statement.
But Clarke, as has been her style since the beginning of the trial, when she startled the courtroom by conceding that Tsarnaev committed the crimes, continued to try to show jurors that she was leveling with them and that she was a high-minded attorney looking to not waste their time with legal technicalities.
In her 90-minute statement, Clarke struck a more philosophical note, saying sometimes good kids emerge out of chaotic, troubled homes to become good young adults — but sometimes not. She went through photos and evidence suggesting that Tsarnaev’s parents were emotionally, and later physically, absent from his life, and that Tsarnaev’s older troubled and radicalized brother, Tamerlan, filled the void. The root cause of the violence that erupted on Boylston Street on April 15, 2013, was Tsarnaev’s older brother, Clarke said. “Dzhokhar would not have done this but for Tamerlan,” she said....
Echoing themes of war, prosecutors passionately argued before jurors that Tsarnaev was his own man and chose to become a jihadist warrior. They portrayed him as part of a disturbing number of young anti-American terrorists who seek to kill to send a political message. While the defense has cited Tsarnaev’s age — he was 19 when he planted the bombs — as a mitigating factor against the death penalty, prosecutor Weinreb rejected the notion.
“These weren’t youthful crimes,” he said. “There was nothing immature or impulsive about them. These were political crimes, designed to punish the United States . . . by killing and mutilating innocent civilians on US soil.”
He went on to say that while the defense case focused heavily on Tamerlan as the evil force who corrupted his younger brother, no evidence to back up the theory emerged in court. “Where is the evidence of brainwashing and mind control?” Weinreb asked.
Reaching their final decision will be more art than science, both sides said, telling jurors that it will not be a simple tabulation of how many aggravating factors they endorse against the number of mitigating factors they find. Those factors, among other things, are delineated on the verdict slip.
For the jury to impose the death penalty, all 12 members would have to unanimously agree on that sentence for at least one of the 17 death-eligible counts for which Tsarnaev was convicted. Anything short of that would require the judge to impose life in prison without parole. Jurors are scheduled to resume deliberations Thursday.
I have a nagging feeling that, because I am going to be off-line during most of the work day today and tomorrow with a variety of professional commitments, we are going to get a verdict from the jury before the end of this week. But perhaps because there are multiple formal elements to the capital verdict form, and perhaps also because the jurors may want ample time to talk through all their perspectives, it certainly seems possible we will not get a verdict until next week.
A few prior related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
- As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
- Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?
- Is it unseemly I wish I could watch the Boston bombing closing arguments?
Extended coverage of messy Oklahoma execution and execution methods
The just-released June issue of The Atlantic magazine has a lengthy cover story headlined "Cruel and Unusual: The botched execution of Clayton Lockett — and how capital punishment became so surreal." This piece is a long and valuable read, and these excerpts provides a flavor of its coverage beyond the events of a single capital case:
Since the mid-1990s, when lethal injection replaced electrocution as America’s favored method of execution, states have found drug combinations that they trust to quickly and painlessly end a life. They often use three drugs. The first is an anesthetic, to render the prisoner unconscious. The second is a paralytic. The third, potassium chloride, stops the heart.
What many people don’t realize, however, is that choosing the specific drugs and doses involves as much guesswork as expertise. In many cases, the person responsible for selecting the drugs has no medical training. Sometimes that person is a lawyer — a state attorney general or an attorney for the prison. These officials base their confidence that a certain drug will work largely on the fact that it has seemed to work in the past. So naturally, they prefer not to experiment with new drugs. In recent years, however, they have been forced to do so....
[In early 2014], Mike Oakley, the general counsel for the Oklahoma Department of Corrections, had returned from vacation to find the department in a near-frenzy. Before he’d left, the department had ordered pentobarbital from a compounding pharmacy for the executions of Clayton Lockett and Charles Warner, a 46-year-old man convicted in 2003 of raping and killing his roommate’s 11-month-old baby. But compounding pharmacies had come under pressure to stop selling drugs for executions, and Oklahoma’s supplier had backed out. With the executions scheduled for March 20 and March 27, one of Oakley’s deputies began driving around the state, walking into pharmacies and asking for pentobarbital, without success.
Oakley didn’t know why the task of finding drugs for executions fell largely to him: he had no medical training. But he wanted to help his colleagues — especially the warden, whom he considered conscientious and hardworking — because he knew how much strain carrying out a death sentence put on them. He had gone into corrections, 25 years earlier, because Oklahoma was doing interesting work in mediation between victims and offenders. Now he was about to retire, and he found himself, as his swan song, developing a new execution cocktail.
The Atlantic also hasin its June issue this companion piece headlined "A Brief History of American Executions: From hanging to lethal injection." Here is how it starts:
Hanging is perhaps the quintessential American punishment. In the pre-revolutionary era, criminals were also shot, pressed between heavy stones, broken on the wheel, or burned alive. (An estimated 16,000 people have been put to death in this country since the first recorded execution, in 1608.) But the simplicity of the noose triumphed, and its use spread as the republic grew.
In theory, a hanging is quick and relatively painless: the neck snaps immediately. But hangings can be grisly. If the rope is too short, the noose will slowly strangle the condemned. If the rope is too long, the force of the fall can decapitate the person.
The Supreme Court has never struck down a method of execution as unconstitutional. But states have at times tried to make the process more humane. “Hanging has come down to us from the dark ages,” New York Governor David B. Hill told the state legislature in 1885. He asked “whether the science of the present day” could produce a way to execute the condemned “in a less barbarous manner.”
Wednesday, May 13, 2015
Former Georgia Supreme Court Chief Justice call for absolute capital abolition
As reported in this Atlanta Journal-Constitution article, headlined "Former justice calls for end to death penalty," reports on a notable speech given by a notable former jurist. Here are the details:
A former chief justice of Georgia’s highest court on Tuesday strongly renounced the death penalty and called for its abolition. Norman Fletcher, who served 15 years on the Georgia Supreme Court, said the death penalty is “morally indefensible,” “makes no business sense” and is not applied fairly and consistently.
“Capital punishment must be permanently halted, without exception,” Fletcher said. “It will not be easy, but it can and will be accomplished.”
Fletcher, now a Rome lawyer, retired from the state Supreme Court in 2005. Although considered one of the court’s more liberal members, he cast numerous votes upholding death sentences. In more recent years, he has signed on to legal briefs urging courts to halt the executions of a number of condemned inmates.
Fletcher made his remarks Tuesday evening at the Summerour Studio near Atlantic Station, where he received the Southern Center for Human Rights’ Gideon’s Promise Award for his role in helping create a statewide public defender system. In his acceptance speech, Fletcher said he was about to “shock” those attending the ceremony.
Lawyers who once criticized his decisions upholding death sentences were justified, he said. “With wisdom gained over the past 10 years, I am now convinced there is absolutely no justification for continuing to impose the sentence of death in this country,” Fletcher said....
Fletcher added, “There can be no doubt that actually innocent persons have been executed in this country.” Too often, Fletcher contended, budgetary issues, race and politics factor into the decision-making of whether to seek the death penalty.
Fletcher cited the late U.S. Supreme Court Justice Harry Blackmun, who once said he could “no longer tinker with the machinery of death.” Blackmun made this declaration before he retired from the high court in 1994. “It is time for us to quit the tinkering and totally abolish this barbaric system,” Fletcher said.
Tuesday, May 12, 2015
Is it unseemly I wish I could watch the Boston bombing closing arguments?
The question in the title of this post reflects my (perverse?) frustration with the absence of cameras in federal courtrooms, especially in cases in which the work of advocates seem so significant in the sentencing decision-making process. From the start of the Tsarnaev trial, I have long thought that the sentencing outcome would turn on how well the prosecution keeps the jury's focus on the horrible crime (which surely seems death-worthy) and how well the defense turns the focus to mitigating personal factors which perhaps led Tsarnaev to commit the horrible crime. I am expecting that the closing arguments would capture and encapsulate the debate over this crime, criminal and his punishment in a fascinating way. But, to my disappointment, I will only get to read accounts of the arguments rather than see and hear them directly.
For those eager for a bit of a preview, this new Boston Globe article, headlined "Lengthy, complex checklist awaits Tsarnaev jurors," explains the formal death sentencing process the jury will soon be facing:
In the end, the punishment of Dzhokhar Tsarnaev will come down to one question: Have federal prosecutors proved that the Boston Marathon bomber’s crimes were so heinous he deserves to be sentenced to death?
But before jurors weigh that singular decision they will first have to wade through a complex checklist in a lengthy verdict sheet to show that they have indeed weighed all the factors in the case — those identified by prosecutors, known as aggravating factors, as well as those presented by defense attorneys, called mitigating factors.
Legal analysts say the thoroughness of the process is meant to assure that jurors focus on relevant factors and ignore prejudicial and arbitrary circumstances in determining a defendant’s fate. “The jury has to consider the circumstances that the government says is relevant, that justifies a death sentence, and then the jury makes a reasoned, morally responsible response to that evidence,” said George Kendall, a New York lawyer who has handled hundreds of death-penalty cases. “The idea is we want to have a system of accountability.”
Unlike typical criminal cases, the jury that determined Tsarnaev’s guilt in the first phase of his trial is also tasked with deciding his punishment during this second phase of his trial. And in deciding which sentence to bestow, the jurors will weigh the aggravating factors — or reasons why Tsarnaev’s crimes were so heinous he deserves death — against the mitigating factors, or arguments that seek to explain and soften his culpability in the crimes.
The formula of arguing aggravating vs. mitigating factors in capital crimes was upheld by the US Supreme Court in 1976, in a case originating in Georgia, and it became the basis for modern federal death penalty laws. The decision ended an unofficial moratorium on the death penalty that had begun four years earlier after the Supreme Court ruled that death penalty laws were unconstitutional because they were being applied arbitrarily.
Now, under the modern application of the death penalty, jurors must consider aggravating factors and mitigating factors for each defendant — and they must record their conclusion on each of those factors on the verdict slip. They must then repeat the process for each count. Tsarnaev faces 17 charges that carry the possibility of the death penalty.
US District Judge George A. O’Toole Jr. has not released a copy of the verdict slip, but prosecutors have already identified aggravating factors in the case: That Tsarnaev intentionally sought to kill and inflict bodily injuries; that he targeted vulnerable victims, including children and spectators at the Marathon finish line; Tsarnaev has shown no remorse; the attacks were in the name of jihad, or terrorism; one of his victims was a police officer; and the attack was premeditated.
Jurors will have to be unanimous in finding that each of the aggravating factors was proven. They also must be unanimous if they choose to sentence Tsarnaev to death. A split jury would result in a life sentence.
But jurors will also vote on the defense team’s mitigating factors, and they do not have to be unanimous on each one. “The defense doesn’t have the same kind of burden, it’s the prosecutors who have the burden to prove this beyond a reasonable doubt, that death is the only appropriate sentence,” Kendall said.
Jurors will then weigh the totality of aggravating and mitigating factors before deciding on a sentence. O’Toole has already instructed jurors that choosing a sentence isn’t a matter of simple math of how many aggravating factors were proven vs. how many mitigating factors the defense presented, but a “reasoned, moral response” to the overall case. “A single mitigating factor can outweigh several aggravating factors,” O’Toole told jurors.
The defense team has not publicly disclosed the mitigating factors it will list on the verdict sheet, but they will likely draw from the themes they have sought to crystallize in the trial: That Tsarnaev was an impressionable teenager who was manipulated by a dominating older brother; that brain science shows that teenagers do not have a fully matured brain; that he came from a troubled upbringing, and was looking for guidance in a vulnerable time in his life; and that his family held to old cultural tradition that he obey the direction of his older brother....
Kendall said jurors in Tsarnaev’s case are likely to weigh each argument seriously, having sat through 27 days of testimony in both phases of the trial, and listening to more than 150 witnesses. “It’s not just paperwork,” Kendall said. “It’s after all this evidence that the decision is being based on factors the law considers prudent and right ones.”
Jurors are scheduled to hear closing arguments Wednesday morning and could begin their deliberations Wednesday afternoon.
A few prior related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
- As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
- Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?
Ohio legislators moving forward on recommended death penalty reforms
As reported in this local article, headlined "Lawmakers want to exclude mentally ill from death penalty," a number of recommendations made by a death penalty task force on which I served here in Ohio are emerging in notable bills. Here are the basics:
Killers diagnosed as “seriously mentally ill” at the time of the crime could not be executed in Ohio under proposed legislation expected to be introduced Tuesday in the Ohio Senate. If passed, the bill sponsored by Sens. Bill Seitz, R-Cincinnati, and Sandra Williams, D-Cleveland, would be a major change in Ohio, which now prohibits the execution of mentally disabled people but not the mentally ill.
Seitz and Williams have been jointly developing legislation based on recommendations from the Ohio Supreme Court Death Penalty Task Force, released in April 2014. About a dozen task force recommendations are expected to be introduced in the General Assembly.
The bill would bar execution of people who, when they committed the crime, suffered from a serious mental illness that impaired their ability to “exercise rational judgment in relation to their conduct, conform their conduct to the requirements of the law, or appreciate the nature, consequences or wrongfulness of their conduct,” according to the National Alliance on Mental Illness Ohio, which supports the legislation....
Several of the 53 inmates executed in Ohio since 1999 could possibly have been excluded under the proposed change. Wilford Berry, the first person to be executed when Ohio resumed capital punishment on Feb. 19, 1999, was considered to have mental illness with delusions. At one point, Berry said he saw the angel of death sitting with him in his prison cell.
NAMI and the Ohio Psychiatric Physicians Association wrote a letter to lawmakers seek support for the legislation. “We believe that those who commit violent crimes while in the grip of a psychotic delusion, hallucination or other disabling psychological condition lack judgment, understanding or self-control. Until such time as the U.S. Supreme Court decides on this question, the responsibility for prohibiting the execution of such individuals in Ohio rests with the Ohio General Assembly.”...
Other task force proposals to be unveiled in the legislature in the future are 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.
Monday, May 11, 2015
Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?
The question in the title of this post is the interesting legal question to be resolved this week in federal court in Boston as the defense team finalizes its mitigation case on behalf of Boston Bomber Dzhokhar Tsarnaev. This Boston Globe piece, headlined "Will judge allow nun to testify for Tsarnaev defense?," provides some context:
While everybody in and around Boston is celebrating Mother’s Day and spring sunshine, George O’Toole has something weighing on him. O’Toole is a judge and has presided over the trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev with his typical geniality. But even genial judges have to make tough decisions.
The trial, which began with jury selection in the first week of January, and testimony in the first week of March, is winding down. If all goes to plan, and it seldom does in trials, the jury could be sent away by the end of this week, ready to contemplate sentencing Tsarnaev to death or life in prison without the possibility of parole.
But before any of that happens, George O’Toole has to decide whether a 76-year-old Roman Catholic nun can testify as part of the effort to save a 21-year-old Islamic extremist from death. The nun in question is Helen Prejean, a Sister of St. Joseph, and if you ask what that means, you never had nuns.
Sister Helen Prejean is an icon of the antideath penalty movement, something of a celebrity. “Everybody knows Sister Helen,” said David Hoose, a Northampton defense attorney who has worked on death penalty cases. And it’s true, a lot of Americans do know her, at least vicariously. They know her as Susan Sarandon, the actress who won an Oscar for her portrayal of Sister Helen in the 1995 film “Dead Man Walking.”
Twenty years after Sister Helen became the face of the antideath penalty movement in America, she is here in Boston, poised, if O’Toole allows it, to be the last witness for the defense in the trial of Dzhokhar Tsarnaev.
No one saw this coming. As prominent as the New Orleans-based Sister Helen is in the antideath penalty movement, she is not known for testifying in death penalty cases. But she wanted to get involved in this case, somehow. Inevitably, she found herself in the defense camp....
[A]s someone who has counseled death row inmates, Sister Helen can impart [the] message ... that a death sentence hardly guarantees death.
Since 1988, when the federal government got back in the business of executing people, the government has sought the death penalty in nearly 500 cases. In 232 of those cases, there was a guilty verdict where jurors had to decide between life and death, and in 79 cases they chose death. Of those 79, only three have been executed. It’s possible that Dzhokhar Tsarnaev would be No. 4 if the jury sentences him to death, but the odds are against it.
In the meantime, Judge O’Toole has to decide on the government’s motion to exclude Sister Helen’s testimony. In death penalty cases, the defense is given a wide berth in calling witnesses as they present mitigating evidence. Even if O’Toole is on the fence about the relevance of Sister Helen’s testimony, and is inclined to tightly limit the scope of what she can speak to, he might not want to risk a reversal of the whole trial over one final witness.
The defense may only want Sister Helen to repeat one of her stock lines: “People are more than the worst thing they have ever done in their lives.” That has been the underlying message of the defense all along. That Dzhokhar Tsarnaev, as a human being, is more than the unspeakable, unforgivable things he did one week in April 2013.
In this post at Crime & Consequences, Kent Scheidegger reasonably asks "What does Helen Prejean know that is relevant to the Tsarnaev case?". I think Kent (and others in the comments) make sound points that could provide a legal justification for the district judge here precluding Prejean from being able to testify at the sentencing hearing on behalf of the Boston bomber. But I also think, as the article above hints, judges are generally disinclined to preclude completely any offered defense testimony at the sentencing-phase of a capital trial. I thus predict that the district judge here will allow Prejean to testify in some limited way if the defense presses aggressively for her to be a witness.
A few prior related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
- As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
UPDATE: Apparently Prejean started to testify not long after I wrote this post. This new USA Today article, headlined "Sister Helen Prejean: Tsarnaev 'genuinely sorry for what he did'," starts with this account of what transpired:
Sister Helen Prejean, the Catholic nun and anti-death penalty activist whose story came to fame with the 1995 film Dead Man Walking, took the stand on Monday in the penalty phase of convicted Boston Marathon bomber Dzhokhar Tsarnaev's trial. She said he is "genuinely sorry for what he did," and told her how he felt about the suffering he caused to the bombing's victims.
"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did." She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."
Prejean said she had met with Tsarnaev five times since early March and that he "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.
Prejean said she talked with Tsarnaev about both their faiths: his Islam and her Catholicism. "I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said, quickly drawing an objection from the prosecution.
Defense attorney Miriam Conrad, questioning Prejean, interjected, "Stop you right there." Conrad asked Prejean what she heard in Tsarnaev's voice she he spoke about the victims' suffering. "It had pain in it," she said.
Friday, May 08, 2015
"Have Texans lost their taste for capital punishment?"
The question in the title of this post is the first line in this Dallas Morning News commentary by Steve Blow headlined "Even in tough-on-crime Texas, death penalty convictions decline." Here are excerpts from the start of the piece:
I was struck by recent news accounts of a local murder trial. I remembered the crime well. Jacob Galen Everett, 22, was convicted of entering a Red Wing shoe store in Arlington, directing clerk Randy Pacheco to the back room and shooting him once between the eyes. Robbery was the motive, and the evidence showed that Everett got away with $200.
A few years ago, that would have been a certain death penalty case -- a cold-blooded murder committed in the course of a robbery. Instead, prosecutors sought life without parole and jurors went along.
I’m sure Texas still prides itself as a law-and-order state, but our hang-’em-high reputation may be in jeopardy. “There is no doubt about it. We’re seeing a reduction in the use of the death penalty in Texas,” said Kathryn Kase, executive director of Texas Defender Service. That’s a nonprofit that assists in death penalty defenses and advocates for fair trial policies. “We have a reduction in death penalty cases going to trial, and we have a reduction in death verdicts,” she said.
In 1999, Texas courts sent 39 people to death row. Last year, it was 11. And so far this year, none. “Here it is May, and we have had only two death penalty cases in Texas,” Kase said. “And in both, the jury chose life without parole instead. That strikes me as really significant.”
A decline is also evident in the number of executions being carried out. Yes, Texas still led the nation in executions last year, but it was with an asterisk. For the first time in decades, Texas shared that distinction. We tied with Missouri. Both states executed 10 people. Florida was close behind with eight.
And those numbers reflected a downward trend in executions -- both in Texas and the other 31 states with the death penalty. Executions in Texas peaked at 40 in the year 2000.
Thursday, May 07, 2015
Delaware Gov pledges to sign death penalty repeal legislation
As reported via this local article, Delaware "Gov. Jack Markell broke his silence on the effort to repeal Delaware's death penalty, telling the News Journal that he believes capital punishment is an 'instrument of imperfect justice'." Here is more:
"It doesn't make us safer," Markell said. "Should the repeal bill come to my desk, I would sign it." Markell's comments come just days before a House committee takes up the legislation which repeals the state's death penalty, except for those 15 inmates already on death row.
This is the first time Markell has publicly spoken on the matter. Markell said he's taken his time to formulate his position on the matter, saying that recent exonerations nationally and revelations of flawed testimony in certain cases have helped shape his view. "This is not an easy issue. My thinking has changed and I just wanted to give it very careful consideration," he said.
In April, the legislation passed the Senate in April 11-9 and now heads to the House Judiciary Committee. The legislation was not passed out of the same House committee last General Assembly. Police groups strongly oppose repeal and are expected to step up opposition in the House.
Markell said he respects all viewpoints on the matter, saying that at one point while serving on the state's Board of Pardons, he supported four of the five death penalty cases that came before him. "I know this is a really difficult issue for members of the General Assembly," he said. "I hope that after considering the arguments as I have, they will reach the same conclusion that I have."
Electrifying Tennessee fight over electric chair as back up execution method
BuzzFeed has this interesting new article about an interesting legal fight unfolding in Tennessee. This extensive headline provides the basics: "Tennessee Officials Fight Inmates’ Attempt To Challenge Electric Chair Plans: The electric chair is Tennessee’s plan B if the state can’t get ahold of lethal drugs. The inmates argue it’s unconstitutional, but the state argues that they can’t challenge it yet." Here are some details from the start of the article:
Can death-row inmates challenge the constitutionality of electrocution? The Tennessee Supreme Court will soon decide.
Death penalty states once phased out the electric chair in favor of drugs — for humane reasons. Now that drugs have become hard to obtain, states like Tennessee have turned to older execution methods like the chair as a backup.
On Wednesday, the state court will weigh whether death-row inmates can challenge the method’s constitutionality. Thirty-four inmates allege electrocution is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — that the electric chair disfigures the body and is an affront to evolving standards of decency.
But Tennessee has pushed to have the lawsuit dismissed, arguing that the inmates can’t challenge the method because none of them are actually scheduled to face electrocution.
Tennessee’s preferred method is lethal injection, using pentobarbital made from a secret compounding pharmacy. Lawmakers passed a law last year that makes electrocution the contingency plan if either drug makers or the courts make lethal injection impossible.
“The[y] are asking the court in this case to… consider hypothetical situations involving uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all,” Attorney General Herbert Slatery’s office wrote.
Wednesday, May 06, 2015
Boston bombing defense team turns to brain science in making mitigation case
As reported in this new Boston Globe piece, headlined "Brain expert testifies for Tsarnaev defense in penalty phase," jurors tasked with deciding what punishment to impose on the Boston Marathon bomber got a lesson in brain science during today's trial activities. Here are the details:
The part of the brain that matures the latest is the part that controls impulses and imagines consequences of actions in the future, a brain development expert testified Wednesday at the death penalty trial of Boston Marathon bomber Dzhokhar Tsarnaev.
Dr. Jay Giedd, a professor at the University of California San Diego and a child psychiatrist, was called as a witness by the defense, which is seeking to stave off a death sentence for Tsarnaev, who was 19 at the time of the bombing. Giedd’s testimony came on the sixth day of the defense case in the penalty phase of Tsarnaev’s trial in US District Court in Boston. The defense is seeking a sentence of life without parole....
Giedd’s testimony appeared to be intended to suggest that Tsarnaev was not fully responsible for what he did because of his youth. In teenagers, Giedd said, impulse control is “still under construction.”
“Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences,” he said. He said people’s brains tend to become adults in the second decade of their lives. But he said, “There are so many exceptions to the rule.”
He also emphasized the role of environment in a child’s brain development. Parents, he said, are “always on, teaching our children about dealing with emotion. ... Our brains learn by example.”
Under cross-examination by Assistant US Attorney Nadine Pellegrini, Giedd also testified that it was crucial to look at a person’s behavior to determine how mature they are. “The behavior itself is ... key,” he said.
He acknowledged that people even younger than Tsarnaev was could have the brain maturity to recognize the consequences of their actions. “Age might just be a number when we’re talking about the level of maturity of an individual?” Pellegrini said. Giedd agreed.
Monday, May 04, 2015
Fairer capital fight has Virginia prosecutors fighting for the death penalty less
As reported in this notable new AP article, headlined "Pace of death sentences, executions slows in Virginia," once the state of Virginia provided a sounder means to defend to capital defendants, prosecutors decided it was sounder not to seek death sentences quite so often. Here is how the lengthy article gets started:
A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation. Virginia has sent only six people to death row in the last nine years after sending 40 over the previous eight years, according to statistics compiled by the Death Penalty Information Center. As a result, the state only has eight inmates awaiting execution — down from a high of 57 in 1995 — and unless something changes, Jesse Matthew Jr. won't be joining them.
Matthew is charged with first-degree murder in the death of 18-year-old Hannah Graham. He also is charged with abduction with intent to defile, which is the first of 15 offenses listed in state law that can elevate a murder count to capital murder. Albemarle County's chief prosecutor has declined to say specifically why Matthew, who is due in court for a hearing on pretrial matters Tuesday, was not charged with capital murder.
Matthew's case, perhaps the most high-profile murder case in Virginia since the 2002 Washington-area sniper shootings that left 10 dead, is playing out as the death penalty is on the wane. Virginia has slipped from second to third nationally — behind Texas and Oklahoma — with 110 executions since the U.S. Supreme Court reinstated capital punishment in 1976. No executions are currently scheduled.
Legal experts say there are many reasons for the deceleration of the death penalty in Virginia, but perhaps the biggest is the establishment in 2004 of four regional capital defender offices staffed by attorneys and investigators who devote all their time to death penalty cases.
"In the past, an awful lot of people who ended up on death row had abysmal representation," said Steve Northup, a lawyer and former executive director of Virginians for Alternatives to the Death Penalty. "Prosecutors were able to take advantage. Now prosecutors know capital defendants are going to be well represented."
It's no coincidence, experts suggest, that the sharp downturn in death sentences began the year the capital defender offices opened. The year before, Virginia sent six people to death row. No more than two death sentences have been imposed in any year since.
A recent study by University of Virginia law professor John G. Douglass concluded that the number of capital murder charges has declined, but not as rapidly as the number of death sentences. Virginia prosecutors obtained an average of 34 capital murder indictments a year between 1995 and 1999, but only 22 per year from 2008 through 2013. The percentage of those cases going to trial fell from 38 percent in the late '90s to 19 percent, suggesting more cases are being resolved by plea negotiations resulting in punishment less than death. "Virginia prosecutors have not abandoned the death penalty," Douglass wrote. "Instead, increasingly, they bargain with it."
Douglass agrees with others who cite establishment of the state-funded capital defender's offices, which operate on a budget of $3.5 million a year, as one of the reasons Virginia's death row has been steadily shrinking. "A capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," Douglass wrote.
UPDATE: Bill Otis via this post at Crime & Consequences provides some important corrections to the AP article linked and excerpted above.
Saturday, May 02, 2015
Seventh Circuit, in 6-5 en banc ruling, allows new federal 2241 review of Atkins claim based on new evidence
If you love to spend a spring weekend thinking through the statutes and policies that govern federal collateral review of federal death sentences — and really, who doesn't? — then the en banc Seventh Circuit has a great ruling for you. Dividing 6-to-5, the Seventh Circuit in Webster v. Daniels, No. 14-1049 (7th Cir. May 1, 2015) (available here), decided that a federal death row inmate was "not barred as a matter of law from seeking relief under section 2241" to continue to pursue based on new evidence his claim that he was "so intellectually disabled that he is categorically ineligible for the death penalty under Atkins and Hall."
This following paragraph from the dissent authored by Judge Easterbrook highlights why this ruling took the majority many pages to reach and is controversial:
Whether Webster is “retarded” was the principal issue at his trial and sentencing. He raised his mental shortcomings as a mitigating factor, and four jurors found that they mitigate his culpability, but the jury still voted unanimously for capital punishment. The sentencing hearing spanned 29 days, with abundant evidence. The district judge found that Webster is not retarded within the meaning of §3596(c) and sentenced him to death. The Fifth Circuit affirmed on the merits and later affirmed a district court’s decision denying a petition under §2255 addressed to retardation. If Webster is retarded, he is ineligible for the death penalty. Whether he is retarded has been determined after a hearing, collateral review under §2255, and multiple appeals. What Webster now wants is still another opportunity to litigate that question. The majority gives Webster that opportunity in a new district court and a new circuit, setting up a conflict among federal judges. Section 2255 is designed to prevent that, and prudential considerations also militate against one circuit’s disagreeing with another in the same case.
Friday, May 01, 2015
"How a Death Row Inmate's Request to Give His Organs Kept Him Alive"
The title of this post is the headline of this notable lengthy Newsweek article discussing the array of remarkable developments that have surrounded the application of the death penalty in Ohio over the last few years. Here are excerpts which provide a unique spin on the saying that it's always better to give than to receive:
On November 13, 2013, prison officials transferred Ronald Ray Phillips from death row, where he had resided for 20 years, to the “death house” in southern Ohio. He had finally run out of appeals. In less than 24 hours, they would strap him to a gurney and inject a fatal drug combination into his veins. Just days before his scheduled death, however, Phillips made an unprecedented request—one that has kept him alive until today. He asked to give his heart to his sister, who had a heart condition, and his kidney to his mother, who was on dialysis....
In the fall of 2013, Ohio had just instituted a new lethal injection protocol as its primary method of execution, and its effects were uncertain. The fatal drug cocktail might destroy Phillips’s organs. On the other hand, if Phillips went to the operating room beforehand and doctors removed his heart while he was unconscious, they could save it. But since he couldn’t survive without his heart, they would simultaneously complete the execution in a novel method that had never been considered in Ohio’s capital punishment laws.
Phillips was scheduled to die at 10 the next morning. Just before 4 p.m., as prison employees headed home for the evening, the death house received a call from the governor. “I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen,” Republican Governor John Kasich said in a statement to the press hours before the scheduled execution. Kasich granted Phillips a reprieve, removing him—temporarily, at least—from the death house....
But the agencies that govern transplantation refused his organs, calling the idea “morally reprehensible.” Parceling out the organs to strangers could be a human rights violation. Because Phillips was a prisoner, he couldn’t voluntarily consent to these procedures. The idea of saving “innocent” lives could also incentivize prosecutors and judges to favor the death penalty. Ohio denied Phillips’s request to donate non-vital organs to strangers.
Yet [a former attorney for the mother of Phillips' victim] counters, “Why doesn’t an inmate have a right to donate his or her kidney? Why is that seen as one of the rights that they’ve given up because they’re incarcerated?”...
Because of Phillips’s reprieve, convicted killer Dennis McGuire took his place. Reporter Alan Johnson witnessed McGuire’s execution. Approximately six minutes into it, McGuire “suddenly starts gasping—deep gasps. His chest would compress, his stomach started going out," Johnson says....
The McGuire fiasco prompted a federal judge to temporarily halt all Ohio executions. Nevertheless, Arizona used Ohio’s protocol that summer to execute Joseph Wood. The execution lasted over two hours, with Wood gasping 640 times. It provoked another moratorium on the death cocktail.
In January 2015, before Phillips’s fourth execution date, Ohio rescinded its controversial mixture, announcing a return to the pentobarbital drug class. Because Ohio has been unable to obtain this drug from Lundbeck, executions will resume in 2016 at the earliest. Phillips’s fifth execution date remains unscheduled.
Phillips’s unprecedented request set off a chain of events that have kept him alive till today. For over a year, he’s been next up on Ohio’s list of scheduled executions. But he’s ridden the wave of botched executions and may transition from a temporary reprieve to a permanent one. Phillips and his attorneys declined multiple requests to be interviewed for this story.
Thursday, April 30, 2015
Timely (but incomplete) report on political debates as de facto moratorium on federal executions continues
The New York Times this morning has this new front-page article discussing a remarkable national death penalty story that seems never to get nearly as much attention it merits. The article is headlined "Obama Adminintration Steps Back From Effort to End Federal Death Penalty," and here are excerpts:
For a moment last year, it looked as if the Obama administration was moving toward a history-making end to the federal death penalty. A botched execution in Oklahoma brought national attention to the issue, public opinion polls began to shift and President Obama, declaring that it was time to “ask ourselves some difficult and profound questions,” directed Attorney General Eric H. Holder Jr. to review capital punishment.
At the Justice Department, a proposal soon began to take shape among Mr. Holder and senior officials: The administration could declare a formal moratorium on the federal death penalty because medical experts could not guarantee that the lethal drugs used did not cause terrible suffering. Such a declaration would have pressured states to do the same, the officials reasoned, and would bolster the legal argument that the death penalty is unconstitutionally cruel punishment.
But the idea never gained traction, and Mr. Obama has seldom mentioned the death penalty review since. Now, as the Supreme Court considered arguments Wednesday over whether lethal injection, as currently administered, was unconstitutional, the obstacles the Obama administration faced provide vivid examples of just how politically difficult the debate remains.
“It was a step in the right direction, but not enough of a step,” said Charles J. Ogletree Jr., a Harvard professor and a death penalty opponent who met with administration officials as part of the review. The Justice Department, he added, has been refusing to say what he thinks senior officials there believe: “We’ve had too many executions that didn’t work and killing somebody’s not the answer.”
In remarks last May after a prisoner in Oklahoma regained consciousness and writhed and moaned during a lethal injection, Mr. Obama, who has supported the death penalty, seemed to raise expectations for a policy change. He lamented its racial disparities and the risk of executing innocent people. He referred the matter to Mr. Holder, a liberal stalwart who opposed capital punishment. But privately the White House was cautious, sending word to the Justice Department to keep its focus narrow, administration officials said.
Mr. Obama called for the review at a time when there had not been a federal execution since 2003, when Louis Jones Jr. was killed for raping and murdering a 19-year-old female soldier. Since 2010, the federal government has effectively had a moratorium on executions — all are carried out by lethal injection — because manufacturers in Europe and the United States refused to sell the government the barbiturates used to render prisoners unconscious. States, however, found alternatives, including the sedative midazolam, which was used in the gruesome execution of Clayton D. Lockett in Oklahoma last year.
As the Justice Department sought advice from experts on both sides of the issue, opposition to the idea came from unexpected corners. Some of the most outspoken voices against the death penalty also urged the most caution, fearful that a federal announcement would actually do more harm than good. “From my view, we’re better off with things bubbling up in the states,” said Henderson Hill, the executive director of the Eighth Amendment Project and one of several people consulted by the administration last year....
Advocates in particular worried that having Mr. Obama and Mr. Holder as the faces of the anti-death penalty movement would stoke conservative support for capital punishment at a time when some libertarian-minded Republicans, Christian conservatives and liberal Democrats appeared to be finding common ground in opposition to it. “I’m not sure that what the administration would have to say would be inherently influential in Nebraska,” Mr. Hill said.
Opposition to the death penalty was growing in Nebraska last year and lawmakers voted overwhelmingly this month to replace it with life in prison, setting up a veto fight with Gov. Pete Ricketts, a Republican.
Advocates were further worried that if lethal injections were eliminated, states would bring back older methods of execution, a concern borne out in Utah, where officials said they would bring back firing squads if lethal drugs were not available. Other states are reviving plans to use the electric chair or gas chambers.
Inside the Justice Department, some officials opposed a formal moratorium because it would eliminate the option for the death penalty in terrorism cases like the one against Dzhokhar Tsarnaev, who faces a possible death sentence for the 2013 bombings at the Boston Marathon. Others worried that eliminating the death penalty would make it harder to persuade Congress to move terrorist suspects from the island prison at Guantánamo Bay to the United States for trial. There were also logistical hurdles.
Advocates and administration officials asked what would happen to the roughly five dozen people on federal death row. Would Mr. Obama, who has said the death penalty was appropriate in some cases, commute the sentences of men who raped and murdered people? There were no clear answers.
In the end, the question never made it to Mr. Obama’s desk. Last fall, Mr. Holder announced plans to resign, and officials said it would be inappropriate to recommend a major policy change on his way out of office, then leave it up to his successor to carry it out. In January, the Supreme Court agreed to hear the case of three convicted murderers who challenged the lethal injection drugs. Now with the issue before the justices, the review at the Justice Department has come to a halt because any administration action could be seen as trying to influence the court.
Attorney General Loretta E. Lynch, who was sworn in this week, told senators during her confirmation hearing that the death penalty “is an effective penalty.” But she did not elaborate. Emily Pierce, a Justice Department spokeswoman, said the review continued. “And we have, in effect, a moratorium in place on federal executions in the meantime.”
The last line in this excerpt highlights for me the federal death penalty story that continue to fail to get nearly as much coverage, legally, politically and practically, as I think it should. The feds have, I believe, a significant number of capital murderers on federal death row who have completed all their appeals but who have been escaping their imposed punishment since 2007 because of all the state lethal injection litigation that resulted in the Supreme Court's Baze ruling and all the subsequent uncertainty that has followed.
I have long been troubled that the Bush Administration starting in 2007, and the Obama Administration in the years that have followed, have made no apparent effort to try to carry out existing federal death sentences. Whatever the reasons for a nearly-decade-long de facto executive moratorium on the federal death penalty, I believe federal prosecutors should feel some obligation to defendants, victims and the general public to provide some public explanation about what the heck is going on with the actual administration of the federal death penalty.
April 30, 2015 in Baze and Glossip lethal injection cases, Criminal justice in the Obama Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, April 29, 2015
Intriguing reports on Supreme Court oral argument about Oklahoma's lethal injection protocol
Lyle Denniston at SCOTUSblog has this report on the oral argument today in the Supreme Court case concerning Oklahoma's lethal injection protocols. It starts this way:
For months, the Supreme Court has given no explanation as it refused to give inmates awaiting execution any chance to learn about the methods by which they would be put to death, and has said nothing as it allowed states to experiment with new lethal-drug combinations even after some of those executions were seriously botched. It allowed one inmate to be put to death even before it decided whether to hear his case. In other words, the regime of capital punishment went forward without any new constitutional assessment of it by the Justices; they have not done so on lethal-drug executions for seven years.
On Wednesday, the nation may have gotten the beginnings of an explanation. What appears to be a clear majority of the Court has grown frustrated with the repeated constitutional assaults on the death penalty, especially since that penalty is still constitutionally permitted. That frustration almost boiled over as the Court heard the case of Glossip v. Gross.
That case, at its core, is only about whether the first drug Oklahoma uses in its three-drug lethal combination is capable of making the inmate sufficiently unconscious that he feels little or no pain as the next two, highly toxic drugs paralyze and then kill him. The grim possibility of that particular protocol was described alarmingly by Justice Elena Kagan as “burning alive, from the inside.”
And Wednesday’s argument started out as if it would proceed through a detailed examination of the properties of that first drug — midazalom — and how two lower courts had analyzed its effect in the execution chamber. There was much discussion about judicial fact-finding and what was open to the Supreme Court to second-guess about that.
But the tone and the substance of the argument changed abruptly, when Justice Samuel A. Alito, Jr., moved aggressively into an exchange with the Oklahoma death-row inmates’ lawyer, Robin C. Konrad. “Let’s be honest about what’s going on here,” Alito began. He mentioned how controversial the death penalty is, and said its opponents would be free to continue to try to get it abolished. But, he said, until that happens, “is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”
This Reuters article about today's arguments, headlined "Lethal injection case exposes U.S. top court's death penalty divide," develops similar themes in its review of the arguments. It starts this way:
Tensions on the Supreme Court over America's use of the death penalty boiled over on Wednesday as the justices appeared badly split in a case challenging Oklahoma's lethal injection method as a breach of the Constitution's ban on cruel and unusual punishment.
The nine-member court's five conservatives seemed likely to side with Oklahoma in the case brought by three death row inmates, while its four liberals expressed doubt about the propriety of using the drug at the center of the dispute. Conservative Justice Anthony Kennedy, who often casts deciding votes in close cases, said nothing to suggest he would side with the liberals.
The full oral argument transcript is available at this link.
Recent related posts:
- Just what will SCOTUS focus on when reviewing Oklahoma's lethal injection protocol?
- "The Supreme Court Is About to Decide the Future of Lethal Injections"
"The Supreme Court Is About to Decide the Future of Lethal Injections"
The more I think about the Glossip lethal injection case being considered by the Supreme Court today (basics previewed here), the more I think the Justices will be inclined to issue a very narrow ruling that only clearly impacts the lethal injection protocol in Oklahoma and perhaps a few other states. However, this National Journal article which carries the headline I used in the title of this post, seems to think it will be a huge deal whatever SCOTUS does in the case. Here is how the piece starts:
How much pain is constitutionally acceptable for a prisoner sentenced to death to feel during his or her execution? What, exactly, is cruel and unusual punishment?
Though not the precise question presented before the justices, the Supreme Court will be forced to wrestle with those nagging Eighth Amendment concerns Wednesday as it hears arguments in a case challenging the application of a combination of lethal drugs that have been linked to a string of grisly botched executions over the past year.
In Glossip v. Gross, the Court is being asked to determine whether the use of of a sedative known as midazolam by Oklahoma and a number of other states is reliable and effective enough to use as part of three-drug lethal cocktail to execute prisoners on death row.
Midazolam has been subject to rising scrutiny since it was first used by Florida in 2013 as a replacement for another drug that became difficult for states to acquire, amid boycotts from European drug manufacturers opposed to capital punishment.
Even a narrow ruling striking against the use of midazolam could reverberate much more widely and further disrupt states' ability to carry out death sentences—a penalty that has grown increasingly rare in recent years as only a handful of states continue the practice. States scrambling to find suitable lethal cocktails are finding the task increasingly difficult, as fewer and fewer options remain available.
Recent related post:
Tuesday, April 28, 2015
Indonesia executes by firing squad eight of "Bali nine" for drug offenses
As reported in this New York Times article, "the Indonesian government executed eight drug convicts after midnight on Wednesday, including seven foreigners." Here is more:
The executed prisoners, from Australia, Brazil and Nigeria, along with one Indonesian, were shot by police firing squads about 12:25 a.m. local time at a site outside the gates of Pasir Putih prison on the island of Nusa Kambangan off the southern coast of Java, according to the attorney general’s office.
The authorities granted the stay of execution to Mary Jane Veloso, 30, a Philippine citizen, after the Philippine government requested her assistance in a human trafficking case involving a woman who surrendered to the Philippine police on Tuesday....
The mass execution was the second in Indonesia this year. In January, five foreign drug convicts and one Indonesian convicted of murder were shot by firing squads on the island.
On Saturday, the attorney general’s office gave 72 hours’ notice to the latest group of condemned prisoners, their legal teams and their respective embassies that the executions would be carried out. On Monday, an Australian prisoner, Andrew Chan, married his Indonesian fiancée in a small ceremony at the prison. A French citizen who was also originally on the list to be executed won a two-week reprieve from the State Administrative Court in Jakarta, the Indonesian capital, which will hear his challenge to a clemency rejection by President Joko Widodo.
Shortly after taking office last October, Mr. Joko declared that Indonesia was facing “a national emergency” of drug abuse, and he rejected 64 clemency appeals from death row drug convicts, most of them foreigners. Saying Indonesia had a right to exercise its drug laws, Mr. Joko’s government rejected international pleas to cancel the executions, including from Ban Kimoon, secretary general of the United Nations.
The executions have angered some of Indonesia’s largest aid donors, including Australia and the European Union. Australia announced on Wednesday that it would withdraw its ambassador to Indonesia, and Prime Minister Tony Abbott described the deaths of Mr. Chan and another Australian, Myuran Sukumaran, as a dark moment in Australia’s diplomatic relations with Indonesia.
Just what will SCOTUS focus on when reviewing Oklahoma's lethal injection protocol?
The Supreme Court concludes its oral arguments with a capital bang on Wednesday by hearing the case of Glossip v. Gross. Lyle Denniston at SCOTUSblog has this effective argument preview which starts this way:
In an era when botched executions of death-row inmates happen more often, raising new questions about capital punishment, the Supreme Court continues to rely upon a set of legal principles about lethal-drug protocols that have not been reexamined in seven years. The Justices have given themselves the opportunity to do so next week when they hear an Oklahoma case, but just how far they are prepared to go to reopen those principles probably will only be clear as the oral argument unfolds.
In one sense, the case of Glossip v. Gross is focused on the use of a single drug in a three-drug execution “cocktail” — a sedative, the first dose, that is supposed to put the inmate in a sufficiently deep state of unconsciousness that there will be no pain, or at least only tolerable pain, from injections of the other two drugs, which paralyze and then kill. But in another sense, the entire constitutional structure surrounding execution by lethal drugs could be at stake.
This extended US News and World Report article about the case, headlined "At the Supreme Court, a Lethal Injection Drug on Trial," starts by providing this helpful background:
The Supreme Court on Wednesday will consider the methods states use to execute criminals — an issue attracting increasing attention, but one the high court has avoided for the better part of a decade. The case — Glossip v. Gross — will focus on one specific drug, Midazolam, that some states are using to render inmates unconscious in capital punishment procedures. Yet it reflects the larger challenges correctional departments are having in obtaining lethal injection drugs in light of a global boycott and increasing public scrutiny.
Prompted by four apparently botched executions that made national headlines last year, the lawsuit the justices will consider was brought by three inmates on Oklahoma's death row. Their lawyers say Midazolam — the drug used to render inmates unconscious before administering drugs to paralyze and kill them — does not put inmates in a deep enough coma to shield them from pain and thus violates the Eighth Amendment’s prohibition against cruel and unusual punishment. In executions using the drug in Oklahoma, Ohio and Arizona, prisoners reportedly gasped for air, groaned, writhed, grimaced and even said they were experiencing burning pain.
Three other states currently include Midazolam in their lethal injection protocols. But more are considering it, the plaintiffs' lawyers says, and a Supreme Court decision that affirms its constitutionality will likely increase its use. Conversely, a ruling finding use of the drug unconstitutional could lead to further declines in what has been the predominate method of execution for decades, even as capital punishment overall dropped last year to a 20-year low and the number of death sentences issued hit its lowest mark since 1976. The death penalty is currently legal in 32 states, but only about a dozen states still regularly execute prisoners.
Some states are considering abandoning lethal injection altogether. Utah lawmakers recently approved allowing firing squads if death penalty drugs are not available, while Oklahoma has made nitrogen gas chambers a back-up for its executions.
"Going Retro: Abolition for All"
The title of this post is the headline of this notable new and timely article authored by Kevin Barry now available via SSRN. Here is the abstract:
The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so. Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes. State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row. In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty.
Some states, however, are “going retro.” In 2012, California’s Proposition 34 would have applied retroactively, reducing over 700 death row prisoners’ sentences to life without parole (“LWOP”). More states should attempt to pass retroactive death penalty repeals, but they are not doing so, for two reasons. The first is political: legislators are not pursuing retroactive legislation because they do not have the votes. The second reason is legal: legislators are not pursuing retroactive legislation because they believe that the separation of powers and state constitutional prohibitions on retroactive laws forbid it. These arguments are reasonable ones, and they reach far beyond the death penalty sphere — to retroactive crack sentencing laws and retroactive juvenile LWOP sentencing laws, among others.
This Article argues that neither the separation of powers nor state constitutional prohibitions on retroactive laws prohibits states from retroactively repealing their death penalties. While politics may prevent legislatures from pursuing retroactive repeal of the death penalty, the law should not. As California’s 2012 repeal bill makes clear, “fairness, equality, and uniformity” demand retroactivity. They demand abolition for all.
Monday, April 27, 2015
As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
I find notable the results of a new poll reported in this Boston Globe article headlined "Few favor death for Dzhokhar Tsarnaev, poll finds: Less than 20% of Mass. residents support execution." Here are the details, along with some explantions:
Although nearly a third of Massachusetts residents say they support the death penalty for egregious crimes, less than 20 percent believe Boston Marathon bomber Dzhokhar Tsarnaev should be put to death — a level of support that has eroded over recent months as the jury’s decision on his fate nears, a Boston Globe poll shows.
“It seems that voters have concluded that Tsarnaev does not deserve a quick death, but rather should spend the remainder of his days in a windowless cell contemplating the heinous acts that put him there,” said Frank Perullo, president of Sage Systems LLC, which conducted the poll. “To voters, it would seem death is too easy an escape.”
In Boston, support for the death penalty has dwindled even further: Only a quarter believe it is ever appropriate, and just 15 percent think Tsarnaev should be executed. Almost 66 percent of Bostonians and nearly 63 percent statewide favor a life sentence.
The poll comes in the penalty phase of Tsarnaev’s trial. Jurors have just heard three days of wrenching accounts from victims and families of the dead. Now the defense will begin its case to spare his life. Perhaps surprisingly, given seven weeks of graphic testimony, the public’s appetite for Tsarnaev’s execution appears to have diminished over the course of the legal proceedings....
A Globe poll taken a few months after the bombing in September 2013 showed that 33 percent favored death. A WBUR poll conducted days after his conviction this month showed that 26 percent favored death. Those compare with the 18.9 percent favoring death in the new Globe poll, which was based on telephone interviews April 22 and 23 with 804 people, nearly half in Boston....
[E]xperts offered several possible explanations for the diminishing appetite for the death penalty, starting with the timing of the survey: The Globe poll was conducted after Bill and Denise Richard, whose son Martin was killed and whose daughter, Jane, lost a leg in the blasts, made their plea on the front page of the Globe for prosecutors to drop the death penalty. The Tsarnaev brothers’ dual bombs, and the crime spree that followed, left four people dead and injured more than 260 others....
Daniel S. Medwed, a Northeastern University criminal law professor who has followed the case closely, said the letter and the discussion that followed might have changed people’s minds. “It didn’t talk about moral opposition. It was much more about the process of the death penalty case and being dragged through this for years and years,” he said. “The heartfelt letter resonated with the community.”...
David Hoose, a criminal defense attorney with the Northampton firm Sasson Turnbull Ryan & Hoose who has experience in federal death penalty cases, said the opposition to death for Tsarnaev could be rooted in the concerns over his youth or the cost and drawn-out nature of the appeals process....
Hoose and others cautioned that the poll results could not predict what a jury might do. “The people answering this poll have not had to sit through the weeks of gut-wrenching testimony by these victims,” said Hoose, who is also on the board of the Massachusetts Citizens Against the Death Penalty Fund. “I think the real $64,000 question here is, how much is this going to influence the 12 people making the decision?”
A few recent related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- Reviewing Massachusetts' "long and tortured history" with the death penalty
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
Sunday, April 26, 2015
Arguments against death penalty abolition prevail in great Intelligence Squared debate
I have long been a fan of the Intelligence Squared debate series, which I often hear on my local NPR station (and which too often leads me to stay in my car longer than I had intended). I was especially excited when I learned that the series was finally going to focus on the death penalty. The live debate took place earlier this month, and this NPR link provides access to the 50-minute audio recording, as well as this account of the event (with my emphasis added):
The death penalty is legal in more than 30 states, but the long-controversial practice has come under renewed scrutiny after a series of botched executions in several states last year.
Opponents of capital punishment argue that the death penalty undermines the fair administration of justice, as wealth, geography, race and quality of legal representation all come into play, with uneven results.
But proponents of the death penalty believe capital punishment serves a moral and social purpose in American society. They argue that while the administration of the penalty is not perfect, improvements can be made in the justice system to address some opponents' concerns without doing away with the punishment altogether. Some people deserve to die, they say, for committing certain types of crime.
Two teams faced off over these questions in the latest event from Intelligence Squared U.S., debating the motion, "Abolish The Death Penalty." In these Oxford-style debates, the team that sways the most people to its side by the end is the winner.
Before the debate, 49 percent of the audience at the Kaufman Music Center in New York voted in favor of the motion, while 17 percent were opposed and 34 percent were undecided. After the event, 54 percent agreed with the motion and 40 percent disagreed, making the team arguing against abolishing the death penalty the winners of the debate.
For The Motion
Diann Rust-Tierney became the executive director of the National Coalition to Abolish the Death Penalty in 2004. With 30 years of experience in public policy and litigation advocacy, she manages the operations of NCADP and directs programs for the organization and its 100 affiliate organizations....
Barry Scheck is the co-founder and co-director, with Peter Neufeld, of the Innocence Project and a professor at the Cardozo School of Law. Known for landmark litigation that has set standards for forensic applications of DNA technology, he and Neufeld have shaped the course of case law nationwide, leading to an influential study by the National Academy of Sciences, as well as important state and federal legislation....
Against The Motion
Robert Blecker is a professor at New York Law School, a nationally known expert on the death penalty and the subject of the documentary Robert Blecker Wants Me Dead. After a brief stint prosecuting corruption as a New York special assistant attorney general, he joined New York Law School, where he teaches constitutional history and criminal law, and co-teaches death penalty jurisprudence with leading opponents....
Kent Scheidegger has been the legal director of the Criminal Justice Legal Foundation since 1986. A nonprofit, public interest law organization, CJLF's purpose is to assure that people who are guilty of committing crimes receive swift and certain punishment in an orderly and constitutional manner. Scheidegger has written over 150 briefs in U.S. Supreme Court cases....
I think it is fair to assert that both sides in this debate had a "dream team" arguing, and I also think it is very notable that an audience in New York City by its votes determined, essentially, that arguments against abolition of the death penalty are more compelling than argument for abolition. For that reason (and many others), anyone interested in the death penalty should find 50 minutes to listen to this terrific IS debate.
Thursday, April 23, 2015
Florida Supreme Court reverses cop killer's death sentence on proportionality review
As reported in this local article, the "Florida Supreme Court has overturned the death sentence of Humberto Delgado, who was convicted of gunning down Tampa police Corporal Mike Roberts in 2009." Here are the details of why:
In an opinion issued Thursday, a unanimous court ruled that Delgado's extreme mental illness, coupled with the circumstances of the crime, made a death sentence disproportionate as compared with other murder cases. The court sent the case back to the circuit court, where Delgado will be resentenced to life in prison with no chance of release....
Delgado, 40, who once worked as a police officer in his native Virgin Islands, was sentenced to death in 2012. At his trial, doctors testified about Delgado's history of delusions and psychotic behavior. All diagnosed him with bipolar disorder with varying degrees of psychosis.
Their examinations revealed that in his early adulthood, Delgado was plagued by a belief that police were out to kill him and that people were following him and sitting in trees outside his home. He also told his family that he had to cut off his children's legs because they were "goat legs" and they were "evil." He was known to wander the streets at night, saying that demons, the Masons, and the rapper 50 Cent were trying to kill him.
Delgado had been hospitalized multiple times before he ended up living with relatives in Oldsmar. On Aug. 19, 2009, he walked 15 miles from there, pushing a shopping cart that held four guns, on his way to a veterans hospital in Tampa. That night, Roberts stopped Delgado near the corner of Nebraska Avenue and Arctic Street. Delgado gave Roberts his identification. When Roberts started to search his belongings, Delgado tried to run. Roberts then shocked Delgado with a Taser. Delgado hit Roberts several times before shooting him....
In its opinion, the Supreme Court noted that the death penalty is intended for cases in which the aggravating factors greatly outweigh any mitigating factors presented by the defense. "We do not downplay the fact that Corporal Roberts lost his life as a result of Delgado's actions," the justices wrote. "However ... we are compelled to reduce Delgado's sentence to life imprisonment because death is not a proportionate penalty when compared to other cases."...
Mentally ill inmates are rarely executed in Florida, due to the length of the appeals process and the moral, ethical and legal issues associated with executing the insane. Recently, courts have trended away from capital punishment for the mentally ill.
The full opinion is available at this link.
Wednesday, April 22, 2015
Is there a "growing movement against death penalty – on the right"?
The question in the title of this post is prompted by this notable new press article with this full headline: "Nebraska highlights growing movement against death penalty – on the right: Seventeen Republican lawmakers seek abolition of capital punishment in the state as Christians, conservatives and libertarians band together for change." Here are excerpts:
A growing coalition of Christian, fiscally conservative and libertarian lawmakers are pushing to repeal the death penalty in some of America’s reddest states. And after years of working against state-sponsored executions, historically a Democratic platform, some conservatives say they believe the efforts are gaining traction.
The push for reform was on full display last week in Nebraska, as 17 Republican lawmakers in the one-house legislature advocated for passage of abolition bill LB268. “I know many of you, when you went door to door, you said to the constituent you talked to: ‘You send me to Lincoln, [Nebraska,] and when I get down there I’m going to find government programs that don’t work, and I’m going to get rid of them,’” Senator Colby Coash told fellow lawmakers. “And that’s exactly what LB268 does … We can get justice without this method.”
The bill passed its first hurdle with a 30 to 12 vote in favor of repeal, potentially enough to override Republican governor Pete Ricketts’ veto threat. Two more successful votes are needed to send the bill to the governor’s desk, and there is strong opposition, including filibuster threats, to overcome. Still, conservative advocates said they believe it is one of the most promising developments in decades.
“We’re probably in the best position we’ve been in since the bill passed in 1979,” said Stacy Anderson, the conservative executive director of Nebraskans for Alternatives to the Death Penalty, about the last time the state’s legislature passed an abolition bill. “From the conservative standpoint, the death penalty fails on all of our core values.”...
Republicans are still the most likely group to support capital punishment, with 77% in support of the death penalty. Still, conservative activists point to the 10% decrease in Republican support over 20 years, growing support for life without parole as an alternative to the death penalty, and the issue’s low priority ranking among voters.
The most widely cited reasons for opposing the death penalty seem in line with some of the most fervent strains of American Republicanism: fiscal conservatism, pro-life principles and small government ideals. And with increasing scrutiny on states that continue to execute prisoners despite a shortage of lethal injection drugs, the issue appears poised to continue to attract attention.
“It’s a government program that risks innocent life, costs more than the alternative, and is certainly not about limited government,” said Marc Hyden, an outreach specialist with Conservatives Concerned About the Death Penalty. “When I’m first speaking, I think conservatives give me kind of a weird look,” said Hyden. “But about halfway through the presentation, it starts clicking with them – that this is a program that just doesn’t mesh with conservative ideals.”
The campaign has seen growing interest in red states such as Georgia, Kentucky, Kansas and Tennessee, both Hyden and abolitionists said.
In Montana, a fiercely conservative state, a death penalty abolition bill made it out of the House judiciary committee for the first time perhaps ever, according to death penalty abolition advocates there. “I was shocked,” Moore told the Missoulian. “I didn’t expect it to come out of committee.” At the time that the bill passed to the floor, a stunned Moore described it as having “a tiger by the tail”. The abolition bill failed in a vote on the house floor, but many see its progress out of the judiciary committee as nothing short of stunning. “We were very excited,” said Jennifer Kirby about the bill’s progress. “It’s about time.”
Monday, April 20, 2015
Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
As highlighted by this new AP article, headlined "Bombing trial enters penalty phase amid life or death debate,"the real legal intrigue surrounding the capital trial of the Boston Marathon bombing is about to begin:
The guilt phase of Boston Marathon bomber Dzhokhar Tsarnaev's trial was considered a slam dunk for prosecutors, especially after his lawyers bluntly admitted during opening statements that he participated in the deadly 2013 attack. But the outcome of the next phase of the trial is much more difficult to predict. The same jury must decide whether Tsarnaev, 21, should be put to death or spend the rest of his life in prison. The penalty phase begins Tuesday in U.S. District Court.
Debate over whether Tsarnaev should get the death penalty intensified recently after the parents of Martin Richard, an 8-year-old boy who was killed in the bombings, urged federal authorities to consider taking death off the table in exchange for Tsarnaev spending the rest of his life in prison and giving up his rights to appeal....
A married couple who lost limbs in the attack also asked the U.S. Justice Department not to pursue the death penalty. "If there is anyone who deserves the ultimate punishment, it is the defendant. However, we must overcome the impulse for vengeance," Jessica Kensky and Patrick Downes said in a statement to the Globe Sunday....
Others have said they favor the death penalty for Tsarnaev. Liz Norden, whose two adult sons each lost a leg in the bombings, said nothing short of execution is warranted. "He destroyed so many families that day," she said. "I want the ultimate justice."
Legal experts differ on whether the pleas from victims will persuade the federal government to drop its bid for the death penalty. "If the Justice Department seriously takes into consideration the feelings of the family members in this case, they have every justification to take death off the table," said Robert Dunham, executive director of the Death Penalty Information Center.
But New York Law School professor Robert Blecker said the Justice Department has to consider the larger question of denouncing terrorism. "They'll go forward with it. It will not change the decision. Denunciation is a legitimate purpose," Blecker said....
During the penalty phase, the defense will continue to portray Tsarnaev's brother, Tamerlan, 26, as a domineering follower of radical Islam who convinced his then 19-year-old brother that America had to be punished for its wars in Muslim countries. Tamerlan died four days after the bombings when he was shot during a firefight with police and run over by Dzhokhar during a getaway attempt.
Prosecutors are expected to emphasize the brutality of the bombings by calling more survivors to testify. During the first phase, several survivors testified about devastating injuries, including lost limbs....
If even one juror votes against the death penalty, Tsarnaev will get a life sentence.
Saturday, April 18, 2015
Oklahoma now able to use nitrogen gas as execution method if needed
As reported in this CNN piece, headlined "Oklahoma approves nitrogen gas as backup execution method," the Sooner State is now officially able to use a novel execution method sooner or later. Here are the details:
Oklahoma Gov. Mary Fallin signed a bill on Friday that would allow the state to perform executions with nitrogen gas if lethal injection is ruled unconstitutional or becomes unavailable. Nitrogen causes a quick loss of consciousness and then death from lack of oxygen, Fallin's office said in a press release.
CNN affiliate KFOR says it's never been used in an execution in the United States. "The person will become unconscious within eight to 10 seconds and death a few minutes later. In other words, a humane, quick and painless death," said Rep. Mike Christian, one of the bill's authors, according to KFOR....
Oklahoma's executions have been put on hold while the U.S. Supreme Court reviews its use of lethal injections. Last year, the state came under scrutiny when it took 43 minutes to kill convicted killer Clayton Lockett.
Fallin reaffirmed her support for the death penalty. "Oklahoma executes murderers whose crimes are especially heinous," Fallin said. "I support that policy, and I believe capital punishment must be performed effectively and without cruelty. The bill I signed today gives the state of Oklahoma another death penalty option that meets that standard." The governor's office said the first alternative for execution is lethal injection, followed by nitrogen gas, the electric chair and the firing squad.
A few recent and older related posts:
- Is nitrogen gas the best modern execution alternative to lethal injection?
- Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma
- As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- A worldly perspective on different execution methods
- Should problems with lethal injection prompt return of other execution methods?
- Effective discussion of nitrogen gas as execution method alternative
Friday, April 17, 2015
Parent of Boston bombers' young victims: "To end the anguish, drop the death penalty"
The title of this post is drawn from the headline of this remarkable new Boston Globe commentary authored by Bill and Denise Richard, parents of 8-year-old Martin who was one of three people killed in the April 2013 explosions at the marathon's finish line. The full piece is a must read, and I will quote it all here to help ensure these victims' voices get heard in full:
The past two years have been the most trying of our lives. Our family has grieved, buried our young son, battled injuries, and endured numerous surgeries — all while trying to rebuild lives that will never be the same. We sat in the courtroom, day after day, bearing witness to overwhelming evidence that included graphic video and photographs, replicated bombs, and even the clothes our son wore his last day alive. We are eternally grateful for the courage and life-saving measures of first responders, Boston Police, the Boston Fire Department, and good Samaritans on April 15, 2013. We also thank the FBI and other law enforcement agencies, the Department of Justice, and the Massachusetts US Attorney’s Office for leaving no stone unturned during the investigation and trial.
But now that the tireless and committed prosecution team has ensured that justice will be served, we urge the Department of Justice to bring the case to a close. We are in favor of and would support the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal.
We understand all too well the heinousness and brutality of the crimes committed. We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul. We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.
For us, the story of Marathon Monday 2013 should not be defined by the actions or beliefs of the defendant, but by the resiliency of the human spirit and the rallying cries of this great city. We can never replace what was taken from us, but we can continue to get up every morning and fight another day. As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.
This is a deeply personal issue and we can speak only for ourselves. However, it is clear that peace of mind was taken not just from us, but from all Americans. We honor those who were lost and wish continued strength for all those who were injured. We believe that now is the time to turn the page, end the anguish, and look toward a better future — for us, for Boston, and for the country.
Thursday, April 16, 2015
Latest Pew survey data on death penalty opinions
This new Pew Research Center report carries the headline "Less Support for Death Penalty, Especially Among Democrats: Supporters, Opponents See Risk of Executing the Innocent." Here are some specifics from the report:
A majority of Americans favor the death penalty for those convicted of murder, but support for the death penalty is as low as it has been in the past 40 years. A new Pew Research Center survey finds 56% favor the death penalty for people convicted of murder, while 38% are opposed.
The share supporting the death penalty has declined six percentage points, from 62%, since 2011. Throughout much of the 1980s and 90s, support for the death penalty often surpassed 70%. In a 1996 survey, 78% favored the death penalty, while just 18% were opposed.
Much of the decline in support over the past two decades has come among Democrats. Currently, just 40% of Democrats favor the death penalty, while 56% are opposed. In 1996, Democrats favored capital punishment by a wide margin (71% to 25%). There has been much less change in opinions among Republicans: 77% favor the death penalty, down from 87% in 1996. The share of independents who favor the death penalty has fallen 22 points over this period, from 79% to 57%.
The latest national survey by the Pew Research Center, conducted Mar. 25-29 among 1,500 adults, finds widespread doubts about how the death penalty is applied and whether it deters serious crime. Yet a majority (63%) says that when someone commits a crime like murder, the death penalty is morally justified; just 31% say it is morally wrong, even in cases of murder.
At the same time, 71% of Americans say there is some risk that an innocent person will be put to death. Only about a quarter (26%) say there are adequate safeguards in place to make sure that does not happen. About six-in-ten (61%) say the death penalty does not deter people from committing serious crimes; 35% say it does deter serious crime.
And about half (52%) say that minorities are more likely than whites to be sentenced to death for similar crimes; fewer (41%) think that whites and minorities are equally likely to be sentenced for similar .
The survey also finds that Americans are relatively unaware about whether the number of death penalty executions taking place in the U.S. has changed in recent years....
The share of women who favor the death penalty has fallen 10 points since 2011, while men’s views have shown virtually no change. Men are now 15 points more likely than women to favor the death penalty (64% vs. 49%). Four years ago, the gender difference was much more modest (65% of men favored the death penalty, as did 59% of women)....
Support for the death penalty has edged down among whites, blacks and Hispanics since 2011, but wide racial differences persist. About six-in-ten whites (63%) favor the death penalty, compared with 34% of blacks and 45% of Hispanics.
Age differences in views of the death penalty continue to be modest. About half (51%) of those under 30 favor the death penalty, as do 57% of those 30 to 49, 61% of those 50 to 64 and 54% of those 65 and older.
Among religious groups, sizable majorities of white evangelical Protestants (71%), white mainline Protestants (66%) and white Catholics (63%) favor the death penalty. But those who are religiously unaffiliated are divided (48% favor, 45% oppose). In 2011, the religiously unaffiliated supported the death penalty by a wide margin (57% to 36%).
As with overall views of the death penalty, there are demographic and partisan differences in attitudes about capital punishment. The sharpest disagreements are in views of whether minorities are more likely than whites to face the death penalty.
Fully 77% of blacks say minorities are more likely than whites to receive the death penalty for similar crimes. Whites are evenly divided: 46% say minorities are disproportionately sentenced to death, while an identical percentage sees no racial disparities. More than twice as many Democrats (70%) as Republicans (31%) say minorities are more likely than whites to receive the death penalty for similar crimes.
There also are educational differences in these opinions: 60% of college graduates say minorities are more apt to receive the death penalty than are whites, as do 55% of those with some college experience. But among those with no more than a high school education, 44% say minorities are disproportionately sentenced to death; 48% say whites and minorities are equally likely to receive the death penalty for similar crimes.
Tuesday, April 14, 2015
Interesting recent Buckeye death penalty headlines (despite extended extended moratorium)
After Ohio Governor (and future GOP Prez candidate?) John Kasich and other executive officials put off all Ohio executions for the entire 2015 calendar year, I figured Ohio would not be make all that much death penalty news until at least 2016. But, as these recent local headlines help highlight, an executive branch moratorium on executions does not stop others from taking about the death penalty in the Buckeye state:
From the AP here, "Bill would be among several to revise death penalty law"
From the Cincinnati Enquirer here, "Toddler's mother one of few women to face death penalty"
From Cleveland.com here, "Ohio Supreme Court sets [October 2017] execution date for man on death row nearly three decades"
From the Columbus Dispatch here, "Exonerated men speak out against death penalty, urge change"
Monday, April 13, 2015
"Sister of slain MIT officer opposes death penalty for Tsarnaev"
The title of this post is the headline of this notable new Boston Globe article, which gets started this way:
The sister of murdered MIT Police Officer Sean A. Collier opposes the death penalty against one of the men responsible for his death, Boston Marathon bomber Dzhokhar Tsarnaev, because it would not bring “peace or justice” to her.
In a posting on Facebook and on her Twitter account, Jennifer L. Lemmerman wrote that she continues to mourn the loss of her younger brother, who was widely hailed after his murder as a person of integrity, compassion, and curiosity who was dear to the MIT community.
Lemmerman, a graduate of Boston College School of Social Work and an alderman in Melrose, wrote that she will never forgive Tsarnaev for ending her brother’s life. But, she also wrote, she does not believe in the death penalty even after what has happened to her and her family. “Whenever someone speaks out against the death penalty, they are challenged to imagine how they would feel if someone they love were killed. I’ve been given that horrible perspective and I can say that my position has only strengthened,’’ she wrote on her Facebook account.
“It has nothing to do with some pursuit of forgiveness. I can’t imagine I’ll ever forgive him for what he did to my brother, to my family, and I’ll have to live with that for the rest of my life, whether he is on this earth or not,’’ Lemmerman wrote of Tsarnaev.
She added, “But I also can’t imagine that killing in response to killing would ever bring me peace or justice. Just my perspective, but enough is enough. I choose to remember Sean for the light that he brought. No more darkness.’’
Tennessee Supreme Court postpones all scheduled executions while considering execution protocol
As reported in this AP piece, the "Tennessee Supreme Court postponed execution dates for four inmates, effectively halting all executions while the courts decide whether current protocols for putting people to death are constitutional." Here is more:
Tennessee last executed a prisoner in 2009. Since then, legal challenges and problems obtaining lethal injection drugs have stalled new executions. In 2013 and 2014, the state tried to jump-start the process with a new one-drug lethal injection method and the reinstatement of the electric chair as a backup.
Beginning in December 2013, the court set new execution dates for 11 inmates. One inmate died in prison, and the execution dates for the others have been postponed as they approach because of legal challenges to the new methods. On Friday, the court postponed the last of the scheduled execution dates. It will set new dates after the legal questions are settled....
Death row inmates challenging Tennessee's lethal injection method recently submitted an affidavit from University of Utah College of Pharmacy professor James H. Ruble that questions whether even a willing compounding pharmacist could provide the pentobarbital that Tennessee and several other states need for executions. Ruble says in the affidavit that the main ingredient for pentobarbital is unavailable from the six primary commercial sources that compounding pharmacists buy their ingredients from.
Tennessee last year reinstated electrocution as an alternative if lethal injection drugs are unavailable or a court rules the procedure unconstitutional. But that change has brought yet another legal challenge.
Sunday, April 12, 2015
"Ending the Death Lottery"
The title of this post is the headline of this notable new article by William Berry III now available via SSRN. Here is the abstract:
When the Supreme Court reinstated the death penalty in 1976, it did so under the assumption that certain safeguards would remedy the arbitrariness of capital sentencing. Comparative proportionality review, in which the state supreme court would review jury sentences to ensure a modicum of consistency, was a central part of many states’ attempts to comply with the Eighth Amendment. In Ohio, however, this safeguard is illusory; the state supreme court has never reversed a capital case on proportionality grounds, despite reviewing almost three hundred cases.
This Article explores this unfortunate phenomenon. Using a quantitative methodology, this Article assesses the degree to which Ohio capital cases sentenced after the adoption of life-without-parole (between 1996-2011) are comparatively proportionate.
After finding that over forty percent of Ohio’s capital cases during that period were comparatively excessive, the Article argues that Ohio’s current use of the death penalty contravenes the Eighth Amendment and is therefore unconstitutional. The Article then proposes two alternative remedies to solve this problem: (1) institute meaningful proportionality review with the aid of social science or (2) abolish the death penalty. Finally, the Article considers the consequences of this study for the almost two-thirds of death penalty states that use comparative proportionality review.
Part II of the paper briefly traces the requirements of the Eighth Amendment and the origins of proportionality review. Part III describes Ohio’s use of proportionality review and explains why it is largely a matter of form over substance. Part IV presents the empirical study of Ohio’s capital cases from 1996-2011 and highlights its central conclusions. Part V argues that these results show that Ohio’s capital system violates the Eighth Amendment. Next, Part VI proposes ways to remedy the constitutional shortcoming. Finally, Part VII explores the applicability of the study to the large majority of death penalty jurisdictions that currently use proportionality review.
Saturday, April 11, 2015
Reviewing Massachusetts' "long and tortured history" with the death penalty
The AP has this notable new piece headlined "in Massachusetts, a Long and Tortured Death Penalty History." Here are excerpts:
Massachusetts hasn't executed anyone since 1947, but during most of its history it allowed capital punishment for crimes ranging from murder to witchcraft. Jurors weighing whether Boston Marathon bomber Dzhokhar Tsarnaev should die under the federal death penalty statute or spend the rest of his life behind bars are the latest to do so in a state with a long and tortured history with execution:
Using death as a punishment was common in the state's earliest days. In one notable case, Mary Dyer, was put to death in Boston in 1660 after she was banned by the Puritan leaders of the Massachusetts Bay Colony for being a Quaker. Dyer returned several times in defiance of anti-Quaker laws and was eventually hanged. A statue of Dyer sits in front of the Statehouse as a caution against religious intolerance. Capital punishment reached a new fervor a few decades later, when 19 people were hanged and one person crushed to death during the 1692 Salem witch trials.
Perhaps the most infamous Massachusetts death penalty case of the 20th century focused on Italian immigrants and committed anarchists Nicola Sacco and Bartolomeo Vanzetti. The two were arrested several weeks after a payroll clerk and a security guard were shot and killed during an armed robbery at a Braintree shoe factory. The 1921 trial drew international attention. After they were convicted and sentenced to die in the electric chair, political dissidents, unionists, Italian immigrants and other supporters ... demonstrated across the United States and Europe arguing the two were targeted for their political beliefs and immigrant status. They were executed in 1927. The case still remains contentious....
In the decades after the Sacco and Vanzetti trial, the appetite for capital punishment began to wane in Massachusetts. In 1947, the state carried out its last executions, putting convicted murderers Philip Bellino and Edward Gertson to death in the electric chair at Charlestown State Prison. Although capital punishment remained legal, governors refused to sign death warrants over concerns that the penalty offered no more safety for the community than life in prison....
In 1975, the Massachusetts Supreme Judicial Court curtailed capital punishment, holding that a mandatory death sentence for rape-murder constituted cruel or unusual punishment in violation of the state constitution's Declaration of Rights. In 1982, voters approved a constitutional amendment that would have restored the death penalty and the governor signed a new law also reinstating capital punishment in certain cases. In 1984, the court ruled that law unconstitutional saying it impermissibly burdened a defendant's right against self-incrimination and trial by jury. The ruling effectively banned the death penalty.
In the 1990s there was a new push to revive the death penalty spearheaded by a series of Republican governors. The effort gained momentum following the 1997 abduction and murder of 10-year-old Jeffrey Curley by two men who later received life sentences. A death penalty bill filed in the wake of Curley's murder failed after a single lawmaker switched his vote during reconsideration.
In 2005 former Gov. Mitt Romney unveiled what he called the "gold standard for the death penalty in the modern scientific age" that would bring back capital punishment for people convicted of terrorism, multiple murders and killing law enforcement officers, using conclusive scientific evidence to ensure only the guilty were executed. The bill failed.
Friday, April 10, 2015
Penalty phase in Boston Marathon bombing capital trial scheduled to start April 21
As reported in this NBC News piece, the "penalty phase in the federal trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev will begin on April 21, a judge ordered Friday." Here is more:
The jury has been asked to come to court next week — on April 14 — to receive a brief set of instructions. This year's Boston Marathon will be held on April 20. "The defendant has requested that the penalty phase commence in approximately two weeks so as to, among other things, allow the defendant additional time to resolve outstanding logistical issues with a number of potential witnesses. It is not uncommon for there to be a brief recess between phases in a capital case," Judge George O'Toole said in the order.
Tsarnaev, 21, was convicted for his role in the April 15, 2013, twin bombings that killed three people and injured 260 others at the Boston Marathon — the worst terror attacks on American soil since 9/11. A jury found him guilty Wednesday on all 30 criminal counts. Seventeen of the 30 counts carry the possibility of the death penalty.
This related NBC News piece has some interesting poll data reported under the headline "Americans Divided Over Death For Boston Bomber Dzhokhar Tsarnaev, Poll Finds."
Recent related post:
Wednesday, April 08, 2015
Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
The quoted portion of the title of this post is the headline of this New York Times report on the outcome of the guilt phase of the on-going capital trial of the Boston Marathon Bomber, and the preamble to that quote is my (pithy?) commentary about what this means. Here are the basics on what has happened so far and what is still forthcoming:
In the silent well of Courtroom Nine, a clerk read out the verdicts: Guilty. Guilty. Guilty. The word echoed in the courtroom as the clerk pronounced it 30 times, once for each of 30 counts.
By the end of the 25minute roll call of charges, a federal jury here had left no doubt how thoroughly it sided with the government against Dzhokhar Tsarnaev in connection with the 2013 bombings at the Boston Marathon. Mr. Tsarnaev, 21, a failing college student and the youngest child in a dispersed immigrant family, stood without expression, his arms folded in front of him, flanked by his lawyers.
The verdicts set the stage for a second, more contentious phase of the trial in which the same jury will decide whether to sentence Mr. Tsarnaev to life in prison or death....
There was little doubt that the jury would find Mr. Tsarnaev guilty of most charges; his lawyers have admitted that he had been involved in the bombings, and they put on a minimal defense, calling four witnesses who testified for five hours. The government, by contrast, called 92 witnesses over 15 days. Still, in the first phase of the trial, the defense laid the groundwork for the sentencing phase, casting their client as subordinate to his older brother, Tamerlan, and less culpable for the crimes. The defense team’s goal now is to explain mitigating factors in hopes that jurors will sentence Mr. Tsarnaev to life in prison.
After the verdict was read, the judge, George A. O’Toole Jr. of Federal District Court here, told the jurors that the case would proceed to a second, penalty phase that could begin as early as next week. He cautioned the jurors that they were still “an active jury, subject to your oath,” and to not discuss the case with anyone....
The defense hopes to present mitigating circumstances that show him as less culpable than his brother. It will flesh out details of Mr. Tsarnaev’s life and family history, which includes his forebears being expelled by Stalin from Chechnya in 1944 and ending up in Kyrgyzstan. His family settled in Cambridge, Mass., in 2002. As his parents divorced and returned to Russia, Mr. Tsarnaev, who became an American citizen on Sept. 11, 2012, fell increasingly under the sway of his older brother.
Just as defense lawyers seek to impress the jurors with the reasons they should spare Mr. Tsarnaev’s life, the prosecution will impress upon them the consequences of his murderous actions. Survivors of the blasts and the families of victims are expected to testify in this next phase, as they did in the first, this time detailing the physical and emotional effects of the bomb blasts on their lives. Others are expected to discuss how the crime gripped the Boston area in fear for five days.
This news broke as I was teaching my sentencing class this afternoon, and I predicted that defense attorneys may urge that the penalty phase of the trial not begin until May, at the earliest, partially because next week will mark the two-year anniversary of the bombing and the following week is when next Boston Marathon is schedules. I suspect the defense will contend that these realities create too much of a prejudice risk if the penalty phase starts ASAP, and I think it is possible federal prosecutors might not oppose any requested delay in order to avoid creating another possible appellate issue if the jury returns a death verdict.
Larry Flynt hustles his way into Missouri litigation over lethal injection
As reported in this local article, headlined "Larry Flynt can intervene in lawsuit to unseal execution protocol records, appeals court rules," a notable publisher is now able to be a player in on-going Missouri lethal injection litigation. Here are the details:
A three-judge U.S. appeals court panel ruled Tuesday that pornographic magazine publisher Larry Flynt has a right to join death row inmates in lawsuits seeking to reveal the state of Missouri’s execution protocols. Several media and consumer watchdog groups interested in lawsuits with potential consequences for government transparency had filed briefs to support him.
Flynt, the iconic publisher of the magazine Hustler, invoked a First Amendment right to view sealed documents that might identify an anesthesiologist on the state execution team. That information is confidential under Missouri law. In a separate case, he also asserted a right to view docket entries that were sealed without explanation in a suit challenging the legality of Missouri’s execution protocol. Both lawsuits failed, but if Flynt wins his bid to unseal the documents, the public can get a look at the factors considered by the federal courts.
Flynt argued he had an interest because he was one of the victims of white supremacist Joseph Paul Franklin. Missouri executed Franklin in November 2013 for the 1977 sniper killing of Gerald Gordon, 42, outside a Richmond Heights synagogue. Franklin, upset that Hustler published pornographic images of an interracial couple, also shot Flynt on the steps of a Georgia courthouse in 1978, paralyzing him. Flynt had advocated that Franklin be punished by spending the remainder of his life in prison, rather than be killed by the state and put out of his misery.
Nanette Laughrey, a judge in the Western District of Missouri, had denied Flynt’s petition with a one-sentence order: “A generalized interest in a subject of litigation does not justify intervention.” But the appeals court panel ruled the lower court had applied an incorrect legal standard in denying Flynt. It sent the case back to U.S. District Court to consider Flynt’s bid to unseal records....
Organizations signing briefs in support of Flynt’s intervention included the New York Times, the Washington Post, Politico and the Missouri Press Association, whose members include 250 newspapers, including the Post-Dispatch. Public Citizen, a consumer watchdog group founded by Ralph Nader, also added its support....
“The public needs to know what is being done in its name and these judicial records will answer a lot of questions that we and members of the media have been asking,” Tony Rothert, legal director of the ACLU of Missouri, said in a prepared statement.
Monday, April 06, 2015
"Does the Death Penalty Require Death Row? The Harm of Legislative Silence"
The title of this post is the title of this interesting new article by Marah Stith McLeod now available via SSRN. Here is the abstract:
This Article exposes two flawed assumptions about death row in leading scholarship and judicial opinions. The first flawed assumption is that death row is an inevitable consequence of a death sentence. The second flawed assumption is that prison administrators should be entrusted with the decision whether to retain death row.
The Article will show that death row cannot be justified on prison security grounds, but, contrary to the claims of some scholars, it may be justified for other punishment purposes. Using extensive state-by-state research, the Article shows that in most jurisdictions, harsh death row conditions result not from statutory commands, but from discretionary administrative policies. This Article argues that legislatures, not prison administrators, should decide whether death row is a necessary aspect of capital punishment, for two reasons. Prison administrators may not be able to assess objectively whether death row serves legitimate purposes, because of their roles in the execution process. More importantly, legislatures and not prison administrators have the duty to decide whether punishment is just.
If death row is to be tethered by law to a death sentence, then this legal tether should be drawn by statute, after public deliberation and debate, and not by administrative fiat. If legislatures conclude that the death penalty does not require death row, then they must forbid prison administrators from so augmenting the sentence for a capital crime.
Thursday, April 02, 2015
Amnesty International reports on death penalty administration around the world
Via this webpage, Amnesty International provides a report in multiple languages on what it can confirm about the use of the death penalty throughout the world in 2014. This AI blog posting, headlined "Death Penalty: 607 executions – the story behind the numbers," provides some highlights from the report and some backstory:
The numbers behind our latest overview of the global use of the death penalty, released today, tell a chilling story: 607 people were executed in 22 countries and at least 2,466 men and women were sentenced to death in 55 countries in 2014 alone. But, alarming as they are, the figures paint a partial picture of the true extent to which people are hanged, shot or given the lethal injection across the world.
The reality is likely to be much gloomier but many governments refuse to come clean about how many people they kill each year. In countries such as Eritrea, Malaysia, North Korea and Syria, very little information about the use of the death penalty is available due to restrictive state practice or political instability.
In others, such as Japan, executions are carried out without notice, and prisoners are left waiting on death row every day wondering if it will be their last. In Belarus, the only country in Europe to still use the death penalty, family members of executed prisoners usually only find out the fate of their loved ones when they visit them at the prison only to be told their relative is no longer there.
China, the country believed to execute more individuals than the rest of the world put together, considers information about the death penalty a “state secret”, just like Vietnam. The Chinese authorities have claimed that the number of executions in the country has decreased since the Supreme People’s Court began reviewing all death penalty cases in 2007. Unfortunately, this claim is impossible to corroborate....
That is the “glass half empty”. But the story does not end there. Despite the alarming number of people sentenced to death and executed, most of the world is moving in the right direction - away from the ultimate punishment.
In 2014, the number of recorded executions dropped by almost 22% in comparison to 2013. Fewer executions were recorded in all regions, except Europe and Central Asia, in 2014 than in 2013.
In 1945, when the United Nations was founded, only eight countries had abolished the death penalty. Today 140 states are abolitionist in law or practice.
Wednesday, April 01, 2015
Should the Supreme Court reflect the country's "disenchantment with capital punishment"?
The question in the title of this post is prompted by this notable new New York Times commentary by Linda Greenhouse headlined "The Supreme Court's Death Trap." Here are excerpts:
You wouldn’t know it from the death penalty proceeding about to take place in the Boston Marathon case, or from Utah’s reauthorization of the firing squad, or the spate of botched lethal injections, but capital punishment in the United States is becoming vestigial.
The number of death sentences imposed last year, 72, was the lowest in 40 years. The number of executions, 35, was the lowest since 1994, less than half the modern peak of 98, reached in 1999. Seven states, the fewest in 25 years, carried out executions.
California has the country’s biggest death row, with more than 700 inmates. Many more of them die of natural causes — two since mid-March — than by execution. Last July, a federal district judge, Cormac J. Carney, concluding that California’s death penalty had become “dysfunctional,” “random” and devoid of “penological purpose,” declared it unconstitutional; the state is appealing.
But if there’s one place that seems to stand apart from the tide of disenchantment with capital punishment, it’s the Supreme Court....
Adam Liptak, the Supreme Court correspondent for The Times, has highlighted the disturbing way the court handled a challenge to Missouri’s lethal-injection protocol back in January: first, over four dissenting votes, permitting the state to execute Charles F. Warner, one of four inmates who had filed appeals, only to agree a week later to hear the appeals of three identically situated inmates. The court then granted stays of execution to the three and will hear their case, Glossip v. Gross, on April 29....
A Texas death-row inmate, Lester Leroy Bower Jr., managed to win a stay of execution in February to enable the justices to decide whether to hear his challenge to the state courts’ handling of his mitigating evidence. Last week, the Supreme Court turned down his appeal, thus dissolving the stay, over the dissenting votes of Justices Breyer, Ginsburg and Sotomayor; Justice Breyer, not given to overstatement, wrote that “the error here is glaring.” Since at least two others must have voted for the stay, where were they? Perhaps after carefully considering the merits of Mr. Bower’s appeal, they found itinsufficient. Fair enough. But shouldn’t they have felt moved to tell us something — anything?
An argument on Monday was simply dispiriting. A Louisiana inmate, Kevan Brumfield, with an I.Q. of 75, was sentenced to death before the Atkins decision barred the execution of mentally disabled people. At trial, his lawyer had presented some evidence of his disability, but not in the detail a court would expect in the post-Atkins world. The question for the justices in Brumfield v. Cain was whether he should have received a new hearing. The obvious answer would seem to be: Of course, why on earth not? But the justices seemed more concerned about whether Mr. Brumfield and his lawyer were trying to game the system.
In 2008, two years before he retired, Justice John Paul Stevens renounced the death penalty. His nuanced opinion in Baze v. Rees rewards rereading. No current justice has taken up the call. I’m not so naïve as to predict that a majority of the Supreme Court will declare the death penalty unconstitutional anytime soon. But the voice of even one member of the court could set a clarifying marker to which others would have to respond. And it just might over time point the way to freeing the court — and the rest of us — from the machinery of death.
Tuesday, March 31, 2015
Another pharmacy group expresses opposition to involvement in executions
As noted in this prior post, last week a trade group for compound pharmacists has discouraged its members from preparing or dispensing drugs for executions. Now, as reported in this new NBC News article, the "American Pharmacists Association voted Monday to oppose participation in executions, declaring that helping put prisoners to death violates the goals and oath of the profession." Here is more about these developments:
Neither policy is binding, but they could dissuade specialty pharmacists — now the only source for lethal injections in many states — from selling their products to prisons for executions. "It adds to the difficulty," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports capital punishment. "It's unfortunate that groups such as this would allow themselves to be dragged into a political dispute."
But Corinna Lain, a professor at the Richmond School of Law, said it has more to do with the bottom line. With just 35 executions across the country last year, lethal injections are not a big profit center. "The cost of these drugs has skyrocketed from something like $83 a vial to $1,200 to $1,500 a vial. But that's still a drop in the bucket for a pharmacy's total sales. And look at the downside — the negative publicity is tremendous. Executions are bad for business for compounding pharmacies for the same reason they were bad for business for the pharmaceutical companies."...
Scheidgger said he hopes that at least a few compounding pharmacies will buck the trade groups and continue to sell their products to prisons until a new source is found. "I expect states will eventually find a supply and this problem will go away," he said.
Monday, March 30, 2015
California and Ohio facing capital congestion without a functioning execution chamber
Theses two local stories concerning death row realities in two states strike a similar note:
From California here, "California's death row, with no executions in sight, runs out of room." This story starts this way:
With no executions in nearly a decade and newly condemned men arriving each month, the nation's largest death row has run out of room. Warning that there is little time to lose, Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison. The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.
California's death penalty has been the subject of a decade of litigation. One case led to a halt to executions in 2006. Another resulted in a federal judge's ruling last July that the state's interminably slow capital appeals system is unconstitutionally cruel. Through it all, the death row population has grown from 646 in 2006 to 751 today.
From Ohio here, "Backup of killers awaiting execution is building." This story starts this way:
Midway through Ohio’s two-year death penalty moratorium, a backup of men awaiting execution is building. There are 20 inmates either scheduled for execution or for whom prosecutors are seeking execution dates from the Ohio Supreme Court, according to the Capital Crimes Annual Report released today by Attorney General Mike DeWine. [The report also indicates 145 murderers are on Ohio's death row now.]
Especially because no state other than Texas ever shown a consistent ability to conduct more than 10 executions in any given year, these data necessarily mean many years (and likely many decades) will be needed to actually carry out a significant number of imposed capital punishments in these states when (if?) these states get their death machineries operating again.
SCOTUS grants cert on collection of capital cases from Kansas
The state of Kansas has not carried out a death sentence since 1965. But even though the Sunflower state has not truly utilized its system of capital punishment for a full half-century, the Supreme Court apparently believes it is important to review three capital cases from the state as evidenced by its cert grants this morning in Kansas v. Jonathan Carr, Kansas v. Reginald Carr and Kansas v. Sidney Gleason.
This AP article provides this summary of the underlying crimes and defendants whose cases are now before the Justices:
The Supreme Court agreed Monday to hear Kansas' appeal to reinstate death sentences for two brothers in the fatal shootings of four people and for another man convicted of killing a couple.
The justices said they will review rulings by the Kansas Supreme Court that threw out the sentences of Jonathan and Reginald Carr and Sidney Gleason. The Kansas court hasn't upheld a death sentence since the state enacted a new capital punishment law in 1994. The state's last executions, by hanging, took place in 1965.
The Carr brothers were sentenced to death for the four killings, which occurred in Wichita in December 2000 and followed dozens of other crimes, including robbery and rape. Gleason was sentenced to die over the couple's deaths, in the central Kansas town of Great Bend in February 2004.
Sunday, March 29, 2015
Previewing the little SCOTUS capital case examining what procedure Atkins may require
On the last Monday of March 2015, the only case being heard by the U.S. Supreme Court is a quirky capital case from Louisiana, Brumfield v. Cain, which appears only to concern the process by which a state rejects a defendant's claim that he is intellectually disabled and thus prohibited from execution after Atkins. Here are the questions presented:
(1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.
Lyle Denniston provides this SCOTUSblog preview, which notes that the lone amicus brief filed in this case highlights that Louisiana's "state courts have now established procedures for fully evaluating a mental disability claim, making Brumfield’s case an aberration." In short, it seems unlikely that the Brumfield case will be of great consequence for anyone other than killer Kevin Brumfield. But one never knows what the Justices will do with a capital case.
Saturday, March 28, 2015
Should states try harder to condemn and execute women to overcome death penalty's sexism?
The question in the title of this post is prompted by this notable new commentary about the Jodi Arias case headlined "Why the death penalty in America is sexist." Here are excerpts:
It took only one juror to spare Jodi Arias the death penalty for the brutal murder of her ex-boyfriend Travis Alexander in 2008. Considering the United States has executed only 13 women in the last 40 years, a death sentence would have been highly unusual.
Women committed less than 10% of all murders in America between 2000 and 2010, a Wall Street Journal analysis of crime data found. Women defendants, however, only make up 2% of death row, according to a recent report by the NAACP.
Even fewer women actually get executed, Death Penalty Information Center executive director Richard Dieter told Business Insider. "There's just less enforcement of the death penalty at almost every stage for females," he said.
Two major factors contribute to the low number of women who get capital punishment: the nature of the crime and how juries view women in general. The death penalty is often used for killers who also commit other felonies like robbery or rape, law professor Victor Streib has previously told the LA Times. Many of the murders women commit, on the other hand, involve people they're related to.
While women commit about 10% of murders, they were responsible for 35% of murders of intimate partners between 1980 and 2008. Most juries consider these crimes of passion arising from disputes — one-time offenses, Dieter said. Because of the high rate of domestic violence against women, though, juries don't give men the same benefit of the doubt.
On the other hand, most states consider killing a child an aggravating factor, or a reason for prosecutors to seek the death penalty. Hiring someone to do the work could also land a woman on death row. "If a woman hires someone, there's a coldness, a calculation. It's different than something that arises out of an argument," Dieter said. Teresa Lewis, for example, plotted to kill her husband and stepson for the insurance money. "Instead of pulling a trigger on a gun, she pulled a couple of young men in to pull the trigger for her," prosecutor David Grimes told a judge at the time, The Washington Post reported. She was the first woman Virginia sentenced to die in more than 100 years.
But the second factor — the jury's perception of the "fragile" female psyche — can overpower aggravating factors. "It's just easier to convince a jury that women suffer emotional distress or other emotional problems more than men," Streib told the LA Times....
"These 12 people [the jury] are asked to see if this person has any redeeming qualities. And they often see their own mother or wife or grandmother, not someone who will continue to be a threat to society," Dieter said. "Jurors just see women differently than men."
Of course, most women aren't going to argue for gender parity in the death penalty, Dahlia Lithwick has written in Slate. Only 59% of women favor the death penalty compared to 67% of men, according to a 2013 Gallup poll. "For equality's sake, you think that women would want the death penalty pursued more often," Dieter said. "But of course, they don't."
Friday, March 27, 2015
Has modern "death penalty politics radically, shockingly changed"?
The question in the title of this post is prompted by this new Salon piece which carries this full headline: "'We’re seeing it among Evangelicals': How death penalty politics radically, shockingly changed." The piece reports on an interview with National Coalition to Abolish the Death Penalty executive director Diann Rust-Tierney, and here is how the Q&A is introduced:
The recent release of Debra Milke, an Arizona woman who spent 23 years on death row for a crime she did not commit, is first and foremost a tragic story of injustice. But it’s something else, too: another arresting example of how the reality of the criminal justice system in the U.S., which has come under increasing scrutiny in recent years, falls well short of its supposed intentions. As Supreme Court Justice Anthony Kennedy, who was appointed by law-and-order drug warrior Ronald Reagan, told Congress earlier this week, the system is, “[i]n many respects … broken.”
Politicians on both sides of the aisle are more willing to discuss making serious changes to American justice than they have been in more than a decade, but one of the most stark and disturbing manifestations of the system’s flaws still often goes unmentioned. We’re thinking, of course, about the death penalty. But if one considers the great attention paid by the media and the public to recent botched executions in Oklahoma and Arizona — as well as Utah’s decision to bring back firing squads — there’s reason to think that, too, may soon change.
Recently, Salon spoke over the phone with National Coalition to Abolish the Death Penalty executive director Diann Rust-Tierney about her group’s work and the changing politics of capital punishment.
Wednesday, March 25, 2015
Are compounding pharmacies likely to cut off drug dealing to states for executions?
The question in the title of this post is prompted by this notable Wall Street Journal article headlined "Compound Pharmacists Trade Group Discourages Supplying Execution Meds." Here are excerpts:
As more states turn to compounding pharmacies to supply medicines for executions, the leading trade group for compound pharmacists is now discouraging its members from preparing or dispensing drugs for this purpose.
The move reflects growing concern among some compound pharmacists that some states – in response to ongoing controversy over the supply of drugs for lethal injections – may decide to alter regulations in ways that would cause pharmacists to face legal problems, according to the International Academy of Compounding Pharmacists. “We have concerns about what may occur,” says David Miller, the IACP chief executive. The trade group represents approximately 3,700 pharmacists who compound medicines, a process that involves customizing ingredients for a specific use.
Separately, the American Pharmacists Association will also consider adopting a similar position at a meeting that begins later this week, according to an official of the trade group, which represents about 62,000 pharmacists nationwide. The vast majority of APA members work for traditional pharmacies that dispense medicines manufactured by drug makers.
Until now, the IACP had not taken any position on supplying drugs for executions, but adopted this new stance after a growing number of drug makers began restricting the use of their medicines for executions. At least nine drug makers have formally taken this step, according to Reprieve, an advocacy group in the U.K. that has been pressuring companies to withhold their medicines for executions.
As a result, more states have gradually turned to compound pharmacies to supply drugs for lethal injections. To date, nine states have either used or indicated they intend to use compounded medicines for lethal injections, according to the Death Penalty Information Center....
Currently, pharmacists are permitted by law to dispense medications for executions if a licensed doctor writes a legitimate prescription, says Carmen Catizone, the executive director of the National Association of Boards of Pharmacy, which represents the state boards, the government agencies that regulate pharmacy practice. At the moment, he says there is no indication that any state legislature is considering a change to its regulations that might pose legal problems for pharmacists.
However, he explains that new policy statements may attract attention from state boards, especially given ongoing controversy over executions and the availability of medicines. “For any change in regulations or rule, the state boards would have to take action.” says Catizone, “But a change in policy can be significant because it may prompt our members to take a closer look at an issue.”
For his part, Miller says the IACP is concerned that state boards may decide to consider such action and, as a result, its members could eventually face legal action. “We definitely think it’s a possibility,” he says. At the same time, the trade group also worries pharmacists who supply drugs may face harassment if their identities become known. The IACP points to a recent episode in Tennessee where the name of a compound pharmacist was inadvertently disclosed. The IACP notes that nearly a dozen states are considering legislation to provide confidentiality.
Tuesday, March 24, 2015
"The Executioners' Dilemmas"
The title of this post is the title of this timely new article by Eric Berger now available via SSRN. Here is the abstract:
Despite several prominent recent botched executions, states usually resist external pressure to improve their lethal injection procedures. This symposium contribution explores why states fail to address lethal injection’s systemic risks and, relatedly, why they so vigorously resist requests to disclose execution procedure details.
This analysis is necessarily speculative; it is impossible to know for certain what drives states’ behavior in this area, and motivations likely differ from state to state and from official to official. That said, a constellation of epistemic, structural, strategic, and political factors likely shape much official behavior in this area.
Examining those factors more closely can help us better understand why so many states have acted so irresponsibly in designing and implementing their lethal injection procedures. Of course, these explanations hardly excuse states’ frequent indifference to the risk of pain their execution procedures create. Collectively, however, they help shine important light more generally on why state officials sometimes seem insensitive to constitutional values.
Monday, March 23, 2015
"WBUR Poll: Most In Boston Think Tsarnaev Should Get Life In Prison Over Death Penalty"
The title of this post is the headline of this intriguing new press report on an intriguing new poll about an on-going federal capital case. Here are the basics:
As the trial of Dzhokhar Tsarnaev moves ahead, a new WBUR poll (topline, crosstabs) finds most Boston residents believe the admitted Boston Marathon bomber should receive life in prison instead of the death penalty if convicted.
In a survey of 229 registered Boston voters, 62 percent said Tsarnaev should be sentenced to life in prison without the possibility of parole, while 27 percent said he should receive the death penalty. That preference held true for the broader Boston area, defined as communities inside and along Route 128 — but the margin is slimmer. Of 504 registered Boston area voters surveyed by telephone March 16-18, 49 percent think Tsarnaev should get life in prison, while 38 percent feel he should be sentenced to death....
Across different demographics, the preference for punishment varied a bit more. Men were more in favor of the death penalty in this case than life in prison, while women more strongly favored life in prison over the death penalty. Across all age groups, more people felt Tsarnaev should be sentenced to life in prison rather than the death penalty — but the widest margin was among young people ages 18 to 29, where 55 percent chose life in prison and 32 percent chose the death penalty.
Among minorities, there was also a wide margin — 64 percent believe Tsarnaev should be sentenced to life in prison, while 25 percent think he should get the death penalty. Among whites, 46 percent chose life in prison and 41 percent chose the death penalty.
Kozcela said the findings across demographics are also in line with partisan views on the death penalty. “The groups that tend to lean more Democrat also tend to be more opposed to the death penalty,” he said.
Ultimately, Tsarnaev’s fate will be decided by a jury. But the demographics of that jury is an issue defense attorneys raised in February, in their second attempt to get the case dismissed. Tsarnaev’s lawyer’s argued that the jury — which is all white and made up of eight men and 10 women — wasn’t diverse enough. (Twelve of those jurors will determine the final verdict.) Defense attorneys took issue with the way potential jurors were reordered when the final jury pool was summoned to fill out questionnaires. The defense argued the renumbering pushed African-Americans, young people and Boston residents — groups our poll shows favor life in prison over the death penalty — down the list of potential jurors, decreasing their chances of being seated on the jury.
Judge George O’Toole Jr. denied the defense’s motion in early March. The defense also tried unsuccessfully four times to get the trial moved out of Boston, arguing they could not get a fair trial here. However, as our poll shows, most Boston residents prefer to give Tsarnaev life in prison — a position the defense hopes the jury will take....
So far in the trial, the prosecution has been laying out its case against Tsarnaev with graphic videos and photos, emotional victim testimony and evidence gathered from Watertown and the Tsarnaevs’ residences. Once the prosecution wraps up its case, the defense will present its case. The defense already admitted Tsarnaev carried out the bombing, but they are trying to save his life by convincing the jury he was influenced by his older brother.
Three Justices lament SCOTUS failure to do death-penalty error correction in Texas case
Though the big Supreme Court sentencing news today is the cert grant in another Miller retroactivity case from Louisiana (basics here), also notable for sentencing fans is this dissent from the denial of certiorari in a Texas capital case authored by Justice Breyer (joined by Justices Ginsburg and Justice Sotomayor). Here are snippets from the start and end of the opinion:
On April 28, 1984, petitioner Lester Leroy Bower was convicted in a Texas court of murdering four men. Each of the four men had been shot multiple times. Their bodies were left in an airplane hangar, and an ultralight aircraft was missing.
The State sought the death penalty. Bower introduced evidence that was, in his view, mitigating. He noted that he was 36 years old, married, employed full-time, and a father of two. He had no prior criminal record. Through the testimony of Bower’s family members and friends, the jury also heard about Bower’s religious devotion, his commitment to his family, his community service, his concern for others, his even temperament, and his lack of any previous violent (or criminal) behavior.
At the time of Bower’s sentencing, Texas law permitted the jury to consider this mitigating evidence only insofar as it was relevant to three “special issues”...
[The] Texas Court of Criminal Appeals believed that the use of the special issues proceeding in Bower’s sentencing proceeding did not constitutionally entitle him to resentencing.
Bower now asks us to grant certiorari and to reverse the Texas Court of Criminal Appeals. In my view, we should do so. Penry’s holding rested on the fact that Texas’ former special issues did not tell the jury “what ‘to do if it decided that [the defendant] . . . should not be executed’” because of his mitigating evidence. Abdul-Kabir v. Quarterman, 550 U.S. 233, 256 (2007) (quoting Penry, supra, at 324). Bower’s sentencing procedure suffered from this defect just as Penry’s did. The distinction that the Texas court drew between Penry’s and Bower’s evidence is irrelevant. Indeed, we have expressly made “clear that Penry . . . applies in cases involving evidence that is neither double edged nor purely aggravating, because in some cases a defendant’s evidence may have mitigating effect beyond its ability to negate the special issues.” 550 U.S., at 255, n. 16. The trial court and the Fifth Circuit both recognized that Bower’s Penry claim was improperly rejected on that basis.
The Constitution accordingly entitles Bower to a new sentencing proceeding. I recognize that we do not often intervene only to correct a case-specific legal error. But the error here is glaring, and its consequence may well be death. After all, because Bower already filed an application for federal habeas relief raising his Penry claim, the law may bar him from filing another application raising this same issue. See 28 U.S.C. §2254(b)(1). In these circumstances, I believe we should act and act now. I would grant the petition and summarily reverse the judgment below. I dissent from the Court’s decision not to do so.
Sunday, March 22, 2015
Pope Francis categorically condemns death penalty as "inadmissible" in today's world
As reported in this piece from Vatican Radio, which describes itself the "voice of the Pope and the Church in dialogue with the World," Pope Francis spoke about capital punishment during a meeting with members of an international anti-death penalty group. Here are details:
Capital punishment is cruel, inhuman and an offense to the dignity of human life. In today's world, the death penalty is "inadmissible, however serious the crime" that has been committed. That was Pope Francis’ unequivocal message to members of the International Commission against the death penalty who met with him on Friday morning in the Vatican.
In a lengthy letter written in Spanish and addressed to the president of the International Commission against the death penalty, Pope Francis thanks those who work tirelessly for a universal moratorium, with the goal of abolishing the use of capital punishment in countries right across the globe.
Pope Francis makes clear that justice can never be done by killing another human being and he stresses there can be no humane way of carrying out a death sentence. For Christians, he says, all life is sacred because every one of us is created by God, who does not want to punish one murder with another, but rather wishes to see the murderer repent. Even murderers, he went on, do not lose their human dignity and God himself is the guarantor.
Capital punishment, Pope Francis says, is the opposite of divine mercy, which should be the model for our man-made legal systems. Death sentences, he insists, imply cruel and degrading treatment, as well as the torturous anguish of a lengthy waiting period before the execution, which often leads to sickness or insanity.
The Pope ... makes quite clear that the use of capital punishment signifies “a failure” on the part of any State. However serious the crime, he says, an execution “does not bring justice to the victims, but rather encourages revenge” and denies any hope of repentence or reparation for the crime that has been committed.