Wednesday, March 04, 2015

Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium

As reported in this local article, headlined "Pennsylvania Supreme Court to take death penalty moratorium case: Philadelphia DA calls governor’s actions lawless and unconstitutional," a fascinating case concerning state executive powers in the Keystone State is officially to be considered by the state Supreme Court. Here are the details:

The Pennsylvania Supreme Court on Tuesday agreed to take a case filed by the Philadelphia district attorney’s office challenging Gov. Tom Wolf’s moratorium implemented last month on capital punishment in the state. District Attorney R. Seth Williams asked the court to take up the matter involving a defendant named Terrance Williams, who was scheduled for lethal injection today.

Although Seth Williams asked that the court take the case on an expedited basis, the court refused, and it will be heard on a standard calendar, which means that both sides will file briefs and replies over the next several months, and oral argument will be scheduled at a date in the future.

It will probably be more than a year before any decision is reached, and University of Pittsburgh law professor John Burkoff said it could be even longer if the court decides it wants two new justices, who will be elected later this year, to consider the case as well.

Mr. Wolf announced on Feb. 13 that he was instituting a moratorium on the death penalty in Pennsylvania, saying that it was not an “expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes.” Instead, he continued, it was “based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive.” He cited nationwide statistics that show 150 people have been exonerated from death row, including six in Pennsylvania....

But in his filing, Seth Williams argues that Mr. Wolf’s action was lawless and unconstitutional. “Merely characterizing conduct by the governor as a reprieve does not make it so,” the prosecutor’s filing said.

Instead, it continued, “At all times in Pennsylvania history a reprieve has meant one thing and only one thing: a temporary stay of a criminal judgment for a defined period of time, for the purpose of allowing the defendant to pursue an available legal remedy. The current act of the governor is not a reprieve. Nor, indeed, could it be. There is no remaining legal remedy available to defendant. He received exhaustive state and federal review. He sought pardon or commutation and it was denied. There is nothing legitimate left to pursue and no remedy to wait for.”

To halt the imposition of the death penalty on a defendant, the district attorney’s office continued, the sentence must be commuted, which can be done only with unanimous agreement by the state Board of Pardons. Seth Williams accused the governor of usurping judicial function.

But in the governor’s response, his attorneys said what he was doing is temporary — a reprieve — and requires no input from the Board of Pardons. “The governor has ‘exclusive authority’ and ‘unfettered discretion to grant a reprieve after imposition of sentence and on a case by case basis,’ ” they wrote, quoting an earlier court case.

Prior related posts:

March 4, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 03, 2015

Jury seated and ready for opening arguments in Boston bombing trial

As reported in this AP article, to culminate "two months of jury selection, a panel of 12 jurors and six alternates was seated Tuesday for the federal death penalty trial of Boston Marathon bombing suspect Dzhokhar Tsarnaev." Here is more about a high-profile federal capital proceeding:

The all-white panel consists of eight men and 10 women. Jurors include a self-employed house painter, an air traffic controller, an executive assistant at a law firm and a former emergency room nurse. Opening statements in the case are scheduled for Wednesday.

Tsarnaev, 21, faces 30 charges in connection with twin bombings at the finish line of the marathon April 15, 2013. Three people were killed and more than 260 were injured. He is also charged in the killing of a Massachusetts Institute of Technology police officer days after the bombings.

If the jury convicts Tsarnaev, the trial will move on to a second phase to determine his punishment. The only two options available for the jury are life in prison or the death penalty....

During the jury selection process, Tsarnaev's lawyers tried repeatedly to get the trial moved out of Massachusetts, saying he could not find a fair and impartial jury because of the emotional impact the bombings had in the state. O'Toole rejected three change-of-venue motions, saying the process of carefully questioning jurors to detect bias was successful in finding impartial jurors. The 1st U.S. Circuit Court of Appeals twice refused to order the trial moved.

Some prior related posts:

March 3, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Concerns about lethal drug creates reprieve for condemned Georgia woman

As reported in this CNN piece, for "the second time, a Georgia woman's execution has been postponed -- this time because of concerns about the drugs to be used." Here is why:

Kelly Renee Gissendaner was scheduled to die at 7 p.m. ET Monday.  "Prior to the execution, the drugs were sent to an independent lab for testing of potency.  The drugs fell within the acceptable testing limits," the Georgia Department of Corrections said in a statement.

"Within the hours leading up to the scheduled execution, the Execution Team performed the necessary checks.  At that time, the drugs appeared cloudy.  The Department of Corrections immediately consulted with a pharmacist, and in an abundance of caution, Inmate Gissendaner's execution has been postponed."

The 47-year-old was originally scheduled to die on Wednesday, but that execution was called off because of winter weather.

If I were a deeply religious person, I might be inclined to contend that some higher power is doing all it can to keep Georgia from being able to execute Gissendaner.

March 3, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, March 02, 2015

Georgia scheduled to execute only female murderer on its death row

As reported in this AP piece, headlined "After weather delay, Georgia ready to perform rare execution of a woman," the Peach State appears poised this evening to end the life of a bad apple notable for her gender. Here are the details:

After getting a temporary reprieve when her execution was postponed because of winter weather conditions forecast to hit the state, the only woman on Georgia's death row is again set for execution Monday. Kelly Renee Gissendaner, 46, was scheduled to be executed Wednesday at the state prison in Jackson, but the Department of Corrections postponed it to Monday at 7 p.m., citing the weather and associated scheduling issues.

Gissendaner was convicted of murder in the February 1997 stabbing death of her husband, Douglas Gissendaner. Prosecutors said she plotted his death with her boyfriend, Gregory Owen.... Kelly Gissendaner repeatedly pushed Owen in late 1996 to kill her husband rather than just divorcing him as Owen suggested, prosecutors said. Acting on Kelly Gissendaner's instructions, Owen ambushed Douglas Gissendaner at the Gissendaners' home, forced him to drive to a remote area and stabbed him multiple times, prosecutors said

Owen pleaded guilty and received a life prison sentence with eligibility for parole after 25 years. He testified at Gissendaner's trial, and a jury convicted her and sentenced her to death in 1998.

The State Board of Pardons and Paroles, the only entity in Georgia authorized to commute a death sentence, on Wednesday denied Gissendaner clemency. A federal judge in Atlanta rejected a request to halt her execution, and her lawyers have appealed that decision to the 11th U.S. Circuit Court of Appeals.

If Gissendaner's execution happens, she will be the first woman executed in Georgia in 70 years. Lena Baker, a black maid, was executed in 1945 after being convicted in a one-day trial for killing her white employer. Georgia officials issued her a pardon in 2005 after six decades of lobbying and arguments by her family that she likely killed the man because he was holding her against her will. Baker was the only woman to die in the state's electric chair. P>Execution of female inmates is rare with only 15 women put to death nationwide since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, about 1,400 men have been executed, according to the Death Penalty Information Center.

Prosecutors offered Gissendaner the same plea deal that was offered to Owen, but she turned it down. Post-conviction testimony from her trial lawyer, Edwin Wilson, gives some insight into why, Gissendaner's lawyers argued in a clemency petition. They quote Wilson as saying he didn't think a jury would sentence Gissendaner to death. "I guess I thought this because she was a woman and because she did not actually kill Doug," Wilson is quoted as saying, adding that he should have urged her to take the plea.

Victor Streib, a retired Ohio Northern University law professor and an expert on the death penalty for women, said it's clear that women are condemned to die far less frequently than men, but that there are so few cases that it's tough to draw any general conclusions. "Statistically, yes, if you've got two cases and everything about them is exactly the same and one case is a woman and the other case is a man, the man is more likely to be sentenced to death," Streib said, but added that he wouldn't count on that as a legal strategy.

One reason women aren't sentenced to death as often is that they don't commit as many murders and when they do they generally aren't the "worst of the worst" murders that lead to the death penalty, Streib said. Juries may also be more likely to believe a woman was emotionally distressed or not in her right mind at the time of a killing, which can spare them a death sentence, he said.

March 2, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, March 01, 2015

Must one study lynchings past to understand US punishments present?

The question in the title of this post is prompted by this article discussing a recent speech by a prominent civil rights activist.  The piece is headlined "Angela Davis equates lynchings with prisons, death penalty," and here are excerpts:

Iconic civil rights leader Angela Davis opened her lecture Wednesday evening at Purdue University by evoking Black History Month — setting the stage for a moving presentation that connected past stories of oppression to today's movements for freedom....

During her talk at Purdue, Davis tied the historical tradition of the black struggle against oppression to multiple contemporary movements against racist violence, anti-Semitism, Islamophobia, homophobia and able-ism.  "The black radical tradition can be claimed by anyone who believes that freedom is a worthy cause and that the struggle for freedom links our contemporary aspirations with many struggles of the past," she said.

She connected the history of black lynchings to today's issues of mass incarceration and capital punishment. "The death penalty's roots are sunk deep into the legacy of lynching," she said. "… If we fail to take into account the central role of lynching, then we will never truly understand the way racism worked its way into the criminal justice system."

March 1, 2015 in Death Penalty Reforms, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

"The Politics of Botched Executions"

The title of this post is the title of this timely new article by Corinna Lain now available via SSRN.  Here is the abstract:

For decades now, America’s death penalty has been beset by serious problems in its administration, but what has finally gotten the public’s attention is a spate of botched executions in the first half of 2014.  Botched executions are, like the death penalty’s other woes, nothing new. But having to manage the public relations nightmare that has followed these high-profile events is new, and tells a story of its own.  What are the politics of botched executions?  Officials have lowered the blinds so witnesses could not see what was happening inside the execution chamber, called for an “independent review” by other arms of the state, minimized concerns by comparing the execution to the condemned’s crimes, even denied that a botched execution was botched in the first place.

In this symposium contribution, I recount the four botched executions of 2014 and state responses that accompanied them.  I then make three observations — one about states’ fealty to the death penalty, one about backlash politics, and one about the changing cultural construct of lethal injection in the United States.  Finally, I surmise how state responses to botched executions (or the lack thereof) might impact the constitutionality of lethal injection and prove true the old adage about politics making strange bedfellows: the inept executioner may prove to be the abolitionist’s best friend.

March 1, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, February 26, 2015

"Can life in prison be worse than death" ... for Dzhokhar Tsarnaev?

The question in the title of this post is drawn from the headline of this notable Washington Post article discussing the current (and likely future) prison realities for the Boston marathon bomber.  Here are excerpts: 

What’s worse – being sentenced to be executed or to spend the rest of one’s life in prison?

Dzhokhar Tsarnaev’s defense team includes two attorneys famous for ensuring that the former is replaced with the latter: Judy Clarke from San Diego, who has brokered many high-profile plea deals, and her frequent litigation partner David Bruck of Virginia.  During the jury selection process, which is wrapping up in Boston this week, they have focused on drawing out jurors’ views on the death penalty, and with some regularity have elicited the response that life imprisonment is the harsher of the two options while the death penalty is “the easy way out.”

These potential jurors may have a point.  Tsarnaev, 21, has been in solitary confinement for a year and a half.  Like a handful of other inmates in the U.S., he has also been subjected to “special administrative measures,” or SAMs, while in pretrial detention; if he is sentenced to life imprisonment, SAMs will almost certainly remain in force....

According to a Human Rights Watch report, inmates under SAMs are usually fully isolated from other prisoners. Solitary confinement usually means spending 23 hours a day alone in a cell; SAMs often mean that this cell is in a special block from which the inmate can never see or hear other prisoners, even by knocking on a wall or peering through a window.

Under SAMs, Tsarnaev can make phone calls only when allowed to do so by the prison authority, and only to immediate family members – in his case, this would include his parents, living in Dagestan, and his two sisters, living in New Jersey. He has been calling his mother once a week.... All phone calls are monitored by an FBI agent...

The same rules apply to visits and correspondence: immediate family only. Tsarnaev’s sisters have visited him – his parents have not entered the United States since he was arrested, though one or both of them may travel here for the sentencing phase of the trial. A prison employee or FBI agent is always present during the visits, which include no physical contact – meaning they talk using telephone receivers, through glass.

Tsarnaev’s communication with his lawyers is also limited by the SAMs, but not nearly to the extent that his other communication is: His lawyers can visit without restriction, they can have physical contact with him, and their communication is privileged, which means that no one else is present. If Tsarnaev is convicted and sentenced to death, these visits will continue for the many years the appeals process is likely to last....

On Wednesday, as the court continued to interview potential jurors, the Boston Bar Association issued a statement calling on the Justice Department to take the death penalty off the table and arguing that a plea agreement in exchange for a life sentence would be in the interests of justice. If a plea agreement were to happen, Tsarnaev would stay alone in his cell, under SAMs: He could never have physical contact or a private conversation with anyone except a prison guard for the rest of his life.

Some prior related posts:

February 26, 2015 in Death Penalty Reforms, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (8) | TrackBack

Tuesday, February 24, 2015

Tie vote ends effort to end the death penalty in Montana

As reported in this local article, headlined "House deadlocks on bill to abolish death penalty in Montana," a very red state came had a death penalty repeal bill come (surprisingly?) close to passage.  Here are the details:

The state House deadlocked Monday 50-50 on a bill to abolish the death penalty in Montana, likely killing the measure for the 2015 Legislature. Rep. David “Doc” Moore, R-Missoula, the sponsor of House Bill 370, told members to “just vote your conscience” moments before the vote.

He said later that he’s undecided whether to ask the House on Tuesday to reconsider its action on HB370, saying it could be difficult to pick up a single, additional vote to force another emotional debate and vote on the floor.

Monday’s vote fell largely along party lines, with most Republicans against it — but it took three of the House’s 41 Democrats voting “no” to reject the bill, which would abolish the death penalty in Montana and substitute it with life in prison without parole. Montana has two murderers on death row.

The vote also marked the closest that death penalty opponents have come to getting a bill through the Montana House, which has blocked similar efforts for years. Bills to abolish the death penalty have been approved by the state Senate in recent legislatures, only to see them die in the House.

Supporters of the bill argued the death penalty does not act as a deterrent and costs the state millions of dollars on appeals and other prosecutorial costs. Rep. Margie MacDonald, D-Billings, also said state prison workers shouldn’t be put in the position of having to operate “the machineries of death.”...

One longtime supporter of abolishing the death penalty, Rep. Mitch Tropila, D-Great Falls, spoke as though he thought supporters had the votes to pass HB370 on Monday. “This is an historic moment in the Montana House of Representatives,” he said. “It has never voted to abolish the death penalty on second reading. This is a momentous moment, and we are on the cusp of history."...

Opponents, however, offered their own emotion-charged testimony against the measure, saying the death penalty can help prosecutors extract plea bargains out of terrible criminals and spare both the state and the victims’ families the financial and emotional cost of a trial. “How can you put a price on my emotions and what I was going through, with my family?” asked Rep. Tom Berry, R-Roundup, whose son was brutally murdered a dozen years ago. “All this bill does is reward the murderer, handicap the prosecutor … and penalize victims like me.”

Rep. Roy Hollandsworth, R-Brady, who opposed the bill, said those who want to abolish the death penalty should take it to the Montana public as a referendum — but they won’t, because they know they would lose. The public overwhelmingly supports the death penalty, he said.

February 24, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, February 21, 2015

New Oregon Gov pledges to continue curious capital moratorium created by her corrupt predecessor

Images (2)As reported in this new Reuters piece, headlined "New Oregon Governor Kate Brown to extend death penalty moratorium," a change in leadership at the top of the executive branch in the Beaver State is apparently not going to bring any change to the state's current peculiar death penalty practices. Here are the details:

Oregon's new Democratic Governor Kate Brown said on Friday she planned to extend a moratorium on executions that her predecessor enacted in 2011, well before an influence-peddling scandal forced him from office earlier this week.

But like fellow Democrat John Kitzhaber, Brown stopped short of formally commuting death sentences for the 34 inmates currently awaiting execution in the state, which has executed only two people in the past half century, both in the 1990s.  “There needs to be a broader discussion about fixing the system," Brown said in her first press briefing since she took Oregon's helm on Wednesday.  "Until that discussion, I'm upholding the moratorium imposed by Kitzhaber.” 

In a major salvo in the nation's long-running battle over capital punishment, Kitzhaber imposed a blanket reprieve on all Oregon death row inmates in 2011, saying he believed the death penalty was morally wrong.  He had faced growing calls in the waning days of his administration to commute all Oregon death sentences to life in prison before leaving office following an ethics scandal over accusations his fiancée used her role in his office for personal gain.

But Kitzhaber, who has not been seen publicly since announcing his resignation last week, remained silent on that issue, although he did commute the prison sentence of a young man serving time for attempted murder in a non-capital case.

Brown, who had been Oregon's secretary of state before this week, said she met with Kitzhaber on Monday and he advised her of his legislative priorities and recommendations. In addition to her death penalty plans, Brown told reporters she supports raising the minimum wage, increasing transparency and improving access to public records. 

Four years seems to me like plenty of time for the policy-makers and the public in Oregon to have a "broader discussion about fixing the system" used for administering the death penalty in the state. Notably, since Kitzhaber put the moratorium in place, I believe the Oregon legislature has enacted other forms of sentencing reform dealing with prison sentences as well as significant state health-care reforms.  In addition, Oregon public policy groups placed on the ballot in both 2012 and 2014 significant legal reform intended to "fix" perceived problems with marijuana laws and policies in the state.  If the last four years (and a number of election cycles) have not provided sufficient time for Oregonians to have a "broader discussion about fixing the system," I have a hard time imagining that the next few years are likely to engender such a discussion.

In the end, I seriously doubt that the new Oregon governor (or many others in the state) are really looking forward to having a "broader discussion about fixing the system" used for administering the death penalty in the state.  Rather, I think this phrase was the one that the new gov thought would best allow her to duck a controversial, high-profile issue for the time being (and maybe even for the full duration of her term).  For a handful of advocates, death penalty policy and practices in any state are very important, but for most citizens and voters the death penalty is a high-salience but low-significance concern.  Keeping Kitzhaber's execution moratorium in place allows the new gov to focus on other issues without the distorting distractions that death penalty politics can often create.

Some recent related posts:

February 21, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, February 20, 2015

Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"

Images (1)As reported in this local article, "Philadelphia District Attorney Seth Williams has sued Gov. Tom Wolf over the death penalty moratorium he imposed last week." Here the basics:

In a lawsuit filed Wednesday, Williams asks the state Supreme Court to rule Wolf's move a "lawless act," claiming the governor had no legal right to grant a reprieve to convicted murderer Terrance Williams....

The lawsuit filed by the city's Democratic district attorney is the second one the Democratic governor has faced since he was sworn in to office Jan. 20. The Republican-controlled Senate sued Wolf in Commonwealth Court over his decision to fire the executive director of the Open Records Office, which the Legislature created when it updated the state's Right-to-Know Law in 2008.

Wolf's death penalty moratorium, announced Friday, fulfilled a campaign promise. It was criticized by district attorneys, law enforcement and some lawmakers. Some religious leaders and other lawmakers praised it....

Wolf said he will grant a reprieve each time a death row inmate is scheduled for execution but keep the inmates' death sentences intact, which was what he did in the case of Terrance Williams. Williams was scheduled to be executed March 4 for the 1984 robbing and fatal tire-iron beating of another man in Philadelphia.

"The governor took the action to place a moratorium on the death penalty because Pennsylvania's capital punishment system is flawed — it's ineffective, expensive, and many times unjust," Wolf spokesman Jeff Sheridan said Wednesday. "As he stated Friday, the governor will wait for the report being produced by the bipartisan Pennsylvania Task Force and Advisory Commission on Capital Punishment, established by the state Senate, and the recommendations within the report are addressed satisfactorily."

Wolf was within his legal right to grant a reprieve under Article 4, Section 9 of the state constitution, Sheridan added. That section also gives the governor the power to commute sentences and issue pardons.

In his lawsuit, Williams says the governor can grant reprieves only as a temporary measure to allow a defendant to pursue "an available legal remedy." The governor cannot grant open-ended reprieves in cases where there are no legal questions surrounding guilt, the suit states. "Merely characterizing conduct by the governor as a reprieve does not make it so," Williams wrote, citing a successful 1994 lawsuit Northampton County District Attorney John Morganelli filed against Gov. Robert P. Casey to enforce the death penalty against Martin D. Appel and Josoph Henry....

"The scope of the reprieve power is not mysterious or vague, and it is limited," Williams' lawsuit states. "Unlike some states, Pennsylvania does not grant the governor an unlimited at-will power of clemency, without which it is not even possible to posit an arguable ability to impose a moratorium."

The filing by Philadelphia DA Williams, which is styled an&"Emergency Commonwealth Petition For Extraordinary Relief Under King's Bench Jurisdiction," was filed in the Supreme Court of Pennsylvania and is available at this link.  I find the filing quite effective and compelling, and I thought these passages were especially notable:

On February 13, 2015, the Governor issued a purported reprieve in connection with his publicly-announced assumption of a constitutionally-nonexistent power to declare a “moratorium” on death sentences in Pennsylvania.

This lawless act by the Governor, improperly and inaccurately characterized as a reprieve — for the act issued in this case is not, in fact, a reprieve — is not within the constitutional powers of the Governor, usurps judicial review of criminal judgments, and is in direct violation of his duty to faithfully execute Pennsylvania law under Article IV, § 2. It is unconstitutional, illegal, and should be declared null and void by this Court....

The alleged reprieve, which is not a reprieve at all, violates the constitutional separation of powers.  The constitution requires due process, not the Governor’s personal standard of absolute perfection; and the task of assuring that criminal judgments meet that correct standard is assigned to the judiciary, not the executive.Exercise, by another branch, of an extra-constitutional attempt to disturb settled judgments in criminal cases is an impermissible usurpation of the exclusive function of the judiciary....

In law and in reality, therefore, the Governor seeks to nullify valid, final judgments of sentence in usurpation of the judicial function, and seeks to subject the law governing capital sentencing to the test of his personal standard of satisfaction,which in this instance happens to be a test of infallibility that is impossible for mere mortals to satisfy. This is not permissible in a government that is founded on the principle that the people are to be ruled by laws enacted by their representatives in the legislative process, and not the personal whims of a king or dictator. The constitutional role of the Governor is to execute the law, not sabotage it.

February 20, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, February 18, 2015

AP report details that, functionally, California kills many more sex offenders than murderers

Formally, California sends many more murderers to its death row than any other state and it has more condemned capital prisoners than two dozen other US death penalty states combined.  But California has only managed to actually execute fourteen of those sentenced to die and nobody has been executed by the state in nearly a decade.  Meanwhile, as this new AP report details, over the last eight years, while California has not moved forward with an execution of a single condemned murderer, a total of 78 sex offenders have been slaughtered inside California's prisons.  Here are the basics:

California state prisoners are killed at a rate that is double the national average — and sex offenders ... account for a disproportionate number of victims, according to an Associated Press analysis of corrections records.

Male sex offenders made up about 15 percent of the prison population but accounted for nearly 30 percent of homicide victims, the AP found in cataloging all 78 killings that corrections officials reported since 2007, when they started releasing slain inmates' identities and crimes.

The deaths — 23 out of 78 — come despite the state's creation more than a decade ago of special housing units designed to protect the most vulnerable inmates, including sex offenders, often marked men behind bars because of the nature of their crimes.

In some cases, they have been killed among the general prison population and, in others, within the special units by violence-prone cellmates. Officials acknowledge that those units, which also house inmates trying to quit gangs, have spawned their own gangs.

Corrections officials blamed a rise in the prison homicide rate on an overhaul meant to reduce crowding. As part of the effort, the state in 2011 began keeping lower-level offenders in county lockups, leaving prisons with a higher percentage of sex offenders and violent gang members....

The problem is most acute with sex offenders. Last fall, the corrections department's inspector general reported that so many homicides occurred in the "increasingly violent" special housing units reserved for vulnerable inmates that the department could no longer assume that inmates there could peacefully co-exist. The report looked at 11 homicide cases that were closed in the first half of 2014 and found that 10 victims were sensitive-needs inmates. Using corrections records, the AP found that eight of them were sex offenders.

For a variety of reasons, most states have special facilities incorporated into their "death row," and condemned prisoners on death row are often eager to be well behaved in the hope of increasing their odds of getting out from under a death sentences eventually. Consequently, it can often be much safer for certain prisoners to be condemned and confined to death than to be in the general population. And this new AP report reinforces my sense that a serious California criminal likely would lead a more peaceful and safe life in prison if and when he murders and gets condemned to death than if he just commits a sex offense. (In addition to being a disturbing practical reality, these dynamics might perhaps prompt and incentivize a "rational rapist" in California to murder one or more his victims in order to ensure he can potentially avoid the dangers of the general prison population and live out his life peacefully pursuing appeal after appeal while safe and secure on death row.)

February 18, 2015 in Death Penalty Reforms, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (19) | TrackBack

Tuesday, February 17, 2015

Florida Supreme Court stays lethal injection pending SCOTUS case, and AG Holder urges national execution halt

As reported in this Reuters piece, "Florida’s highest court put executions on hold Tuesday while the U.S. Supreme Court decides whether use of a controversial general anesthetic constitutes “cruel and unusual” punishment of condemned killers." Here is more:

The state Supreme Court stopped the execution of Jerry William Correll next week because the Supreme Court recently agreed to hear a challenge some Oklahoma inmates brought against use of midazolam hydrochloride as the first of three drugs used in lethal injections. Florida uses essentially the same formula, the court said in a 5-2 ruling.

The state switched to midazolam as an anesthetic in 2013 when some foreign drug manufacturers quit supplying other drugs previously used in executions. The Department of Corrections said 11 lethal injections have been carried out with midazolam in Florida since then. Florida courts have approved midazolam, but the nation’s highest court agreed Jan. 23 to hear an appeal by 21 Oklahoma inmates in a case citing prolonged executions and signs of pain reported in that state, Arizona and Ohio.

Chief Justice Jorge Labarga wrote that if the nation’s highest court rules in favor of the prisoners, “then Florida’s precedent approving the use of midazolam and the current Florida three-drug protocol will be subject to serious doubt as to its continued viability.”

Justices Charles Canady and Ricky Polston dissented, saying Florida should proceed with Correll’s execution unless the U.S. Supreme Court stays it. Canady wrote that a stay in another state does not automatically require one in Florida, and that agreeing to review Oklahoma’s use of the drug means the justices will forbid it.

Meanwhile, as reported in this piece in The Hill, US Attorney General Eric Holder suggested today that all states ought to follow Florida's lead while the Supreme Court lethal injection case is pending:

Attorney General Eric Holder called Tuesday for a national moratorium on the death penalty until the Supreme Court weighs in on the issue later this year...

Late last month, the Supreme Court agreed to hear an appeal the from death row inmates in Oklahoma who are challenging the state’s procedures for lethal injections. "I think a moratorium until the Supreme Court makes that decision would be appropriate," Holder said.

February 17, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Would you urge out-going (and apparently corrupt) Oregon Gov Kitzhaber to commute all death sentences?

The question in the title of this post is prompted by this notable new commentary authored by Frank Thompson, a retired assistant director of institutions and superintendent of the Oregon State Penitentiary.  Here are excerpts:

I know what it is like to execute someone. I am a retired prison superintendent who conducted the only two executions that have taken place in Oregon in the past 53 years.

The death penalty in Oregon comes at a high cost to our state in both human and fiscal resources.  I call on Gov. Kitzhaber to convert 35 death sentences to life without the possibility of release before he leaves office at mid-morning on Wednesday.

Based on my experiences as a correctional professional, capital punishment is a failed public policy — especially in Oregon where we have funded a death penalty system for over 30 years, yet only put to death two inmates who volunteered themselves for execution by abandoning their appeals. No other corrections program exemplifies such a complete failure rate.

During my more than two decades of running correctional facilities, I saw the population of those who are capable of extreme violence up close. I have no doubts at all that these offenders did not think about the death penalty for one second before committing their violent acts. Instead, research has been shown that public safety is greatly improved when our limited tax dollars are redirected to law enforcement agencies to solve cases and prevent crimes.

I understand exactly what is being asked of public employees whose jobs include carrying out the lawful orders of the judiciary to end another person's life.  The burden weighs especially heavily on my conscience because I know firsthand that the death penalty is not applied fairly or equally in Oregon.  I have known hundreds of inmates who are guilty of similar crimes yet did not get the death penalty because they reached a plea bargain of life without parole simply because they had the means for professional legal assistance.

I also understand, from my experiences in corrections, the potential awful and lifelong repercussions that can come from participating in the execution of prisoners.  Living with the nightmares is something that some of us experience.  This is particularly the case with those of us who have had more hands-on experience with the flawed capital punishment process, and/or where an execution under our supervision did not go smoothly.

I am never troubled when people make a forceful argument that "capital punishment is a failed public policy."  But I find it troubling that this argument is being made now to a disgraced (apparently corrupt) out-going governor rather than to the new incoming governor and other public-policy officials who are going to be staying in their jobs and would need to deal with the administrative and political implications and consequences of their actions.

Notably, it is not just Oregonians urging out-going Gov Kitzhaber to clear the state's death row.  Professors Charles Ogletree and Rob Smith have this new Huffington Post commentary headlined "Gov. Kitzhaber: Your Job Is Not Yet Done." here is how it concludes:

Governor Kitzhaber declared a moratorium on the death penalty back in 2011. He labeled the State's practice of imposing death sentences "neither fair nor just" and concluded that a "compromised and inequitable" capital punishment system is not befitting of Oregon. Nothing has changed and nothing will: the death penalty in Oregon is too broken to fix.

In his resignation letter, Governor Kitzhaber told us that he was proud to not have presided over any executions. Yet, as Governor, he presided over a state that has sentenced people to death under the same unjust system that led him to impose the moratorium. The Governor has the power to leave the troubled history of this disreputable death penalty system in Oregon's rearview mirror; and doing so would enhance the integrity of the criminal justice system without compromising public safety.

Governor Kitzhaber: You lit the torch in 2011; and now, in these few remaining hours, please carry that torch across the finish line.

February 17, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, February 16, 2015

"The United States Execution Drug Shortage: A Consequence of Our Values"

The title of this post is the title of this commentary authored by Ty Alper available via SSRN. Here is the abstract:

The recent inability of states to obtain drugs for use in executions has led to de facto moratoria in a number of states, as well as gruesomely botched executions in states that have resorted to dangerous and unreliable means to obtain these drugs. The refusal of some pharmaceutical companies to provide drugs to U.S. prisons has significantly impeded the imposition of the death penalty in a number of states. Despite this, it is the anti-death penalty activists who tend to draw the attention of the media, state officials, and politicians charged with carrying out executions. The media focuses particular attention on advocates in Europe who have campaigned to pressure European drug companies to stop distribution of their products to U.S. prisons for use in executions.

This paper challenges that narrative and posits instead that it is the drug companies that have long sought to avoid the use of their products in executions, for moral and financial reasons, as well as to comply with European law. When we look back on the fourth decade of the modern era of capital punishment in the United States, we may consider it the decade that marked the beginning of the end. If so, it will not be the result of a handful of activists successfully thwarting the administration of capital punishment. Rather, it will be the consequence of U.S. states imposing the death penalty in the context of a modern world that generally abhors the practice, using a method of execution that is very much dependent on major players in that world.

February 16, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Tennessee Supreme Court to consider electric chair as back-up execution method

I am pleased and intrigued to see, via this local article, that the "Tennessee Supreme Court will decide whether a death row inmate can challenge the state's back-up method of execution: the electric chair." Here is more about this notable litigation:

The court agreed to take the case — which stems from a Davidson County Chancery Court battle — on Friday. Arguments are set for May 6 in Knoxville. The state says that inmates who are challenging the electric chair as unconstitutional cannot do so because none of the inmates is facing that method of execution.

A group of 34 inmates previously challenged the state's primary protocol, lethal injection, and then added a challenge to the electric chair when it was deemed a back-up method.

The appeal to the Supreme Court, as well as another seeking the release of names of people involved in the execution process, come from the pending chancery court case. Once the Supreme Court decides the issues, the chancery court case will be able to move forward.

I fear that this case might resolve only whether and when a Tennessee defendant can challenge a back-up method of execution. Nevertheless, I find it notable and potential important that a state supreme court is now going to consider in any way an execution method other than lethal injection.

February 16, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Friday, February 13, 2015

Pennsylvania Gov declares moratorium on state death penalty

As reported in this local piece, headlined "Gov. Tom Wolf declares moratorium on death penalty in Pa.," there is some headline-making news about capital punishment administration emerging from the Keystone State: 

Gov. Tom Wolf declared a moratorium Friday on the death penalty in Pennsylvania, potentially halting the process for 186 prisoners who've received a death sentence. Since 1693, the commonwealth has executed 1,043 prisoners, the last of which was Philadelphia torture killer Gary Heidnik in 1999. That execution took place, in large part, because Heidnik gave up his right to appeal.

In a statement released Friday, Wolf said the state's current death penalty is "a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive."...

Wolf's first action was a temporary reprieve to Terrance Williams, who was scheduled to be executed on March 4. Williams was convicted of two murders he committed as a teenager in 1984. "Today's action comes after significant consideration and reflection," Wolf said. "This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes."

Shortly after Wolf's announcement, Sen. Daylin Leach, D-Montgomery, said he reintroduced his bill Friday to abolish the death penalty altogether. "I am extremely grateful that our governor will stop spending our tax dollars to, in the words of former US Supreme Court Justice Harry Blackmun, tinker with the machinery of death," he said, in a written statement.

Gov. Wolf's detailed four-page statement justifying his decision today is a fascinating read (which I am going to make my sentencing students read and re-read). The full statement is available at this link, and here are excerpts:

Pursuant to authority granted in Article IV, § 9 of the Constitution of Pennsylvania, I am today exercising my power as Governor to grant a temporary reprieve to inmate Terrence Williams. A death warrant for this case was signed on January 13, 2015 by my predecessor, acting pursuant to Section 4302 of the Pennsylvania Prisons and Parole Code. The execution was scheduled for March 4, 2015.

The reprieve announced today shall remain in effect until I have received and reviewed the forthcoming report of the Pennsylvania Task Force and Advisory Committee on Capital Punishment (established under Senate Resolution 6 of 2011), and any recommendations contained therein are satisfactorily addressed. In addition, it is my intention to grant a reprieve in each future instance in which an execution is scheduled, until this condition is met....

There are currently 186 individuals on Pennsylvania’s death row. Despite having the fifth largest death row in the nation, the death penalty has rarely been imposed in modern times. In the nearly forty years since the Pennsylvania General Assembly reinstated the death penalty, the Commonwealth has executed three people, all of whom voluntarily abandoned their right to further due process.

In that same period, Governors have signed 434 death warrants. All but the three noted above have subsequently been stayed by a court. One inmate has been scheduled for execution six times, each of which has been cancelled due to a state or federal appeal. Two inmates have remained on death row for more than three decades. This unending cycle of death warrants and appeals diverts resources from the judicial system and forces the families and loved ones of victims to relive their tragedies each time a new round of warrants and appeals commences. The only certainty in the current system is that the process will be drawn out, expensive, and painful for all involved.

While the pace of the process frustrates some, the fail-safes of appellate review are essential in avoiding a catastrophic miscarriage of justice. Since reinstatement of the death penalty, 150 people have been exonerated from death row nationwide, including six men in Pennsylvania....

If the Commonwealth of Pennsylvania is going to take the irrevocable step of executing a human being, its capital sentencing system must be infallible. Pennsylvania’s sy stem is riddled with flaws, making it error prone, expensive, and anything but infallible....

[A]administering the death penalty, with all the necessary legal appeals and safeguards as well as extra security and individual cells on death row, is extremely expensive. A recent analysis conducted by the Reading Eagle estimates that the capital justice apparatus has cost taxpayers at least $315 million, but noted that this figure was very likely low. Other estimates have suggested the cost to be $600 million or more. The Commonwealth has received very little, if any, benefit from this massive expenditure.

February 13, 2015 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, February 12, 2015

Spotlighting the administrative challenges posed by high-profile capital cases

This New York Times article, headlined "Jury Pool for Trial in Aurora Shooting Is Pressed on Death Penalty," highlights the various administrative difficulties a high-profile capital case formally gets underway in Colorado.  Here are excerpts:

Lawyers on Wednesday began questioning potential jurors for the trial of the man accused of killing 12 people and wounding 70 during a showing of a Batman film in a packed Colorado movie theater in 2012.

The defendant, James E. Holmes, has pleaded not guilty by reason of insanity, though his lawyers admit he was the gunman. The district attorney is seeking the death penalty, and prosecutors and defense lawyers focused most of their questioning on how prospective jurors feel about that sentence....

Officials sent jury summonses to 9,000 people here — a number that dwarfs even the 1,300 or so potential jurors who filled out questionnaires in the trial of the man accused in the Boston Marathon bombings. The pool of potential jurors has since been whittled to about 2,000. Questioning of those people is expected to take 16 weeks, during which the pool will be reduced to 120, who will receive further questioning, and finally to 12 jurors and 12 alternates.

The trial, to be held in this Denver suburb, could last from early spring to October, with testimony expected from police officers, crime scene experts, witnesses and mental health experts. The shooting took place July 20, 2012, at a movie theater in the Denver suburb of Aurora, where about 400 people were attending a screening of “The Dark Knight Rises.”... 

Two and a half years later, the effects of the massacre continue to ripple through the region, with victims and their families grappling with depression and post­traumatic stress disorder and divided over the prosecution’s decision to seek the death penalty. Some have argued that it is the only way to ensure justice; others have said it will cause years of appeals, an excruciating prospect for those seeking a degree of closure.

Recent and older related posts (with lots of comments):

February 12, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 11, 2015

Update on a decade-long (lack of) effort (not) to fix lethal injection in California

California has long been a state leader in spending lots of time, energy and money on the death penalty without achieving much.  This commentary by Debra Saunders, headlined "Yes, California, there is a death penalty," provides a critical review of the lethal injection part of this story that has played out over the last decade. Here are excerpts:

What happened to California’s death penalty? There has not been an execution since 2006, when a federal judge ruled against the state’s three-drug lethal injection protocol. In 2008, the U.S. Supreme Court upheld three-drug executions. It didn’t matter. Gov. Jerry Brown and Attorney General Kamala Harris both personally oppose capital punishment, but as candidates promised to uphold the law. In real life, they’ve let things slide. Fed up, two men related to murder victims have filed suit to push the state to carry out the law.

Kermit Alexander wants to see the law work on Tiequon Cox, convicted of killing the former football player’s mother, sister and two nephews in 1984 — Cox went to the wrong address for a $3,500 contract killing. Bradley Winchell is sick of waiting for the execution of Michael Morales, who raped, hammered, strangled and stabbed to death his 17-year-old sister, Terri, in 1981. Sacramento Superior Court Judge Shellyanne Chang ruled in their favor Friday after Harris challenged them on the dubious grounds that crime victims and the general public “lack standing” to sue the state.

Brown had directed the state Department of Corrections and Rehabilitation in April 2012 to develop rules that should pass court muster. What’s taking so long? Spokesman Jeffrey Callison answered that his department has been working on “a single drug protocol” but “nationwide, there is a problem with access to execution drugs and that is complicating efforts.”

California has used lethal injection since 1996 to spare condemned inmates unnecessary pain. Even still, U.S. District Judge Jeremy Fogel stayed Morales’ execution as the judge perceived a 0.001 percent chance the convicted killer might feel pain.

In other states not headed by Hamlets, leaders have found ways to anticipate court sensibilities and keep faith with voters.  Many adopted one-drug protocols.  Death penalty foes responded by using their considerable muscle to bar importation and choke the supply of lethal-injection drugs.  Flat-footed Sacramento stuck with the unused three-drug protocol for too long. While Brown’s Corrections Department was working on a one-drug rule, Texas executed 38 killers with pentobarbital. The next time you hear the cerebral governor argue that high-speed rail is doable, remember that he couldn’t pull off a legal procedure that didn’t daunt former Texas Gov. Rick Perry....

In 2012, California voters rejected a ballot measure to get rid of capital punishment. Alexander and Winchell shouldn’t have to sue their government to enforce the law.

As the title of this post is meant to suggest, I do not think officials in California have any real interest in fixing its execution protocol.

February 11, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 10, 2015

As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber

As this AP article reports, now that "executions in Oklahoma [are] on hold amid a constitutional review of its lethal injection formula, Republican legislators are pushing to make Oklahoma the first state in the nation to allow the use of nitrogen gas to execute death row inmates." Here is more:

Two separate bills scheduled for hearings this week in legislative committees would make death by "nitrogen hypoxia" a backup method of execution if the state's current lethal injection process is found to be unconstitutional.

"You wouldn't need a medical doctor to do it. It's a lot more practical. It's efficient," said Rep. Mike Christian, an Oklahoma City Republican and former Oklahoma Highway patrolman who conducted a hearing last summer on hypoxia, or the depletion of oxygen in the bloodstream.

The U.S. Supreme Court currently is reviewing Oklahoma's three-drug method in a challenge sparked by a botched lethal injection last spring in which an inmate groaned and writhed on the gurney before a problem was discovered with an intravenous line. The case centers on whether the sedative midazolam properly renders an inmate unconscious before the second and third drugs are administered. Three scheduled lethal injections in Oklahoma have been delayed pending the high court's review.

Oklahoma officials concede midazolam is not the preferred drug for executions, but death penalty states have been forced to explore alternatives as manufacturers of more effective drugs refuse to sell them for use in lethal injections. Tennessee passed a law last year to reinstate the electric chair if it can't get lethal drugs, and Utah is considering bringing back the firing squad. Oklahoma Attorney General Scott Pruitt has urged legislators to consider the creation of a state compounding pharmacy to produce the drugs itself.

A fiscal analysis of the Oklahoma bill projects it would cost about $300,000 to build a gas chamber at the Oklahoma State Penitentiary in McAlester. A similar bill is pending in the Oklahoma Senate. Christian said unlike traditional gas chambers that used drugs like cyanide that caused a buildup of carbon dioxide in the blood, breathing nitrogen would be painless because it leads to hypoxia, a gradual lack of oxygen in the blood, similar to what can happen to pilots at high altitudes.

Four states currently allow the use of lethal gas — Arizona, California, Missouri, and Wyoming — but all have lethal injection as the primary method, according to the Death Penalty Information Center. No state has ever used nitrogen gas or inert gas hypoxia to execute an inmate. The last U.S. inmate executed in a gas chamber was Walter LaGrand in Arizona in 1999.

A few recent and older related posts:

February 10, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, February 09, 2015

"In praise of the firing squad"

The title of this post is the headline of this recent Washington Post commentary by Radley Balko. Here are excerpts:

[F]rankly, if we insist on executing people, the firing squad may be the best option. Before I explain why, I’ll first disclose that I’m opposed to the death penalty, and I have no doubt that my opposition to state-sanctioned killing influences my opinions on which method of execution we ought to use.  So read the rest of this post with that in mind.

If you support the death penalty, the most obvious benefit of the firing squad is that unlike lethal injection drugs, correctional institutions are never going to run out of bullets. And if they do, more bullets won’t be very difficult to find. Ammunition companies aren’t susceptible to pressure from anti-death penalty activists, at least not to the degree a pharmaceutical company might be.  This would actually remove a barrier to more efficient executions. As someone who would like to see executions eliminated entirely, I don’t personally see this as a benefit.  But death penalty supporters might. And there are other benefits to the firing squad, benefits that I think people on both sides of the issue can appreciate.

Traditional lethal injection is more humane if you consider the humanity of the procedure from the perspective of everyone except the person being executed. There is now a storm of controversy about the procedure because those botched executions last year produced some really gruesome images, which were then relayed to the public by witnesses. Had the condemned men in Oklahoma, Ohio and Arizona suffered the same pain and agony, but under the cloak of a more thorough paralytic, we probably wouldn’t be having this discussion. We consider a method of execution humane if it doesn’t make us uncomfortable to hear or read about it. What the condemned actually experience during the procedure is largely irrelevant. The lethal injection likely became the most common form of execution in the United States because it makes a state killing resemble a medical procedure. Not only doesn’t it weird us out, it’s almost comforting.

By contrast, the firing squad is violent and archaic, and judging by the reaction to the bills in Utah and Wyoming, it most certainly does weird a lot of people out. And yet in only the way that should matter, the firing squad is likely more humane than the lethal injection....

This sets up a final argument in favor of the firing squad: There is no mistaking what it is. There are no IVs, needles, cotton swabs or other accoutrements more commonly associated with healing. When we hear about an execution on the news, we won’t hear about an inmate slowly drifting off to sleep. We’ll hear about guns and bullets. Killing is an act of violence. That’s what witnesses will see, and that’s what the reports will tell us has happened. If we’re going to permit the government to kill on our behalf, we should own what we’re doing.

This is where a critic might argue that as a death penalty opponent, I’m merely arguing for the method of execution that I think is most likely to turn people off to the death penalty.  I’ll be honest: I hope that’s what will happen. I hope that when confronted with a method of execution that’s less opaque about what’s actually transpiring, more of us will come to realize that we no longer need capital punishment.  But I’m not particularly optimistic that will happen. I suspect that there’s a strong segment of the public (and probably a majority) that will support the death penalty no matter how we carry out executions.

Regardless of its impact on the death penalty debate, if we must continue to execute people, the firing squad has a lot to offer.  It isn’t just the most humane form of execution now realistically under consideration, it is the most humane from the correct perspective — the experience of the condemned.  It brings no concerns about the supply of execution materials.  It raises no issues about medical ethics — it doesn’t blur the lines between healing and hurting.  It’s honest.  It’s transparent.  And it is appropriately violent.

February 9, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Thursday, February 05, 2015

More than three decades after crime, SCOTUS decides it still needs to stay Texas mass murderer execution

As reported in this AP piece (with my emphasis added), a "Texas inmate set to be executed next week for fatally shooting four men at an airplane hangar more than 30 years ago won a reprieve Thursday from the U.S. Supreme Court."  Here are the details:

Lester Bower Jr., 67, among the longest-serving Texas death row inmates, had been scheduled for lethal injection Tuesday. The justices gave no reason for the reprieve, saying only that it would be lifted automatically if they deny an appeal or act on it.

Bower was convicted in the October 1983 deaths at a Grayson County ranch about 60 miles north of Dallas. Authorities found parts from a small ultralight airplane at the hangar at his home in Arlington, a Dallas suburb. Prosecutors also tied unusual Italian-made .22-caliber bullets used in the slayings to similar ammunition purchased by Bower, a federally licensed gun dealer.

In their appeal to the high court, Bower's lawyers said jurors who decided on his death sentence had faulty instructions that didn't allow them to consider mitigating circumstances that he had no criminal record, was a married father of two, college educated and employed as a chemical salesman.

Since his 1984 trial, court rulings have refined instructions to Texas capital murder trial juries to account for mitigating circumstances. Several condemned inmates from that era - but not Bower - have received new court-ordered punishment trials. Bower's attorneys also contended that prosecutors misstated the rarity of the fatal bullets, and that his long time on death row and numerous rescheduled execution dates amount to unconstitutional suffering.

State attorneys argued that courts have rejected appeals about the jury instructions, that information about the bullets was available at the time of his trial and that Bower's lawyers' persistent appeals account for the lengthy case. "Any delay is purely of his own making," Stephen Hoffman, an assistant Texas attorney general, told the justices in a filing this week....

Those killed were building contractor Bob Tate, 51; Grayson County Sheriff's Deputy Philip Good, 29; Jerry Brown, 52, an interior designer; and Ronald Mayes, 39, a former Sherman police officer. Good's wife, Marlene Bushard, said the delay was "very frustrating since we were so close."

"I am hoping once this is done he will be out of options, we can get another death warrant and end this," she said in an email.

As this timeline of products reveals, over the last 30 years Apple has been able to go from its Apple IIe personal computer to a modern (multi-generation) iPhone and iPad and iMac, and the latest Apple machines now put more computing power into our hands than NASA had at its disposal in the early 1980s.  Meanwhile during this same period, our legal system has been unable to conclusively determine whether a Texas mass murderer was lawfully sentenced to death. Hmmm.

February 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Highlighting (already extraordinary) costs of seeking to put Aurora killer on death row

This lengthy new Yahoo News article, headlined "Cost of Colorado theater shooting case exceeds $5 million months before opening arguments," details how much Colorado taxpayers are paying for prosecutors' efforts to get James Holmes on death row. Here are some of the details:

The criminal court case against Colorado theater gunman James Holmes has already absorbed at least $5.5 million in public monies, according to records obtained by Yahoo News. That’s $2 million more than the estimated average cost of a completed Colorado death penalty trial — and the contentious Holmes proceeding is still months away from opening arguments....

Holmes first appeared in court on July 23, 2012, three days after police say he assailed a packed suburban Denver movie theater, killing 12 people and injuring 70, as they were watching a midnight showing of the Batman film “The Dark Knight Rises.” In the two and a half years since that initial court appearance, primary personnel involved with the case — prosecutors, defense attorneys, the judge, court reporter, trial investigators and victims’ advocates for the district attorney — have been paid approximately $4.5 million.

A spokeswoman for the Arapahoe County district attorney said only one prosecutor has been dedicated to the Holmes case full time. But legal observers say a proceeding already involving nearly 1,700 motions, orders and hearings — with possibly hundreds of witnesses expected to testify at trial — would require the undivided attention of a team of lawyers.

Other top expenses so far include $463,000 on additional security from July 2012 through the end of 2014. Experts hired by the prosecution have received more than $220,000 to date. More than $90,000 was used to install a closed-circuit television system in the courtroom. It cost $20,000 to print 9,000 juror notices and questionnaires....

Holmes has pleaded not guilty by reason of insanity — his lawyers say he was in the throes of a psychotic episode at the time. Twice the judge has ordered him to be transferred to a state hospital for testing to determine if he was mentally capable of understanding the crime he committed. A court spokesman said invoices for the exams have not been received....

Holmes offered to forfeit the costly trial in March 2013 for life in prison without parole if he could avoid the death penalty. Prosecutors, however, strongly rejected any notion of a pending deal, saying the defense had refused to give them the information they wanted to evaluate the plea agreement.

“It is my determination and my intention that in this case, for James Eagan Holmes, justice is death,” Arapahoe County District Attorney George Brauchler said in court.

Holmes is charged with 166 counts of first-degree murder, attempted murder and weapons charges. Opening arguments through sentencing could last four to six months — which itself will cost the court $137,000 to $205,000 in juror pay (the 24, including alternates, earn $50 a day)....

As for Holmes, his heavily redacted application for a public defender was approved the same day as the massacre. It was signed by Daniel King, one of his lead attorneys, who currently earns $165,756 and may be eligible for a raise just as the trial gets going. Under state law, Holmes could be ordered to pay a $25 processing fee after the verdict.

February 5, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Sunday, February 01, 2015

"Should Veterans With PTSD Be Exempt From the Death Penalty?"

The title of this post is the headline of this lengthy piece from The Atlantic. Here are excerpts:

PTSD is a severe mental disorder that can affect intellectual and adaptive functioning, trigger flashbacks to traumatic events, and impair one's judgment. As its name implies, it can develop after exposure to a life-threatening event.... About 20 percent of military personnel who served in war zones in Iraq and Afghanistan and up to 30 percent of Vietnam War veterans have experienced it in their lifetimes, according to National Center for PTSD statistics....

Despite the stigma attached to PTSD, the Department of Veterans Affairs emphasizes that most veterans suffering from the condition are not violent.... “Rambo is not the face of PTSD,” Paula Schnurr, executive director of the VA's National Center for PTSD, said in an interview with The Desert Sun. “It's extremely important that we recognize that the majority of people with PTSD don't engage in criminal and violent actions.”

The risk of criminal behavior isn’t necessarily higher among combat veterans than with civilians, according to mental health experts. "I am unaware of data showing that people with PTSD are more violent than other people," Richard McNally, the director of clinical training in Harvard University's psychology department, told Reuters.

But some legal scholars and mental health experts suggest the criminal justice system should treat convicted veterans suffering from war trauma differently than other criminals. In a 2009 Fordham Law Review article, Anthony Giardino, an attorney and former Marine, argued that veterans suffering from service-related PTSD and traumatic brain injuries should receive a categorical exemption from the death penalty. "If the death penalty is truly only for the worst offenders, justice requires that combat veterans suffering at the time of their offenses from service-related PTSD or TBI [traumatic brain injuries] not be executed or sentenced to death," he wrote....

Giardino isn’t alone in making this argument. Mental-health experts Hal S. Wortzel and David B. Arciniegas made a similar case for exempting veterans affected by war trauma from the death penalty. Military training and combat, combined with traumatic experiences, may have an impact on aggression and behavioral control, the authors said in a 2010 article....

It's difficult for the legal system to truly grasp what veterans with PTSD have experienced. This lack of empathy is a key obstacle to change.... Until society realizes how combat can change service members, the fate of capital defendants with combat PTSD will remain an open question.

February 1, 2015 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (3) | TrackBack

Saturday, January 31, 2015

After adopting new execution drug laws, Ohio delays all executions for additional year

As explained in this AP article, a full year after Ohio had difficulties executing Dennis McGuire and a month after the state enacted new execution laws, Ohio officials decided to kick the execution can another year down the road by rescheduling all 2015 scheduled executions.  Here are the details:

The state on Friday rescheduled executions for seven death row inmates as it tries to find new lethal drugs, meaning no inmate will be put to death in Ohio in 2015.  The announcement affects six executions this year, including one set for Feb. 11 for condemned child killer Ronald Phillips, and one previously scheduled for 2016 that was pushed farther back.

The move, which was expected, follows a federal judge's previous order delaying executions while the state puts a new execution policy in place, the state said.  The delays also allow the state time to find supplies of new drugs, according to the Department of Rehabilitation and Correction.  The new execution policy calls for Ohio to use drugs it doesn't have and has had difficulty obtaining in the past.

The delays mean that for the first time Ohio won't execute anyone in a calendar year since the state resumed putting inmates to death in 1999.  The state put one inmate to death last year and three in 2013.  A total of 11 executions are scheduled for 2016.  Under the revised schedule, the next execution is Jan. 21, 2016, when Phillips is scheduled to die for the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.

 Tim Young, the state public defender, applauded the move, saying there was no need for executions "until we have answers to the numerous legal and medical questions posed by lethal injection."

Earlier this month, the state ditched its two-drug method after problematic executions in Ohio a year ago and Arizona in July.  Ohio's supplies of those drugs, midazolam, a sedative, and hydromorphone, a painkiller, were already set to expire this year. Underscoring concerns about midazolam, the U.S. Supreme Court earlier this week ordered Oklahoma to postpone lethal injections executions using the drug until the court rules in a challenge involving midazolam.

Ohio's execution policy now calls for it to use versions of thiopental sodium or compounded pentobarbital, neither of which it has.  Death penalty experts question where Ohio would find supplies of thiopental sodium, saying it's no longer available in the U.S. and overseas imports would run afoul of importing bans.

Notably, before Ohio started having major problems with lethal injection protocols, the state had become one of the most active and effective states carrying out death sentences. The state completed nearly 50 executions from 2002 through 2012, and a few years in that period it was second only Texas in the number of executions completed. But lethal injection difficulties and litigation entailed that the state could carry out only three executions in 2013, only one in 2014 and now there will be none in 2015.

I expect that Ohio officials will be try pretty hard to get its machinery of death up and running again in 2016, and it is possible a Supreme Court decision about lethal injection protocols in Oklahoma might actually end up helping the state get its execution chamber back on line. But the 140 men and one woman now on Ohio's death row (and their lawyers) should be breathing a little easier today. And it now seems that much more likely that the majority of these murders will end up just dying in prison rather than be subject to an affirmative state killing.

January 31, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, January 29, 2015

With overwhelming public support, Japanese Justice Minister continues with capital punishment

As reported in this news article, "Japan is to continue applying the death penalty after over 80 percent of the country's population expressed their support for the measure, media Thursday cited Justice Minister Yoko Kamikawa as saying."  Here is more:

A recent government survey revealed that 80.3 percent of respondents backed the death penalty, while 9.7 percent felt that it should be abolished.  Kamikawa termed the results as positive and said strict and careful measures would continue in this regard.

She said there was no intention of revising the current policy in the short term, despite having hinted at times the possibility of introducing life sentences for capital crimes. "Most people believe it is unavoidable for those who committed extremely malicious crimes to face (execution)," Kamikawa said, according to the Asahi daily newspaper.

Kamikawa also made a reference to the global trend against the death penalty and the petition by activists for Japan to end capital punishment.  "It is a problem associated with what country Japan should be, and it is (the Japanese people's) business," she said.

Eleven convicts have been executed since the current government took office in December 2012.  Japan, along with the US, is the only developed and democratic country that still imposes the death penalty.

I tend also to include India on a list of "developed and democratic country that still imposes the death penalty," but maybe some would dispute characterizing India as developed.

January 29, 2015 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (4) | TrackBack

Tuesday, January 27, 2015

"The Humane Death Penalty Charade"

The title of this post is the headline of this New York Times editorial.  Here are excerpts:

When the United States at last abandons the abhorrent practice of capital punishment, the early years of the 21st century will stand out as a peculiar period during which otherwise reasonable people hotly debated how to kill other people while inflicting the least amount of constitutionally acceptable pain.

The Supreme Court stepped back into this maelstrom on Friday, when it agreed to hear Warner v. Gross, a lawsuit brought by four Oklahoma deathrow inmates alleging that the state’s lethal­injection drug protocol puts them at risk of significant pain and suffering.

In accepting the case, the justices had to change its name.  The lead plaintiff, Charles Warner, was executed on Jan. 15 after the court, by a vote of 5-­to-­4, denied him a last­minute stay.  That may sound strange until you consider that while it takes only four justices to accept a case for argument, it takes five to stay an execution.  The case is now named for another inmate, Richard Glossip. (On Monday, the Oklahoma attorney general requested temporary stays of the impending executions of Mr. Glossip and the other two plaintiffs.)...

The justices have been here before.  They upheld the constitutionality of lethal injection in 2008.  But, since then, the battles over the practice have grown more warped.  Many drug makers now refuse to supply their products for killing, leaving states to experiment on their inmates with other drugs, often acquired under cover of official secrecy and administered by authorities with no medical training.  During a hearing last month on Oklahoma’s protocol, a state witness who testified that midazolam is effective appeared to rely on the website drugs.com, not scientific studies.  It would all be a laughable farce if it didn’t involve killing people.

There is disingenuousness on both sides.  Many who oppose the death penalty, this page included, are obviously not interested in identifying more “humane” methods of execution; the idea itself is a contradiction in terms.  Nor are many capital punishment supporters concerned with how much suffering a condemned person might endure in his final moments.  In the middle sit the armchair executioners who engage in macabre debates about the relative efficiency of, say, nitrogen gas.

It is time to dispense with the pretense of a pain­free death.  The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable.  When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.

I love the phrase "armchair executioners," even though I could not help reacting with a classic "Taxi Driver" response.

Recent related posts:

January 27, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, January 26, 2015

The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"

The title of this post is drawn from the headline of this New York Times piece by Adam Liptak that highlights why the Supreme Court's decision on Friday to grant cert to review Oklahoma's execution protocol is so interesting and creates much death penalty drama for this coming week and the months ahead.  Here is how the piece starts:

There are nine justices on the Supreme Court.  It takes four votes to hear a case, but it takes five to stay an execution.

That can leave a lethal gap.  A death penalty case can be important enough to claim a spot on the court’s docket of perhaps 75 cases a year.  But the prisoner who brought it may not live to see the decision.

In agreeing on Friday to hear a challenge to the chemicals Oklahoma uses to execute condemned prisoners, the court brought fresh attention to the life-or-­death importance of a single vote.  The lead petitioner in Friday’s case, Charles F. Warner, was already dead. He was executed eight days earlier, after the Supreme Court refused to stay his execution. The vote was 5 to 4.

“What happened to Charles Warner was not an isolated glitch,” said Eric M. Freedman, a law professor at Hofstra University and the author of a new article on the court’s voting procedures in capital cases. “It was a typical, if high­-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.”

The case the court agreed to hear used to be called Warner v. Gross, No. 14­7955.  On Friday, taking account of Mr. Warner’s death, the court changed it to Glossip v. Gross, No. 14­7955. It may change again.  The new lead petitioner, Richard Glossip, is scheduled to be executed on Thursday.  The other two petitioners in the case also have execution dates in coming weeks, all of them well before the court is expected to hear arguments in the case, in April.  

The Supreme Court did not say on Friday whether it would stay the other three executions. In a statement, Scott Pruitt, Oklahoma’s attorney general, made a pointed reference to the fact that it took only four votes to grant review.  He seemed to indicate that the state was prepared to proceed with the executions.

The petitioners’ lawyers will doubtless seek stays.  In Mr. Glossip’s case, they will have to act quickly.  How the court responds will illuminate the current vitality of its fitful commitment to a procedure it sometimes uses to bridge the voting gap: the “courtesy fifth” vote to stay executions.  Such votes are said to be available once the court makes a formal decision to grant review of a condemned prisoner’s case.

Recent related posts:

January 26, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

High-profile capital trials put spotlight on dynamics of death-qualification of jurors

This new AP story, headlined "Death-qualified' juror search slows marathon, theater cases," effectively reviews the distinct notable realities that attend jury selection in a capital case. Here are some excerpts:

One prospective juror was brutally frank when asked whether he could consider a sentence of life in prison for the man accused of bombing the Boston Marathon. "I would sentence him to death," he said, then added: "I can't imagine any evidence that would change how I feel about what happened."  Another prospective juror said he couldn't even consider the death penalty, telling the court, "I just can't kill another person."

The two men are on opposite sides of the capital punishment debate, but both unlikely to make it on the jury for the trial of Dzhokhar Tsarnaev: to be seated for a death penalty case a juror must be willing — but not eager — to hand down a sentence of either life or death.

The process of finding "death qualified" jurors has slowed down jury selection in federal case against Tsarnaev, who is charged with setting off two bombs that killed three people and injured more than 260 during the 2013 marathon.  It is expected to do the same in the state trial of James Holmes, the man accused of killing 12 people and injuring 70 others in a suburban Denver movie theater in 2012.

The process is designed to weed out jurors who have strong feelings for or against the death penalty.  A 1985 ruling from the U.S. Supreme Court said a juror can lawfully be excused if his views on the death penalty are so strong that they would prevent or substantially impair his ability to follow the law.

But death penalty opponents have long said the process is fundamentally unfair.  They argue that death-qualified juries do not represent a true cross-section of the community and are less likely to be sympathetic to the defense.  "You end up with a jury with less women, less blacks, less Democrats ... you end up with a jury that is skewed in ways that make it probably more conservative, more accepting of prosecution arguments, of state authority," said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization that opposes executions.

The Capital Jury Project, a consortium of university researchers, interviewed about 1,200 jurors in 353 capital trials in 14 states beginning in the early 1990s.  The group's research has shown that death penalty juries are more likely to convict and that jurors often make up their minds about what punishment to hand down long before they're supposed to, said William Bowers, director of the project....

Death penalty opponents have argued that to get around this kind of pre-judgment, separate juries should be chosen to hear evidence in the guilt phase and the punishment phase. But that idea has not gained traction....

In the Holmes case, an unprecedented 9,000 jury summonses were mailed. As of Friday, 210 prospective jurors had been excused over four days. Individual questioning is set to begin next month.  In the marathon bombing case, 1,373 people filled out juror questionnaires. Individual questioning of prospective jurors has been slowed as the judge has probed people at length about their feelings on the death penalty. The judge had originally said he hoped to question 40 jurors each day, but during the first five days only averaged about 15.

Capital punishment supporters say the current system of screening out strong pro- and anti-death penalty jurors is the only fair way to choose juries in death penalty cases.  "The process simply says that jurors must be willing to abide by the law," said John McAdams, a Marquette University professor who supports the death penalty.

January 26, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, January 23, 2015

Seven years after Baze, Supreme Court takes up another lethal injection challenge

As reported in this new USA Today piece, taking up a "case that could have broad implications for hundreds of death row inmates, the Supreme Court will consider whether a drug protocol used in recent lethal injections violates the Constitution's prohibition on cruel and unusual punishment."  Here is more:

The justices agreed Friday to consider a case originally brought by four death-row inmates in Oklahoma -- one of whom was put to death last week, after the court refused to block his execution with a combination of three drugs that has caused some prisoners to writhe in pain.

Because the court's four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court. Only four votes are needed from the nine-member court to accept a case. It will likely be heard in April, though it could be held over until the next term begins in October.

Lawyers for Charles Warner and three other convicts set for execution in Oklahoma over the next six weeks sought the Supreme Court's intervention after two lower federal courts refused their pleas. While the court's conservatives refused to stop Warner's execution, the request for a full court hearing had been held for further consideration.

The lawyers claim that the sedative midazolam, the first drug used in the three-drug protocol, is not approved by the Food and Drug Administration as a general anesthetic and is being used in state executions virtually on an experimental basis. They say inmates may not be rendered unconscious and could suffer painfully as the other drugs in the protocol are administered.... "States now experiment with various drug formulations that have resulted in multiple malfunctioning executions — indeed, spectacles — over the past year," the challengers' brief says....

The court's four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- voiced deep concern about the three-drug protocol in their eight-page dissent last week. They also dissented last September when the court rejected a stay application from a Missouri inmate executed with the same drug.

I presume this cert grant will halt all scheduled executions in Oklahoma until the Supreme Court rules.  Left unclear, however, is whether other states will be able to move forward with executions while this case is pending.  This DPIC page with scheduled executions suggest that at least a half-dozen states have more than a dozen serious execution dates scheduled before the Supreme Court is likely to resolve this new case from Oklahoma.

I am sure that these states will try to move forward with executions, especially if their protocols are dissimilar to what Oklahoma does in executions. But I am also sure that death row defendants and their lawyers will urge states to postpone all execution until the Supreme Court rules in this new case (as happened when the Supreme Court first took up this issue eight years ago in Baze v. Kentucky). In short, here we go again!

Recent related posts:

January 23, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Wednesday, January 21, 2015

Speculating about how new California Supreme Court will now handle capital cases

This new Los Angeles Times article, headlined "Brown appointees to Supreme Court renew hopes in death penalty cases," reviews reasons why some think that new California Justices might mean a new type of California capital justice. Here are excerpts from the piece:

In the long run, the new composition [of the California Supreme Court] could affect an array of cases, including medical malpractice and medical marijuana, but probably will be most felt in the criminal arena. The court, long dominated by former prosecutors, has affirmed about 90% of the death sentences it has reviewed. Criminal defendants rarely win.

"Brown certainly seems to have reshaped this court in a fairly dramatic way," said Jan Stiglitz, a co-founder of the California Innocence Project, which is representing a client in a case before the newly constituted court. Instead of appointing former prosecutors, Stiglitz said, "Brown has brought in not just people from the outside but people who don't have this background that sort of predisposes them to be cynical in criminal cases."

But little experience in criminal law also can be a handicap, critics said. Former prosecutors have "stared evil in the face and know what it looks like," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. None of the Brown appointees have had prior judicial experience. "The academic view of criminal law is what produces bad decisions," Scheidegger said.

[Mariano-Florentino] Cuellar, the court's only Latino, is a former Stanford law professor. [Leondra] Kruger, the only African American justice, has worked primarily in Washington, where she represented the federal government in cases before the U.S. Supreme Court. Justice Goodwin Liu, Brown's first appointee last term, was a law professor at UC Berkeley....

Legal analysts expect the Brown justices may form a new majority with Justice Kathryn Mickle Werdegar, a moderate to liberal Republican appointee.  Unlike the other Republican appointees, she was never a prosecutor.  She worked for the federal government on civil rights matters and as staff attorney on appellate courts.

January 21, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, January 20, 2015

Should we be concerned about the economic or human costs of Colorado's efforts to get Aurora killer James Holmes on death row?

The question in the title of this post is my first reaction to this lengthy Denver Post piece discussing what to expect now that jury selection is about to begin in the Colorado's high-profile capital trial of Aurora theater shooter James Holmes.  The piece is headlined "Aurora theater shooting trial could strain limits of jury service," and here are some excerpts:

After 50 days of testimony and deliberations, the jurors who decided the fate of Oklahoma City bomber Timothy McVeigh emerged haunted. "Have you ever seen 12 people cry?" one juror told reporters about deliberations for the 1997 verdict, handed down in a federal courtroom in Denver.  "I'm 24," another said, "But I don't feel 24 anymore."

Pummeled with horrific accounts of the attack, freighted with finding justice amid tragedy, the jurors had been pushed to near shattering. "I personally felt subject to the same sort of trauma that some of the victims and survivors went through," another said.

Now, imagine if that trial had lasted twice — even three times — as long.  The trial of Aurora movie theater gunman James Holmes, which starts Tuesday with jury selection, is expected to be so lengthy and arduous that it could strain the very process of justice it seeks to uphold.

Nine thousand potential jurors — one of the largest pools in American history — have been summoned for the case.  If picked, jurors will be ordered to serve for as long as five straight months, longer than any state criminal trial in memory in Colorado. They will weigh whether Holmes was sane in July 2012, when he killed 12 people inside the Century Aurora 16 movie theater and tried to kill 70 others, and, if they find he was, they will decide whether he should be executed.

For their service, they will be guaranteed a wage of only $50 a day, a rate that could plunge their income to near the federal poverty level.  Even harder, during what will likely be the most stressful time of their lives, they will be forbidden from talking to anyone about the experience — not their family or fellow jurors or counselors.  Until deliberations begin sometime late this year, the jurors will bear that stress in silence, despite a growing body of research that shows jury service on traumatic cases can lead to mental and physical illness and impact jurors' decision-making....

Since the 1930s, perpetrators of public mass shootings nationwide are more likely to die at the scene than to be captured, according to research by Minnesota Department of Corrections official Grant Duwe.  Of the 45 percent who were arrested, only a fraction ever faced a jury.  And even fewer of those were charged with killing in an attack as devastating to the community as Holmes is for the Aurora theater shooting.

William Bowers, a researcher for the Capital Jury Project at the State University of New York in Albany, likens the theater shooting trial to that currently taking place for one of the suspected Boston Marathon bombers.  "There's nothing really comparable to these cases in modern experience, in terms of duration of the trial and effect on the jury," Bowers said....

But, at its most extreme limits, jury service can become less of a duty and more of an ordeal, legal experts say.  Studies have shown that jurors in traumatic trials can suffer from insomnia, anxiety, anger and depression.  One study documented cases of jurors who broke out in hives, developed ulcers or increased their alcohol consumption while serving at trials. And after the trial is over, some jurors have said they experienced flashbacks....

In recognition of the strains of jury service, courts across the country increasingly offer counseling to jurors. Jon Sarche, a spokesman for the Colorado Judicial Branch, said counseling will be made available to jurors in the theater shooting case once the trial is over.  But — because judges routinely order jurors not to talk about the case with anyone, to protect the trial's integrity — counseling is almost never available to help jurors manage stress during the case.

While this piece effectively highlights some economic and human costs to be borne the jurors in this case, the question in the title of this post also suggests thinking about the economic and human costs sure to burden the lawyers and the court system throughout this case.  And, as the question in the title of this post is meant to highlight, these costs are all endured in service now only to having Holmes sentenced to death; inevitable appeals and other factors will likely mean Holmes is unlikely ever actually to be executed by Colorado for his crimes.

I suspect these kinds of costs and uncertainties explain (and clearly justify?) why the feds were willing to cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter).  But Colorado prosecutors in this case appear quite committed to enduring all these costs in service to trying to get James Holmes sentenced to death. 

Recent and older related posts (with lots of comments):

January 20, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, January 16, 2015

LawProf and federal judge propose special evidence rules for penalty phase of capital cases

This new article available via SSRN, titled "The Proposed Capital Penalty Phase Rules of Evidence," reflects a notable capital punishment reform proposal put together by Professor David McCord and District Judge Mark W. Bennett. Here is the abstract:

No person or organization has ever proposed model rules of evidence for the unique penalty phase of a death penalty trial.  Now a law professor skilled in the scholarship of both death penalty jurisprudence and evidence, and a federal judge with extensive federal death penalty experience, do just that.

This work transcends the hodge-podge of evidentiary approaches taken by the various state jurisdictions and federal law.  The result is the Proposed CAPITAL PENALTY PHASE RULES OF EVIDENCE — clear and uniform rules to govern the wide-ranging evidentiary issues that arise in the penalty phase of capital trials.  Death penalty trials, long criticized for the arbitrariness of their results, will greatly benefit from these Rules.

January 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Thursday, January 15, 2015

Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)

As reported in this USA Today article, a "sharply divided Supreme Court refused Thursday to block the execution of an Oklahoma inmate over concerns about a drug protocol that has caused problems in the past."  Here is more:

The court's five conservative justices denied the request for a stay of execution without comment.  But the four liberal justices issued an eight-page dissent in which they questioned whether the drug protocol.

"The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution," Justice Sonia Sotomayor wrote. "Petitioners have committed horrific crimes and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions."

Warner's execution was to come within hours of another in Florida, where Johnny Shane Kormondy, 42, was awaiting death for killing a man during a 1993 home invasion. Both executions were to use the same combination of three drugs.

Lawyers for Warner and three other convicts set for execution in Oklahoma over the next seven weeks had sought the Supreme Court's intervention after two lower federal courts refused their pleas.

Justice Sotomayor's eight-page dissent, which was joined by Justices Ginsburg, Breyer and Kagan, is available at this link and it ends with these two paragraphs:

I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol.  It is true that we give deference to the district courts.  But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed.  We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain.  Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.

I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution.  Petitioners have committed horrific crimes, and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions.

Not long after this decision was handed down, Oklahoma finally was able to carry out the death sentence imposed on Charles Warner for him murder of his girlfriend's 11-month-old daughter way back in 1997.  This AP report suggests that this Oklahoma execution, as well as another one taking place at roughly the same time in Florida with the same combination of drugs, were completed "without incident."  Consequently, I hope Justice Sotomayor feels at least some relief that these two murderers, roughly two decades after they killed, apparently were seemingly not "subjected to an execution that causes searing, unnecessary pain before death."

UPDATE:  This CBS News story suggests that I may have been too quick to assume that the Oklahoma execution was without incident.  Here is what the CBS News story reports about what unfolding in Oklahoma:

The execution lasted 18 minutes.

"Before I give my final statement, I'll tell you they poked me five times. It hurt. It feels like acid," Warner said before the execution began. He added, "I'm not a monster. I didn't do everything they said I did."

After the first drug was administered, Warner said, "My body is on fire." But he showed no obvious signs of distress. Witnesses said they saw slight twitching in Warner's neck about three minutes after the lethal injection began. The twitching lasted about seven minutes until he stopped breathing.

January 15, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Oklahoma geared up to restart its machinery of death nine months after ugly execution

As reported in this Politico article, headlined "Oklahoma prepares to use controversial execution drug," a notable state is about to get back into the execution business. Here is how the article starts:

The state of Oklahoma plans to perform its first execution this week since a botched procedure last April, using a variation of the same three-drug cocktail that left an inmate writhing in pain for nearly 30 minutes before he died.

Thursday’s scheduled execution of Charles Warner, who is on death row for the rape and murder of an 11-month-old, is the first of four that was stayed following last year’s incident but that are now set to take place over the next two months.

Lawyers for all four inmates filed a last-ditch appeal with the Supreme Court on Wednesday but, if it is denied, Warner and the three others will be given different quantities of the same three-drug regimen, including the sedative that failed to induce unconsciousness and contributed to the visible agony of the man executed last April, Clayton Lockett.

That sedative, midazolam, is at the center of the appeal effort, as attorneys for Warner and the other three inmates argue that the drug does not sufficiently knock out the person receiving it.

January 15, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Tuesday, January 13, 2015

"Georgia executes Vietnam veteran who killed a sheriff's deputy"

The title of this post is the headline of this extended CNN report on the first execution in the United States in 2015.  Here are the details:

Andrew Brannan, a decorated Vietnam War veteran convicted of murdering a 22-year-old sheriff's deputy in 1998, was executed Tuesday, said Gwendolyn Hogan, spokeswoman for the Georgia Department of Corrections.  Earlier in the day, the Georgia Supreme Court joined the state's parole board in declining to stop the execution....

Hogan said the court ordered execution was carried out at 8:33 pm ET.  She said a final statement was given, expressing remorse to the family of the slain deputy.

The state's high court had also denied Brannan's request for an appeal on the basis that it is unconstitutional to execute a person with his medical conditions and combat history.... Attorneys for the 66-year-old Brannan had hoped his sentence would be found unconstitutional.

His defense attorneys claim Brannan, who served in Vietnam in the early 1970s, was suffering from post-traumatic stress and bipolar disorder at the time of the shooting and was off his medication. In a petition filed Monday with Butts County Superior Court, Brannan's attorneys requested his life be spared because "executing American combat veterans whose service-related mental impairments played a role in subsequent violent conduct violates the Eighth and Fourteenth Amendments to the United States Constitution and analogous provisions of the Georgia Constitution."...

The killing of Laurens County Deputy Kyle Dinkheller was captured on the deputy's dash camera just outside Dublin, Georgia.... Brannan is seen in the video confronting Dinkheller after being pulled over for driving almost 100 mph in his pickup.

Brannan appears to be confrontational from the start, acting irrational as the deputy tells him to keep his hands out of his pocket.  He then mocks the deputy and at one point seems to dance around yelling, "Shoot me," at Dinkheller.  Brannan then yells that he is a Vietnam veteran.  He lunges at the deputy before he runs back to his truck, grabs a rifle and begins to shoot.

The video goes on to show a heated gunbattle as both men hide behind their vehicles for cover.  Bullets appear to pierce the windshield of the deputy's car.  Brannan's car door window shatters above his head.  In the video, Dinkheller and Brannan are shot and wounded in the battle.  Brannan advances on the deputy, and off camera, you hear the deputy scream before Brannan repeatedly shoots him and then flees the scene.  Dinkheller died, leaving behind a wife and child....

During the trial, attorney Kammer says the defense presented evidence that Brannan suffered from PTSD but claims that crucial testimony from a Veterans Affairs doctor treating him was never heard. His sentence was appealed, and a judge ordered a new sentencing trial, but that was later overturned by the Georgia Supreme Court.

Dinkheller's father, Kirk Dinkheller, posted on his Facebook page this month that "January 12, 2015 it will be 17 years since my son Kyle was murdered in the line of duty and on January 13, 2015 his killer will finally be held accountable.  Nothing will ever bring my son back, but finally some justice for the one who took him from his children and his family."

Some related posts:

January 13, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (17) | TrackBack

Sunday, January 11, 2015

"An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington State"

The title of this post is the title of this lengthy new research study produced by a group of folks at Seattle University. Helpfully, this Seattle Times article, headlined "Seeking death penalty adds $1M to prosecution cost, study says," provides a summary of some of its findings:

Seattle University has released the results of a seven-month study into the costs of the death penalty in Washington state and has found a more than $1 million price break in cases where capital punishment is not sought....

Criminal-justice professor Peter Collins called the study one of the nation’s most “rigorous” examinations of the costs associated with the death penalty. Collins said he wasn’t surprised by the price difference. “I don’t know who coined this term, but this is social science supporting common sense,” he said on Tuesday. “I wasn’t surprised because there was so much anecdotal and other evidence that we’re spending money on these cases.”

In the study, Collins and three other professors reviewed 147 aggravated first-degree murder cases filed in Washington state since 1997, according to the study. They found the average cost of a death-penalty prosecution and conviction is just over $3 million. Not seeking a death-penalty prosecution and sending a person to prison for life costs the state roughly $2 million.

“What this provides is evidence of the costs of death-penalty cases, empirical evidence,” Collins said. “We went into it [the study] wanting to remain objective. This is purely about the economics; whether or not it’s worth the investment is up to the public, the voters of Washington and the people we elected.”

The study was funded by a grant from the American Civil Liberties Union of Washington Foundation. Seattle University School of Law professor Bob Boruchowitz, the former head of one of King County’s top public-defense agencies, said that “as far as I know this is the only study of its kind in the country that combines the perspective of social scientists with capital [death penalty] qualified lawyers.”...

The study’s authors point to a rise in costs in death-penalty cases. Starting this month, two of three defendants charged in King County with aggravated murder will have their death-penalty trials begin. The prosecution and defense costs in the three cases have cost King County more than $15 million, according to figures supplied by county officials....

The future of the death penalty in Washington remains unclear. Last February, Gov. Jay Inslee issued a moratorium on the death penalty while he is in office.

January 11, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (4) | TrackBack

Saturday, January 10, 2015

Should honoring vets and PTSD call for commuting a death sentence?

The question in the title of this post is prompted by this Reuters story headlined "Vietnam veteran in Georgia pleads to be spared the death penalty." Here are excerpts:

Lawyers for a decorated Vietnam War veteran due to be executed in Georgia next week say his life should be spared because he was suffering from a combat-related mental disorder when he killed a sheriff’s deputy in 1998.

Andrew Brannan's guilt is not disputed. He shot Laurens County Deputy Sheriff Kyle Dinkheller, 22, nine times during a traffic stop, a scene caught on tape by the deputy's patrol car camera.

Defense attorneys argue Brannan, 66, should not be put to death for behavior they say is linked to post-traumatic stress disorder triggered by his combat service. On Monday, they will ask the state Board of Pardons and Paroles to commute Brannan's sentence to life in prison without parole. “Commuting his sentence would honor his very meritorious service to this country,” said Brian Kammer, one of Brannan’s lawyers. “We should not be executing those we sent into harm’s way and who were deeply wounded, physically and mentally.”...

Brannan received Army commendations and a Bronze Star for his service as an officer, Kammer said. He was on full Army disability for PTSD and had been diagnosed with bipolar disorder before killing Dinkheller, the lawyer said.

Brannan, who had no prior criminal record, was driving 98 miles per hour on a Georgia highway when Dinkheller pulled him over in January 1998, according to court records. The video recording showed Brannan stepping out of his truck, cursing and telling the deputy to shoot him....

Brannan pleaded not guilty by reason of insanity at his trial. Some experts testified that during the shooting he suffered a flashback from combat, but a court-appointed psychiatrist said Brannan was sane and may have killed the deputy because he believed the officer was being disrespectful.

Brannan's execution is scheduled for Tuesday. He would be the first person put the death in the United States this year.

I am inclined to assert that this offender's decorated service on behalf of our nation as well as his undisputed mental problems indisputably means that Brannan is not one of the "worst of the worst" killers. For that reason, I would be inclined to support this defendant's commutation request.

Do others agree?

Some older related posts:

January 10, 2015 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (21) | TrackBack

Thursday, January 08, 2015

Ohio to delay scheduled executions early in 2015 after adopting another new execution protocol

This Columbus Dispatch article, headlined "State revises death penalty protocol, will delay executions," provides the latest news in the ever-dynamic Ohio execution story. Here are the details:

Ohio will switch its lethal injection protocol, adding thiopental sodium, a drug used previously, and dropping the two-drug regimen of midazolam and hydromorphone that caused problems in the last execution a year ago.

The Ohio Department of Rehabilitation and Correction said today until it secures supplies of pentobarbital, a drug already permitted, or thiopental sodium, the Feb. 11 execution of Ronald Phillips, and possibly others, will be postponed. The state used thiopental sodium from 1999 until 2011.

Gov. John Kasich will likely have to postpone the executions of Phillips, 41, of Summit County, and Raymond Tibbetts, 57, of Hamilton County, scheduled for March 12. The execution of Gregory Lott, 53, of Cuyahoga County, is scheduled May 14.

The first two executions would take place before House Bill 663, a new lethal injection law passed by the legislature and signed by the governor, takes effect in late March. The law allows the state to buy drugs from small compounding pharmacies, which mix batches of drugs to customer specifications. It also permits the state to keep secret the identities of drug suppliers because of security concerns....

The state had to file legal paperwork detailing the new drug protocol with U.S. District Judge Gregory Frost 30 days in advance of the next scheduled execution on Feb. 11. Frost has presided over most of the recent contested lethal injection cases filed on behalf of Ohio Death Row prisoners.

The change means that Dennis McGuire 53, will be the one and only person in Ohio to be put to death using the combination of midazolam and hyrdomorphone. During his Jan. 16, 2014, execution, McGuire choked, coughed, gasped and clenched his fists for about 20 minutes prior to succumbing to the drug mixture. His son and daughter, who watched their father’s troubled execution, subsequently sued the state, alleging his death was cruel and unusual punishment, a violation of the U.S. Constitution....

The controversy over McGuire’s executions resulted in the postponement of all remaining executions in Ohio last year. It will be the fifth time in 2 1/2 years that Phillips has had a new execution date. Dates in September and July last year, and November 2013 were delayed either by Kasich’s clemency actions or reprieves from Frost. Phillips was given a reprieve by Kasich to explore his desire to have transplant surgery to provide a kidney to his ailing mother, but the surgery never took place....

In addition, a lawsuit was filed late last year on behalf of Phillips, Tibbetts and two other inmates challenging the secrecy shrouding the revised execution process. Frost will also hear that lawsuit which claims that state officials, through the new law, are trying to stifle public debate about capital punishment by “seeking to punish, disarm, suppress and silence” opposition.

January 8, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, January 05, 2015

Gearing up (finally) for start of capital trial of Boston Marathon bomber

TsarnaevsketchNearly two years after the vile (alleged?) crimes and challenging capture of Dzhokhar Tsarnaev, a very high-profile federal capital trial gets started today.  This lengthy Boston Globe story, headlined "Marathon bombing trial to start today with jury selection: Long 1st phase for Marathon bombing trial; testimony may begin next month," provides a helpful preview. Here are excerpts:

Starting Monday, the judge, prosecutors, and defense lawyers will start whittling down a list of more than 1,200 names, aiming to find 12 jurors and six alternates capable of deciding whether Dzhokhar Tsarnaev, 21, is guilty, and if so, whether he should be put to death.

The trial, which is attracting international attention, is expected to move especially slowly and with more than the usual care because a life is at stake; testimony probably will not begin until February, and a verdict may take until late spring or early summer....

For the jury to determine Tsarnaev’s sentence, the panel must be unanimous in its decision. If it is not, the judge would be required to step in and sentence him to life in prison. No declaration of mistrial would be allowed, lawyers who specialize in the death penalty said.

The potential jurors summoned by US District Judge George A. O’Toole Jr. over the next three days will start by filling out surveys to help determine whether they are qualified to serve on a death penalty jury. They will be intensely screened for impartiality, and the ability — and willingness — to sentence Tsarnaev to death, if the verdict warrants it.... The judge will also have to find jurors who, while willing to hand out the death penalty, also feel capable of opposing it if they find the crimes do not warrant death.

The Massachusetts courts last struck down the state’s death penalty in the early 1980s, and the last execution to take place in the state was in 1947. But Tsarnaev has been charged in the federal court system, which allows for capital punishment for about 50 crimes, including the detonation of weapons of mass destruction resulting in death, one of the crimes Tsarnaev faces.

Tsarnaev faces 30 charges — 17 of which carry the possibility of the death penalty — in the bombings at the Marathon finish line the afternoon of April 15, 2013, that killed three people and injured more than 260 others. Tsarnaev and his older brother Tamerlan also allegedly shot and killed an MIT police officer in Cambridge days after the bombings, a crime for which Tsarnaev is also charged.

Prosecutors are seeking the death penalty for Tsarnaev in part based on the vulnerability of his targets, and his “heinous, cruel, and depraved manner of committing the offense,” according to court filings.

Tsarnaev’s defense team has argued that it has not had enough time to prepare for the trial, and that finding impartial jurors in the same city where the bombs went off will remain impossible — an argument that has been echoed by legal analysts.

But O’Toole has ruled that the defense team has failed to show that he cannot impanel a fair jury in Boston, and he has said the defense team has had enough time to prepare. A federal appeals court in Boston on Saturday refused a last-minute defense request to intervene.

Since his arrest, Tsarnaev has been held at the federal prison at Fort Devens in Ayer, under special conditions that restrict his communications. Five lawyers are assigned to his case. The prosecution team also includes five lawyers, with assistance from the federal Department of Justice.

The jury selection process could take at least a month. O’Toole and the lawyers from both sides will begin by reviewing the jurors’ initial surveys to determine which of them should immediately be excluded: for example, if they have a personal connection to the case, or a hardship that would prevent them from serving, such as a young child or ill relative who needs care.

The trial will be split into two phases. If jurors find Tsarnaev guilty of the bombings, they would have to determine his fate in a second, full-fledged trial, with evidence and witness statements. In that trial, however, the rules of evidence are far more relaxed, giving prosecutors and defense more leeway in painting a picture of Tsarnaev.

Prosecutors will want to show that he was a determined, indiscriminate killer. Defense lawyers will seek to portray Tsarnaev as an impressionable teenager who was influenced by a dominant older brother who had grown extreme in his Muslim views, according to court records.

Some prior related posts:

January 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, December 31, 2014

Outgoing Maryland Gov commutes final four state death sentences to life

As reported in this CNN article, "Outgoing Maryland Gov. Martin O'Malley took the state's last four inmates off death row Wednesday, commuting their sentences to life in prison without parole in one of his final acts in office."  Here is more:

The move comes as the Democrat considers a run for president — a long-shot bid that many Democrats only expect to gain steam if Hillary Clinton opts not to run.

O'Malley's office announced the move in a release Wednesday morning, noting that the state's legislature had abolished the death penalty with a law that took effect in May 2013 and that the state's courts and attorney general have questioned whether the state has legal authority to carry out death sentences that were already imposed.

"In the final analysis, there is one truth that stands between and before all of us," O'Malley said in a statement.  "That truth is this — few of us would ever wish for our children or grandchildren to kill another human being or to take part in the killing of another human being. The legislature has expressed this truth by abolishing the death penalty in Maryland."

The four inmates whose sentences were commuted are Vernon Lee Evans Jr. and Anthony Grandison Sr., who were convicted of the 1983 contract killing of two witnesses scheduled to testify in a federal drug trial; Heath William Burch, convicted of killing an elderly neighbor couple in 1995; and Jody Lee Miles, convicted of robbing and shooting a theater manager in 1997.

O'Malley said in the statement that he'd met with the families of the victims of the four convicted killers whose sentences he commuted, and said they would suffer through "the additional torment of an un-ending legal process."

"In my judgment, leaving these death sentences in place does not serve the public good of the people of Maryland — present or future," O'Malley said.

Prior relates posts:

December 31, 2014 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

"Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations"

The title of this post is the title of this notable new article discussing notable new capital jury deliberation research authored by Mona Lynch and Craig Haney and available via SSRN. Here is the abstract:

This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes.  The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making.

The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others.  The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.

December 31, 2014 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, December 29, 2014

Split Ninth Circuit panel reverses Arizona death sentence over sharp dissent

The Ninth Circuit today issued a notable reversal of an Arizona death sentence by finding that the defendant's attorney was ineffective at sentencing even though the Arizona courts found to the contrary. The ruling in Mann v. Ryan, 09-99017 (9th Cir. Dec. 29, 2014) (available here), produced a notable dissent by Judge Kozinski starting this way:

Once more unto the breach.  Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.”  Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal quotation marks omitted).  In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review.  The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

If we are not summarily reversed, Mann’s death sentence will surely be reimposed by the state court.  One way or the other, Mann will be executed, if he doesn’t die of old age first.  But only after he — and the families of the two people he killed 25 years ago — endure what may be decades of further uncertainty.  Where’s the justice in that?  I respectfully dissent from Part III of the majority’s opinion.

December 29, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Sunday, December 28, 2014

Have messy executions in 2014 moved the death penalty debate in any way?

The question in the title of this post is prompted by this new AP article headlined "Death penalty backers stand firm despite botched executions." Here are excerpts:

Oklahoma’s last execution went so badly that the state tried to cancel it before the end came. With the inmate writhing while the lethal drugs seeped into his body, his executioners drew the viewing gallery curtains, concealing what the warden later described as "a bloody mess."

The botched execution of Clayton Lockett in April and other troubling ones this year in Ohio and Arizona gave capital punishment opponents a flicker of hope that areas of the country most enthusiastically supportive of the death penalty might have a change of heart. They did not.

Although Governor Mary Fallin suspended executions so that Lockett’s death and Oklahoma’s methods could be reviewed, the state held a ceremony for its overhauled death chamber only months later and is scheduled to resume executions in mid-January.

And rather than causing states to question whether capital punishment is just or worth the risk of subjecting someone to a potentially agonizing death, the prolonged executions and problems states have had securing lethal injection drugs have led them to explore new, old, and more efficient ways of killing, including gas.

"I think we had a little flash of hope that it would help our cause, but all it did was generate a lot of conversation about it," said Lydia Polley, a member of the Oklahoma Coalition to Abolish the Death Penalty. "It just led to people thinking of better ways to kill them."...

Lockett’s execution did little to dampen support for the death penalty in Oklahoma, which has executed more inmates than any other state except Texas since the 1976 reinstatement of the death penalty. In October, officials gave media tours of the renovated execution unit at the Oklahoma State Penitentiary, which got a $104,000 overhaul after Lockett’s death and now stands in sharp contrast to the rest of the shabby, 106-year-old facility.

Not content with just the upgrades to the prison and lethal injection equipment, Oklahoma’s Republican-led House conducted a study on the use of nitrogen gas for executions and is expected to consider legislation early next year that would make Oklahoma the first state to adopt hypoxia by gas — the forced deprivation of oxygen — as a legal execution method.

Other conservative states are exploring alternatives to lethal injection because of the problems securing the drugs.... Tennessee passed a law to reinstate the electric chair if it cannot get lethal injection drugs and Utah is considering bringing back the firing squad....

Ralph Shortey, a Republican state senator from Oklahoma City who is pushing for Oklahoma to adopt alternative execution methods to lethal injection, estimates that 90 percent of his constituents strongly support the death penalty, despite what happened to Lockett. "The average Oklahoman is saying he got exactly what he deserves," Shortey said. "A lot of people think they should suffer even more than they do. They think the lethal injection is too easy for them."

December 28, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (11) | TrackBack

Friday, December 26, 2014

Pennsylvania chief justice blames federal public defenders for death penalty problems

I highlighted a few weeks ago in this post the first article in a local series about the high costs and low productivity of the Pennsylvania death penalty system. Thanks to a helpful reader, I just now noticed this interesting final piece in the series headlined "State's chief justice cites 'meddling, intrusion' in death penalty cases." Here are excerpts:

The state's top judge, speaking after a Reading Eagle series examined the dysfunctional Pennsylvania death penalty system, blamed its failings largely on what he described as unethical intrusions and meddling by a group of federally funded attorneys.

Chief Justice Ronald D. Castille of the Pennsylvania Supreme Court made the comments in a telephone interview Thursday, the day after the newspaper's four-day series "When Death Means Life" ended. Also that day, state Sen. Daylin Leach, in a separate interview, said he believed the state was not getting its money's worth out of the death penalty and that there was momentum to abolish it.

The series delved into a system in which 429 death warrants have been signed since 1985 but only three people have been executed. Others who have extensive dealings with the system and read the newspaper stories spoke of the death penalty's expense and necessity, and of the need for caution in modifying its appeals process. The newspaper's research produced an estimate that the death penalty in Pennsylvania has cost more than $350 million, gave a glimpse of life on death row and detailed two death penalty cases....

[T]he Federal Community Defender Office [is] the group Castille singled out for criticism. The chief justice said the ... the organization prolongs death penalty proceedings, using unethical delaying tactics and summoning many experts.  

Beyond that, he said, the FCDO's mission is supposed to be federal in nature. Funded by $17 million a year in federal taxpayer funds, the federal office has injected itself into many Pennsylvania-jurisdiction death row cases, creating more costs for state taxpayers, Castille said. "Tremendous extra costs," Castille said....

Paid for by state taxes, the death penalty is essentially a government program, said Leach, a Montgomery County Democrat who plans to reintroduce a bill next legislative session to abolish capital punishment.  "Is this program getting us our money's worth? There's no way you can look at the death penalty and say that it is," Leach said.  "The death penalty is far more expensive than life in prison."...

Richard Long, executive director of the Harrisburg-based Pennsylvania District Attorneys Association, said he didn't think anyone disputed the fact that the system was expensive. "We have to be careful that we don't compromise public safety and doing the right thing strictly because of dollars and cents."...

Gov.-elect Tom Wolf said that when he takes office in January, he'll place a moratorium on executions until concerns about the state's death penalty system, voiced by the state Supreme Court and the American Bar Association, are properly addressed.

Three years ago Pennsylvania lawmakers ordered a government-run study of the state's death penalty system, and though that study was created with a two-year deadline, it's still not done.  Wolf said that once it's complete, he'll use the findings to help guide his actions regarding the death penalty....

Castille said it was up to the Legislature, not the courts, to change the system. But, he said,  "The only way you will be able to change the system is to get the Federal Community Defender Office out of the system."  Castille is nearing the end of his tenure as chief justice.  Having reached the high court's mandatory retirement age of 70, Castille will retire at the end of the month.

I am inclined to assert that Chief Justice Castille's criticisms of the public defenders amounts to "shooting the messenger." But given that Pennsylvania cannot find its way to carrying out any death sentences, I suppose I should just say that Chief Justice Castille is blaming the messenger.

December 26, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, December 25, 2014

Ohio officials (and taxpayers) get a lethal injection lawsuit for the holidays

On the last day of Hanukkah which happened also to be Christmas Eve, a group of lawyers for a quartet of Ohio condemned prisoners gave the state a very predictable present: a lawsuit challenging Ohio's new lethal injection law.  This local story, headlined "Death-row inmates challenge new execution-secrecy rules," provides the details (and this link to the suit):

Four death-row inmates are challenging the constitutionality of Ohio's new execution secrecy rules, their attorney announced Wednesday morning.  In a lawsuit filed in U.S. District Court in Columbus, the inmates claim the new law, which shields the identities of most participants in Ohio's execution process, violates their rights to free speech and due process.

Proponents of the rules, signed into law by Gov. John Kasich last week, say they are needed to protect individuals involved with Ohio executions from harassment and potential harm.

The lawsuit was filed Tuesday afternoon on behalf of death-row inmates Ronald Phillips, Raymond Tibbetts, Robert Van Hook and Grady Brinkley.  The first three are scheduled to be executed next year; Brinkley's execution date has not yet been set.

Under the new law, House Bill 663, Ohio must keep secret the names of people involved with executions, other than top officials.  The law also protects the identity of small-scale drug manufacturers called compounding pharmacies if they make lethal-injection drugs for the state.  The inmates' lawsuit claims these measures violate the First Amendment because they were passed to silence death-penalty critics and "foreclose all effective advocacy" against executions in Ohio.

The lawsuit also challenges other parts of the law that require courts to seal such information from the public and prevents the state's medical board from disciplining physicians who testify about Ohio's execution method.  "These laws violate some of the most basic principles upon which our democracy was founded," said Timothy Sweeney, the inmates' attorney, in a statement.  "Everyone should be deeply troubled by this bold piece of legislation which has been passed to artificially reduce public criticism of government actions in one of the most important areas in which it acts: the taking of a human life."

The defendants in the lawsuit are Kasich, Attorney General Mike DeWine, state prisons director Gary Mohr and Donald Morgan, warden of Southern Ohio Correctional Facility, where Ohio's executions are carried out.  DeWine spokeswoman Lisa Hackley said Wednesday that the attorney general's office is reviewing the lawsuit.  Spokesmen for the governor's office and the state's prisons agency declined comment.

HB 663 is an attempt to overcome problems that Ohio — like many other states — has had obtaining lethal-injection drugs in recent years. Ohio ran out of its preferred lethal-injection drug, pentobarbital, last year because European pharmaceutical companies refused to continue selling it for use in executions....

Supporters of HB 663 say that the state could turn to compounding pharmacies to make pentobarbital, but the companies are reluctant to make lethal-injection drugs unless they can remain anonymous, for fear of public reprisal.  DeWine and other proponents of the legislation have said the changes are needed if Ohio is to resume executions next February, once a court-ordered moratorium ends.

As long-time readers know, Ohio's execution problems, plans and procedures have been subject to extensive litigation over the last half-decade. Time will tell if this latest litigation will extend another half-decade. As the title of this post indicates, Ohio (and federal) taxpayers get the bill for all this litigation, and I cannot help but wonder how much Ohio costs its taxpayers by trying took keep its death penalty system alive and killing.

December 25, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Tuesday, December 23, 2014

Are Arizona and Oklahoma likely to have their machineries of death operational early in 2015?

I blogged here a few days ago about steps taken by the Ohio legislations to get its lethal injection drugs and protocols shored up so the state can get back in the business of executing condemned murderers in 2015.  Now I see from this New York Times report that Arizona and Oklahoma, two others states that had messy execution in 2014, now also appear poised to get their death chambers revved up again in the coming new year.  Here are the basic details why:

A federal judge in Oklahoma City on Monday said that the state can resume executing prisoners this winter, rejecting the argument by some medical experts that using the same sedative involved in the bungled execution of Clayton D. Lockett in April amounted to an illegal experiment on human subjects.

Judge Stephen P. Friot of Federal District Court, ruling against condemned prisoners who sought to delay new executions, said that lethal injection was more humane than historical methods like hanging, and that since the sedative in question, midazolam, had been successfully used in a dozen executions elsewhere, it should not be considered new or experimental.

“Federal courts should not sit as a board of inquiry as to best practices,” Judge Friot said, adding, “The plaintiffs have failed to present a known and available alternative.” An occasional isolated episode does not constitute cruel and unusual punishment, he said.

Also Monday, in a separate ruling on another prolonged execution by lethal injection, a report commissioned by corrections officials in Arizona said the killing of Joseph Wood in July had been conducted properly. Mr. Wood appeared to gasp for nearly two hours before dying, but the report concluded that he was unconscious during that time and did not feel pain.

The unusually protracted and, in the view of many witnesses, agonizing executions in the two states led to new questions about the reliability of lethal injection and whether it can be performed humanely. These states and others have also been forced to try new drugs and combinations as manufacturers have refused to supply the barbiturates traditionally used in lethal injections.

Dale A. Baich, a lawyer for the Oklahoma prisoners, said they would appeal Judge Friot’s decision. “We are still concerned about Oklahoma’s ability to carry out executions humanely using midazolam,” Mr. Baich said....

The Arizona report, by consultants hired by the State Department of Corrections, cited the Pima County medical examiner’s statement that Mr. Wood’s “gasps, snorting and body reflexes are the normal bodily responses to dying, even in someone highly sedated.” Arizona used midazolam in a different combination from Oklahoma, pairing it with the opiate hydromorphone. Medical experts cited in the report said they could not determine why it took so long for Mr. Wood to die.

Still, Arizona’s director of corrections, Charles L. Ryan, said Monday that the state would abandon that two-drug protocol. The state will continue to search for supplies of the barbiturates of choice, pentobarbital or sodium thiopental, Mr. Ryan said. But if they remain unavailable, Arizona will use midazolam in the same three-drug regimen planned in Oklahoma, with the sedative followed by a paralyzing agent and a caustic heart-stopping drug.

Oklahoma has had a moratorium on executions since April 29, when the lethal injection of Mr. Lockett went awry. Now, saying that improved procedures are in place and that they will boost the dosage of midazolam, they plan to execute four men in three months, starting with Charles F. Warner on Jan. 15.

December 23, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Sunday, December 21, 2014

With new drug secrecy law, just when is Ohio really likely to get its machinery of death operational?

The question in the title of this post is prompted by this Columbus Dispatch account of the new Ohio law enacted last week to foster procurement of needed execution drugs by state authorities.  The article is headlined "New law will keep lethal-injection drug supplier secret," and here are the details prompting my question:

A new Ohio law signed yesterday by Gov. John Kasich will shield from public disclosure the supplier of drugs used in future lethal injections effective on March 20. However, two executions are scheduled before that date: Ronald Phillips of Summit County on Feb. 11, and Raymond Tibbetts of Hamilton County on March 12.

There was no immediate word from Kasich, Attorney General Mike DeWine or the Ohio Department of Rehabilitation and Correction about how the Phillips and Tibbetts executions will be handled, or if they will be postponed. There are four additional executions scheduled for later next year.

A spokeswoman for Ohio Public Defender Tim Young said new drugs can’t be purchased until House Bill 663 takes effect. “Our assumption is if they go forward with those executions, they will have to do it under existing law,” Amy Borror said.

Existing law does not permit buying drugs from undisclosed sources. The two drugs used in the last Ohio execution on Jan. 16, appeared to cause Dennis McGuire to gasp, choke and struggle against his restraints for about 20 minutes before he died.

The lethal-injection measure ... will allow prison officials to buy drugs from some of the 61 compounding pharmacies in the state. Typically smaller, independent businesses, compounders mix drugs for specific customer needs. They can ask the state not to identify them as the provider of lethal drugs for 20 years. The law also will keep confidential forever the identities of execution-team members and physicians involved in the process, even in an advisory capacity.

Another provision of the law requires an overall review to be done of the state’s lethal-injection process.

As reported in this prior post, a federal district judge back in August extended his injunction precluding executions in Ohio through January 15, 2015. I expect that state officials will seek to formulate a new execution plan in light of this new law, and that defense attorneys will seek to preclude executions from starting again until such a new plan is fully formulated and fully examined through litigation.

In light of all these realities, I am inclined now to tentatively predict that we likely will not have another execution in Ohio until well into 2015. At the same time, if and when Ohio gets its machinery of death operational in 2015, it seems quite possible that the state will try to move forward with a new execution every six weeks.

December 21, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, December 19, 2014

"Six Reasons the Death Penalty is Becoming More Expensive"

The title of this post is the headline of this effective piece from The Marshall Project whihc served as something of a companion piece to its effective coverage (noted here) of how localities struggle with the economic realities of pursuing capital cases.  Here are excerpts:

We know the basic reasons why death penalty cases are expensive: more lawyers, more experts, more time. Prosecutors and defense attorneys often spend more than a year preparing for death penalty trials. Every successful conviction is appealed to several state and federal courts, meaning the government pays for both prosecutors and defenders to pick over the trial transcript and for judges and clerks to spend hours reading appeals. While this is going on, it costs more to house prisoners on death row than in the general population....

But the death penalty is also growing more expensive with each passing year. A 2010 report prepared for the Judicial Conference of the United States found that between 1989 and 1997 the median cost of a federal death penalty case that went to trial was $269,139; between 1998 and 2004 it had grown to $620,932.

Nobody has methodically studied how costs have been growing in state death penalty cases, but in interviews with more than 30 prosecutors, defense attorneys and other experts the consensus was that costs are going up fast. Here are the main reasons they cited:

1. Attorney Pay...

2. Experts...

3. Unpredictability...

4. Mitigation...

5. Juries...

6. Housing...

A few recent and older related posts:

December 19, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Thursday, December 18, 2014

DPIC year-end report highlights "death penalty decline continues in 2014"

As detailed in this press release, the Death Penalty Information Center today released its high-profile annual report.  The full report is available at this link, and here are highlights drawn from the press release: 

With 35 executions this year, 2014 marks the fewest people put to death since 1994, according to a report released today by the Death Penalty Information Center (DPIC). The 72 new death sentences in 2014 is the lowest number in the modern era of the death penalty, dating back to 1974. Executions and sentences have steadily decreased, as Americans have grown more skeptical of capital punishment. The states’ problems with lethal injections also contributed to the drop in executions this year.

Executions decreased 10% compared to 2013 — from 39 last year to 35 this year — continuing an overall decline since 1999, when there were 98 executions. The number of states carrying out executions — seven — was the lowest in 25 years. Just three states – Texas, Missouri, and Florida — accounted for 80% of the executions. For the first time in 17 years, Texas did not lead the country in executions, being tied with Missouri at 10.

Death sentences — a more current barometer than executions — have declined by 77% since 1996, when there were 315. There were 79 death sentences last year. This is the fourth year in a row that there have been fewer than 100 death sentences....

Seven people who had been on death row were exonerated in 2014, the most since 2009. Three men in Ohio were cleared of all charges 39 years after their convictions, the longest time of any death row exonerees. Two others in North Carolina were freed after 30 years in confinement. Since 1973, 150 people have been exonerated and freed from death row.

Individual state developments illustrate the growing isolation of death penalty use:

  • The number of executions has declined in 11 of the past 15 years. In 1999, 20 states carried out executions; in 2014, only 7 states did so.

  • For the seventh year in a row, Texas had fewer than a dozen death sentences, a sharp decline from 1999, when it had 48.

  • California (14) and Florida (11) provided 35% of the death sentences in the country.

  • Washington Governor Jay Inslee announced that no executions would take place while he is governor, joining the governors of Oregon and Colorado in halting executions.

  • In California, a federal judge declared the state’s death penalty unconstitutional.

December 18, 2014 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, December 17, 2014

Detailed examination of how local costs may slowly kill the death penalty

The Marshall Project has this effective new piece on the modern realities of administering capital punishment. The piece is headlined "The Slow Death of the Death Penalty: The public supports it, but the costs are lethal." Here are excerpts from a lengthy piece that merits a full read:

While many prosecutors are still reluctant to admit that finances play a role in their decisions about the death penalty, some of them – especially in small, rural counties – have been increasingly frank in wondering whether capital punishment is worth the price to their communities. “You have to be very responsible in selecting where you want to spend your money,” said Stephen Taylor, a prosecutor in Liberty County, Texas. “You never know how long a case is going to take.”

Some prosecutors are far more blunt, and even hyperbolic, as they lament the state of affairs. “I know now that if I file a capital murder case and don't seek the death penalty, the expense is much less,” said James Farren, the District Attorney of Randall County in the Texas panhandle. “While I know that justice is not for sale, if I bankrupt the county, and we simply don't have any money, and the next day someone goes into a daycare and guns down five kids, what do I say? Sorry?”

Since capital punishment was reinstated by the Supreme Court in 1976, the cost of carrying out a death penalty trial has risen steadily. Increasing legal protections for defendants have translated into more and more hours of preparatory work by both sides. Fees for court-appointed attorneys and expert witnesses have climbed. Where once psychiatrists considered an IQ test and a quick interview sufficient to establish the mental state of a defendant, now it is routine to obtain an entire mental health history. Lab tests have become more numerous and elaborate. Defense teams now routinely employ mitigation experts, who comb through a defendant’s life history for evidence that might sway a jury towards leniency at the sentencing phase. Capital defendants are automatically entitled to appeals, which often last for years. Throughout those years, the defendant lives on death row, which tends to cost more due to heightened security.

In states such as Texas, Arizona, and Washington, where county governments pay for both the prosecution and defense of capital defendants (nearly all of whom are indigent) when they go to trial, the pressure on local budgets is especially strong. To ease the fiscal burden, some states have formed agencies to handle the defense or prosecution of capital cases. Other states reimburse counties for the expenses of a trial.

But even with that help, county officials around the country have sometimes had to raise taxes and cut spending to pay for death penalty trials. District attorneys have taken note. Many remain reluctant to acknowledge how fiscal concerns affect their decisions — they don’t want to appear to be cheapening the lives of murder victims. But a few are surprisingly candid. Their statements suggest that money is more than ever part of the explanation for the steep decline in death-penalty cases over the past decade. That is particularly the case in Texas, where there are few political obstacles to carrying out executions.

In the six states that have abolished capital punishment over the past decade, Republican and Democratic officials have also emphasized the cost of the death penalty as a major rationale. Even in states that retain the punishment, cost has played a central role in the conversion narratives of conservative lawmakers, public officials, and others who question the death penalty as a waste of taxpayer dollars.

The rising cost of capital trials disproportionately affects counties with small populations. While the number of death sentences in the United States has been dropping steadily since a peak in the mid-1990s, an overwhelming number of the cases still being filed come from urban counties. There, the tax bases are larger, and the impact of an expensive trial may be more easily absorbed. (Harris County, where Houston is located, has been responsible for more executions than Georgia and Alabama combined.) Texas counties with fewer than 300,000 residents sought the death penalty on average 15 times per year from 1992 to 1996. Between 2002 and 2005, the average was four.

Prosecutors don’t cite statistics when discussing the costs of the death penalty; they tell stories. In Texas, they point to Jasper County, near the Louisiana border, where in June 1998 three white supremacists killed a black man, James Byrd Jr., by chaining his ankles to the back of their pickup truck and dragging his body for more than three miles. The murder made international headlines and led to new state and federal hate crime legislation.

December 17, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack