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October 19, 2007

Is the de facto moratorium on executions going to impact capital indictments and death sentences?

One of many questions I have now that a de facto execution moratorium has emerged is whether and how all these Baze-y, crazy lethal injection developments might impact prosecutors considering whether to seek death charges and jurors considering whether to impose death sentences. 

Of course, legal concerns about lethal injection protocols should have no real impact whatsoever on the legal issues surrounding capital charges and sentences.  Nevertheless, the fact that few if any executions will go forward for many months, I have to suspect that state prosecutors and juries could be less motivated to push a case into the unpredictable death penalty universe.

I would be especially grateful if practitioners might be willing to weigh in on this question:

Do you think the Baze case and all its ripple effects could start impacting prosecutors' willingness to pursue capital charges or the views of capital jurors?

October 19, 2007 at 04:41 PM | Permalink


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I think the long-term effect is more likely to be the opposite. Let's face it -- the whole lethal injection mess has made it much more difficult to carry out death sentences.

The source of the whole mess is that there is not a clear, unified understanding of what lethal injection protocols are and are not acceptable. By taking up the issue, the Court is taking a step towards answering that question. And that answer is what will allow executions to resume, as well as reduce the amount of litigation surrounding every death sentence.

Posted by: William Jockusch | Oct 19, 2007 6:57:06 PM

The Nueces County District Attorney in Texas has said he was putting a hold on seeking the death penalty until after the Supreme Court rules on the constitutionality of lethal injections.

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Posted by: Scott Cobb | Oct 19, 2007 7:14:41 PM

Doug, on Wednesday of this week a jury returned a death verdict in a capital case I have been defending. I don't think the lethal injection moratorium had any impact on the jury deliberations. In my experience trying capital cases for 25 years I believe that jurors take their responsibilities seriously and that it is a very rare verdict which is not based on the jury's determination of the facts and their balancing of aggravating and mitigating factors. I also think that extraneous matters such as deterrence and relative cost of death and incarceration for life do not play a role in the verdict. However, what I am hearing from jurors is a growing sentiment, now that jurors are beginning to believe that life without parole means exactly that, that LWOP is the harsher punishment and death is the easy way out.


Posted by: bruce cunningham | Oct 19, 2007 10:00:35 PM

Your observations on jurors sentiments concerning the relative severity of the death penalty v LWOP reflect the concerns many of us feel I suspect.
The problem, as I see it, is at least threefold:
a) on the level of humanity
b) on the level of legality (under the constitution)
c) on the level of practice

Both sentences are arguably cruel and unusual punishment. There is no need for me to repeat the argument in terms of the death penalty itself. It is recognized as such by most of our friends and neighbors across the world. While we like to imagine America is God's gift to the world, and try to turn the rest of the world into our own image, thankfully we are not succeeding. On the issue of the death penalty, it is the US that is living in the middle ages.
On the question of LWOP, the issue is similar in that by withdrawing the notion of sentence review, there is neither incentive on the part of the incarcerated to reform and educate themselves, nor incentive on the authorities to provide facilities that would enable that to happen anyway. It also invites a lifetime of human rights abuse of the incarcerated. Maybe I'm getting old, but I can vividly remember the outrages of the world when the russian Alexander Solzhenitsyn published One Day in the Life of Ivan Denisovich and The Gulag Archipelago in the 1960's and 1970's. We read today of outrages, every bit as perverse, happening in our own great country, and many do not turn a hair. Outside our borders of course, many are equally outraged. For those who cannot immediate see the abuse - think of underground prisons, sleep deprivation, lack of audio-visual stimulation, restricted visitation rights, lack of personal contact, lack of medical care, abusive treatment from poorly educated/trained prison personel, etc. Add to the list, withdrawal of effective legal representation to address such abuses, not to mention issues of innocence, issues of reform, etc and the list is as comprehensive as any raised by Solzhenitsyn.
What has happened to our society that it has become so de-sensitized to the concept of human abuse? In fact US society probably has greater sensitivity to abuse in other countries, turning a blind, deaf and indifferent ear to those in its own backyard.
One of the aims of the Constitution was to protect US citizens from abuse by the executive branches of government. We have seen the rapid erosion of this protection in recent decades, partly as a result of rare but spectacular terrorist acts and threats (exacerbated by ill-informed and inadvised military interventions in foreign lands), and partly as a result of a retreating Supreme Court, content to defer to Presidential decree and obsession with micro and anachronistic interpretations of a Constitution that seems to have been elevated above the bible. I rather think the framers of the constitution might have been more modest!
The ultimate sanction in any society must represent something that is humane. Standards of humanity should be expected to rise with the evolution of society. THE LAW should be interpreted and revised to reflect that evolution. In the US, that is or should be the role of the Supreme Court - to direct and stimulate such interpretation and change. Some members have yet to accept that responsibility.
The ultimate sanction should also be a highly reserved, last resort amongst available punishments. As it stands, the Judiciary as a body, are presently guilty of absolving themselves from responsibility in this regard. Inexpert juries are expected to pronounce on life and death, hope and despair, humanity and inhumanity, sometimes within a few hours or days. Most will inevitably see their responsibility in terms solely of retribution.
The Judiciary has a far greater responsibility than this to ensure that excesses of prosecution, deficiencies in defense, and the spirit of a living constitution are recognized and acted upon to reserve the ultimate sanction, whatever that might be, for those who can never be safely returned to society. Medical advances and treatments, old age and infirmity, genuine remorse, are but some of the potential issues that have a role in determining that judgment - and LWOP is as unfair and morally wrong a sentence as the death penalty itself if these things are ignored in deference to excessive penalties of retribution.
All of this should be enough to give reason for review and reform. Given the explosion of proven innocence in the processes of post-conviction cases at all levels of the criminal law, including capital cases, and the mostly accepted view that innocent people have suffered years of wrongful imprisonment or died as a result of weakness in criminal pre- and post- prosecution investigations and procedures, the case for review and reform is now compelling and seriously urgent.

Posted by: peter | Oct 20, 2007 5:03:44 AM

Doug has written many times about the inhumanity of locking people up in tiny cages for extraordinarily long periods of time. He's right. What I am seeing more often is that defendants will seek a trial , risking receiving death, to avoid voluntarily agreeing to LWOP. Hope is at the core of life. Agreeing to LWOP is to abandon hope. My clients call LWOP a "slow death sentence." So, the citizens must bear enormous costs of a capital trial because of the fact that LWOP means a person leaves prison only in a casket. Bruce

Posted by: bruce cunningham | Oct 20, 2007 6:04:04 AM

Not exactly on topic, but one of the most staggering, and to my mind indefensible trends in the practice of law has been the distortion in the concept and practice of LEGAL RESPONSIBILITY. For example, many, many times I have seen reports of the 5th Circuit (I suspect mirrored on most others) that dismiss claims of review on the basis that a defendant failed to meet a particular deadline. Of course, there is the recent example of Judge Keller, also in Texas, who failed to accept an attempt to file a claim because of a personally set deadline, regardless of circumstances. Defendants are entitled to quality legal representation and protection under the law. They are not expected to be familiar with the details of the law, or to be capable of conducting their own legal affairs, least of all once incarcerated on death row! In instances of error, or miscalculation, it is surely right that members of the legal profession be held to account - not the defendant, especially when such error or omission might lead to a lost opportunity to prove innocence, or to an excessive prison term, or to execution? Indeed, a review of performance on this basis might well improve both the standard and standing of the legal profession, not to mention that of the State and Federal Appeals Courts that take as their base line a presumption of guilt it seems - in spite of the fact that by its nature an appeal may be a suggestion of innocence or excessive tariff. In this case, the "legal executive" is protecting its own rather than the defendant's interests, counter surely to the intentions of the Constitution.

Posted by: peter | Oct 20, 2007 11:32:18 AM

I do a lot of post conviction work. Quite often a defendant files a pro se motion for relief, which is denied, before I get in the picture. Then, if I file a motion for relief with what I think is meritorious claims, the post conviction judge routinely dismisses the motion as procedurally barred because the def was in an "adequate position" to raise the claim in his pro se motion. The most egregious example is the case where a prosecutor clearly improperly introduced "drug courier profile" opinion evidence before the jury. It is clear such evidence can only be introduced on voir dire before the judge to support the stop and search. The judge, the prosecutor and the defense lawyer all missed the issue of the propriety of drug courier profile testimony before a jury. But then, my motion raising the claim was procedurally barred because the def should have raised the claim in his pro se motion. It is frustrating to consider that an indigent, half illiterate defendant is presumed to know more law than the judge and the two attorneys. Just another example of the difficulty of putting into practice the theoretical promise of due process and fairness in the criminal justice system. (this post is tangentially connected to the death penalty thread herein because it is even more difficult to obtain a fair trial in the capital context. Which, again, goes back to my earlier comment about the naivete of all the posts a few days ago about deterrence and propriety of the death penalty, when such comments are based on the assumption that capital defendants get a fair trial represented by competent counsel operating on a level playing field with the state.


Posted by: bruce cunningham | Oct 20, 2007 1:44:13 PM

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