Sentencing Law and Policy

SCOTUS clear way for 13th federal execution in six months, prompting extended dissents from Justices Breyer and Sotomayor

The now familiar federal execution drama has now played out one more time, this time around with Dustin Higgs securing a stay in lower courts only to see the Supreme Court allowing the execution to go forward.  Notably, with this last scheduled federal execution, Justice Beyer and Justice Sotomayor each sought to say their piece in extended dissents.  Justice Breyer's fourt-page dissent starts this way:

Last July the Federal Government executed Daniel Lee. Lee’s execution was the first federal execution in seventeen years.  The Government’s execution of Dustin Higgs tonight will be its thirteenth in six months.  I wrote in July that “the resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution.”  Barr v. Lee, 591 U.S. ___, ___ (2020) (dissenting opinion) (slip op., at 2).  The cases that have come before us provide several of those examples.

And Justice Sotomayor's ten-page dissent starts and ends this way:

After seventeen years without a single federal execution, the Government has executed twelve people since July.  They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson.  Today, Dustin Higgs will become the thirteenth.  To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

This unprecedented rush of federal executions has predictably given rise to many difficult legal disputes....

There is no matter as “grave as the determination of whether a human life should be taken or spared.”  Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).  That decision is not something to be rushed or taken lightly; there can be no “justice on the fly” in matters of life and death.  See Nken v. Holder, 556 U.S. 418, 427 (2009).  Yet the Court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised.  Those whom the Government executed during this endeavor deserved more from this Court.  I respectfully dissent.

This AP article reports on the execution, and includes these passages:

Higgs, 48, was pronounced dead at 1:23 a.m. Asked if he had any last words, Higgs was calm but defiant, naming each of the women prosecutors said he ordered killed. “I’d like to say I am an innocent man. ... I am not responsible for the deaths,” he said softly. “I did not order the murders.”

He did not apologize for anything he did on the night 25 years ago when the women were shot by another man, who received a life sentence.

Feds complete yet another late-night execution of convicted killer of seven from Virginia

As reported in this CNN piece, headlined "Federal government executes Corey Johnson following prolonged legal fight," the latest federal execution followed, yet again, what has become the standard litigation script with the Supreme Court ultimately rejecting all final arguments for a delay.  Here are some of the details: 

Corey Johnson was executed by lethal injection at the Federal Correctional Complex in Terre Haute, Indiana, and was pronounced dead at 11:34 p.m. ET on Thursday.

Johnson was sentenced to die after he was convicted of killing seven people in 1992 as a part of the drug trade in Virginia.  The weeks preceding his execution were defined by a tense legal battle after he contracted Covid-19 while on death row.

In his final statement, Johnson apologized for his crimes and told the families of the victims that he hoped they would find peace. He also thanked the staff at the prison, the prison's chaplain, his minister and his legal team....

The Supreme Court denied a last-ditch effort late Thursday by Johnson's legal team that leaned on claims of an intellectual disability and his Covid-19 diagnosis, arguing that his infection paired with a lethal injection would amount to a cruel and unusual punishment.  That appeal came after an appellate court on Wednesday tossed out a lower court's decision to stay the executions of Johnson and another death row inmate who contracted the virus, Dustin Higgs, whose execution is scheduled to take place Friday....

Johnson was found guilty of seven counts of capital murder in 1993, with the US District Court for the Eastern District of Virginia jury unanimously recommending seven death sentences.

Thursday's execution, six days before President-elect Joe Biden takes office, coincides with a new push from more than three dozen members of Congress for Biden's incoming administration to prioritize abolishing the death penalty in all jurisdictions.  While Biden has pledged to abolish the federal death penalty and to give incentives to states to stop seeking death sentences as a part of his criminal justice plan, 40 members of Congress want to make sure the practice ends on his first day in office.

After SCOTUS reverses stays by 6-3 votes, US complete early morning execution of only woman on federal death row

As reported here via SCOTUSblog, the "Supreme Court on Tuesday night cleared the way for the execution of Lisa Montgomery, the first woman to be executed by the federal government in 68 years.  Montgomery was convicted in 2008 of strangling Bobbie Jo Stinnett, a Missouri woman who was eight months pregnant, and extracting the premature baby to pass off as her own child." Here is more:

In a series of brief, unsigned orders, the Supreme Court reversed a pair of rulings from federal appeals courts that had put Montgomery’s execution on hold, and it denied two other last-minute requests in which Montgomery argued she was entitled to a postponement. In two of the orders, the court’s three liberal justices indicated that they dissented and would not have allowed the execution to proceed.

Soon after the court issued its final late-night order, Montgomery was put to death by lethal injection at the federal execution facility in Terre Haute, Indiana.  She was pronounced dead at 1:31 a.m.

Four separate cases relating to Montgomery’s execution reached the justices in emergency litigation over the past several days....

Montgomery was the first woman to be executed by the federal government since 1953.  No other women are currently on federal death row.  Montgomery also became the 11th person to be put to death by the federal government since last July, when the Trump administration ended a 17-year moratorium on federal executions.

The Justice Department has scheduled two more executions in the waning days of the Trump administration.  It wants to execute Corey Johnson on Thursday and Dustin Higgs on Friday, but both men recently tested positive for COVID-19, and a federal judge on Tuesday halted their executions based on a risk that lung damage associated with the virus could cause them to suffer severe pain during a lethal injection. 

I had been following all the litigation in the run up to the scheduled execution, but I did not blog about any of the stays because it seemed to me quite likely that the Supreme Court would ultimately clear the path for the feds to move forward.  In most of the previous 10 federal executions over the last six months, the condemned defendant secured or argued forcefully for a stay; in every single case, SCOTUS has allowed the execution to go forward.  I will be surprised if this pattern does not repeat itself again twice more this week with the scheduled executions of Corey Johnson and Dustin Higgs.

As the SCOTUSblog post notes, Montgomery was the first woman executed by the federal government in the modern death penalty era.  She is also the first woman executed anywhere in the US in more than five years; Georgia executed Kelly Gissendaner for orchestrating the murder of her husband back in September 2015.  Montgomery is also the first person executed in 2021.  This DPIC page details that she is the 17th woman executed in the modern death penalty era (out of a total of 1530 total executions).

"Back to the Future with Execution Methods"

The title of this post is the title of this book chapter authored by Deborah Denno now available via SSRN. Here is its abstract:

Despite three United States Supreme Court decisions upholding lethal injection protocols, inmates continue to challenge the method's constitutionality, and states cling to scientifically ununiformed procedures to generally ensure the death penalty's survival.  Lethal injection, however, is simply the last in a long line of disastrous execution methods.  This chapter explores the future of execution methods in light of states' efforts to repeat or borrow from the past, beginning with current changes to lethal injection and the inclusion of prior methods.  Those previous methods include electrocution, the firing squad, and the recent adoption of nitrogen hypoxia by several states — all as constitutional substitutes for lethal injection.  Older lethal injection drugs are also coming back into play, such as sodium thiopental, despite their current unavailability.

This chapter concludes that states cannot go "back to the future" to re-invent or rebrand the past's problematic execution methods.  While the future of execution methods is impossible to predict, twenty-one states have now abolished the death penalty, and the death penalty's use has remained near record lows.  Quite possibly, current execution methods may follow the same path as hanging, which has been abolished in all fifty states.  Likewise, the abolishment of the death penalty as a whole may come faster than states' abilities to change the ways they execute inmates.

DC Circuit panel upholds January 12 execution date for only woman on federal death row

Just before Christmas, as noted in this post, a federal district judge vacated an order from the director of the Bureau of Prisons that had set Lisa Montgomery’s execution date for January 12.  But, on New Year's Day, a DC Circuit panel issued this order putting the execution back on track.  This CNN article about the ruling provides some context:

Montgomery's execution had been scheduled for December 8, but a judge postponed it after her attorneys said they were diagnosed with Covid-19 after flying from Texas to visit with Montgomery at the Federal Correctional Complex in Terre Haute, Indiana.

On November 23, the director of the Federal Bureau of Prisons, Michael Carvajal, rescheduled Montgomery's execution for January 12.  Friday's order said he was acting under the "governing regulation," which allowed him to reschedule the execution because the original execution date had not passed.  The order said he was acting under the law, clearing the way for Montgomery's execution later this month.

Montgomery's attorney, Meaghan VerGow, said in a statement that she disagrees with the judges and is going to file a petition for them to reconsider their decision.  The judges gave VerGow until Saturday to file. "The federal government must be required to follow the law in setting any execution date, as the district court correctly held ... Given everything we know about Lisa Montgomery's mental illness, her lifetime of horrific torture and trauma, and the many people in positions of authority who could have intervened to save her but never did, there can be no principled reason to carry out her execution," VerGow said.  "The government should stop its relentless efforts to end her life."...

The Trump administration has overseen 10 federal executions in the final months of his presidency, the most in a single year in the United States in decades, and a revival after years of having none.  Montgomery would be the first woman executed by the US government since 1953.

In 2004, Montgomery was convicted of strangling a Missouri woman who was eight months pregnant, then cutting out and kidnapping the baby.  The baby survived.

The last woman executed by the US government was Bonnie Brown Heady in 1953, according to US Bureau of Prisons records, for kidnapping and murder.  The US also famously executed Ethel Rosenberg that same year for espionage.

I suspect Montgomery's lawyers will pursue further appeals. But, in lots of prior federal capital cases in recent months, appeals courts (including the Supreme COurt) have consistently refected efforts to slow down the federal machinery of death.

Rounding up some notable recent criminal justice commentary

There are lots and lots of interesting criminal justice issues floating around these days, and these recent commentary catching my eye capture just a slice of what some folks are talking about:

From the Boston Globe, "What Trump’s pardons say about criminal justice"

From CNN, "How Joe Biden can root out racism in criminal justice"

From CNN Business, "Criminal justice reform can start with employers who give felons a second chance"

From The Hill, "Joe Biden should eliminate federal death row on his first day in office"

From The Hill, "Five ways Biden can jumpstart criminal justice reform immediately"

From Lawfare, "Are Trump’s Pardons a Blessing in Disguise?"

From USA Today, "COVID-19 compels America to rethink who we lock up in prison"

From Vice, "2020 Was the Year That Momentous Drug Reform Became Normal"

Federal judge blocks January 12 execution date for only woman on federal death row

As repoted in this AP piece, a "federal judge said the Justice Department unlawfully rescheduled the execution of the only woman on federal death row, potentially setting up the Trump administration to schedule the execution after president-elect Joe Biden takes office." Here is more about a ruling that was handed down before Christmas:

U.S. District Court Judge Randolph Moss also vacated an order from the director of the Bureau of Prisons that had set Lisa Montgomery’s execution date for Jan. 12.  Montgomery had previously been scheduled to be put to death at the Federal Correctional Complex in Terre Haute, Indiana, this month, but Moss delayed the execution after her attorneys contracted coronavirus visiting their client and asked him to extend the amount of time to file a clemency petition.

Moss prohibited the Bureau of Prisons from carrying out Lisa Montgomery’s execution before the end of the year and officials rescheduled her execution date for Jan. 12.  But Moss ruled on Wednesday that the agency was also prohibited from rescheduling the date while a stay was in place.  “The Court, accordingly, concludes that the Director’s order setting a new execution date while the Court’s stay was in effect was ‘not in accordance with law,’” Moss wrote....

Under the order, the Bureau of Prisons cannot reschedule Montgomery’s execution until at least Jan. 1.  Generally, under Justice Department guidelines, a death-row inmate must be notified at least 20 days before the execution.  Because of the judge’s order, if the Justice Department chooses to reschedule the date in January, it could mean that the execution would be scheduled after Biden’s inauguration on Jan. 20.

A spokesperson for Biden has told The Associated Press the president-elect “opposes the death penalty now and in the future” and would work as president to end its use in office.  But Biden’s representatives have not said whether executions would be paused immediately once Biden takes office.

Montgomery was convicted of killing 23-year-old Bobbie Jo Stinnett in the northwest Missouri town of Skidmore in December 2004. She used a rope to strangle Stinnett, who was eight months pregnant, and then a kitchen knife to cut the baby girl from the womb, authorities said.

Prosecutors said Montgomery removed the baby from Stinnett’s body, took the child with her, and attempted to pass the girl off as her own.  Montgomery’s legal team has argued that their client suffers from serious mental illnesses....

Two other federal inmates are scheduled to be executed in January but have tested positive for coronavirus and their attorneys are also seeking delays to their executions.

Lots of federal death penalty news and notes after record-setting executions

The historic recent killing spree that the federal government has been conducting — with 10 executions in the last six months and three more slated for early January — has prompted a lot of headlines and commentary.  Here is a sampling of some of the pieces that have caught my eye recently:

From America, "William Barr, a Catholic, went out of his way to use the death penalty (and defy church teaching)"

From Bloomberg Opinion, "The Wrong Way to Fight the Death Penalty"

From NBC News, "Senators ask Justice Department watchdog to investigate federal executions under Trump"

From New York Magazine, "Will Biden Use His Powers to Crush the Death Penalty?"

From Pro Publica, "Inside Trump and Barr’s Last-Minute Killing Spree"

From Refinery29, "Lisa Montgomery Endured Years Of Abuse Before Committing Murder. Can Her Death Sentence Be Overturned?"

From Slate, "The Life Story of Lisa Montgomery"

From Tennessean, "Mary, Jesus, Christmas and the death penalty" 

From USA Today, "Trump's execution spree reflects death penalty system 'shaped by racial bias,' critics say"

From Vice, "Trump Is Executing 3 More People Before He Leaves Office. Here Are Their Stories."

Is there any chance COVID might halt the three pending federal executions slated for next month?

The question in the title of this post is prompted by this AP piece headlined "Lawyers: 2nd US inmate scheduled to be executed has COVID-19."  Here are the details:

A second federal inmate scheduled to be put to death next month in a series of executions by the Trump administration has tested positive for COVID-19, his lawyers said Friday. The diagnosis of Cory Johnson, who was convicted of killing seven people related to his drug trafficking in Virginia, comes a day after attorneys for Dustin John Higgs confirmed he tested positive at a U.S. prison in Terre Haute, Indiana, where both men are on death row.

Johnson, Higgs and a a third inmate, Lisa Montgomery, are scheduled to be put to death by lethal injection at a death chamber at the federal prison complex in Terre Haute just days before President-elect Joe Biden takes office.

Johnson’s lawyers, Donald Salzman and Ronald Tabak, called on federal authorities to strike their client’s current execution date of Jan. 14.  Higgs is scheduled to die a day later. Montgomery’s execution date is Jan. 12, but because she is the only woman on federal death row she is currently held at a separate prison for female inmates in Texas but would need to be brought to Indiana to be executed.

Johnson’s attorneys said his infection would make it difficult to interact with him in the critical days leading up to his scheduled execution, adding that “the widespread outbreak on the federal death row only confirms the reckless disregard for the lives and safety of staff, prisoners, and attorneys alike.” “If the government will not withdraw the execution date, we will ask the courts to intervene,” they said.

The Justice Department and Bureau of Prisons did not immediately respond to requests for comment.

Prosecutors alleged that Johnson was one of three crack cocaine dealers who carried out a string of murders and that he killed seven people in 1992 in an attempt to expand the territory of a Richmond, Virginia, gang and silence informants. His legal team has argued that he is intellectually disabled, with a far-below average IQ, and therefore ineligible for the death penalty.

Higgs was convicted of ordering the 1996 murders of three women in Maryland. Montgomery was convicted of using a rope to strangle a pregnant woman in 2004 and then using a kitchen knife to cut the baby girl from the womb, authorities said. She would be the first woman executed federally in more than half a century....

The Bureau of Prisons confirmed in a statement to The Associated Press on Thursday that inmates held on federal death row — known as the Special Confinement Unit — have tested positive for COVID-19.  As of Thursday, there were more than 300 inmates with confirmed cases of COVID-19 at FCC Terre Haute.  The Bureau of Prisons said “many of these inmates are asymptomatic or exhibiting mild symptoms.”

Assuming that Higgs and Johnson are asymptomatic or exhibit only mild symptoms in the coming weeks, I greatly doubt that their diagnosis will lead the Trump Administration or courts to decide to postpone their scheduled executions. (In this post a few weeks ago, I wondered if the coming departure of AG Barr might impact somehow federal execution plans.  But, after two more federal executions went forward earlier this month, I somewhat doubt that the incoming Acting AG will be eager to change course absent clear direction from Pez Trump.)

Ironically, if Higgs and/or Johnson were to get seriously ill from COVID and need to be hospitalize for an extended period, such a turn of events might extend their lives.  Despite pending execution dates, it would be unconstitutional for federal prison officials to knowingly refuse to provide needed medical care for Higgs or Johnson.  And if needed medical care kept Higgs and/or Johnson in a hospital facility at the time of their execution dates, I do not think prison officials would be logistically able to carry out the planned executions.  And yet, adding another layer of irony, even if Higgs and/or Johnson were to get very ill and need hospitalization, federal authorities could and likely would work extra hard to nurse them back to health just in time for other federal authorities to move forward their scheduled executions.

DPIC releases year-end report stating "Death Penalty Hits Historic Lows Despite Federal Execution Spree"

This new press release from the Death Penalty Information Center, titled "Executions and Death Sentences Drop to Historic Lows in 2020, even as Federal Government Ramps Up Executions," provides a three-page summary of the DPIC's 36-page year-end 2020 report on the administration of the death penalty in the United States.  The full reports carries this intricate full title "The Death Penalty in 2020: Year End Report; Death Penalty Hits Historic Lows Despite Federal Execution Spree; Pandemic, Racial Justice Movement Fuel Continuing Death Penalty Decline." Here is how the report's introduction starts:

2020 was abnormal in almost every way, and that was clearly the case when it came to capital punishment in the United States. The interplay of four forces shaped the U.S. death penalty landscape in 2020: the nation’s long-term trend away from capital punishment; the worst global pandemic in more than a century; nationwide protests for racial justice; and the historically aberrant conduct of the federal administration.  At the end of the year, more states had abolished the death penalty or gone ten years without an execution, more counties had elected reform prosecutors who pledged never to seek the death penalty or to use it more sparingly; fewer new death sentences were imposed than in any prior year since the Supreme Court struck down U.S. death penalty laws in 1972; and despite a six-month spree of federal executions without parallel in the 20th or 21st centuries, fewer executions were carried out than in any year in nearly three decades.

The historically low numbers of death sentences and executions were unquestionably affected by court closures and public health concerns related to the coronavirus.  But even before the pandemic struck, the death sentences and executions in the first quarter of the year had put the United States on pace for a sixth consecutive year of 50 or fewer new death sentences and 30 or fewer executions.  The execution numbers also were skewed by a rash of executions that marked the federal government’s death-penalty practices as an outlier, as for the first time in the history of the country, the federal government conducted more civilian executions than all of the states of the union combined.

The erosion of capital punishment at the state and county level continued in 2020, led by Colorado’s abolition of the death penalty.  Two more states — Louisiana and Utah — reached ten years with no executions. With those actions, more than two-thirds of the United States (34 states) have now either abolished capital punishment (22 states) or not carried out an execution in at least ten years (another 12 states). The year’s executions were geographically isolated, with just five states, four of them in the South, performing any executions this year.  The Gallup poll found public support for the death penalty near a half-century low, with opposition at its highest level since the 1960s.  Local voters, particularly in urban centers and college towns, rejected mass incarceration and harsh punishments, electing new anti-death-penalty district attorneys in counties constituting 12% of the current U.S. death-row population.

A majority (59%) of all executions this year were conducted by the federal government, which in less than six months carried out more federal civilian executions than any prior president in the 20th or 21st centuries, Republican or Democratic, had authorized in any prior calendar year.  The Trump administration performed the first lame-duck federal execution in more than a century, while scheduling more transition-period executions than in any prior presidential transition in the history of the United States.  The executions reflected systemic problems in the application of capital punishment and drew widespread opposition from prosecutors, victims’ families, Native American leaders, religious leaders, regulatory law experts, and European Union officials.  In addition to the legal issues, the executions also presented public health problems, likely sparking an outbreak in a federal prison, infecting members of the execution teams, and causing two federal defense attorneys to contract COVID-19.

Death sentences, which were on pace for sustained low levels prior to the pandemic, plunged to a record low of 18.  While the resumption of trials delayed by the pandemic may artificially increase the number of death verdicts over the next year or two, the budget strain caused by the pandemic and the need for courtroom space to conduct backlogged non-capital trials and maintaining a functioning court system may force states to reconsider the value and viability of pursuing expensive capital trials.

As I have done in past posts, I have reprinted here one of DPIC's graphics on number of death sentences imposed because I think that data may prove the most critical and consequential for the fate and future of the death penalty. Helpfully, the DPIC report has lots of other important data about a remarkable year. Ninth months ago in a post, I wondered aloud "Might COVID-19 ultimately bring an end to the death penalty in the United States?."  This DPIC report details that the death penalty is still alive, but it seems COVID has certainly contributed to capital punishment's extended decline.

Reviewing CJUTF Recommendations: how might the Biden Administration seek to abolish the death penalty?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62, called the CJUTF hereinafter).  A few weeks ago, as explained here, I decided to start a series of posts to spotlight and amplify some recommendations from the CJUTF that ought to be of particular interest to sentencing fans.  In the wake of two more notable federal executions last week (noted here and here), this post will focus on a recommendation that speaks of abolition, and here it is:

Death Penalty: Abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example.

This new CNN article, headlined "Dozens of members of Congress call on Biden to end the federal death penalty," reports that a number of members of Congress (but surely not a majority) are eager to see Prez-elect Biden operationalize this recommendations:

More than three dozen members of Congress are calling on Joe Biden's incoming administration to prioritize abolishing the death penalty in all jurisdictions, according to a letter sent Tuesday to the transition team for the President-elect and Vice President-elect Kamala Harris.  While Biden has pledged to abolish the federal death penalty and to give incentives to states to stop seeking death sentences as a part of his criminal justice reform plan, 40 members of Congress and three congresspersons-elect want to make sure the practice ends on his first day in office.

"The current administration has weaponized capital punishment with callous disregard for human life. In the middle of our current public health crisis, the Department of Justice resumed federal executions and executed more people in six months than the total number executed over the previous six decades," Massachusetts Rep. Ayanna Pressley wrote in a letter first obtained by CNN.

The letter was authored by Pressley less than a week after calling for President Donald Trump to stop pending federal executions that are scheduled to take place during his lame duck period.  She specifically joined celebrities, bipartisan politicians and anti-death penalty advocates' call to stop Brandon Bernard's execution as his trial had allegations of prosecutorial misconduct that only surfaced two years ago.

Pressley, a Democrat, introduced legislation on July 25, 2019 -- the same day Attorney General William Barr announced federal executions, which had been stalled since 2003, would resume -- to rid the federal level of the practice and require resentencing for those currently on death row.  The bill has not had any action in the House since August 2019....

"With a stroke of your pen, you can stop all federal executions, prohibit United States Attorneys from seeking the death penalty, dismantle death row at FCC Terre Haute, and call for the resentencing of people who are currently sentenced to death," wrote Pressley.  "Each of these elements are critical to help prevent greater harm and further loss of life."

Executive Director of the Fair and Just Prosecution Miriam Krinsky told CNN after a meeting with the Justice Department's transition team earlier this month that stopping federal executions "doesn't really require congressional action."...

To date, there are 52 people on federal death row and 18 pending state executions, according to the Death Row Information Center.

This CNN piece rightly suggests that Prez-elect Joe Biden could clear out the federal death row on January 20, 2021, by commuting the death sentences (presumably to life without parole) of all persons still on federal death row on his first afternoon in office.  Because there are three pending federal execution scheduled for January that seem likely to go forward, there may only be 49 persons left on federal death row by January 20.  But that number will include, inter alia, mass killers like the Boston Marathon bomber and the Charleston Church shooter.

Of course, commuting all of federal death row, and even instructing his Justice Department not to seek any new death sentences, does not fulfill a commitment to "abolish the death penalty at the federal level."  Doing that will take legislation passed by Congress, and that would seem to be a long-shot in the near-term.  Prez-elect Biden likely could try to include death penalty abolition in a bigger bill about many criminal justice reforms, but doing so would likely generate extra opposition because most Republicans (and still many modern Democrats) strongly  support the death penalty in extreme cases.  I doubt Prez-elect Biden will be eager to use his political capital on this issue in the early days of his presidency, and I wonder if he will want to focus on this issue at all.

Perhaps even more interesting is to imagine how a Biden Administration might seek to "incentivize states to follow the federal government’s example."  Will a Prez Biden really try to encourage states to abolish the death penalty if he does not himself work actively to do so at the federal level?  More generally, would a Prez Biden really seek to condition or restrict funding to states — which is the most obvious way to "incentivize" them — based on whether they abolish the death penalty?  He might need help from Congress to tie federal funding to state capital punishment practices, and I am disinclined to expect Congress to be keen on such a project.

That all said, I sense that death penalty abolition is a high-profile and high-priority concern for many progressive activists and policy-makers.  As such, this issue is one worth watching closely as an indication of how much energy and political capital a Biden Administration may be willing to spend on controversial matters to appease the left flank of his party.

Prior related posts:

• Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 
• Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?
• Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations 
• Reviewing Criminal Justice Unity Task Force Recommendations: a new series to welcome a new President 
• Reviewing CJUTF Recommendations: will the Biden Administration go all in with progressive prosecutors?

UPDATE: Over at Crime & Consequences, Kent Scheidegger highlights in this post that a high-profile federal case presents a high-profile opportunity for the incoming Biden Administration to show a commitment to capital abolition.  Kent's post is titled "The Marathon Bomber, the Death Penalty, and the Biden Administration," and it ends this way:

Are you really opposed to the death penalty in all cases, Mr. President-elect?  If so, this is the case to take the action. This is the case that poses the question in its starkest terms.  Don’t chicken out and announce it in some borderline case on the ragged edge of deserving the death penalty.  Man up and announce it in the case that screams for it.  Direct the Solicitor General to stipulate to the dismissal of the certiorari petition, and announce to the nation that you will not seek a new death sentence for Tsarnaev on remand.

Let’s see what kind of reaction you get.

Highlighting the election of local prosecutors who have pledged never to seek death sentences

Daniel Nichanian has this great entry at The Appeal: Political Report titled "Newly Elected Prosecutors Are Challenging The Death Penalty," which effectively reviews the political success of a significant number of prosecutors who have pledged not to pursue capital sentences. Here is parts of the poast:

Death penalty opponents have made great strides over the last decade, getting states to outlaw the sentence or at least reduce its use. Now they’re gaining allies from local officials with direct power to shut down capital punishment: prosecutors.

Last week, Deborah Gonzalez and Jason Williams became the latest candidates to win elections for district attorney after pledging to never seek the death penalty once in office.  Their runoff wins in Athens, Georgia, and New Orleans add to a string of similar results this year in Los Angeles County, Arizona’s Pima County (Tucson), Georgia’s Fulton County (Atlanta), Oregon’s Multnomah County (Portland), and Texas’s Travis County (Austin).  Incoming prosecutors largely echoed advocates’ longtime claims, emphasizing that the death penalty is applied very unequally and that its use is inhumane and costly.

Their wins are poised to upend the culture of capital punishment in places that have been prolific in handing out death sentences, and advocates are preparing to press them to overturn these past sentences.

There are more than 200 people on death row from Los Angeles, where the DA election in November saw George Gascón defeat an incumbent who over the course of her tenure secured the death penalty nearly exclusively against people of color.  Gascón took office this week and promptly repeated his campaign pledge to not just drop the death penalty in future cases but also review past death sentences, a step few prosecutors have taken.  “The death penalty does not make us safer,” Gascón tweeted on Monday. “It’s racist, morally untenable, irreversible, and expensive.  And today, it’s off the table.”

Pima County has also been a death penalty hotspot.  It leads Arizona counties in number of executions since the penalty was reinstated in 1976. But this fall voters elected as their chief prosecutor a former public defender, Laura Conover, who highlighted her past advocacy with the Coalition of Arizonans to Abolish the Death Penalty. Conover is not the first candidate with such experience to be elected.  Parisa Dehghani-Tafti, who was the legal director of the Mid-Atlantic Innocence Project, won a prosecutor’s race in northern Virginia last year on a similar platform.

“It’s absolutely tremendous and exciting that this is taking place in Louisiana, and in Georgia, and in Virginia, states that have a long history with the death penalty, and of course Los Angeles County, one of the biggest contributors to the enormous Californian death row,” said Laura Porter, executive director of the 8th Amendment Project.  “It’s supportive of the trend of the country overall moving away from the death penalty.”

These seven newly elected prosecutors who said they would never seek a death sentence are Democrats, even though Republicans haven’t been absent from the anti-death penalty movement. Support from some Republican lawmakers proved decisive in 2019 and 2020 when Colorado and New Hampshire’s legislatures repealed the death penalty.  (The Political Report only analyzed candidate positions in the 28 states where the death penalty is still legal.)

Elsewhere, longtime prosecutors who have repeatedly used the death penalty lost re-election bids. Most notably, Ron O’Brien is on his way out in Franklin County, Ohio, after decades of zealously championing capital punishment.  The incoming prosecutor, Democrat Gary Tyack, told the Political Report via a spokesperson during his campaign that he would support legislation to ban the death penalty but also that he would consider seeking it as long as it is permitted by the state.  Patsy Austin-Gatson, the incoming Democratic DA in Gwinnett County, Georgia, told the Political Report the same thing this week.

Advocates hope that more DAs will draw strong lines in the sand and rule out adding people to death row. But they also stress that, even with those who make such forward-looking commitments, more is needed.  Prosecutors who oppose the death penalty should also use all legal and political means at their disposal to resentence people who are already on death row and to fight their executions.  “It’s really important … to push prosecutors not just to say, ‘I’ll refrain from using this harsh practice in the future,’ but to refuse to preside over it in the present,” said Ben Cohen, an attorney who works against the death penalty in Louisiana.  “It’s barbaric to allow death sentences from the 1980’s and 1990’s to be executed on your watch.”...

In Los Angeles, though, Gascón released a plan early in his campaign outlining how he would aim to get people off of death row “utilizing every legal avenue available to me.” “It’s completely transformative,” said Natasha Minsker, an attorney who is part of Gascón’s transition team on the death penalty.  “The fact that Los Angeles County is now, as of today, going to stop pursuing death sentences and going to shift in a different direction … is a complete game changer.”  No county in the nation has more people on death row than Los Angeles; Angelenos approved abolishing capital punishment in a 2016 referendum but the initiative failed statewide.

Minsker outlined the range of tools that Gascón can use. Where there is active litigation over a specific legal or factual issue, he could concede arguments made by defense attorneys “and no longer fight for [death sentences] to be in place,” she said.  Many appeals are handled by the attorney general rather than the DA, but Gascón could still file amicus briefs to assist people contesting their sentences.  Gascón could also request a resentencing hearing for someone on death row, Minsker said.  DAs don’t necessarily have this power nationally; here it stems from California’s relatively new Section 1170(d), a statute that adopted in 2018 that expanded DAs’ powers to revisit old cases. Minsker warned that courts retain ultimate say in whether to remove people from death row.  “The real unknown here is the judges,” she said.  “I’m concerned that we may end up in a situation where we have disparities based on who the judge is.”

It is usually prosecutors who are the greatest hurdle to ending or curtailing the death penalty.  They routinely work to derail legislative proposals, including in Ohio, Oregon, and Wyoming over the last few years.  Even DAs who campaigned on their discomfort with capital punishment have gone on to fight efforts to stop executions, such as Kim Ogg in Harris County (Houston).  But Ogg had not outright ruled out seeking the death penalty during her 2016 campaign, a far cry from the stronger positions staked by the latest wave of winners.

Via 6-3 per curiam ruling, SCOTUS reinstates Arizona death sentence after finding Ninth Circuit "clearly violated [its] AEDPA jurisprudence"

The US Supreme Court issued this lengthy order list this morning, though much of its length comes from the Court's 13-page per curiam decision in Shinn v. Kayer, No. 19-1302 (S. Ct. Dec. 14, 2020) (available here). The Kayer case results from a murder committed more than a quarter century ago which resulted in an Arizona death sentence. The SCOTUS decision, from which Justices Breyer, Sotomayor, and Kagan dissented but without any opinion, vacates a Ninth Circuit reversal of the death sentence. Here is how the opinion begins and ends:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricts the power of federal courts to grant writs of habeas corpus based on claims that were “adjudicated on the merits” by a state court.  28 U.S.C. §2254(d).  When a state court has applied clearly established federal law to reasonably determined facts in the process of adjudicating a claim on the merits, a federal habeas court may not disturb the state court’s decision unless its error lies “beyond any possibility for fairminded disagreement.”  Harrington v. Richter, 562 U.S. 86, 103 (2011).  In this case, the Court of Appeals erred in ordering issuance of a writ of habeas corpus despite ample room for reasonable disagreement about the prisoner’s ineffective-assistance-of-counsel claim.  In so doing, the Court of Appeals clearly violated this Court’s AEDPA jurisprudence.  We therefore grant the petition for certiorari and vacate the judgment below....

Under AEDPA, state courts play the leading role in assessing challenges to state sentences based on federal law.  A state court heard Kayer’s evidence and concluded that he failed to show prejudice.  The court below exceeded its authority in rejecting that determination, which was not so obviously wrong as to be “beyond any possibility for fairminded disagreement.” Id., at 103.  Under §2254(d), that is “‘the only question that matters.’” Id., at 102.

We grant the petition for a writ of certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case to that court for further proceedings consistent with this opinion.

US completes is second execution in as many days with lethal injection of Alfred Bourgeois

As reported in this AP piece, the "Trump administration continued its unprecedented series of post-election federal executions Friday by putting to death a Louisiana truck driver who severely abused his 2-year-old daughter for weeks in 2002, then killed her by slamming her head against a truck’s windows and dashboard."  Here is more:

Alfred Bourgeois, 56, was pronounced dead at 8:21 p.m. Eastern time after receiving a lethal injection at the federal prison in Terre Haute, Indiana.

His lawyers argued Bourgeois had an IQ that put him in the intellectually disabled category, saying that should have made him ineligible for the death penalty under federal law.  Victor J. Abreu said it was “shameful” to execute his client “without fair consideration of his intellectual disability.”

In his last words, Bourgeois offered no apology and instead struck a deeply defiant tone, insisting that he neither killed nor sexually abused his baby girl.  “I ask God to forgive all those who plotted and schemed against me, and planted false evidence.”  And he added: “I did not commit this crime.”

Bourgeois was the 10th federal death-row inmate put to death since federal executions resumed under President Donald Trump in July after a 17-year hiatus.  He was the second federal prisoner executed this week, with three more executions planned in January....  The last time the number of civilians executed federally was in the double digits in a year was under President Grover Cleveland, with 14 in 1896.

The series of executions under Trump since Election Day, the first in late November, is also the first time in more than 130 years that federal executions have occurred during a lame-duck period.  Cleveland also was the last president to do that.  Bourgeois’ lawyers contended that the apparent hurry by Trump, a Republican, to get executions in before the Jan. 20 inauguration of death-penalty foe Joe Biden, a Democrat, deprived their client his rights to exhaust his legal options....

Several appeals courts have concluded that neither evidence nor criminal law on intellectual disability supported the claims by Bourgeois’ legal team....

In Bourgeois' case, the crimes stand out as particularly brutal because they involved his young daughter....  Bourgeois whipped the girl with an electrical cord, burned her feet with a cigarette lighter and hit her in the head with a plastic baseball bat so hard that her head swelled — then refused to seek medical treatment for her, court documents say. Prosecutors also said he sexually abused her....

It was during a trucking run to Corpus Christi, Texas, that he ended up killing the toddler.  Again angered by her toilet training, he grabbed her inside the truck by her shoulders and slammed her head on the windows and dashboard four times, court filings say.  When the girl lost consciousness, Bourgeois’ wife pleaded for him to get help and he told her to tell first responders that she was hurt falling from the truck. She died the next day in a hospital of brain injuries.

In a statement after the execution, other members of the young girl’s family said she “lost her life brutally to a monster who lived for 18 years after the crime.” “Now we can start the process of healing,” the statement, distributed by the Bureau of Prisons, said.  “It should not have taken 18 years for us to receive justice for our angel.  She will forever be loved and missed.”

After his 2004 conviction, a judge rejected claims stemming from his alleged intellectual disability, noting he did not receive a diagnosis until after he was sentenced to death. “Up to that point, Bourgeois had lived a life which, in broad outlines, did not manifest gross intellectual deficiencies,” the court said.  Attorneys argued that finding was based on misunderstandings about such disabilities.  They said Bourgeois had tests that demonstrated his IQ was around 70, well below average, and that his childhood history buttressed their claims.

The Supreme Court denied of Bourgeois's application for a stay of execution and cert petition by a 7-2 vote and it is available at this link.  Justice Sotomayor wrote a dissent, joined by Justice Kagan, that starts this way:

The Federal Death Penalty Act (FDPA) provides that “a sentence of death shall not be carried out upon a person who is mentally retarded.” 18 U.S.C. §3596(c).  The Court today allows the execution of Alfred Bourgeois to proceed even though Bourgeois, who has an IQ between 70 and 75, argues that he is intellectually disabled under current clinical standards.  I would grant his petition to address whether the FDPA prohibits his execution.

US completes execution of Brendan Bernard despite high-profile appeals for relief

As reported in this AP piece, the "Trump administration on Thursday carried out its ninth federal execution of the year and the first during a presidential lame-duck period in 130 years, putting to death a Texas street-gang member for his role in the slayings of a religious couple from Iowa more than two decades ago."  Here is more:

Four more federal executions, including one Friday, are planned in the weeks before President-elect Joe Biden’s inauguration.

The case of Brendan Bernard, who received a lethal injection of phenobarbital inside a death chamber at a U.S. prison in Terre Haute, Indiana, was a rare execution of a person who was in his teens when his crime was committed.

Several high-profile figures, including reality TV star Kim Kardashian West, had appealed to President Donald Trump to commute Bernard’s sentence to life in prison.

With witnesses looking on from behind a glass barrier, the 40-year-old Bernard was pronounced dead at 9:27 p.m. Eastern time.

Bernard was 18 when he and four other teenagers abducted and robbed Todd and Stacie Bagley on their way from a Sunday service in Killeen, Texas. Federal executions were resumed by Trump in July after a 17-year hiatus despite coronavirus outbreak in U.S. prisons....

[J]ust before the execution was scheduled, Bernard’s lawyers filed papers with the Supreme Court seeking to halt the execution. The legal team expanded to include two very high-profile attorneys: Alan Dershowitz, the retired Harvard law professor who was part of Donald Trump’s impeachment defense team and whose clients have included O.J. Simpson, Claus von Bulow and Mike Tyson; and Ken Starr, who also defended Trump during the impeachment and is most famous as an independent counsel who led the investigation into Bill Clinton.

But about two and a half hours after the execution was scheduled, the Supreme Court denied the request, clearing the way for the execution to proceed.

The Supreme Court's denial of Benard's application for a stay of execution and cert petition is available at this link. The vote was 6-3, with Justice Sotomayor writing the only full dissent. That dissent starts this way:

Today, the Court allows the Federal Government to execute Brandon Bernard, despite Bernard’s troubling allegations that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him.  Bernard has never had the opportunity to test the merits of those claims in court.  Now he never will. I would grant Bernard’s petition for a writ of certiorari and application for a stay to ensure his claims are given proper consideration before he is put to death.

Gov DeWine essentially declares a de facto moratorium on executions in the state for 2021 and likely beyond

Ohio has long been an interesting death penalty state, in part because it has been among the most active capital punishment states not in the south as measured in terms of executions and death sentences.  It also has reflected the usual politics of death in recent times with 17 executions carried out from 2007 to 2010 under Ohio's last Democratic Governor (Ted Strickland), but only 15 executions from 2011 to 2020 under the Republican Governors of John Kasich and Mike DeWine.  And, according to this new AP article, headlined "Ohio governor: Lethal injection no longer execution option," it now appears that current Ohio Gov DeWine has declared a functional moratorium on executions in the state for the foreseeable future:

Lethal injection is no longer an option for Ohio executions, and lawmakers must choose a different method of capital punishment before any inmates can be put to death in the future, Republican Gov. Mike DeWine said Tuesday.

It’s “pretty clear” there won’t be any executions next year, DeWine told The Associated Press during a year-end interview, adding he doesn’t see support in the Legislature for making a switch in execution method a priority. Ohio has an “unofficial moratorium” on capital punishment, he said. “Lethal injection appears to us to be impossible from a practical point of view today,” the governor said.

DeWine said he still supports capital punishment as Ohio law. But he has come to question its value since the days he helped write the state’s current law — enacted in 1981 — because of the long delays between crime and punishment. DeWine called himself “much more skeptical about whether it meets the criteria that was certainly in my mind when I voted for the death penalty and that was that it in fact did deter crime, which to me is the moral justification.”

Messages were left for leaders in the GOP-controlled House and Senate seeking comment. Former Republican House Speaker Larry Householder, now under federal indictment for his alleged role in a $60 million bribery scheme, questioned last year whether the state should reconsider capital punishment because of the cost and Ohio’s inability to find lethal drugs.

The state’s last execution was July 18, 2018, when Ohio put to death Robert Van Hook for killing David Self in Cincinnati in 1985. Shortly after taking office in 2019, DeWine ordered the Ohio prison system to look at alternative lethal injection drugs. That announcement followed a federal judge’s ruling that said Ohio’s current execution protocol could cause the inmate “severe pain and needless suffering.”

Opponents of Ohio’s death penalty called on lawmakers last month to enact a capital punishment ban during the current lame duck legislative session. They repeated that demand Tuesday. “It’s time for the General Assembly to just end the death penalty in Ohio and repurpose the funds wasted trying to execute people into programs to better serve the needs of murder victim families,” said Abraham Bonowitz, Death Penalty Action director.

I have a few former student who I know work tirelessly on behalf of condemned Ohio defendants, and I sincerely hope this news serves as a kind of holiday present from Gov DeWine for them and their clients.

Some prior related posts during the DeWine era:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Amidst persistent difficulties with lethal injection drugs, Ohio legislator to propose use of fentanyl taken from drug busts for executions 
• Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty? 
• Has Ohio really had its last execution? 
• Ohio legislators predict more talk, but no likely action, on state's dormant death penalty
• Is Ohio really likely to repeal the death penalty "in the next year or so"? 
• Can a new conservative group help get the death penalty abolished in Ohio?
• Latest issue of Ohio State Journal of Criminal Law full of capital punishment discussion 

Might federal execution plans be impacted if Attorney General William Barr were to step down in coming days?

The question in the title of this post is prompted by these two new press pieces:

From the AP, "Trump ratchets up pace of executions before Biden inaugural"

From the New York Times, "Barr Is Said to Be Weighing Whether to Leave Before Trump’s Term Ends"

Here are extended excerpts from the lengthy and effective AP piece (with a few items emphasized):

As Donald Trump’s presidency winds down, his administration is ratcheting up the pace of federal executions despite a surge of coronavirus cases in prisons, announcing plans for five starting Thursday and concluding just days before the Jan. 20 inauguration of President-elect Joe Biden.

If the five go off as planned, it will make 13 executions since July when the Republican administration resumed putting inmates to death after a 17-year hiatus and will cement Trump’s legacy as the most prolific execution president in over 130 years.  He’ll leave office having executed about a quarter of all federal death-row prisoners, despite waning support for capital punishment among both Democrats and Republicans.

In a recent interview with The Associated Press, Attorney General William Barr defended the extension of executions into the post-election period, saying he’ll likely schedule more before he departs the Justice Department.  A Biden administration, he said, should keep it up. “I think the way to stop the death penalty is to repeal the death penalty,” Barr said. “But if you ask juries to impose and juries impose it, then it should be carried out.”

The plan breaks a tradition of lame-duck presidents deferring to incoming presidents on policy about which they differ so starkly, said Robert Durham, director of the non-partisan Death Penalty Information Center.  Biden, a Democrat, is a death penalty foe, and his spokesman told the AP that he’d work to end the death penalty when he is in office.  “It’s hard to understand why anybody at this stage of a presidency feels compelled to kill this many people … especially when the American public voted for someone else to replace you and that person has said he opposes the death penalty,” Durham said. “This is a complete historical aberration.”...

Anti-death penalty groups want Biden to lobby harder for a halt to the flurry of pre-inaugural executions, though Biden can’t do much to stop them, especially considering Trump won’t even concede he lost the election and is spreading baseless claims of voting fraud.  The issue is an uncomfortable one for Biden given his past support for capital punishment and his central role crafting a 1994 crime bill that added 60 federal crimes for which someone could be put to death....  Several inmates already executed on death row were convicted under provisions of that bill, including ones that made kidnappings and carjackings resulting in death federal capital offenses.

The race of those set to die buttresses criticism that the bill disproportionately impacted Black people.  Four of the five set to die over the next few weeks are Black.  The fifth, Lisa Montgomery, is white.  Convicted of killing a pregnant woman and cutting out the baby alive, she is the only female of the 61 inmates who were on death row when executions resumed, and she would be the first woman to be executed federally in nearly six decades.

The executions so far this year have been by lethal injection at a U.S. penitentiary in Terre Haute, Indiana, where all federal executions take place.  The drug used to carry out the sentences is sparse.  The Justice Department recently updated protocols to allow for executions by firing squad and poison gas, though it’s unclear if those methods might be used in coming weeks.

The concern about moving forward with executions in the middle of a pandemic — as the Bureau of Prisons struggles with an exploding number of virus cases at prisons across the country — heightened further on Monday when the Justice Department disclosed that some members of the execution team had tested positive for the virus.... 

Barr suddenly announced in July 2019 that executions would resume, though there had been no public clamor for it.  Several lawsuits kept the initial batch from being carried out, and by the time the Bureau of Prisons got clearance the COVID-19 pandemic was in full swing....  Critics have said the restart of executions in an election year was politically motivated, helping Trump burnish his claim that he is a law-and-order president.  The choice to first execute a series of white males convicted of killing children also appeared calculated to make executions more palatable amid protests nationwide over racial bias in the justice system....

The expectation is that Biden will end the Trump administration’s policy of carrying out executions as quickly as the law allows, though his longer-term approach is unclear. Durham said that while Obama placed a moratorium on federal executions, he left the door open for future presidents to resume them.  Obama, for whom Biden served as vice president, never employed the option of commuting all federal death sentences to life terms.  As president, Biden could seek to persuade Congress to abolish the federal death penalty or simply invoke his commutation powers to single-handedly convert all death sentences to life-in-prison terms. “Biden has said he intends to end the federal death penalty,” Durham said. “We’ll have to wait and see if that happens.”

Though Prez Trump has a long history of supporting the death penalty, that there was no clear effort to move forward with executions when Jeff Sessions was Attorney General during Prez Trump's first few years in office has led me to assume that the resumption of federal executions has been Attorney General William Barr's "passion project."  And the fact that AG Barr is apparently telling the AP that "he’ll likely schedule more before he departs the Justice Department" leads me to wonder if one reason AG Barr has not stepped down from his post already is because he is now eager to preside over as many executions as possible given that Prez-elect Joe Biden has pledged to shut down the federal machinery of death.

Of course, even if William Barr were to step down as Attorney General in the coming days, the work of the Trump Department of Justice would continue and likely would include continued efforts to carry out at least the five currently scheduled executions.  Still, as COVID-based and other litigation surrounds the pending executions, a Justice Department without AG Barr might be just a little less eager to get every possible condemned person to the execution chamber before noon on January 20, 2021.

"Death Penalty Abolitionism From the Enlightenment to Modernity"

The title of this post is the title of this new paper authored by Mugambi Jouet available via SSRN. Here is its abstract:

The modern movement to abolish the death penalty in the United States stresses that this punishment cannot be applied fairly and effectively.  The movement does not emphasize that killing prisoners is inhumane per se.  Its focus is almost exclusively on administrative, procedural, and utilitarian issues, such as recurrent exonerations of innocents, incorrigible racial discrimination, endemic arbitrariness, lack of deterrent value, and spiraling financial costs.  By comparison, modern European law recognizes any execution as an inherent violation of human rights rooted in dignity.  This humanistic approach is often assumed to be “European” in nature and foreign to America, where distinct sensibilities lead people to concentrate on practical problems surrounding executions.

In reality, this Article demonstrates that the significant transatlantic divergence in abolitionism is a relatively recent development.  By the late eighteenth century, abolitionists in Europe and America recurrently denounced the inhumanity of executions in language foreshadowing modern human rights norms.  Drawing on sources overlooked by scholars, including the views of past American and French abolitionists, the Article shows that reformers previously converged in employing a polyvalent rhetoric blending humanistic and practical objections to executions.  It was not before the 1970s and 1980s that a major divergence materialized.  As America faced an increasingly punitive social climate leading to the death penalty’s resurgence and the rise of mass incarceration, its abolitionists largely abandoned humanistic claims in favor of practical ones.  Meanwhile, the opposite generally occurred as abolitionism triumphed in Europe.

These findings call into question the notion that framing the death penalty as a human rights abuse marks recent shifts in Western Europe or international law.  While human rights have indeed become the official basis for abolition in modern Europe, past generations of European and U.S. abolitionists defended similar moral and political convictions. These humanistic norms reflect a long-term evolution traceable to the Renaissance and Enlightenment.  But for diverse social transformations, America may have kept converging with Europe in gradually adopting humanistic norms of punishment.

Group of criminal justice leaders call for ending federal death penalty immediately

As detailed in this press release from Fair and Just Prosecution, " a bipartisan group of nearly 100 criminal justice leaders — including over 60 current elected prosecutors (District Attorneys, State Attorneys, Prosecuting Attorneys and Attorneys General), nine former U.S. Attorneys and 14 current and former Police Chiefs and Sheriffs — issued a joint statement calling for an immediate halt to federal executions and asking the President to commute the sentences of the five people now scheduled to be executed by the federal government over the next two months."  The full three-page joint statement and the list of signatories is available here, and the statement gets started this way: 

We are a group of nearly 100 current and former elected prosecutors, Attorneys General, and law enforcement leaders, and former United States Attorneys and Department of Justice officials writing in opposition to the application of the death penalty, and in support of clemency, for those individuals scheduled for federal execution in the coming months. Case after case has revealed that our nation’s long experiment with the death penalty has failed.  The process is broken, implicates systemic racism and constitutional concerns, and distinguishes our country from many other democratic nations in the world. If ever there were a time to revisit this practice, that time is now.

Many have tried for over forty years to make America’s death penalty system just.  Yet the reality is that our nation’s use of this sanction cannot be repaired, and it should be ended.  The death penalty raises serious concerns in tension with the constitutional ban against cruel and unusual punishment and the guarantees of due process and equal protection under the law.

It is unequally and arbitrarily applied, ineffective at improving public safety, and a waste of taxpayer resources; and its use presents the perilous risk of executing an innocent person.  We also now know that we have not executed the worst of the worst, but often instead put to death the unluckiest of the unlucky — the impoverished, the poorly represented, and the most broken.  Time and again, we have executed individuals with long histories of debilitating mental illness, childhoods marred by unspeakable physical and mental abuse, and intellectual disabilities that have prevented them from leading independent adult lives.  We have executed individuals with trial lawyers so derelict in their duties and obligations that they never bothered to uncover long histories of illness and trauma. We have also likely executed the innocent.

Can Kim Kardashian help stop next week's scheduled federal execution?

The question in the title of this post is prompted by this Los Angeles Times piece headlined "Kim Kardashian West flexes her prison-reform muscle, taking on death-penalty case." Here are excerpts:

Kim Kardashian West is flexing her criminal justice reform muscles for perhaps the last time before President Trump leaves office, asking that the sentence of federal death-row inmate Brandon Bernard be commuted to life in prison without parole before Bernard’s Dec. 10 execution date.

Bernard was sentenced to death in 2000 for the murder of Stacie Bagley, who was killed with her husband after a carjacking and robbery in June 1999 left them locked in the trunk of their car, which was set on fire after both victims were shot. Todd Bagley died from the gunshot, but Stacie died in the fire, which was set by Bernard. The murders took place on Ft. Hood military land in Texas, making it a federal case.

“First, I want to say that a terrible crime was committed and me fighting for a stay of execution does not take away from the sympathy I have for the victim’s Todd and Stacie Bagley, and their families. My heart breaks for everyone involved,” the reality TV star and beauty mogul wrote Sunday in a series of tweets.

Kardashian West first revealed her interest in criminal-justice reform in 2018, when she and others successfully lobbied President Trump to pardon Alice Marie Johnson, who had served 22 years of a life sentence for a nonviolent drug offense. Since then, she has started studying law and has stepped up on behalf of numerous other convicts. In April, she released “Kim Kardashian West: The Justice Project,” a documentary on Oxygen.

“While Brandon did participate in this crime, his role was minor compared to that of the other teens involved, two of whom are home from prison now,” Kardashian West continued Sunday on Twitter.

The fourth man involved in the crimes, Christopher Andre Vialva, was executed Sept. 24 after being sentenced to death on three of the four charges he faced and life in prison on the other. Bernard also received life sentences on three of the four counts, which included committing or aiding and abetting carjacking and conspiracy to commit murder.

Kardashian West tweeted that Bernard wasn’t involved in the initial carjacking and was “stunned” when the Iowa youth ministers were shot. He feared for his own life, she said, when he sprayed lighter fluid into the car and set it on fire to destroy the evidence.

The 40-year-old mother of four cited a recent article written by the prosecutor who defended Bernard’s death sentence on appeal but now believes that sentence should be tossed. She also posted videos from two of the five jurors who — out of the nine jurors still alive — now regret their vote for the death sentence two decades ago. None of those people, however, doubts Bernard’s guilt.

“At trial Brandon’s attorney fell short by not hiring any experts who could have explained to the jury why Brandon decided to leave the video game store that night or how he had grown up in an abusive home, or how his homeless father had left him searching for protection in the streets,” Kardashian West tweeted. “His trial attorney also failed to tell the jury how remorseful he was or anything about his background. We now know this testimony would have spared his life.”...

Bernard, who was convicted of the same four charges Vialva was, got the death sentence for Stacie Bagley’s killing. He was 18 at the time of the murders and, like Vialva, a gang member, according to court documents.

It might seem silly to think a reality TV star like Kim Kardashian West would have sway with the President of the United States.  But, of course, the current President is himself a reality TV star, and he has been greatly influenced by Kimme in the past to reduce the severity of some federal sentences.  I would be quite surprised if she can convince Prez Trump to halt an execution, but I supposed I have learned the last four years to put nothing past this President.

A few prior related posts:

• As Kim Kardashian heads to White House, I hope she advocates for many federal offenders excessively sentenced 
• Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!
• "Kim Kardashian West pushes White House for more drug sentence commutations"
• Can Kimme bring "REAL systemic change" to the clemency process?  She is with all the right folks at the White House.
• "Searching for A Kardashian: Kim helped get clemency for Alice Johnson, who will help me?"
• Keeping up with (soon to be counselor?) Kim Kardashian West and her important role in sentencing reform
• Prez Trump has another meeting about criminal justice reform with Kim Kardashian West and women who have recently received clemency 

Latest Gallup poll indicates "U.S. Support for Death Penalty Holds Above Majority Level"

The quoted portion of the title of this post is the headline of this Gallup report from a few days ago,  Here are excerpts from the report:

Americans' support for the death penalty continues to be lower than at any point in nearly five decades.  For a fourth consecutive year, fewer than six in 10 Americans (55%) are in favor of the death penalty for convicted murderers.  Death penalty support has not been lower since 1972, when 50% were in favor.

Gallup has asked Americans whether they are "in favor of the death penalty for a person convicted of murder" since 1936, when 58% said they were. In all but one survey -- in 1966 -- more Americans have been in favor than opposed.  The 1960s and early 1970s brought many legal challenges to the death penalty, culminating in a 1972 U.S. Supreme Court ruling that invalidated state death penalty statutes.  After the high court upheld revised state death penalty laws in 1976, support for capital punishment grew, peaking at 80% in 1994, a time of heightened public concern about crime.

This year's results are based on a Sept. 30-Oct. 15 survey.  Gallup occasionally asks another question to gauge death penalty support, with respondents indicating whether they believe the better punishment for murder is the death penalty or life imprisonment with no possibility of parole.  In the most recent update, from 2019, Americans favored life imprisonment over the death penalty by 60% to 36%, a dramatic shift from prior years.

Many Americans are thus conflicted on the death penalty.  The two Gallup trend questions indicate that about one in five Americans express theoretical support for use of the death penalty but believe life imprisonment is a better way to punish convicted murderers....

Both Democrats and independents show declines in their support for the death penalty, including similar drops (eight and seven percentage points, respectively) since 2016.  Between the 2000-2010 and 2011-2016 time periods, Democratic support dropped more (eight points) than independent support did (three points).  Now, 39% of Democrats and 54% of independents are in favor of the death penalty.  Meanwhile, Republicans' support for the death penalty has held steady, with 79% currently supporting it, unchanged since 2016 and barely lower than the 80% registered between 2000 and 2010....

Changes in the U.S. population appear to be a factor in declining death penalty support in recent years. Groups that are constituting a greater share of the U.S. adult population over time -- including millennials and Generation Z, non-White adults and college graduates -- all show below-average support for the death penalty.

Over the past four years, an average of 45% of those in Generation Z (those born after 1996) have favored the death penalty, as have 51% of millennials (those born between 1980 and 1996).  That compares with 57% of those in Generation X, 59% of baby boomers and 62% of those born before 1946.

Forty-six percent of non-White Americans, versus 61% of Non-Hispanic White Americans, support the death penalty. Among college graduates, 46% favor the death penalty, compared with 60% of those without a college degree.

US Department of Justice sets three more execution dates

In this July post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of an initial three federal executions that month thanks to SCOTUS lifting lower court stays, it seemed that AG Barr would likely be able to have completed as many executions he decided to set.  For anyone who might have thought AG Barr would be content with ten executions in 2020 (eight already completed and two more planned), this new DOJ press reveals details he is not done.  This release is titled  "Executions Scheduled for Inmates Convicted of Brutal Murders Many Years Ago," and here are the essentials:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the executions of three federal-death row inmates sentenced to death for staggeringly brutal murders, including the murder of a child and, with respect to two inmates, the murder of multiple victims.

• Alfred Bourgeois abused, tortured, and beat to death his young daughter....  Bourgeois is scheduled to be executed by lethal injection on Dec. 11, 2020, at the Federal Correctional Complex, Terre Haute, Indiana.
• Cory Johnson murdered seven people — Peyton Johnson, Louis Johnson, Bobby Long, Dorothy Armstrong, Anthony Carter, Linwood Chiles, and Curtis Thorne — in furtherance of his drug-trafficking activities....  Johnson is scheduled to be executed by lethal injection on Jan. 14, 2021, at the Federal Correctional Complex, Terre Haute, Indiana.
• Dustin John Higgs kidnapped and murdered three women — Tamika Black, 19; Tanji Jackson, 21; and Mishann Chinn, 23....  Higgs is scheduled to be executed on Jan. 15, 2021.

After SCOTUS lifts stay by 6-3 vote, federal government completes it eighth execution of 2020

As reported here via SCOTUSblog, the "Supreme Court on Thursday night allowed the government to proceed with the execution of Orlando Hall, who became the eighth federal inmate to be put to death since the Trump administration resumed federal executions in July."  Here is more:

Hall was sentenced to death for his role in the kidnapping, rape and murder of 16-year-old Lisa René in 1994.  In a one-sentence order, the Supreme Court lifted a district judge’s last-minute injunction that had temporarily blocked Hall’s execution.  Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented and would have left the injunction in place.

The court also rejected three separate emergency requests filed over the past two days in which Hall asked the justices to postpone his execution.  There were no noted dissents to the three brief orders rejecting those requests.  Shortly after the court’s orders, Hall was put to death at the federal prison in Terre Haute, Indiana.  He died at 11:47 p.m., according to local news reports.

Hall’s case reached the Supreme Court after a flurry of litigation in the lower courts over the execution, which the government had scheduled for Thursday at 6 p.m.  On Thursday afternoon, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued an injunction blocking the execution.  The injunction was based on an earlier finding from Chutkan that the government’s method of execution violates the Federal Food, Drug, and Cosmetic Act because the government uses a lethal dose of sodium pentobarbital without obtaining a prescription for that drug.

The government immediately appealed Chutkan’s injunction.  The government argued that the prescription requirement in the FDCA does not apply to lethal-injection drugs.  It also argued that Hall was not entitled to an injunction based solely on the lack of a prescription.

The Supreme Court sided with the government, issuing an order just before 11 p.m. that lifted Chutkan’s injunction. The majority did not explain its reasoning, and none of the three justices who noted their dissent wrote an opinion explaining why.  At the same time, the court denied Hall’s three emergency applications, each of which presented separate legal arguments for a postponement of his execution....

Hall’s case was the first case involving a pending execution in which Justice Amy Coney Barrett participated since she joined the bench in October.  Barrett, a devout Catholic, co-wrote a 1998 article on the moral and legal dilemma that Catholic judges face in capital cases due to the church’s opposition to capital punishment.  That article raised questions in her confirmation hearings about possible recusals from such cases.  Barrett cited her full participation in capital cases as a law clerk for Justice Antonin Scalia and as a judge on the U.S. Court of Appeals for the 7th Circuit.

A few prior recent related posts:

• Pyrrhic victory for federal death row inmates in DC Circuit lethal injection litigation
• Members of Congress urge Attorney General Barr "to suspend all federal executions"
• After Tennessee Gov postpones last scheduled state execution of year, will all three scheduled federal 2020 executions still go forward?

Pyrrhic victory for federal death row inmates in DC Circuit lethal injection litigation

As reported in this Courthouse Legal News piece, headlined "Federal Executions on Track but DC Circuit Flags Legal Errors," two federal defendants scheduled to be executed in coming days and weeks got some cold comfort from the DC Circuit today:

Though it declined to block two federal executions, the first just over 24 hours away, the D.C. Circuit was critical Wednesday that seven lethal injections have been carried out in the last few months without medical prescriptions.

This year alone, President Donald Trump’s Justice Department has carried out more federal executions than the combined total of his predecessors from the last 57 years. That record has sat undisturbed so far against a litany of challenges to the new lethal-injection protocol unveiled last year by Attorney General William Barr after a 17-year hiatus on the death penalty at the federal level.

Inmates suffered their latest defeat Wednesday morning when the D.C. Circuit declined to stay the executions of Orlando Hall set for Thursday and Brandon Bernard on Dec. 10.

In a rare rebuke from the appeals court as to the government’s death-penalty practices, however, the court revived the inmates’ claims that the government must obtain a prescription before using the drug pentobarbital to kill prisoners....

[In] a September ruling ... U.S. District Judge Tanya S. Chutkan found that the Trump administration violated the law by carrying out death sentences with unprescribed pentobarbital, but that Supreme Court decisions foreclosed her from blocking the upcoming executions.

The Supreme Court cleared the way for the first federal execution to proceed this year, overturning a temporary ban that Chutkan had ordered. In her latest ruling, Chutkan concluded that “most of the evidence” brought by attorneys to show flash pulmonary edema grips an inmate while they are still awake was already reviewed by the justices and did not reach the high bar to grant injunctive relief.

But the 2-1 appeals panel ruled Wednesday that Chutkan “should have ordered the 2019 protocol to be set aside to the extent that it permits the use of unprescribed pentobarbital in a manner that violates the FDCA.” Though the court revived the inmates’ Eighth Amendment challenge, it affirmed “denial of a permanent injunction to remedy the FDCA violation.”

Jonathan S. Meltzer, an attorney for Hall, said they would ask the Supreme Court this afternoon to issue a stay. The Justice Department did not respond to whether it plans to bring its own challenge to the Wednesday ruling. Hall has requested to go to the execution chamber at 6 p.m. for his scheduled death on Thursday. He was convicted for the kidnapping, rape and murder of a 16-year-old girl in 1994.

Bernard, set to be executed next month, was sentenced to death for the killing of two youth ministers at Food Hood. One of his five co-defendants, Christopher Vialva, was the most recent federal prisoner to die by lethal injection, executed by the Trump administration in September.

Lisa Montgomery, bringing a separate lawsuit backed by the ACLU, is scheduled to die on Dec. 8 — two days before Bernard — and would be the first woman executed by the U.S. government since 1953.

The full split panel ruling from the D.C. Circuit is available at this link.

Members of Congress urge Attorney General Barr "to suspend all federal executions"

There have already been seven federal executions in 2020, and there are three more federal executions scheduled in the next month: as this BOP page details, one execution is scheduled for this coming Thursday, and two more are scheduled for the second week of December.  But a few members of Congress, as detalled in this press release, have written to Attorney General William Barr to urge him "to suspend all federal executions so the incoming Biden-Harris Administration can evaluate and determine the future use of the death penalty by the federal government."

The full short letter is available at this link, and here are its concluding sentiments:

President-Elect Biden’s plan for strengthening America’s commitment to justice includes the elimination of the federal death penalty and Vice-President-Elect Harris is an original cosponsor of legislation we have introduced to eliminate the federal death penalty. A record number of Americans voted in favor of President-Elect Biden and Vice-President Elect Harris and they deserve an opportunity to implement their policy agenda without the Trump Administration rushing to take preemptive and irreversible steps.

While you will remain in office for a few more weeks, going forward with executions in the weeks before the new administration takes office would be a grave injustice. 

The new death penalty: COVID has now killed more US prisoners than capital punishment over last three decades

I am sad to report that we have passed yet another milestone in COVID prisoner deaths, which prompts another one of my series of "new death penalty" posts.  The Marshall Project continues the critical job of counting via this webpage of deaths from coronavirus reported among prisoners, and as of Thursday, November 12, this accounting had tabulated "at least 1412 deaths from coronavirus reported among prisoners." 

As I have said in other posts, this considerable and ever-growing number is sad and disconcerting on its own terms, but it is even more remarkable given that it now amounts to more than the total  number of prisoner deaths resulting from carrying out formal death sentences in the United States for the entire period from 1990 to 2020.  According to DPIC data, there were a total of 1406 executions from the start of 1990 through today.

Of course, as I have mentioned before, comparing capital punishment and COVID incarceration carnage is problematic in many ways.  All persons executed in the US in recent times have been convicted of the most aggravated forms of murder.  The vast majority of prisoners to die of COVID were not criminally responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The Marshall Project reports "at least 93 deaths from coronavirus reported among prison staff."  I am still pleasantly surprised that this too-big number is not even larger, but I will be ever troubled by the thought that all these COVID casualty numbers could have been lower if more aggressive depopulation efforts were taken to move the most vulnerable and least risky persons out of the super-spreader environment that prisons represent.

A few of many prior related posts:

• The new death penalty: COVID has now killed as many US prisoners as has a quarter century of capital punishment (from October 2020)
• The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades (from August 2020)
• The new death penalty: COVID has now killed more US prisoners in weeks than the US death penalty has in over a decade (from May 2020)
• The new death penalty: COVID has now killed more than 500 US prisoners and prison staff according to UCLA Law data (from May 2020)
• The new death penalty: COVID now a leading modern killer of California inmates on death row 
• From drug sentences to death sentences: documenting arbitrary and capricious drug war casualties
• Memorializing more drug war casualties: updating the federal drug sentences that COVID-19 turned into death sentences 

"Nondelegating Death"

The title of this post is the title of this notable new paper just posted to SSRN and authored by Alexandra Klein.  Here is its abstract:

Most states’ method-of-execution statutes afford broad discretion to executive agencies to create execution protocols.  Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s non-delegation and separation of powers doctrines.  State courts routinely use the non-delegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts.  Despite its uncertain status, the non-delegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of non-delegation.  It analyzes state court decisions upholding broad legislative delegations to agencies and identifies common themes in this jurisprudence.  This Article positions legislative delegation in parallel with historic and modern execution practices that utilize responsibility shifting mechanisms to minimize participant responsibility in carrying out capital sentences and argues that legislative delegation serves a similar function of minimizing accountability in state-authorized killing.

The non-delegation doctrine provides useful perspectives on capital punishment because the doctrine emphasizes accountability, transparency, and perceptions of legitimacy, core themes that permeate historic and modern death penalty practices.  Creating execution protocols carries a high potential for arbitrary action due to limited procedural constraints, secrecy, and broad statutorily enacted discretion.  The decision to authorize capital punishment is a separate policy decision than the decision of how that punishment is carried out.  This Article frames a more robust non-delegation analysis for method-of-execution statutes, and argues that legislators determined to utilize the penalty should carry greater accountability for investigating and selecting methods of execution and should not be allowed to delegate these decisions.

DPIC conducting webinar series on veterans and the death penalty

As detailed here via the Death Penalty Information Center's website, the "Death Penalty Information Center is partnering with the Veteran Advocacy Project to present a six-part webinar series on Veterans and the Death Penalty." Here is more information and links on the topic:

The Death Penalty Information Center is partnering with the Veteran Advocacy Project to present a six-part webinar series on Veterans and the Death Penalty.  The webinars, which are co-sponsored by Advancing Real Change, Inc. and Witness to Innocence, will address a broad range of serious issues that have made veterans disproportionately vulnerable to capital prosecution. The series opens Monday, November 9, the week the nation commemorates Veterans Day 2020, with a session on Veterans on Death Row....

The series opens November 9 with an overview of the issues by Veteran Advocacy Project Criminal Programs Director, Art Cody, DPIC Executive Director Robert Dunham, and former DPIC Executive Director and Battle Scars author Richard Dieter. This is followed by panels on Special Issues in Investigating and Presenting Veterans’ Mitigation (Nov. 12); Capital Punishment Under the Uniform Code of Military Justice (Nov. 13); Mental Health Issues in Veterans’ Capital Cases (Nov. 17), and Veterans, Race, and the Death Penalty (Nov. 18). It concludes on November 19, with a session on Wrongful Capital Convictions of Military Veterans, in which veterans Kirk Bloodsworth, Ray Krone, and Ron Wright tell the stories of their cases and how they were wrongfully sent to death row in the country that they had served.

After Tennessee Gov postpones last scheduled state execution of year, will all three scheduled federal 2020 executions still go forward?

As reported in this local article, "Tennessee Gov. Bill Lee has granted death row inmate Pervis Payne a temporary reprieve due to the COVID-19 pandemic."  Here is more:

Payne's execution was scheduled for Dec. 3, 2020. The reprieve lasts until April 9, 2021. Lee said in a written statement that the reprieve was issued "due to the challenges and disruptions caused by the COVID-19 pandemic," but did not elaborate further.

Payne, who is being held on death row in Riverbend Maximum Security Institution in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie.  Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took place in Christopher’s apartment.

“This additional time will also allow us to investigate Mr. Payne’s strong innocence claim, together with the Innocence Project," said Kelley Henry, Payne's attorney.  "We are grateful to the 150 faith, legal, legislative, and community groups in Memphis and across the state that support clemency for Mr. Payne. Together with Mr. Payne’s family, we will continue the fight to prove Mr. Payne’s innocence.”

The reprieve also allows time for the Tennessee Black Caucus of State Legislators to potentially pass legislation that would allow a defendant already sentenced to the death penalty and whose conviction is final to still bring a petition regarding a claim of intellectual disability. Although members of the caucus filed the bill Wednesday, it cannot be passed until January at the earliest, initially after Payne's scheduled execution.

Payne has maintained his innocence, and his attorneys have said that he is intellectually disabled, but have been unable to litigate the claim in Tennessee due to procedural reasons. In federal court, Payne’s attorneys have filed a petition asking the court to prevent his execution until hearing his claim that he is intellectually disabled....

During his 1988 trial, Payne said he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment. He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

The Shelby County District Attorney's Office has maintained that regardless of what DNA testing shows, the evidence to convict Payne of the crimes was overwhelming. An officer saw him leaving the scene of the crime drenched in blood, and Payne admitted to being there.  His baseball cap was found looped around the 2-year-old victim's arm, and his fingerprints were found inside the apartment.

Payne’s case has drawn the support of a large coalition of advocates, led by the Ben F. Jones Chapter of the National Bar Association, urging for the DNA testing.  The coalition includes the Tennessee Black Caucus of State Legislators, Memphis Chapter of the NAACP, the Memphis Bar Association, 100 Black Men of Memphis, National Council of Negro Women (Memphis Chapter), Stand for Children Tennessee, Memphis Interfaith Coalition for Action and Hope (MICAH) and several leaders in the Church of God in Christ (COGIC), of which Payne is a member.

It strikes me as quite notable and ultimately disturbing that, for a crime that took place 33 years ago(!), it seems that a global pandemic was needed to justify a short reprieve to provide time "to investigate Mr. Payne’s strong innocence claim."  Also, if Payne is actually intellectually disabled and thereby categorically ineligible for execution under the Eighth Amendment, it seems quite problematic to preclude him from properly litigating this constitutional issue fully for mere procedural reasons.

These case specifics aside, this Death Penalty Information Center page details that this planned Tennessee execution had been the last state execution scheduled for 2020.  So, due to lots COVID disruptions as well as other factors, it appears the total number of state executions in 2020 will be only seven individuals, marking the lowest yearly total of state executions in almost 40 years.  But, of course, the federal government really revved up its machinery of death in 2020, and there have already been seven federal executions in 2020.  Moreover, there are three more federal executions still scheduled for 2020: as this BOP page details, one execution is scheduled for next Thursday, and two more are scheduled for the second week of December.

Even if we did not have a consequential federal election this month, the federal defendants scheduled for execution in the coming weeks would surely be seeking a reprieve based on COVID concerns and perhaps on other grounds as well.  But, especially given that the Joe Biden campaign talked about seek to abolish the federal death penalty, if these condemned defendants can find a way to get their executions postponed until after January 20, 2021, they might benefit from a new Administration eager to now completely turn off the entire federal machinery of death.

"Shrinking the Accountability Deficit in Capital Charging"

The title of this post is the title of this paper authored by Sherod Thaxton and recently posted to SSRN. Here is its abstract:

The price of capital trials, appeals, and clemency proceedings have skyrocketed since the U.S. Supreme Court lifted its moratorium on the death penalty, but this has not translated to more reliable case outcomes — the rate of serious reversible error and wrongful convictions has steadily increased during the same time period.  The overly aggressive use of the death penalty by prosecutors has not only been convincingly linked to these high reversal rates, but may also increase crime, decrease the likelihood of arrests for homicides, and lead to heightened risks of miscarriages of justice for non‐capital defendants.  It follows that limiting hawkish prosecutorial decision‐making in potentially capital cases may be particularly effective in reducing the prevalence of error and reducing unnecessary expense.  Curbing the virtually unfettered discretion of prosecutors is not a new idea, but extant proposals tend to suffer from shortcomings that are likely to render them impractical or ineffective.  Any viable legal intervention must increase prosecutorial accountability for inadequate charge‐screening in capital cases while still permitting prosecutors to retain discretion in seeking the death penalty.  This essay describes a reform that consists of two primary components: (1) an advisory (i.e., non‐binding) opinion from a reviewing authority assessing the appropriateness of a prosecutor’s decision to seek the death penalty in a case based on the totality of evidence, and (2) financial and administrative cost-shifting mechanisms capable of disincentivizing prosecutorial overreaching in capital charging.

"Courts, Culture, and the Lethal Injection Stalemate"

The title of this post is the title of this new paper authored by Eric Berger now available via SSRN. Here is its abstract:

The Supreme Court’s 2019 decision in Bucklew v. Precythe reiterated the Court’s great deference to states in Eighth Amendment lethal injection cases.  The takeaway is that when it comes to execution protocols, states can do what they want.  Except they can't.  Notwithstanding courts’ deference, executions have ground to a halt in numerous states, often due to lethal injection problems.  State officials and the Court’s conservative Justices have blamed this development on “anti-death penalty activists” waging “guerilla war” on capital punishment.  In reality, though, a variety of mostly uncoordinated actors motivated by a range of distinct norms has contributed to states’ lethal injection woes. These actors, such as doctors, pharmaceutical companies, and institutional investors, follow their own professional incentives, usually unrelated to the morality of capital punishment.

States’ recent execution difficulties raise important questions about the future of the Eighth Amendment and the American death penalty.  As certain lethal injection protocols and executions themselves become less common, future courts might reconsider their deference in this area.  The Eighth Amendment, after all, encompasses “evolving standards of decency,” which courts often measure with reference to changing state practices.  Though constitutional doctrine has played only a bit part in the execution decline, that decline could eventually reshape constitutional doctrine.

This story also complicates long-accepted constitutional theories.  While the traditional view is that federalism maximizes state policy choices so long as courts and Congress do not interfere, the lethal injection stalemate shows how non-governmental actors, even uncoordinated ones, can undermine state policies.  Courts and the political branches in some states stand united in support of capital punishment.  It is, therefore, noteworthy that unorganized actors pursuing their own institutional objectives have obstructed executions and even cast new long-term doubt on previously entrenched penological practices.

Court filing by California Gov seeks tougher rules for state’s death penalty

This local article, headlined "Newsom, California district attorneys seek tighter standards for application of death penalty," reports on a notable new court filing by Governor of California. Here are the details:

Gov. Gavin Newsom, who has already declared a moratorium on executions in California, went a step further Monday with an unprecedented court filing that asserted the state’s death penalty law is applied in a racist manner against African Americans.

Newsom’s state Supreme Court filing did not call for abolition of the death penalty — an option narrowly rejected by California’s voters in 2012 and 2016 — but argued that a jury imposing a death sentence should be required to find beyond a reasonable doubt that it was the proper punishment, rather than life in prison without parole.

The governor also said jurors should be allowed to consider factors favoring the death penalty, such as other violent acts by the defendant, only if they agreed unanimously that those events had occurred. Those standards would make it more difficult for prosecutors to persuade jurors to return a death sentence....

“Since its inception, the American death penalty has been disproportionately applied — first, to enslaved Africans and African Americans, and, later to free Black people. With this filing, we make clear that all Californians deserve the same right to a jury trial that is fair, and that it is a matter of life and death.”

The brief was the first ever filed by a California governor challenging the state’s application of the death penalty and calling for restrictions.  A similar brief was submitted in the same case Monday by four district attorneys — Chesa Boudin of San Francisco, Diana Becton of Contra Costa County, Jeffrey Rosen of Santa Clara County and Tori Verber Salazar of San Joaquin County — and two former district attorneys, George Gascón of San Francisco and Gil Garcetti of Los Angeles County.

The six have varying views on capital punishment, but said in their filing that they wanted to “ensure that the death sentence is chosen (if at all) for only the worst offenders and offenses.”

Boudin, who like every San Francisco district attorney since 1995 has vowed not to seek the death penalty, said, “California’s death penalty is not only inconsistent with the values of a humane society, but is administered in a racially biased way.” Gascón, San Francisco’s chief prosecutor from 2011 to 2019, is running for district attorney in Los Angeles.

Newsom issued an executive order in March 2019, his third month in office, suspending executions in California, which has not executed a prisoner since January 2006.  He said at the time that the death penalty “is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”

The state has 711 inmates on Death Row — more than one-third of them Black, Newsom said in his court filing. African Americans are also much more likely than others to be arrested and searched by police and to be the victims of police violence, the governor’s lawyers told the court.

The moratorium on executions has not stopped most county prosecutors from seeking death sentences, and has not stopped Attorney General Xavier Becerra’s office from defending those sentences before the state’s high court.

Monday’s filings were submitted in the case of Donte McDaniel, sentenced to death for fatally shooting two people in Los Angeles in 2004 in what prosecutors described as murders related to gangs and drugs.

In preparing for a hearing in McDaniel’s case, the state Supreme Court asked lawyers whether the California law should be interpreted to require jurors to decide beyond a reasonable doubt — the same standard required for convictions — whether death was the proper punishment.  The court also asked whether the law prohibits jurors from considering so-called aggravating factors, like a defendant’s past violent acts, unless they agree on those facts unanimously.

Newsom’s brief and the filing by the current and former prosecutors answered both questions affirmatively.  Requiring jurors to “unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict” are essential to preserving “the full protections of the jury right in capital sentencing,” said the governor’s lawyers, Dean Erwin Chemerinsky and Prof. Elisabeth Semel of the UC Berkeley Law School.

UPDATE: I came across the filing by the six current and former DAs, and it can be accessed at this link.  Here is the first paragraph of the filing's introduction:

On June 17, 2020, the Court asked the parties to address the following question: “Do Penal Code section 1042 and article I, section 16 of the California Constitution require that the jury unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict?”  This brief addresses that question from the perspective of four present district attorneys and two former district attorneys.  While these amici take different positions as to whether the death penalty should be abolished, they unanimously believe that death sentences are arbitrarily imposed under the current California death penalty statutes, and that the failure to construe the California Constitution and Penal Code Section 1042 to require the jury to choose death beyond a reasonable doubt and to unanimously find disputed facts relating to aggravating circumstances exacerbates the arbitrariness inherent in the State’s death penalty regime.

"The Complexities of Conscience: Reconciling Death Penalty Law with Capital Jurors’ Concerns"

The title of this post is the title of this notable new paper available via SSRN and authored by Meredith Rountree and Mary Rose. Here is its abstract:

Jurors exercise unique legal power when they are called upon to decide whether to sentence someone to death.  The Supreme Court emphasizes the central role of the jury’s moral judgment in making this sentencing decision, noting that it is the jurors who are ‘best able to express the conscience of the community on the ultimate question of life or death.’” Many lower courts nevertheless narrow the range of admissible evidence at the mitigation phase of a capital trial, insisting on a standard of legal relevance that interferes with the jury’s ability to exercise the very moral judgment the Supreme Court has deemed essential.

Combining moral theory and original empirical evidence, this Article breaks new ground by linking these to a legal framework that gives full effect to the Supreme Court’s vision of the jury.  Aided by a novel dataset of federal capital jury verdict forms, the Article focuses on three types of evidence frequently excluded in state and federal courts: the impact of the defendant’s execution on loved ones, co-participant sentences, and the government’s negligent facilitation of the murder.

The data show that jurors consistently find all three forms of evidence highly salient in their mitigation deliberations.  Further, two of these — execution impact evidence and co-participant sentences — have a statistically significant correlation with the jurors’ sentencing decision.  This Article’s empirical and moral account of juror behavior strongly supports expanding the admissibility of this evidence to reflect the Supreme Court’s evolution in defining the relevance of mitigating evidence as a moral, rather than legalistic, question, appropriately recognizing the jury’s normative role.

US Department of Justice sets two more execution dates, including for the only woman on federal death row

In this July post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of an initial three federal executions that month thanks to SCOTUS lifting lower court stays, it seemed to me that AG Barr would likely be able to have completed how ever many executions he decides to set.  Thereafter, the US Justice Department set two more execution dates for August and two more for September, and those executions were completed to bring the 2020 total of federal executions up to seven. 

For anyone who might have thought AG Barr would be content with seven execution in 2020, this DOJ press release from late Friday afternoon might have come as a bit of a surprise.  This release is titled  "Executions Scheduled for Two Federal Inmates Convicted of Heinous Murders" and here are excerpts:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the executions of two federal death-row inmates, both of whom were convicted of especially heinous murders at least 13 years ago.

• Lisa Montgomery fatally strangled a pregnant woman, Bobbie Jo Stinnett, cut open her body, and kidnapped her baby.  In December 2004, as part of a premeditated murder-kidnap scheme, Montgomery drove from her home in Kansas to Stinnett’s home in Missouri, purportedly to purchase a puppy.  Once inside the residence, Montgomery attacked and strangled Stinnett—who was eight months pregnant—until the victim lost consciousness.  Using a kitchen knife, Montgomery then cut into Stinnett’s abdomen, causing her to regain consciousness.  A struggle ensued, and Montgomery strangled Stinnett to death.  Montgomery then removed the baby from Stinnett’s body, took the baby with her, and attempted to pass it off as her own.  Montgomery subsequently confessed to murdering Stinnett and abducting her child.  In October 2007, a jury in the U.S. District Court for the Western District of Missouri found Montgomery guilty of federal kidnapping resulting in death, and unanimously recommended a death sentence, which the court imposed....  Montgomery is scheduled to be executed by lethal injection on December 8, 2020, at U.S. Penitentiary Terre Haute, Indiana. 
• Brandon Bernard and his accomplices brutally murdered two youth ministers, Todd and Stacie Bagley, on a military reservation in 1999.  After Todd Bagley agreed to give a ride to several of Bernard’s accomplices, they pointed a gun at him, forced him and Stacie into the trunk of their car, and drove the couple around for hours while attempting to steal their money and pawn Stacie’s wedding ring.  While locked in the trunk, the couple spoke with their abductors about God and pleaded for their lives.  The abductors eventually parked on the Fort Hood military reservation, where Bernard and another accomplice doused the car with lighter fluid as the couple, still locked in the trunk, sang and prayed.  After Stacie said, “Jesus loves you,” and “Jesus, take care of us,” one of the accomplices shot both Todd and Stacie in the head—killing Todd and knocking Stacie unconscious.  Bernard then lit the car on fire, killing Stacie through smoke inhalation.  In June 2000, a jury in the U.S. District Court for the Western District of Texas found Bernard guilty of, among other offenses, two counts of murder within the special maritime and territorial jurisdiction of the United States, and unanimously recommended a death sentence....  Bernard is scheduled to be executed by lethal injection on December 10, 2020, at U.S. Penitentiary Terre Haute, Indiana.  One of his accomplices, Christopher Vialva, was executed for his role in the Bagleys’ murder on September 22, 2020.

Recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week
• How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?
• Amidst seemingly little attention, federal government seemingly poised to carry out two more executions this week
• Native American death sentence carried out as feds complete record-setting fourth execution of 2020 
• Federal government completes its fifth execution of 2020
• Federal government completes its sixth execution in 2020 
• Federal government completes its seventh (and final?) execution in 2020

UPDATE: I just realized that I failed to note this September 30 DOJ press release concerning another execution date set for November 19:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the execution of Orlando Cordia Hall, who was sentenced to death after kidnapping, raping, and murdering a 16-year-old girl in 1994....  In October 1995, a jury in the U.S. District Court for the Northern District of Texas found Hall guilty of, among other offenses, kidnapping resulting in death, and unanimously recommended a death sentence, which the court imposed.  Hall’s convictions and sentences were affirmed on appeal more than 20 years ago, and his initial round of collateral challenges failed nearly 15 years ago.  In 2006, Hall received a preliminary injunction from a federal district court in Washington, D.C., based on his challenge to the then-existing federal lethal-injection protocol.  That injunction was vacated by the district court on Sept. 20, 2020, making Hall the only child murderer on federal death row who is eligible for execution and not subject to a stay or injunction.  Hall’s execution is scheduled for Nov. 19, 2020, at U.S. Penitentiary Terre Haute, Indiana.

Noticing a lurking Eighth Amendment issue in SCOTUS arguments over statute of limitations for military rape prosecutions

The US Supreme Court issued another order list this morning with little of interest for sentencing fans, and I am not expecting much criminal law discussion in the on-going confirmation hearings for Judge Amy Coney Barrett.  But SCOTUS is hearing oral argument today in US v. Briggs, which is worth watching for reasons Evan Lee explains in this post at SCOTUSblog under the title "Case preview: Determining the statute of limitations for military rape — and possibly a lot more."  Here is an excerpt:

When the Supreme Court entertains argument on Tuesday in United States v. Briggs, which had originally been scheduled for Monday, March 23, it will be asked to decide whether three men convicted of military rape should not have been prosecuted in the first place because of the statute of limitations.  And, should each side’s principal argument fail, the court may be forced to decide a bigger question: whether the Eighth Amendment prohibition against capital punishment for non-homicide rape applies to rape in the military.

This litigation consists of three consolidated cases, which all involve male military personnel convicted of raping female military personnel.  Michael Briggs, Richard Collins and Humphrey Daniels claim that the statute of limitations should have barred their prosecutions.  The government argues that there is no statute of limitations for military rape because Congress exempted all military crimes punishable by death from limitations.  The defendants counter that the cruel and unusual punishments clause of the Eighth Amendment prohibits the death penalty for all rapes not involving fatalities, including military rapes.  That, in turn, means there is a statute of limitations for military rape, and it expired before any of the three men were prosecuted.  The U.S. Court of Appeals for the Armed Forces agreed with the defendants....

A key issue in this litigation is which subsection of the UCMJ, 10 U.S.C. Section 843, applies: subsection (a), which states that “any [military] offense punishable by death may be tried and punished at any time without limitation,” or subsection (b), which creates a five-year statute of limitations for other military offenses.  The government argues that Section 843(a) applies because military rape is made “punishable by death” by 10 U.S.C. Section 920(a), which states, “Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.”  The three defendants argue that military rape is not “punishable by death” because the Supreme Court’s Eighth Amendment precedents prohibit capital punishment for non-fatality rapes.  And if military rape is not punishable by death, then the applicable limitations period is the default provision of Section 843(b)....

At oral argument, it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.  

I strongly agree it will be interesting to see how the Justices may bring up the Eighth Amendment during oral argument today, and I will plan to update this post accordingly.

UPDATE: The oral argument transcript in Briggs is now available here.  A quick search reveals the term "Eighth Amendment" coming up 32 times over the transcript's 65 pages.  Over at Crime & Consequences, Kent Scheidegger has this extended post on the case under the title "The Eighth Amendment and Statutes of Limitations." Here is how this post starts and ends:

What do statutes of limitations and the constitutional ban on “cruel and unusual punishments” have to do with each other? The logical answer is “nothing.” But the law follows strange paths, and the two issues crossed in today’s Supreme Court argument on the statute of limitations for rape in the military justice system....

I won’t venture a prediction based on this argument. If the eight justices divide four-four, we might be seeing a reargument.

The new death penalty: COVID has now killed as many US prisoners as has a quarter century of capital punishment

I am sad to report that we are approaching yet another stunning milestone in COVID prisoner deaths, which prompts another one of my series of "new death penalty" posts.  The Marshall Project is continuing with the critical job of keeping an updated count via this webpage of deaths from coronavirus reported among prisoners, and as of the morning of Thursday, October 8, this accounting had tabulated "at least 1211 deaths from coronavirus reported among prisoners." 

As I have said in other posts, this considerable and ever-growing number is sad and disconcerting on its own terms, but it is even more remarkable given that it amounts to roughly the same number of prisoner deaths resulting from carrying out formal death sentences in the United States for the entire period from 1996 to 2020.  According to DPIC data, there were a total of 1213 executions from the start of 1996 through today.

Of course, as I have mentioned before, comparing capital punishment and COVID incarceration carnage is problematic in many ways.  All persons executed in the US in recent times have been convicted of the most aggravated forms of murder.  The vast majority of prisoners to die of COVID were not criminally responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The Marshall Project reports "at least 85 deaths from coronavirus reported among prison staff."  I remain pleasantly surprised that this too-big number is not even larger, but I will be ever troubled by the thought that all these COVID casualty numbers could have been lower if more aggressive depopulation efforts were taken to move the most vulnerable and least risky persons out of the super-spreader environment that prisons represent.

A few of many prior related posts:

• The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades (from August 2020)
• The new death penalty: COVID has now killed more US prisoners in weeks than the US death penalty has in over a decade (from May 2020)
• The new death penalty: COVID has now killed more than 500 US prisoners and prison staff according to UCLA Law data (from May 2020)
• The new death penalty: COVID now a leading modern killer of California inmates on death row 
• From drug sentences to death sentences: documenting arbitrary and capricious drug war casualties
• Memorializing more drug war casualties: updating the federal drug sentences that COVID-19 turned into death sentences 

Feds officially seek SCOTUS certiorari to review First Circuit's reversal of Boston Marathon bombers death sentence

As reported in this Boston Globe piece, "Federal prosecutors on Tuesday formally filed their request for the US Supreme Court to review an appeals court ruling in July that threw out the death penalty in the case against Boston Marathon bomber Dzhokhar Tsarnaev." Here is more (links from the original):

The 424-page request, known as a writ of certiorari, raises two questions for the high court to consider.

First, it asks whether the District Court should have allowed “evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.”

Second, the document asks whether the federal appeals court that overturned Tsarnaev’s death sentence made a mistake in concluding that the District Court should have asked “each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.”...

The move by prosecutors comes after the US Court of Appeals for the First Circuit on July 31 issued a 182-page ruling that infuriated some survivors, finding that George A. O’Toole Jr., who presided over Tsarnaev’s high-profile 2015 trial in US District Court in Boston, “did not meet the standard” of fairness while presiding over jury selection....

With their filing Tuesday, prosecutors formally asked the Supreme Court to take up the matter. If the high court, which agrees to hear only a fraction of the cases submitted to the panel for review each year, does review the case, it could affirm the appellate decision or reverse it, reinstating Tsarnaev’s death sentence.  Tsarnaev, now 27, remains incarcerated at a federal supermax prison in Colorado. 

Prior recent related posts:

• First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev
• Unsurprisingly, victims of Boston Marathon bomber differ on seeking a new death sentence for Dzhokhar Tsarnaev after reversal on appeal  
• AG Barr says, unsurprisingly, that feds will appeal reversal of Boston Marathon bomber's death sentence

Justice Sotomayor issues a couple of notable (and notably solo) statements in lengthy order list kicking off new SCOTUS Term

For the third time in five years, the US Supreme Court has officially started its new Term with only eight sitting Justices.  That fact, and so much other news from other branches, perhaps helps to explain why I sense today's start of a new SCOTUS Term has received a little less fanfare than usual.  In this space, I know I have not yet been moved to give the start of the new Term all that much attention; this is partially because there are only a few notable sentencing cases on the docket right now which won't be argued until November, and partially because no criminal cases were added to the docket via this order list after the Court's long conference last week.  I sense that the Justices are collectively inclined to "lay low" at least until we get through the election and/or an additional Justice is confirmed.

That said, when it comes to the criminal side of the SCOTUS docket, Justice Sotomayor seems disinclined to ever lay low, and so I was not too surprised that she had a few statements about the denial of certiorari at the end of this lengthy new SCOTUS order list.  After a few remains and procedural matters, this order list is consumed with nearly 50 pages of cases in which cert or habeas or rehearing is denied.  But the last nine pages of the list has Justice Sotomayor making two statements respecting the denial of certiorari

In Kaur v. Maryland, No. 19–1045, Justice Sotomayor's 5-page statement begins and ends this way:

Although I join the Court’s decision to deny certiorari, I write separately to address a concerning feature of this petition: The prosecutors who tried this case had extensive knowledge of defense counsel’s confidential communications with the defendant, petitioner Raminder Kaur.  For the reasons stated below, I fear that, in this case, the criminal justice system failed to live up to its highest ideals....

Prosecutors wield an immense amount of power, and they do so in the name of the State itself.  That unique privilege comes with the exceptional responsibility to ensure that the criminal justice system indeed serves the ends of justice.  Prosecutors fall short of this task, and therefore do a grave disservice to the people in whose name they litigate, when they permit themselves to enjoy unfair trial advantages at defendants’ expense.  Here, regardless of the reason for their acquisition of Kaur’s privileged information, and regardless of whatever minimum conduct was required of them by the Sixth Amendment, the prosecutors should have recused themselves from participating in Kaur’s second trial as a matter of professional conscience.  Their failure to do so casts a troubling and unnecessary shadow over Kaur’s conviction and sentence to life imprisonment.

In Henness v. DeWine, No. 20–5243, Justice Sotomayor's 4-page statement concerns Ohio's long-running lethal injection litigation, and includes these statements:

I write to address the Sixth Circuit’s novel and unsupported conclusion that pain is constitutionally tolerable so long as it is no worse than the suffering caused by a botched hanging....  The Sixth Circuit thus appears to have created a categorical rule that a method of execution passes constitutional muster so long as it poses no greater risk of pain than the slow suffocation of a hanging gone wrong....

The Sixth Circuit erred in enshrining hanging as a permanent measure of constitutionally tolerable suffering.  Its decision conflicts with this Court’s recent precedent, which makes clear that the proper inquiry is comparative, not categorical.  See Bucklew, 587 U. S., at ___ (slip op., at 13); Glossip, 576 U. S., at 878.  Since Glossip, this Court has held that a risk of pain raises constitutional problems if it is “‘substantial when compared to a known and available alternative’” that is “feasible and readily implemented.”  Bucklew, 587 U. S., at ___ (slip op., at 13).  If such an alternative exists, and a State nonetheless refuses to adopt it without a legitimate penological reason, then the State’s chosen method “cruelly” (and unconstitutionally) “superadds pain to [a] death sentence.” Ibid....

Bucklew does not provide a categorical safe harbor for methods of execution that, in a court’s estimation, will cause no greater suffering than that caused by certain traditional methods. See ibid. If there were a feasible and readily implemented method of execution that would prevent petitioner from experiencing a sensation akin to drowning as he dies, it would be cruel and unusual for Ohio to refuse to adopt it.

UPDATE: In the original title of this post, I mistakenly called these statements "dissents" when in fact the are each actually styled as a "statement ... respecting the denial of certiorari."  Even so styled, she notably did not get any other Justice to sign on.

Pope Francis' new encyclical clearly condemns the death penalty (as well as life imprisonment)

As reported in this new article from America, which is headlined "Pope Francis closes the door on the death penalty in ‘Fratelli Tutti’," there are new papal teachings that have much to say about extreme punishments.  Here are the details:

Pope Francis’ new encyclical, “Fratelli Tutti,” does something that some Catholics believed could not be done: It ratifies a change in church teaching. In this case, on the death penalty.

In 2018, Pope Francis ordered a change in the Catechism of the Catholic Church, the official compendium of church teaching, when he termed the death penalty “inadmissible.”  Today the pope placed the full weight of his teaching authority behind this statement: The death penalty is inadmissible, and Catholics should work for its abolition.  A papal encyclical is one of the highest of all documents in terms of its authority, removing any lingering doubt about the church’s belief.

“There can be no stepping back from this position,” says Francis, referring to the opposition to capital punishment expressed by St. John Paul II. “Today we state clearly that ‘the death penalty is inadmissible’ and the Church is firmly committed to calling for its abolition worldwide.”...

In past centuries, the church was generally accepting of the death penalty. Both St. Augustine and St. Thomas Aquinas declared it licit not only for the sake of punishment, but also as a way for the state to protect itself, ideas that took hold in the church and influenced civil society. In the Roman Catechism, written after the Council of Trent in the 16th century, the church supported the death penalty for those two reasons: “Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent.”

As recently as the 1990s, the Catechism of the Catholic Church said that the state could still use capital punishment to protect people from violent criminals: “The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor.”

In 1995, however, in his encyclical "Evangelium Vitae," St. John Paul II tightened the restrictions, saying that the times that the state needed to use capital punishment to protect other citizens were “very rare, if not practically non-existent.” Four years later, he called for its abolition. So did Pope Benedict XVI, in 2011. The door to the death penalty was gradually closing. Today it was shut. It is a clear example of the development of doctrine over the centuries.

In his new encyclical, Francis also traces a lesser known counternarrative, showing a theological thread that has always been against the death penalty: “From the earliest centuries of the Church, some were clearly opposed to capital punishment,” he writes and includes commentary from St. Augustine, who argued for mercy in the case of two assassins.

In “Fratelli Tutti,” the pope grounds his opposition to capital punishment not only in mercy, perhaps his most characteristic spiritual theme, but also in opposition to revenge. “Fear and resentment can easily lead to viewing punishment in a vindictive and even cruel way, rather than as part of a process of healing and reintegration into society,” he writes.

Moreover, he bases the teaching in the inviolable dignity of each person—including the person on death row. “Let us keep in mind that ‘not even a murderer loses his personal dignity, and God himself pledges to guarantee this,’” he says, quoting “The Gospel of Life” (“Evangelium Vitae”). Francis continues: “The firm rejection of the death penalty shows to what extent it is possible to recognize the inalienable dignity of every human being and to accept that he or she has a place in this universe.”

Today Pope Francis also condemned life imprisonment, which he calls a “secret death penalty.” George Williams, S.J., who served for many years as a Catholic chaplain at San Quentin Prison in California and worked with inmates on death row, praised the pope’s stance, saying "In nearly 30 years of prison ministry, I have witnessed the soul-killing damage caused by sentencing men and women to life in prison without the possibility of parole. I believe it is crueler to sentence someone to prison with no hope of ever getting out than it would be to execute them outright. Executions kill the body, but life without parole kills the human spirit."

With “Fratelli Tutti” Francis has moved opposition to the death penalty into the foreground of Catholic social teaching, completing the church’s long journey of mercy and reconciliation.

The full text of this new encyclical is available here in English, and the discussion of the death penalty starts at paragraph 263.  Here is the text of subsequent paragraph discussing both the death penalty and life imprisonment and prison reform:

268. “The arguments against the death penalty are numerous and well-known.  The Church has rightly called attention to several of these, such as the possibility of judicial error and the use made of such punishment by totalitarian and dictatorial regimes as a means of suppressing political dissidence or persecuting religious and cultural minorities, all victims whom the legislation of those regimes consider ‘delinquents’.  All Christians and people of good will are today called to work not only for the abolition of the death penalty, legal or illegal, in all its forms, but also to work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom.  I would link this to life imprisonment… A life sentence is a secret death penalty”.

Because I am not at all a scholar of Catholic teaching or documents, I am not sure if this new encyclical is a consequential new development in what I have long seen as the Catholic Church's modern categorical opposition to capital punishment.  But I am sure this might be one more thing for Senators to consider discussing with SCOTUS nominee Amy Coney Barrett in light of her   co-authored article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.

Bureau of Justice Statistics releases "Capital Punishment, 2018 – Statistical Tables"

This morning the Justice Department's Bureau of Justice Statistics released this new report with notable national data on the administration of the death penalty in the United States through 2018. As I have noted before, though BJS is often the provider of the best available data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment. In any event, this new BJS report still provides notable and clear statistical snapshots about the death penalty, and the document sets out these initial "highlights":

• Nineteen states had a decrease in the number of prisoners held under sentence of death from year-end 2017 to year-end 2018, while 2 states and the BOP had an increase.

• Eighteen states and the BOP removed a total of 88 prisoners from being under sentence of death in 2018 by means other than execution.

• In 2018, the Washington Supreme Court ruled that the state’s death-penalty law was unconstitutional, and eight prisoners under sentence of death were re-sentenced to life without parole.

• During 2018, Delaware removed its remaining death-row prisoner from a previously imposed death sentence.

• The largest declines in the number of prisoners under death sentences in 2018 were in Pennsylvania and Texas (down 11 prisoners each), followed by Washington (down 8) and then Alabama, Florida, California, and Nevada (down 6 each).

• From year-end 2017 to year-end 2018, the number of prisoners held under sentence of death in Arkansas increased by two, while the BOP and Missouri each increased their number by one.

• At year-end 2018, 56% of prisoners under death sentences were white and 42% were black.

• Among prisoners under a death sentence at year-end 2018 with a known ethnicity, 15% were Hispanic.

• Ninety-eight percent of prisoners under sentence of death were male.

• In three of the four (Census) regions in the country (the West, Midwest, and South), more white prisoners than black prisoners were under sentence of death at year-end 2018.

• The average elapsed time from sentencing to execution almost tripled from 1988 (6.7 years) to 2018 (19.8 years).

Federal government completes its seventh (and final?) execution in 2020

The federal government this evening completed is seventh execution in the span of just over two months.  This AP article, headlined "Feds put first Black inmate to death since execution restart," provides these details:

A man who killed a religious couple visiting Texas from Iowa was executed Thursday, the first Black inmate put to death as part of the Trump administration’s resumption of federal executions.

Christopher Vialva, 40, was pronounced dead shortly before 7 p.m. EDT after receiving a lethal injection at the federal prison in Terre Haute, Indiana.  In a last statement, Vialva asked God to comfort the families of the couple he had killed, saying, “Father … heal their hearts with grace and love.” His final words were: “I’m ready, Father.”...

A report this month by the Washington, D.C.-based Death Penalty Information Center said Black people remain overrepresented on death rows and that Black people who kill white people are far more likely to be sentenced to death than white people who kill Black people.  Of the 56 inmates currently on federal death row, 26 — or nearly 50% — are Black, according to center data updated Wednesday; 22, or nearly 40%, are white and seven, around 12% were Latino. There is one Asian on federal death row.  Black people make up only about 13% of the population....

Vialva was 19 years old in 1999 when he shot Todd and Stacie Bagley and burned them in the trunk of their car.  Vialva’s lawyer, Susan Otto, has said race played a role in landing her client on death row for killing the white couple.  Vialva was the seventh federal execution since July and the second this week.  Five of the first six were white, a move critics argue was a political calculation to avoid uproar.  The sixth was Navajo.

“I believe when someone deliberately takes the life of another, they suffer the consequences for their actions,” Todd Bagley’s mother, Georgia, wrote in a statement released after the execution.  “Christopher’s mother had the opportunity to visit him for the past 21 years,” she wrote.  “We have had to wait for 21 years for justice and closure. We cannot be with our children for visits or to see them on holidays. We were denied that privilege,” Bagley’s mother wrote.

In the video statement his lawyers released Thursday, Vialva expressed regret for what he’d done and said he was a changed man. “I committed a grave wrong when I was a lost kid and took two precious lives from this world,” he said. “Every day, I wish I could right this wrong.”

As detailed at this DPIC webpage, there remain 55 persons on federal death row, ten of which were convicted more than two decades ago. As of this writing, Attorney General Barr has not yet sought to set dates for any additional federal executions, but he has moved quickly in the past.

Federal government completes its sixth execution in 2020

Prior to 2020, the federal government executed only three persons in over half a century.  But thanks largely to the efforts and persistence of US Attorney General William Barr, the feds as of tonight have been able to complete double that many executions in just the year 2020.  This AP story about the latest execution, headlined "US government executes killer obsessed with witchcraft," includes these details:

The U.S. government on Tuesday executed a former soldier who said an obsession with witchcraft led him to kill a Georgia nurse he believed had put a spell on him.

William Emmett LeCroy, 50, was pronounced dead at 9:06 p.m. EDT after receiving a lethal injection at the same U.S. prison in Terre Haute, Indiana where five others have been executed i n 2020 following a 17-year period without a federal execution....

Another execution, of Christopher Vialva, is scheduled Thursday. He would be the first African-American on federal death row to be put to death in the series of federal executions this year....

LeCroy broke into the Cherrylog, Georgia, mountain home of 30-year-old Joann Lee Tiesler on Oct. 7, 2001, and waited for her to return from a shopping trip. When she walked through the door, LeCroy struck her with a shotgun, bound and raped her. He then slashed her throat and repeatedly stabbed her in the back....

LeCroy’s lawyers sought to halt the execution on appeal on multiple grounds, including that his trial lawyers didn’t properly emphasize evidence about his upbringing and mental health that could have persuaded jurors not to impose a death sentence.

Pending federal executions to be first SCOTUS matters to be resolved without the late Justice Ginsburg

As reported in this CBS News piece, a "former U.S. soldier who said an obsession with witchcraft led him to slay a Georgia nurse in a bid to lift a spell he believed she put on him is the first of two more inmates the federal government is preparing to put to death this week."  Here is more about this and another federal execution scheduled for the coming days:

William Emmett LeCroy, 50, on Tuesday would be the sixth federal inmate executed by lethal injection this year at the U.S. prison in Terre Haute, Indiana.

Another is scheduled for Thursday of Christopher Vialva, who would be the first African-American on federal death row to be executed this year. LeCroy is white, as were four of the five inmates executed earlier. The fifth was a Navajo.

Critics say President Donald Trump's resumption of federal executions this year after a 17-year hiatus is a cynical bid to help him claim the mantel of law-and-order candidate leading up to Election Day. Supporters say Mr. Trump is bringing long-overdue justice to victims and their families....

LeCroy broke into the Cherrylog, Georgia, mountain home of 30-year-old Joann Lee Tiesler on Oct. 7, 2001, and waited for her to return from a shopping trip. When she walked through the door, LeCroy struck her with a shotgun, bound and raped her. He then slashed her throat and repeatedly stabbed her in the back....

LeCroy's lawyers have sought to halt the execution on appeal on multiple grounds, including that his trial lawyers didn't properly emphasize evidence about his upbringing and mental health that could have persuaded jurors not to impose a death sentence.  None of those appeals have succeeded, though lawyers could continue to ask for court intervention up to the hour of his scheduled execution. Last-minute legal appeals by the previous five death-row inmates all failed.

This lengthy Intercept article, headlined "Trump Prepares To Execute Christopher Vialva For A Crime He Committed As A Teenager," reports on the particulars of the person and crime leading to the federal execution scheduled for Thursday.

As these press reports and the headline of the post indicate, various "last-minute legal appeals" are being brought on behalf of these defendants and these appeals all are likely to come before the Supreme Court in the coming days and hours.  As is common in capital cases, many of these appeals may ultimately come before the US Supreme Court.  But, for the first time in nearly three decades, Justice Ruth Bader Ginsburg will not be one of the Justices considering these appeals.

Big new NPR investigation showing pulmonary edema in executed inmates suggests a painful process

NPR has this interesting and extended new piece about the medical realities of modern executions under the headline "Gasping For Air: Autopsies Reveal Troubling Effects Of Lethal Injection."  The who piece should be reviewed in full for anyone who follows closely the debates over execution methods, and I am pleased to see that the piece discusses the ground-breaking litigation that has been pioneered by Allen Bohnert, a federal public defender who represents Ohio inmates with upcoming executions who happens to be a former student of mine.  I cannot easily summarize the piece, but here is an excerpt:

[Emory University Hospital doctors] Zivot and Edgar found pulmonary edema occurring in about three-quarters of more than three dozen autopsy reports they gathered.  "The autopsy findings were quite striking and unambiguous," says Zivot.  He had imagined that lethal injection induced a quick death and would leave an inmate's body pristine, or at least close to it. But the autopsies told another story.  "I began to see a picture that was more consistent with a slower death," he says. "A death of organ failure, of a dramatic nature that I recognized would be associated with suffering."...

Zivot and Edgar brought their findings of pulmonary edema to federal courts in Georgia, Arkansas, Missouri, Tennessee and Ohio.  That evidence is now at the forefront of constitutional challenges to the death penalty in the United States.  It has even made its way to the Supreme Court, where lawyers for inmates on federal death row have used autopsies to argue that lethal injection protocols constitute cruel and unusual punishment under the Eighth Amendment.

Now, an NPR investigation has expanded the scope of this evidence of pulmonary edema significantly.  A review of more than 200 autopsies — obtained through public records requests — showed signs of pulmonary edema in 84% of the cases.  The findings were similar across the states and, notably, across the different drug protocols used....

Doctors who spoke with NPR about the findings also raised serious concerns that many inmates are not being properly anesthetized and are therefore feeling the suffocating and drowning sensation brought on by pulmonary edema.  The findings come at a time when death penalty states are already facing scrutiny over drug shortages, untrained execution personnel and a series of high-profile botched executions.

"These autopsy reports show definitively without question that these inmates are developing pulmonary edema," says Allen Bohnert, a federal public defender who represents Ohio inmates with upcoming executions.  "That evidence continues to build and continues to get better every time another execution happens, unfortunately."

DPIC releases big new report on "Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty"

The Death Penalty Information Center this morning released this big new report highlighting the history of racialized application of the ultimate punishment in the US.  This DPIC press release partially summarizes its coverage and context, and here are excerpts:

As social movements pressure policymakers to redress injustices in the criminal legal system and to institute reforms to make the process more fair and equitable, the Death Penalty Information Center (DPIC) today released, “Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty.”  This report provides an in-depth look at the historical role that race has played in the death penalty and details the pervasive role racial discrimination continues to play in the administration of capital punishment today.

“The death penalty has been used to enforce racial hierarchies throughout United States history, beginning with the colonial period and continuing to this day,” said Ngozi Ndulue, DPIC’s Senior Director of Research and Special Projects and the report’s lead author.  “Its discriminatory presence as the apex punishment in the American legal system legitimizes all other harsh and discriminatory punishments.  That is why the death penalty must be part of any discussion of police reform, prosecutorial accountability, reversing mass incarceration, and the criminal legal system as a whole.”  Ms. Ndulue previously served as the NAACP’s Senior Director of Criminal Justice Programs and as a capital appeals lawyer.

“Racial disparities are present at every stage of a capital case and get magnified as a case moves through the legal process,” said Robert Dunham, DPIC’s Executive Director and the report’s editor.  “If you don’t understand the history — that the modern death penalty is the direct descendant of slavery, lynching, and Jim Crow-segregation — you won’t understand why. With the continuing police and white vigilante killings of Black citizens, it is even more important now to focus attention on the outsized role the death penalty plays as an agent and validator of racial discrimination.  What is broken or intentionally discriminatory in the criminal legal system is visibly worse in death-penalty cases. Exposing how the system discriminates in capital cases can shine an important light on law enforcement and judicial practices in vital need of abolition, restructuring, or reform.”

Racial bias persists today, as evidenced by cases with white victims being more likely to be investigated and capitally charged; systemic exclusion of jurors of color from service in death-penalty trials; and disproportionate imposition of death sentences against defendants of color. The report provides compelling evidence of racial bias in the modern death penalty, including:

• A 2015 meta-analysis of 30 studies showed that the killers of white people were more likely than the killers of Black people to face a capital prosecution.

• A study in North Carolina showed that qualified Black jurors were struck from juries at more than twice the rate of qualified white jurors. As of 2010, 20 percent of those on the state’s death row were sentenced to death by all-white juries.

• Since executions resumed in 1977, 295 African-Americans defendants have been executed for the murder of a white victim, while only 21 white defendants have been executed for the murder of an African-American victim.

• A 2014 mock jury study of more than 500 Californians found that white jurors were more likely to sentence poor Latinx defendants to death than poor white defendants.

• Exonerations of African Americans for murder convictions are 22 percent more likely to be linked to police misconduct.

"Racial Sympathy and Support for Capital Punishment: A Case Study in Concept Transfer"

The title of this post is the title of this recent paper from multiple authored that I just noticed on SSRN.  Here is its abstract:

Beliefs about race, especially racial resentment, are key predictors of public support for capital punishment and punitiveness generally.  Drawing on a conceptual innovation by political scientist Jennifer Chudy, we explore the utility of transferring into criminology her construct of racial sympathy — or Whites’ concern about Blacks’ suffering.

First, across three data sets, we replicate Chudy’s finding that racial sympathy and resentment are empirically distinct constructs.  Second, based on a national-level 2019 YouGov survey (n = 760 White respondents) and consistent with Chudy’s thesis, racial sympathy is then shown to be significantly related to the race-specific view that capital punishment is discriminatory but not support for the death penalty or harsher courts.  Racial sympathy also is positively associated with advocacy of rehabilitation as the main goal of prison. Notably, in all models, racial resentment has robust effects, increasing punitive sentiments.  Taken together, the results suggest that racial sympathy is a concept that can enrich criminologists’ study of how race shapes crime policy preferences in the United States and beyond.

Federal government completes its fifth execution of 2020

As reported in this AP article, a "Kansas girl’s killer Friday became the fifth federal inmate put to death this year, an execution that went forward only after a higher court tossed a ruling that would have required the government to get a prescription for the drug used to kill him." Here is more:

Questions about whether the drug pentobarbital causes pain prior to death had been a focus of appeals for Keith Nelson, 45, the second inmate executed this week in the Trump administration’s resumption of federal executions this summer after a 17-year hiatus.

Nelson, who displayed no outward signs of pain or distress during the execution, was pronounced dead at a federal prison in Terre Haute, Indiana, at 4:32 p.m. EDT — about nine minutes after the execution began.

There was silence from Nelson when a prison official looming over him asked if he had any last words to witnesses behind the execution-chamber glass. Those observers included the mother of 10-year-old Pamela Butler. who Nelson raped and strangled with a wire 21 years ago. Nelson didn’t utter a word, grunt or shake his head no. After the official waited for about 15 seconds, his eyes fixed on Nelson waiting in vain for any sign of an answer, he turned away and began the execution procedure....

The relative stillness and quiet was a contrast to the scene on on Oct. 12, 1999, as Nelson grabbed Pamela off the street and threw her into his truck. As Pamela screamed, one of her sisters who saw her abducted began screaming, too. Pamela had been returning to her Kansas City, Kansas, home on inline skates after buying cookies. As he drove off with her, he made a rude gesture to her sister as she screamed. He later raped the fifth-grader and strangled her with a wire.

Pamela’s mom, Cherri West, said she didn’t expect Nelson to express remorse. She said, if anything, she thought he might curse at her and her family as he had done during criminal proceedings. “I wasn’t expecting him to say anything because he never had no remorse,” she said. “I have no remorse for him.”...

A flurry of filings by Nelson’s legal team over several weeks zeroed in on pentobarbital, which depresses the central nervous system and, in high doses, eventually stops the heart. In one filing in early August, Nelson’s attorneys cited an unofficial autopsy on one inmate executed last month, William Purkey, saying it indicated evidence of pulmonary edema in which the lungs fill with fluid and causes a painful sensation akin to drowning.

The federal government has defended the use of pentobarbital, disputing that Purkey’s autopsy proved he suffered. They have also cited Supreme Court ruling precedent that an execution method isn’t necessarily cruel and unusual just because it causes some pain.

In her overturned ruling, U.S. District Judge Tanya Chutkan halted Nelson’s execution early Thursday, saying laws regulating drugs require the prescriptions, even for executions. Within hours, an appellate panel tossed her ruling....

With the execution Wednesday of Lezmond Mitchell — the only Native American on federal death row — the federal government under President Donald Trump registered more executions in 2020 than it had in the previous 56 years combined.

Native American death sentence carried out as feds complete record-setting fourth execution of 2020

As reported in this AP piece, the "only Native American on federal death row was put to death Wednesday, despite objections from many Navajo leaders who had urged President Donald Trump to halt the execution on the grounds it would violate tribal culture and sovereignty." Here is more:

With the execution of Lezmond Mitchell for the grisly slayings of a 9-year-old and her grandmother, the federal government under the pro-death penalty president has now carried out more executions in 2020 than it had in the previous 56 years combined....

Mitchell, 38, and an accomplice were convicted of killing Tiffany Lee and 63-year-old Alyce Slim after the grandmother offered them a lift as they hitchhiked on the Navajo Nation in 2001.  They stabbed Slim 33 times, slit Tiffany’s throat and stoned her to death. They later mutilated both bodies.

A bid by tribal leaders to persuade Trump to commute Mitchell’s sentence to life in prison failed, as did last-minute appeals by his lawyers for a stay.  The first three federal executions in 17 years went ahead in July after similar legal maneuvers failed. Keith Nelson, who was also convicted of killing a child, is slated to die Friday.

“Nearly 19 years after Lezmond Mitchell brutally ended the lives of two people, destroying the lives of many others, justice finally has been served,” Justice Department spokesperson Kerri Kupec said in a statement....

Death-penalty advocates say the Trump administration’s restart of executions is bringing justice — too long delayed — to victims and families.  There are currently 58 men and one woman on federal death row, many of whose executions have been pending for over 20 years....

Prior to this year, the federal government had carried out just three executions since 1963, all of them between 2001 and 2003, according to the Washington, D.C.-based Death Penalty Information Center. Oklahoma City bomber Timothy McVeigh was among them.

The first of the resumed executions was of former white supremacist Daniel Lewis Lee on July 14.  Two others, Wesley Purkey and Dustin Honken, were executed later the same week. The victims of all three also included children.  The executions of Christopher Andre Vialva and William Emmett LeCroy are scheduled for late September.

Without any dissents, SCOTUS rejects legal claims of Native American scheduled for federal execution today

As reported here by Amy Howe at SCOTUSblog, the "Supreme Court on Tuesday night declined to block the execution, scheduled for Wednesday, of Lezmond Mitchell, the only Native American on federal death row."   Here is more, with links to orders:

The justices, without any noted dissents, denied two emergency requests from Mitchell seeking to postpone the execution.  Mitchell had argued that he should be given the opportunity to interview his jurors about potential bias during deliberations and that the government’s planned lethal-injection protocol violates federal law.

If the execution goes forward, Mitchell will be the fourth federal inmate executed this year after nearly two decades in which the federal government did not carry out the death penalty.  Three additional federal executions are scheduled before the end of September.

Mitchell, a Navajo man, was convicted and sentenced to death in 2003 for the carjacking and stabbing deaths of Alyce Slim and her nine-year-old granddaughter, who were also members of the Navajo Nation.  At Mitchell’s trial, prosecutors told jurors – all but one of whom were white – that, in the Old West, Mitchell “would have been taken out back” and “strung up.”...

Mitchell came to the Supreme Court last week, asking the justices to block his execution and take up the question of whether, in death penalty cases, district courts can bar inmates from interviewing jurors about racial bias during deliberations....

Mitchell filed a separate request on Sunday to block his execution to give the justices time to weigh in on a dispute over the interpretation of the Federal Death Penalty Act, which requires the federal government to carry out executions “in the manner prescribed by the law of the state in which the sentence is imposed.”...

In two orders on Tuesday night, the Supreme Court rejected both of Mitchell’s requests.  No justices publicly dissented, but Justice Sonia Sotomayor attached a short statement arguing that the court should soon resolve the dispute in the lower courts over how to interpret the Federal Death Penalty Act.  Mitchell’s case was not the right vehicle for the court to resolve that dispute, Sotomayor wrote, because the 9th Circuit assumed an interpretation that was favorable to Mitchell but still denied him relief. “But with additional federal executions scheduled in the coming months, the importance of clarifying the FDPA’s meaning remains,” Sotomayor continued. “I believe that this Court should address this issue in an appropriate case.”

A few of many recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week
• How many federal death row prisoners does Attorney General William Barr want to see executed in 2020? 
• US Department of Justice sets another execution date for last week of August
• US Department of Justice sets two execution dates for late September 
• Amidst seemingly little attention, federal government seemingly poised to carry out two more executions this week

Amidst seemingly little attention, federal government seemingly poised to carry out two more executions this week

As partially covered here and here, there was considerable media attention as well as considerable last-minute litigation as the US Justice Department moved forward with plans for, and ultimately completed, three federal executions in a single week in July.  Now another federal capital week looms, as federal officials are scheduled to execute by lethal injection Lezmond Mitchell on Wednesday, August 26 and Keith Dwayne Nelson on Friday, August 28 (and the feds have yet another double-death week planned for September with William LeCroy scheduled for execution on September 22 and Christopher Vialva scheduled for execution on September 24).  But, as the title of this post suggests, I sense this second round of federal executions is getting a lot less attention than even the usual state execution typically does.

Notably, Lezmond Mitchell has some pending claims before the Supreme Court (SCOTUSblog coverage here), and the fact that he is the only Native American on federal death row has generated some media coverage as highlighted by these stories:

• From the Arizona Republic, "Scheduled federal execution of Navajo man raises sovereignty concerns"
• From CNN, "The US plans to execute the only Native American on federal death row against the Navajo Nation's wishes"
• From the Los Angeles Times, "Upcoming execution of Native American man stirs emotion within tribe"

But even with these pieces and some additional critical commentary, it still seems like the planned federal execution of Lezmond Mitchell is getting less attention than I might have expected.  Even more remarkable, I cannot seem to find a single detailed press piece written recently about Keith Dwayne Nelson and his pending federal execution.  I surmise that Nelson does not have any legal appeals pending, but that fact alone would be remarkable (and press-worthy) if anyone were closely paying attention.

It is not hard to understand why these matters are not getting much attention.  An enduring pandemic, an election season, back-to-school challenges, wildfires and hurricanes, protests and so much else all make for much better "copy" for the media.  Moreover, as suggested in this post, there may be less legal drama around these cases after SCOTUS made clear last month that it would be eager to lift lower court stays to enable executions to move forward on the schedule set by Attorney General Barr.  Still, I had to remark on how remarkable it seems to me that this week's executions now seem so likely to go forward with relatively so little attention.

A few of many recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week
• How many federal death row prisoners does Attorney General William Barr want to see executed in 2020? 
• US Department of Justice sets another execution date for last week of August
• US Department of Justice sets two execution dates for late September 

UPDATE: I failed to see this Friday afternoon press report on noting that Nelson's lawyers have joined in filings about the federal government's executions methods, which is headlined "Lawyers: Autopsy suggests inmate suffered during execution." Here are the basics:

An inmate suffered “extreme pain" as he received a dose of pentobarbital during just the second federal execution following a 17-year lag, according to court filings by lawyers representing one of the inmates scheduled to be executed next.  The claim Wesley Purkey may have felt a sensation akin to drowning while immobilized but conscious is disputed by Department of Justice attorneys. They insist the first three lethal injections since 2003 were carried out without a hitch last month at the federal prison in Terre Haute, Indiana.

This month's filings were part of motions to halt the execution of Keith Nelson, convicted in the 1999 rape and strangulation of 10-year-old Pamela Butler. Prosecutors said he pulled her into his truck as she skated on rollerblades back to her Kansas home after buying herself cookies.  Nelson’s execution is set for Aug. 28.  The execution of Lezmond Mitchell, the only Native American on federal death row, is scheduled for Aug. 26. His lawyers have made similar arguments.