Saturday, June 15, 2024

Recent active discussions regarding Ohio's dormant death penalty

I have long viewed Ohio as a fascinating death penalty state, though that view is surely influenced by the fact I teach and write about capital punishment here in the Buckeye State.  Especially for a state outside the deep south, Ohio has long had a active death system: Ohio juries have imposed a relatively large number of death sentences and Ohio was behind only a few states in the total number of executions for the first dozen of so years starting the 21st century.  

But lots of litigation over execution methods and a range of other factors have contrubuted to a significant reduction in recent years in the (a) the size of Ohio's death row, (b) the number of new death sentences, and (c) completed executions in Ohio.  Of particular note, there has not been an execution in Ohio since summer 2018, and it certainly seems that current Ohio Governor Mike DeWine is  disinclined to preside over any executions while he is in office (which will be through 2026).  But the dormant capital punishment reality has not precluded active capital punishment discussions, as highlights by these recent stories:

From DPIC, "Ohio Legislative Black Caucus Identifies Death Penalty as a Legislative Priority Due to Legacy of Racial Violence and Bias"

From Fox News, "Ohio sheriff fed up with crime stemming from border crisis calls for death penalty renewal"

From Ohio Capital Journal, "Backers believe nitrogen hypoxia can jumpstart Ohio’s stalled capital punishment system""

From Spectrum News, "Gov. DeWine delays 3 more executions"

From WCMH, "Move to abolish Ohio’s death penalty renewed"

From WKRC, "Ohio considers 2 new death penalty bills that would either end executions or restart them"

June 15, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (53)

Tuesday, June 11, 2024

Missouri completes execution of double murderer who proclaimed his innocence

As detaile in this AP article, a "man convicted of killing his former lover and her husband in what prosecutors described as a fit of rage was executed Tuesday evening in Missouri."  Here is more:

David Hosier, 69, was pronounced dead at 6:11 p.m. following a single-dose injection of the sedative pentobarbital at the state prison in Bonne Terre. Hosier was convicted of the 2009 killings of Angela and Rodney Gilpin in the state capital of Jefferson City.

Hosier turned his head a couple of times and breathed hard twice as the drug was administered. All movement stopped within seconds, even as his spiritual adviser seated next to him, the Rev. Jeff Hood, continued to pray.

Investigators said Hosier had a romantic relationship with Angela Gilpin and was angry with her for breaking it off and reconciling with her husband.  Hosier maintained until the end that he was innocent and shouldn’t have been convicted on circumstantial evidence.

The way was cleared Monday when Gov. Mike Parson declined to grant clemency, citing Hosier’s “lack of remorse.” Parson, a Republican and former county sheriff, has overseen 10 executions since taking office in 2018. Hosier’s lawyers said no court appeals were pending in the hours before the scheduled execution....

In previous interviews with The Associated Press, Hosier acknowledged having an affair with Angela Gilpin that she ended before getting back with her husband.  In September 2009, the two were fatally shot near the doorway to their apartment....

Hosier was the seventh person executed in the U.S. this year and the second in Missouri.  Brian Dorsey was executed in April for killing his cousin and her husband in 2006.  Missouri is scheduled to execute another man, Marcellus Williams, on Sept. 24, even though Williams is still awaiting a hearing on his claim of innocence in the 1998 stabbing death of Lisha Gayle.

June 11, 2024 in Death Penalty Reforms | Permalink | Comments (10)

Saturday, June 08, 2024

Noticing that nitrogen gas as an execution method is not (yet) proving so popular

This lengthy new CNN article, headlined "Execution by nitrogen hypoxia doesn’t seem headed for widespread adoption as bills fall short and nitrogen producers object," highlights that other states have not yet followed Alabama's path-breaking lead in a new execution method.  Here is how the article begins:

The day after Alabama carried out the first-known US execution using nitrogen gas, its attorney general sent a clear message to death penalty states that might want to follow suit: “Alabama has done it, and now so can you.”

Indeed, in the weeks immediately following the January execution of Kenneth Smith, it appeared a handful of states were listening, introducing bills that would adopt the method known as nitrogen hypoxia or a similar one.  Officials behind each framed the legislation as an alternative method that could help resume executions where they had long been stalled.

But months later — as the circumstances of Smith’s death continue to fuel debate about nitrogen hypoxia — it’s also increasingly unclear whether more states will, in earnest, follow Alabama in implementing the method, which involves replacing the air breathed by the condemned inmate with 100% nitrogen, depriving them of oxygen.  Oklahoma and Mississippi have also legalized nitrogen hypoxia, but Alabama, which plans to execute a second inmate with nitrogen gas this fall, is the sole state to have put someone to death using it.

Only one of the recently proposed state bills authorizing such a form of execution has been signed into law: Two were stuck before committees when their state legislatures adjourned this year, and a sponsor of the third acknowledged its future is uncertain.

June 8, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Friday, June 07, 2024

Rounding up some capital punishment stories from the week that was

Amid a busy week with lots of travel, I have not had a chance to cover any number of notable sentencing stories making headlines at the start of June.  I am hopeful that this weekend will provide me with some time to do a broader round-up of a broad array of sentencing news and commentary.  For now, I will be content to provided abridged coverage of some capital punishment pieces catching my eye:

From the AP, "Execution date set for Missouri inmate, even as he awaits hearing on claim of actual innocence"

From CNN, "He spent months visiting death row inmates and witnessed three executions. Here’s what he’s learned"

From HuffPost, "‘Rebel Nun’ Documentary Aims To Reinvigorate Push To Abolish Death Penalty"

From the New York Times, "A Death Row Prisoner Tells of Living Through a Botched Execution"

From the Phoenix New Times, "Rachel Mitchell: I’ll execute death row prisoner if Kris Mayes won’t"

From WION, "‘Doomsday’ triple-murder case: Chad Daybell sentenced to death for murder of wife and girlfriend’s 2 children"

June 7, 2024 in Death Penalty Reforms | Permalink | Comments (1)

Thursday, May 30, 2024

Alabama executes by lethal injection double murderer 20 years after his crime

As reported in this AP piece, an "Alabama man received a lethal injection Thursday for the killing of an elderly couple in 2004, the first inmate put to death by the state since it became the first in the nation to execute an inmate using nitrogen gas months ago." Here is more:

Jamie Ray Mills, 50, was pronounced dead at 6:26 p.m. after a three-drug injection at the William C. Holman Correctional Faciilty in southwest Alabama, authorities said.  Lethal injection remains Alabama’s default method of execution unless an inmate requests nitrogen gas or the electric chair to carry out the death sentence.

Mills was convicted of capital murder at trial in the killings of Floyd Hill, 87, and his wife Vera, 72. Prosecutors said the victims were attacked with a hammer, machete and a tire tool at their home in a small community about 80 miles northwest of Birmingham.

Hours earlier, the U.S. Supreme Court declined without comment to block Thursday’s execution.  Attorneys for Mills, who maintained his innocence at his 2007 trial, had argued that newly obtained evidence showed the prosecution lied about having a plea agreement with Mills’ wife to spare her from seeking the death penalty against her if she testified against her husband. They also argued Alabama has a history of problematic executions.

May 30, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9)

By 6-3 vote, SCOTUS rejects Ninth Circuit reversal of Arizona death sentence in Thornell v. Jones

In its one criminal decision among three new opinions handed down by the Supreme Court this morning, the Justices by a 6-3 vote reversed a Ninth Circuit ruling in the capital case of in Thornell v. Jones, No. 22-982 (S. Ct. May 30, 2024) (available here).  Justice Alito authored the opinion for the Court, which starts and ends this way:

In this case, we review a decision of the Ninth Circuit ordering the resentencing of a defendant who, in order to steal a gun collection, committed three gruesome killings, including the cold-blooded murder of a 7-year-old girl.  The Ninth Circuit held that the defendant’s Sixth Amendment right to the effective assistance of counsel was violated during the sentencing phase of his capital trial.  In reaching this conclusion, the Ninth Circuit substantially departed from the well-established standard articulated by this Court in Strickland v. Washington, 466 U. S. 668 (1984).  Among other things, the Ninth Circuit all but ignored the strong aggravating circumstances in this case. As a result, we must reverse the judgment below....

When a capital defendant claims that he was prejudiced at sentencing because counsel failed to present available mitigating evidence, a court must decide whether it is reasonably likely that the additional evidence would have avoided a death sentence.  This analysis requires an evaluation of the strength of all the evidence and a comparison of the weight of aggravating and mitigating factors.  The Ninth Circuit did not heed that instruction; rather, it downplayed the serious aggravating factors present here and overstated the strength of mitigating evidence that differed very little from the evidence presented at sentencing. Had the Ninth Circuit engaged in the analysis required by Strickland, it would have had no choice but to affirm the decision of the District Court denying habeas relief.  We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Interestingly, Justuce Sotomayor's dissenting opinion (which was joined by Justice Kagan), agrees with the majority that the Ninth Circuit erred in its ineffective assistance prejudice inquiry, but she dissent because she "would vacate the judgment below and remand for the Ninth Circuit to consider the full record in the first instance."

In contrast, Justice Jackson dissents on the merits, and here opinion starts this way:

In its search for legal error in this capital habeas case, the Court makes many mistakes of its own, including misreading the Ninth Circuit’s opinion. I write separately to emphasize a particular misstep: the Court’s conclusion that “the Ninth Circuit all but ignored the strong aggravating circumstances in this case.” Ante, at 1. In my view, the Ninth Circuit’s analysis satisfied its obligations under Strickland v. Washington, 466 U.S. 668 (1984).

May 30, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, May 28, 2024

Amnesty International reporting that in 2023 executions globally "soar to highest number in almost a decade"

The anti-death penalty group Amnesty International reports here on the "DEATH PENALTY 2023: Death sentences and Executions." Here is part of the start of the report online:

Executions soared to their highest number in almost a decade in 2023 with a sharp rise across the Middle East, Amnesty International said today as it released its annual report on the global use of the death penalty.

A total of 1,153 executions took place in 2023, which does not include the thousands believed to have been carried out in China, marking an increase of more than 30% from 2022. It was the highest figure recorded by Amnesty International since 2015, when 1,634 people were known to have been executed. Despite this increase, the number of countries that carried out executions reached the lowest figure on record with Amnesty International.

“The huge spike in recorded executions was primarily down to Iran. The Iranian authorities showed complete disregard for human life and ramped up executions for drug-related offences, further highlighting the discriminatory impact of the death penalty on Iran’s most marginalized and impoverished communities,” said Agnès Callamard, Amnesty International’s Secretary General.

“Despite the setbacks that we have seen this year, particularly in the Middle East, countries that are still carrying out executions are increasingly isolated. Our campaigning against this abhorrent punishment works. We will continue until we have put an end to the death penalty.”

The five countries with the highest number of executions in 2023 were China, Iran, Saudi Arabia, Somalia and the USA. Iran alone accounted for 74% of all recorded executions while Saudi Arabia accounted for 15%. Somalia and the USA carried out an increased number of executions in 2023.

There was a 20% increase in the number of death sentences handed out globally in 2023, taking the total to 2,428.

May 28, 2024 in Death Penalty Reforms, Sentencing around the world, Who Sentences | Permalink | Comments (9)

Saturday, May 18, 2024

"The Sense of an Ending"

The title of this post is the title of this new essay authored by Susan Bandes available via SSRN. Here is its abstract:

One of the delights of shows like HBO's Succession is the virtual communal watch party they create, replete with competing interpretations and passionate predictions about plot development.  These conversations reveal some enduring truths about the power of narrative expectations, one of which is the tremendous importance we place on the delivery of a satisfying ending.  As the influential literary scholar Frank Kermode argued, “we cannot be denied an end, but it must be the right kind of ending.”  One of the fascinating aspects of Succession was the uncertainty about what kind of ending would be satisfying.  This uncertainty seems closely tied to the difficulty in pinning down the genre to which Succession belonged.

This Essay will first examine the notion of a satisfying ending as it applies to Succession.  It will argue that although Succession’s ending was, in some ways, letter-perfect, it was not — and could not be — emotionally satisfying. The emotionally impoverished ending was fitting, but dispiriting, and probably unavoidable given the particular generic traditions upon which Succession drew.  The Essay will then pose the question: What lessons can the notion of narrative closure — the need for a satisfying ending — convey about legal proceedings? We have grown accustomed to thinking about law as storytelling, but what insights can narrative theory impart about how law stories ought to end? In legal terms, to determine what constitutes a legally satisfying end point, we first must determine what the proceeding is meant to accomplish.  Legal finality may not track literary closure or psychological “closure;” and it is important to distinguish the dictates of the legal system from the impulses that drive finality and closure in other contexts.  I will illustrate this point with examples from death penalty jurisprudence, in which the question of an ending is unavoidable and takes several forms: finality of judgment, the notion of “closure” for bereaved family members, and the loss of life.

May 18, 2024 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Tuesday, May 14, 2024

Tennessee now second state to allow death penalty for child rape since SCOTUS prohibition

I noted last month in this post that the Tennessee legislature has passed a bill authorizing the death penalty for those convicted of rape of a child.  This new AP piece reports that this bill is now law:

Tennessee Gov. Bill Lee has approved legislation allowing the death penalty in child rape convictions, a change the Republican-controlled Statehouse championed amid concerns that the U.S. Supreme Court has banned capital punishment in such cases. Lee, a Republican, quietly signed off on the legislation last week without issuing a statement.

The new Tennessee law, which goes into effect July 1, authorizes the state to pursue capital punishment when an adult is convicted of aggravated rape of a child.  Those convicted could be sentenced to death, imprisonment for life without possibility of parole, or imprisonment for life.

Florida’s Gov. Ron DeSantis enacted a similar bill nearly a year ago....  Meanwhile, Idaho’s GOP-controlled House approved similar legislation earlier this year, but the proposal eventually stalled in the similarly Republican-dominated Senate.

While many supporters of Tennessee’s version have conceded that even though the Volunteer State previously allowed convicted child rapists to face the death penalty, the U.S. Supreme Court ultimately nullified that law with its 2008 decision deeming it unconstitutional to use capital punishment in child sexual battery cases.

However, they hope the conservative-controlled Supreme Court will reverse that ruling — pointing to the decades long effort that it took to overturn Roe v. Wade, the landmark 1973 case that legalized abortion nationwide but was eventually overruled in 2022.  “Maybe the atmosphere is different on the Supreme Court,” said Republican Sen. Janice Bowling last month while debating in favor of the law. “We’re simply challenging a ruling.”

Lee told reporters Tuesday that he didn’t sign the bill hoping it would be “tested” in court.  Instead, he said crimes against children are “some of the most heinous that there are.”...

Currently, all executions in Tennessee are on hold as state officials review changes to its lethal injection process.

Prior related posts:

May 14, 2024 in Death Penalty Reforms, Sex Offender Sentencing, Who Sentences | Permalink | Comments (19)

New Death Penalty Information Center report presents racialized view of Ohio's capital punishment history

The Death Penalty Information Center (DPIC) today published this new report on Ohio capital punishment history titled "Broken Promises: How a History of Racial Violence and Bias Shaped Ohio’s Death Penalty." In this press release about the report, DPIC asserts that it "does not take a position on the death penalty itself," but all of its work clearly draws from an anti-capital punishment perspective.  This report is quite critical of Ohio's capital punishment history and current state as reflected in this description of the report from portions of the press release:

As Ohio legislators debate expanding or repealing the death penalty, the Death Penalty Information Center (DPIC) today released a report that documents how racial bias and violence affected the past use of the death penalty in Ohio and how that history continues to influence the current administration of capital punishment in the state.  None of the reforms recommended by a bipartisan task force 10 years ago to reduce racial disparities in capital cases have been adopted.

The report, “Broken Promises: How A History of Racial Violence and Bias Shaped Ohio’s Death Penalty” and “Five Facts You Should Know About Ohio’s Death Penalty” are available at this link....

As the report documents, racial discrimination is the throughline that runs from the state’s founding to its application of capital punishment today.  For example, from the early 19th century, Ohio’s Black Laws imposed legal restrictions on the rights and status of Black people in the state, including barring Black people from jury service.  In 1807, Ohio adopted a “Negro Evidence Law” which prohibited Black people from testifying against white people, establishing a legal double standard.  In the 19th and early 20th centuries, lynch mobs tortured and killed Black men after accusing them of raping white women without evidence.  Even when photos were taken in broad daylight of lynch mob participants, they rarely faced legal consequences for these extrajudicial murders.

As the report reveals, race, especially the race of the victim, continues to play an outsized role in Ohio’s death penalty system.  For example, homicides involving white female victims are six times more likely to result in execution compared to those involving Black male victims, despite the majority of murder victims in the state being Black. Similarly, a study of aggravated murder charges in Hamilton County shows that prosecutors are four and a half times more likely to seek the death penalty if there is at least one white victim, compared to similar cases without white victims....

“Broken Promises” builds upon DPIC’s 2020 report, “Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty.” It is the fourth in a series of reports detailing how individual state histories of racial injustice affect the current use of capital punishment. In 2023, DPIC released “Doomed to Repeat: The Legacy of Race in Tennessee’s Contemporary Death Penalty” and “Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today.” In 2022, DPIC released “Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty.

May 14, 2024 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (26)

Thursday, May 09, 2024

Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration

Joe Biden campaigned on a pledge to work toward abolishing the death penalty, and the federal death penalty has been mostly (though not entirely) dormant during his time in office.  No federal executions and very few new federal capital cases have moved forward during his time in office.  (And while a President has almost no means to impact or even influence state capital practices, it is also notable that there have been relatively few state executions and state death sentences since 2021 as well.)  Though I doubt President Biden plans to make much of his capital punishment record in his re-election bid — especially because many in his base likley wish he would do more to advance abolition — I sense his approach to the death penalty would be largely the same if he were to get a second term in the Oval Office.

In contrast, and as highlighted by this new HuffPost piece, federal death penalty administration is surely likely to shift gears dramatically if we have another Trump Adminstration.  This piece's full headline highlights its coverage: "There's A GOP Plan For An Execution Spree If Trump Wins The White House: Buried on page 554 of the plan is a directive to execute every remaining person on federal death row — and dramatically expand the use of the death penalty."  Here are excerpts:

Trump, the GOP’s presumptive 2024 presidential nominee, has openly fantasized about executing drug dealers and human traffickers.  He reportedly suggested that officials who leak information to the press should be executed, too.  And behind the scenes, there’s a team of pro-Trump conservatives who are pushing for a second Trump term that involves even more state-sponsored killing than the first.

Last year, a coalition effort by conservative groups known as Project 2025 released an 887-page document that lays out policy goals and recommendations for each part of the federal government.  Buried on page 554 is a directive to execute every remaining federal death row prisoner — and to persuade the Supreme Court to expand the types of crimes that can be punished with death sentences.

Gene Hamilton, the author of the transition playbook’s Department of Justice chapter, wrote that the next conservative administration should “do everything possible to obtain finality” for every prisoner on federal death row, which currently includes 40 people.  “It should also pursue the death penalty for applicable crimes — particularly heinous crimes involving violence and sexual abuse of children — until Congress says otherwise through legislation,” he wrote.  In a footnote, Hamilton said that this could require the Supreme Court to overrule a previous case, “but the [Justice] department should place a priority on doing so.”

I have heard of Project 2025, but I am not at all sure how truly impactful its desired blueprints are regarding what we might expect from an actual Trump Administration.  After all, as noted in this post from July 2020, the "Biden-Sanders Unity Task Force" produced a big report calling for, among other items on a criminal-justice reform wish list, the future Biden Administration to: "abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example."  Not only has that not happened, no formal steps have been taken by President Biden to make it happen.

Perhaps the most interesting part of this story relates to the possiblity that a future Trump Administration might seek to actively pursue or support the application of the death penalty in child rape cases.  Current Supreme Court Eighth Amendment doctrine, of course, holds that capital punishment for child rape is unconstitutional. See Kennedy v. Louisiana, 554 U.S. 407 (2008).  But Florida enacted a new capital child rape statute last year, and Tennessee legislators recently sent a similar bill to its Governor.   Given that three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority is on still on this Court, there is strong reason to suspect the current Supreme Court might well be prepared to reconder Kennedy at some point.  That possibility might become even that much more likely if the US Justice Department was actively advocating for Kennedy's reversal.

May 9, 2024 in Death Penalty Reforms, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, May 08, 2024

Split Oklahoma Court of Criminal Appeals grants state's request to add an extra month between scheduled executions

As reported in this local article, the "Oklahoma Court of Criminal Appeals has decided future executions will be set 90 days apart 'unless circumstances dictate modification'."  Here is more on an interesting ruling in response to an interesting request:

Oklahoma Attorney General Gentner Drummond had asked for more time to reduce the stress on the volunteer execution teams. He was joined in the request by Steven Harpe, the executive director of the Department of Corrections. "The present pace of executions, every 60 days, is too onerous and not sustainable," Harpe said.

The decision on 90-day intervals was announced Tuesday. It was not unanimous. Two of the five judges called for executions to remain at 60 days apart.  "Individuals in many professions face demanding and arduous duties as part of their job requirements," Judge Gary Lumpkin wrote in opposing more time. "Personnel in our military continuously face life and death situations but they step up each day and do their duty."

All five judges agreed, though, that executions will be set one at a time from now on instead of in phases. The state has a backlog because of a hiatus on lethal injections that lasted almost seven years. A dozen have been carried out since they resumed in 2021 at the Oklahoma State Penitentiary in McAlester. The latest was April 4.

Drummond and Harpe in January asked the court to go to 90-day intervals once the second phase of executions is completed in June.... Drummond last year called for a change to 60-day intervals to reduce the stress on staff and give more time for training. The Court of Criminal Appeals agreed, resetting seven executions.

The court acknowledged Tuesday that scheduling executions in phases has not worked.  Judges told the attorney general to timely notify them each time an inmate is executed, gets a stay or has a stay lifted so the next execution can be set.

Lumpkin on Tuesday pointed out the Department of Corrections carried out 18 executions in 2001, seven in 2002 and 14 in 2003. "It is time to realize the victims and their families must be remembered and the law established by the Oklahoma Legislature followed," he wrote. "As shown in 2001-2003 by the actions of DOC employees, they can step up to meet the challenges placed before them when proper leadership is provided."

UPDATE: A helpful reader helped me find my way to this report on the ruling that includes the full order from the Oklahoma Court of Criminal Appeals in In re The Setting of Execution Dates.

May 8, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Thursday, May 02, 2024

"Gender Matters: Women on Death Row in the United States"

The title of this post is the title of this new article now available via SSRN and authored by Sandra Babcock, Nathalie Greenfield and Kathryn Adamson.  Here is its abstract:

This article presents a comprehensive study of 48 persons sentenced to death between 1990 and 2023 who presented as women at the time of their trials.  Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences.  It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence and prior involvement with the criminal legal system.  We also explore the nature of the women’s crimes of conviction, including the role of male co-defendants and the State’s use of aggravating factors.  Finally, we reveal for the first time the extent to which capital prosecutions are dominated by men — including judges, elected District Attorneys, defense attorneys, and juror forepersons — and explain why gender matters in determining who lives and who dies.

We present our data against the backdrop of prevalent theories that seek to explain both the rarity of women’s executions and the reasons why certain women are singled out for the harshest punishment provided by law.  We explain why those frameworks are inadequate to understand the role that systemic gender bias plays in women’s capital prosecutions.  We conclude by arguing for more nuanced research that embraces the complexities in women’s capital cases and accounts for the presence of systemic and intersectional discrimination.

May 2, 2024 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Notable review of 30 murders still on death row in Alabama after judges overrode jury life recommendations

AL.com has this interesting and detailed review of every death row defendant in Alabama who was sent to the row by a judge after a jury did not recommend a death sentence.   The article is headlined, "These 30 Alabama Death Row inmates are waiting to die because judges overruled juries," and here is how it sets up its discussion of these cases:

Despite a 2017 Alabama law banning judges from sentencing defendants to death when juries recommend life in prison, 30 inmates remain sentenced under those circumstances on death row.

A bill that would require courts to resentence people sentenced to death by judicial override was recently killed by a legislative committee, leaving those inmates to face death sentences juries did not want.

Why did the judges in these cases decide to overrule the juries? A look at the inmates’ appeals offers a glimpse into the judges’ thought processes.

In one case, the judge theorized the jury was “probably emotionally and mentally worn out” after the defendant’s family asked them to spare their relative’s life.

In others, judges said jury “outbursts” showed they were incapable of rendering a death sentence recommendation. Others said the heinousness of the crimes was enough to warrant execution.

May 2, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, May 01, 2024

"The Puzzling Persistence of Capital Punishment"

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

For over 250 years, Western intellectuals have been pronouncing capital punishment a barbarity doomed to be swept into the dustbin of history.  The death penalty, we have repeatedly been told, is an “anachronism” inconsistent with the spirit of the modern age — a relic that would, in a generation or two, fade away.  What is distinctive about recent decades is the confidence and monolithic quality of elite opinion, at least in the West.  There is a swelling confidence that the death penalty is, at last, at the cusp of extinction.

This Article questions the descriptive claim that the death penalty is dying, either in the United States or in the world at large.  Simply counting the number of nations that have technically abolished the death penalty fails to capture the apparent permanence of capital punishment.  Many non-Western civilizations retain the death penalty with a vigor that surprises and disappoints Western intellectuals.  And even within the United States, given the prohibitive cost of imposing a death sentence, it is remarkable how determined so many Americans are to continue to execute the worst of criminals.

As argued in this Article, the simplest answer to the puzzle of capital punishment’s persistence is that the retributive impulse is, as Justice Potter Stewart observed, “part of the nature of man.”  The answer is so obvious that what is puzzling is not the persistence of the death penalty but that some people regard this persistence as puzzling.  The dismay of modern Western intellectuals at the recurring failure of abolitionist efforts points to defining features of that intelligentsia.  Since the Enlightenment, many intellectuals have regarded nature as a weak and even nonexistent constraint on human progress.  It is from this perspective that the persistence of capital punishment, so seemingly rooted in human nature, comes to sight as such a puzzling disappointment. 

May 1, 2024 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (19)

Monday, April 22, 2024

Tennessee poised to become second state to authorize the death penalty for child rape since SCOTUS prohibition

As reported in this local piece from Tennessee, a "controversial bill that would allow the state to seek the death penalty for those convicted of rape of a child passed the House of Representatives Monday, clearing the final legislative hurdle before becoming law in Tennessee."  Here are the basics:

HB1663, by House Majority Leader William Lamberth (R-Portland), would allow for those convicted of rape or especially aggravated rape of a child in Tennessee to be sentenced to death.

The move received considerable pushback from Democrats, who argued the General Assembly was passing a blatantly unconstitutional law.  The bill was also not favored by Sen. Kerry Roberts, who said while he disagreed with the Supreme Court decisions that made and affirmed that the death penalty was considered cruel and unusual punishment, passing the law was not going to help overturn Kennedy v. Louisiana, as some of his colleagues might hope it would.

Despite attempts to amend the bill by Roberts, the Senate adopted the bill 24-5, with Sen. Todd Gardenhire (R-Chattanooga) joining Democrats opposed. The last stop for the bill in the legislative branch was the House Monday, April 22....  Ultimately, the bill passed on party lines, 77-19-1, with Clarksville Democrat Ronnie Glynn Present Not Voting.

The bill now heads to Gov. Bill Lee‘s desk for his signature. News 2 has reached out to the governor’s office for comment.

I expect that Gov Lee would be likely to sign this legislation (especially since it would seem any veto could be overridden). When this bill becomes law, Tennessee will join Florida in having a modern capital child rape statute despite the Supreme Court's ruling in Kennedy v. Louisiana, 554 U.S. 407 (2008), that the Eighth Amendment bars states from imposing the death penalty for the rape of a child.

Florida's capital child rape statute has yet to produce a death sentence that might become a new test case for the Kennedy ruling.  I predicted in this prior post that it might be many, many years before such a case gets to the Supreme Court.  More states having capital child rape laws on the books surely make a test case that much more likely.

Prior related posts:

April 22, 2024 in Death Penalty Reforms, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Tuesday, April 09, 2024

Missouri completes execution of double murderer over notable clemency requests

As reported in this AP piece, a "Missouri man was executed Tuesday for killing his cousin and her husband nearly two decades ago in an attack that left the couple’s 4-year-old daughter home alone and unharmed."  Here is more:

Brian Dorsey, 52, was pronounced dead at 6:11 p.m. after a single-dose injection of the sedative pentobarbital at the state prison in Bonne Terre, Karen Pojmann, communications director for the Missouri Department of Corrections, said in an email.  It was the first execution in Missouri this year after four in 2023, and it came hours after the U.S. Supreme Court rejected the inmate’s final appeals....

Dorsey, in a final statement, expressed remorse and sorrow for the killings. “Words cannot hold the just weight of my guilt and shame,” Dorsey said in the written statement.

Dorsey, 52, formerly of Jefferson City, was convicted of killing Sarah and Ben Bonnie on Dec. 23, 2006, at their home near New Bloomfield.  Prosecutors said that earlier that day, Dorsey had called Sarah Bonnie seeking to borrow money to pay two drug dealers who were at his apartment....

Hours before the execution, the Supreme Court turned aside both of Dorsey’s appeals without comment.  His lawyers had urged the high court to step in, saying he had shown good behavior in prison and had been rehabilitated.  They also argued a $12,000 flat fee paid to his two public defenders gave them incentive to hurry through the case.  On their recommendation, Dorsey pleaded guilty despite having no agreement with prosecutors to spare him from the death penalty.

On Monday, Republican Gov. Mike Parson denied a clemency request that included signatures from 72 current and former state corrections officers who urged the governor to commute Dorsey’s sentence to life in prison without parole.  They cited Dorsey’s virtually spotless record of good behavior behind bars.  Parson, a Republican, is a former county sheriff.  He has never granted clemency since taking office in 2018.

Parson, in a statement, said Dorsey “punished his loving family for helping him in a time of need.  His cousins invited him into their home, where he was surrounded by family and friends, then gave him a place to stay.  Dorsey repaid them with cruelty, inhumane violence, and murder.”

Missouri has scheduled its next execution June 11 for inmate David Hosier for his conviction in the 2009 killing of a Jefferson City woman.  Five people have been executed in five different states this year — Alabama, Texas, Georgia, Oklahoma and Missouri.

April 9, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Thursday, April 04, 2024

Oklahoma completes execution for double murder committed 20+ years ago

As reported in this AP piece, Michael Dewayne Smith, who was "convicted of shooting and killing two people in Oklahoma City more than two decades ago, was executed Thursday morning." Here is a bit more:

After the first of three lethal drugs, midazolam, was administered, Smith, 41, appeared to shake briefly and attempt to lift his head from the gurney before relaxing. He then took several short, audible breaths that sounded like snores or gasps. Oklahoma DOC Director Steven Harpe said after the execution that Smith “appeared to have some form of sleep apnea.”

A masked doctor entered the execution chamber at 10:14 a.m. and shook Smith several times before declaring him unconscious. Smith appeared to stop breathing about a minute later. The doctor reentered the execution chamber at 10:19 a.m. and checked for a pulse before Harpe announced the time of death.

Smith was sentenced to die in the separate shooting deaths of Janet Moore, 41, and Sharath Pulluru, 22, in February 2002.

He is the first person executed in Oklahoma this year and the 12th put to death since the state resumed executions in 2021 following a nearly seven-year hiatus resulting from problems with executions in 2014 and 2015.

April 4, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Saturday, March 23, 2024

Intriguing discussion of judges' experiences with death penalty case

Law360 has this notable new piece about judicial experiences with the death penalty.  The lengthy piece defies ready summary, but here are some snippets:

Law360 recently spoke to multiple judges with experience in capital practice about what it means to handle death penalty cases, which are legally complex and emotionally taxing.  Whatever their beliefs on the morality, effectiveness and fairness of the death penalty, the judges said they must put those feelings aside while they're on the bench.

"I have to follow the law and I have to do my job," said Gary B. Randall, a longtime state judge in Nebraska who sentenced three defendants to death throughout his career before retiring in 2020.

But many judges say they aren't always prepared to handle cases involving capital punishment, and most of them learned to do it with little to no instruction.  "You have to learn on the job. You take the cases as they come and you do your best," Michael A. Wolff, the dean emeritus of Saint Louis University School of Law and a former chief justice of the Supreme Court of Missouri, told Law360.

Judges have the option to attend the National Judicial College, a nonprofit based at the University of Nevada, Reno that provides training for judges. In January, the college received a $1 million grant from the U.S. Department of Justice's Bureau of Justice Assistance to prepare state judges to handle death penalty cases.  According to a statement by the college, the grant will fund two years' worth of programming that includes quarterly webinars, a six-week online course, a bench practice book, a clearinghouse of model orders, and eight podcasts.

Each phase of a death penalty trial presents judges with unique challenges, from impaneling a jury to providing instructions before a verdict.  Judges must weed out jurors who don't want to be involved with a case involving a possible death sentence.  They must show extreme attention to detail when considering aggravating or mitigating factors, including severe mental illness or disability, that could make the difference in whether a defendant lands on death row.  And because capital cases are almost always high-profile, judges must also learn to manage the media.

In addition to the technical and legal issues, presiding over death penalty cases carries a heavy mental and emotional burden that judges can struggle to deal with.  It's something that the National Judicial College is also looking to address as part of its new programming lineup, which will offer on-site courses in four locations around the country on a broad range of topics, including "judicial wellness and vicarious trauma," according to a statement announcing the grant.

March 23, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

Wednesday, March 20, 2024

Georgia completes its first execution in four years

As reported in this local article, "Georgia has executed its first prisoner in four years after the Supreme Court declined to intervene in the execution." Here is more:

Willie James Pye, 59, was convicted of murder and other crimes in the November 1993 killing of Alicia Lynn Yarbrough. He is scheduled to be put to death Wednesday. The planned lethal injection using the sedative pentobarbital happened at 11:03 p.m. at the state prison in Jackson.

In their request for clemency, Pye’s lawyers called the 1996 trial “a shocking relic of the past” and said the local public defender system had severe shortcomings in the 1990s.... “Had defense counsel not abdicated his role, the jurors would have learned that Mr. Pye is intellectually disabled and has an IQ of 68,” they said, citing the findings of the state’s expert.

Defendants who are intellectually disabled are ineligible for execution. Experts said that Pye meets the criteria, but that the burden of proof in Georgia was too high to reach, his lawyers argued....

But the Georgia Parole Board rejected those arguments after a closed-door meeting on Tuesday, and denied Pye’s bid for clemency. Pye’s lawyers filed late appeals to the U.S. Supreme Court urging it to intervene, but the justices declined.

March 20, 2024 in Death Penalty Reforms | Permalink | Comments (2)

Monday, March 18, 2024

"Repairing the 'Sea of Disorganized' Procedures for Determining Competency for Execution"

The title of this post is the title of this new article authored by Melanie Kalmanson and Bridget Maloney now available via SSRN. Here is its abstract:

When the government executes a person with severe mental illness, it is questionable whether the execution even serves any true retributive purpose due to the prisoner’s inability to rationally understand the reasoning for the execution.  Since the U.S. Supreme Court’s landmark decision in Ford v. Wainwright, scholars and courts have debated the appropriate process for determining a prisoner’s competency for execution — and what that even means.

Despite decades of discourse, recent cases — most significantly recent executions of persons who suffered from severe mental illness — illustrate that the processes used across the country for determining competency for execution are insufficient.  This article presents a multifaceted solution to how states can improve their processes for reviewing whether prisoners are competent for execution in an effort to ensure each execution comports with the requirements of the Eighth Amendment, as established in Ford and its progeny.  Practically, the article proposes recommendations for the process courts use to determine whether a prisoner is incompetent for execution — including imposing a mandatory stay to allow adequate time for the determination and updating the standard of incompetency.  Also, for the first time, this article contemplates regulating certain aspects of experts’ evaluations of prisoners who claim incompetency for execution — including requiring certain diagnostic imaging and standardizing the format of expert evaluations.

March 18, 2024 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Monday, March 11, 2024

A week of notable capital punishment stories

A number of capital punishment press pieces caught my eye last week, and here is a quick round up to start a new week:

From the AP, "Oklahoma panel denies clemency for death row inmate, paves way for lethal injection"

From Corrections 1, "La. expands methods of execution"

From Fox News, "Idaho serial killer survives lethal injection attempt, prompting renewed push for firing squad"

From The Guardian, "Three top nitrogen gas manufacturers in US bar products from use in executions"

From the Lexington Herald Leader, "GOP Kentucky attorney general wants to end state’s death penalty ban"

From Newswer, "Case Highlights a Quirk in Georgia's Death Penalty: The state requires intellectual disability be proved 'beyond a reasonable doubt"

From NPR, "Who performs a lethal injection in the U.S.? In some states, they're volunteers"

From Public News Service, "Racial Justice Act case could affect NC death row inmates"

From the San Francisco Chronicle, "Would Newsom’s successor reinstate California’s death penalty? Here’s what candidates said"

From the Tampa Bay Times, "On Florida’s death row, inmates often outlive the judges who sentence them"

UPDATE:  And since this post, I happened to see two more major media stories on the death penalty that seemed worth flagging:

From ABC News/AP, "Georgia readies to resume executions after a 4-year pause brought by COVID and a legal agreement"

From the New York Times, "In Death Penalty Cases, a Texas Court Tests the Supreme Court’s Patience"

March 11, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Thursday, February 29, 2024

Louisiana legislature enacts slate of tough-on-crime bills urged by its new Gov

A helpful reader made sure I saw this local news accounting of the significant crime legislation that formally passed today.  Here are just some of the details:

The special crime-focused legislative session wrapped up early on Thursday after lawmakers passed all of the controversial tough-on-crime bills touted by Gov. Jeff Landry.

On the final day of the session, legislators approved HB6, which expands the methods of how Louisiana can execute death row inmates.  The bill added nitrogen hypoxia and the electric chair into the toolkit.  This is part of the effort of the new governor to resume executions. Louisiana has only put one person to death over the last two decades.  There are currently 57 people on the state’s death row....

Also given final passage are two bills that would require inmates to serve more of their sentences in prison. HB9 does away with parole for future offenders starting in August of this year.  HB10 also significantly reduces the amount of time that can be shaved off based on good behavior to just 15%.  HB11 extends how long someone has to be on parole, for those who still qualify, and adds further consequences for those who violate their parole.

Lawmakers also passed SB3, which will designate adults as 17 years or older in the criminal justice system.  This means 17-year-olds will be tried as adults when they commit a crime and will be housed in adult facilities....

In response to recent violent carjacking stories coming out of New Orleans, lawmakers passed HB7 to increase the penalty for carjacking to nearly double what it is currently.

There were many questions about how much all this legislation will cost.  The Legislative Fiscal Office estimated together it will cost millions of dollars a year.  However, legislators questioned their calculation methods and claimed it wouldn’t cost that much.

The bills passed now head to the governor’s next for signature and he is anticipated to sign them over the next week.

February 29, 2024 in Death Penalty Reforms, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Wednesday, February 28, 2024

Despite condemn's clams of innocence, Texas carries out its first execution of 2024

As reported here by CNN, "state of Texas has executed Ivan Cantu, who was convicted and sentenced to death for murdering his cousin and his cousin’s fiancée, though he insisted he was innocent." Here is a bit more:

Cantu, 50, was put to death Wednesday by lethal injection, with the time of death recorded as 6:47 p.m., the Texas Department of Criminal Justice said in a news release.  He was executed more than 20 years after his conviction....

For weeks, Cantu and his advocates — among them three jurors in the case — have called for his execution to be halted so he could argue he was deprived of a fair trial and framed by those who, in his telling, are truly responsible for the 2000 killings of his cousin James Mosqueda and his cousin’s fiancée, Amy Kitchen, a nursing student.

February 28, 2024 in Death Penalty Reforms | Permalink | Comments (8)

Idaho officials botch execution of serial killer by failing in repeated attempts to establish an IV for lethal injection

As reported in this AP article, "Idaho on Wednesday delayed the execution of serial killer Thomas Eugene Creech, one of the longest-serving death row inmates in the U.S., after a failed attempt at lethal injection." Here is more:

Creech, 73, was imprisoned in 1974 and has been convicted of five murders in three states and suspected of several more.  He was already serving life in prison when he beat a fellow inmate, 22-year-old David Dale Jensen, to death in 1981 — the crime for which Creech was to be executed more than four decades later.

Creech was wheeled into the room at the Idaho Maximum Security Institution on a gurney at 10 a.m.  The warden announced he was halting the execution at 10:58 a.m.  Six Idaho officials, including Attorney General Raul Labrador, and four news media representatives, including an Associated Press reporter, were on hand to witness the attempt.

Idaho’s prison director said the medical team could not establish an IV line to administer the fatal drug.  A team of three medical team members tried repeatedly to establish an IV, attempting sites in both of Creech’s arms and legs.  The IV sites appeared to be in the crook of his arms, his hands, near his ankles and in his feet.  At one point, the medical cart holding supplies was moved in front of the media witness viewing window, partially obscuring the view of the medical team’s efforts.  A team member also had to leave the execution chamber to gather more supplies....

After the execution was halted, the warden approached Creech and whispered to him for several minutes, giving his arm a squeeze.  Creech’s attorneys immediately filed a new motion for a stay in U.S. District Court, saying “Given the badly botched execution attempt this morning, which proves IDOC’s inability to carry out a humane and constitutional execution, undersigned counsel preemptively seek an emergency stay of execution to prevent any further attempts today.”

The Idaho Department of Corrections said its death warrant for Creech would expire, and that it was considering next steps.

Creech’s attorneys filed a flurry of late appeals hoping to forestall his execution.  They included claims that his clemency hearing was unfair, that it was unconstitutional to kill him because he was sentenced by a judge rather than a jury and that he received ineffective assistance of counsel. But the courts found no grounds for leniency. Creech’s last chance — a petition to the U.S. Supreme Court — was denied a few hours before the scheduled execution Wednesday....

Creech’s execution was to be Idaho’s first in 12 years. Last year, Idaho lawmakers passed a law authorizing execution by firing squad when lethal injection is not available.  Prison officials have not yet written a standard operating policy for the use of firing squad, nor have they constructed a facility where a firing squad execution could occur.  Both of those things would have to happen before the state could attempt to use the new law, which would likely trigger several legal challenges in court.

February 28, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Tuesday, February 27, 2024

Two notable executions scheduled for tomorrow after a notably slow capital start to 2024

In the modern capital punishment era, the months of January and February often seem to be fairly active in execution chambers throughout the United States (perhaps in part becaise the holidays of November and December tend to reduce execution numbers).  Using the execution database at the Death Penalty Information Center, I checked out data going back every five years to discover that over the first two months of 2019, there were three executions; in 2014, there were 10 executions; in 2009, there were 15 executions; in 2004, there were 14 executions; and in 1999, there were 22 executions(!) over the first two months of that year.

But so far in 2024, there has only been a single execution in US (albeit a high-profile one due to Alabama's use of a new execution method).  If this month were to close without another execution, we would have the fewest US executions to start a year since 2008 when all executions were halted as the Supreme Court considered constitutional challenges to lethal injection protocols in Baze v. Kentucky.  However, there are actually executions scheduled in two states tomorrow.  Here are press stories providing background:

"Idaho to execute Thomas Creech, infamous serial killer linked to at least 11 deaths"

"A Texas man on death row says his execution this month would be 'for a crime I didn't commit'"

I sense that claims of innocence in the Texas case might create some chance that one of these two scheduled executions does not go forward tomorrow.  But I expect both will be carried out, which would bring the number of executions over the first two month of 2024 up to a total of three.  Notably, the latest DPIC list of upcoming executions does not currently list any executions scheduled this year for the months of March or May and only a couple executions scheduled for April and June.  This schedule certainyl suggest that the historically low number of executions may continue through 2024, although states always can (and often do) add new execution dates in mid-year.

February 27, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

Friday, February 16, 2024

New federal lawsuit from Alabama death row defendant claims nitrogen gas execution method unconstitutional

As reported in this AP piece, an "Alabama death row inmate filed a lawsuit Thursday that challenges the constitutionality of nitrogen gas executions, arguing that the first person in the nation put to death by that method shook violently for several minutes in 'a human experiment that officials botched miserably'."  Here is more:

The lawsuit filed in federal court in Alabama alleges the January execution of Kenneth Eugene Smith by nitrogen gas was torturous and “cannot be allowed to be repeated.” The lawsuit says descriptions from witnesses that Smith shook and convulsed contradicted the state’s promises to federal judges that nitrogen would provide a quick and humane death.

“The results of the first human experiment are now in and they demonstrate that nitrogen gas asphyxiation is neither quick nor painless, but agonizing and painful,” attorney Bernard E. Harcourt wrote in the lawsuit. The lawsuit was filed on behalf of death row inmate David Phillip Wilson, who was sentenced to death after he was convicted of killing a man during a 2004 burglary. The lawsuit seeks a declaratory judgment that the current nitrogen gas asphyxiation protocol violates the inmate’s constitutional right to protection from cruel and unusual punishment.

Alabama last month became the first state to use nitrogen gas to put an inmate to death. Nitrogen gas is authorized in three states — Alabama, Oklahoma and Mississippi — but no state had previously attempted to use it.... The U.S. Supreme Court allowed Smith’s execution to proceed last month. The lawsuit contends that media and witness accounts of the execution contradict the state’s prediction to the courts that the nitrogen gas would render Smith unconscious “within seconds.”

Smith shook in thrashing spasms and seizure-like movements for several minutes at the start of the execution. The force of his movements caused the gurney to visibly move at least once. Reporters from The Associated Press, al.com, the Montgomery Advertiser, the Alabama Reflector and WHNT attended the execution as media witnesses. “In stark contrast to the Attorney General’s representations, the five media witnesses chosen by the Alabama Department of Corrections and present at Mr. Smith’s execution recounted a prolonged period of consciousness marked by shaking, struggling, and writhing by Mr. Smith for several minutes after the nitrogen gas started flowing,” the lawsuit stated....

Alabama Attorney General Steve Marshall has maintained that the execution was “textbook” and said the state will seek to carry out more death sentences using nitrogen gas. “As of last night, nitrogen hypoxia as a means of execution is no longer an untested method. It is a proven one,” Marshall said the morning after Smith’s execution, extending an offer of help for states considering adopting the method.

Alabama Corrections Commissioner John Q. Hamm said he thought Smith might have deliberately held his breath, but also said the state expected involuntary movements and the type of breathing that occurs with lack of oxygen. “That was all expected and was in the side effects that we’ve seen or researched on nitrogen hypoxia,” Hamm said.

February 16, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (16)

Monday, February 05, 2024

"Repairing the 'Sea of Disorganized' Procedures for Determining Competency for Execution"

The title of this post is the title of this new article now available via SSRN and authored by Melanie Kalmanson and Bridget Maloney. Here is its abstract:

When the government executes a person with severe mental illness, it is questionable whether the execution even serves any true retributive purpose due to the prisoner’s inability to rationally understand the reasoning for the execution.  Since the U.S. Supreme Court’s landmark decision in Ford v. Wainwright, scholars and courts have debated the appropriate process for determining a prisoner’s competency for execution — and what that even means.

Despite decades of discourse, recent cases — most significantly recent executions of persons who suffered from severe mental illness — illustrate that the processes used across the country for determining competency for execution are insufficient.  This article presents a multifaceted solution to how states can improve their processes for reviewing whether prisoners are competent for execution in an effort to ensure each execution comports with the requirements of the Eighth Amendment, as established in Ford and its progeny.  Practically, the article proposes recommendations for the process courts use to determine whether a prisoner is incompetent for execution — including imposing a mandatory stay to allow adequate time for the determination and updating the standard of incompetency.  Also, for the first time, this article contemplates regulating certain aspects of experts’ evaluations of prisoners who claim incompetency for execution — including requiring certain diagnostic imaging and standardizing the format of expert evaluations.

February 5, 2024 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

Sunday, February 04, 2024

First capital child rape charge under new Florida law results in LWOP plea and sentence

Nearly a year ago, Florida enacted a new law making certain child rapes a capital offense, and I asked in this post: "With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?".  Two months ago, as detailed in this  post, Florida prosecutors filed court documents stating its intent to seek the death penalty against Joseph Andrew Giampa after he was indicted on multiple counts of sexual battery on a child under age 12. 

I reacted to this potentially historic capital case by speculating about the possibility of a plea deal to take the death penalty off the table, wondering in particular if prosecutors would agree to such a deal.  This local article reports that such a plea deal was made, and an LWOP sentence was entered last week:

A Leesburg man has been sentenced to life in prison for forcing a young girl to engage in sexual acts.

Joseph Andrew Giampa, 36, through his defense attorney, conveyed an offer to serve the rest of his natural life in prison.  At the request of the victim’s family and with the interests of the child victim in mind, the Fifth Judicial Circuit State Attorney’s Office agreed to this resolution.  Under this agreement, Giampa will spend the remainder of his life in prison without the possibility of parole.

“Resolution in less than 100 days is proof that Florida’s capital punishment statute for sexual battery of children is effective,” commented Fifth Judicial Circuit State Attorney Bill Gladson.  “By passing this law, the Florida legislature and the governor have sent a message that Florida has zero tolerance for those who prey upon our most vulnerable and that the punishment will be certain, swift and severe.”

Last year, investigators found a video on Giampa’s laptop of a female juvenile victim being recorded by an adult man, later identified as Giampa, holding the camera and talking to her.... 

Giampa was indicted by a grand jury in December 2023 for six counts of sexual battery upon a person under 12 years of age and three counts of promoting a sexual performance by a child.  Shortly after Giampa was indicted, Gladson filed a notice of intent to seek the death penalty in the case pursuant to Florida Statutes 794.011(2)(a) and 921.1425, both of which pertain to the death penalty regarding sexual battery as a capital felony.

I am not too surprised that this case was resolved through an LWOP plea deal, which is not uncommon in capital cases when there is no dispute over guilt.  I am also not surprised that the victim’s family here was eager to have this case resolved through a plea deal rather than risk having the young rape victim grow up with her rape and rapist the center of legal appeals and debates for years.  So now we are back to waiting and wondering when and how Florida will secure a child rape death sentence that could provide an opportunity for SCOTUS to reconsider its Kennedy ruling that such a sentence violates the Eighth Amendment.

Prior related post:

February 4, 2024 in Death Penalty Reforms, Kennedy child rape case, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (23)

Friday, February 02, 2024

Rounding up some continuing discussions a week after Alabama's nitrogen gas execution

Unsuprisingly, conversations and debates over Alabama's pioneering next execution method are continuing a week after that state used nitrogen gas to carry out a death sentence for a murder committed over 35 years ago.  Here is an abridged round-up of some of the recent pieces that have caught my eye:

From the AP, "Oklahoma governor says he’s not interested in changing from lethal injection to nitrogen executions"

From the Louisiana Illuminator, "Landry wants Louisiana to resume executions, fulfill ‘contractual obligations’ with victims’ families"

From the New York Times, "A Select Few Witnessed Alabama’s Nitrogen Execution. This Is What They Saw."

From Slate, "'It Was the Most Violent Thing I’ve Ever Seen': Inside the chamber for Alabama’s experimental new execution technique."

From the Statehouse News Bureau, "Opponents of nitrogen executions bill cite Ohio's ban on gas for pet euthanasia"

February 2, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (16)

Wednesday, January 31, 2024

"Death Is Disparate"

The title of this post is the title of this new article authored by Jesse Cheng now available via SSRN. Here is its abstract:

The high stakes of capital punishment demand heightened procedural safeguards: death is different, so the maxim goes. One such safeguard is the doctrine of individualized sentencing mitigation, which establishes the defense’s right to introduce expansively open-ended evidence about the defendant’s unique life circumstances when making the case for mercy at the penalty trial.  But some have criticized individualized mitigation for upending prior efforts by the U.S. Supreme Court to establish consistency and fairness in death verdicts.

This Article takes individualized sentencing to its logical limit by considering the doctrinal possibility of “adversarial parity,” whereby open-ended individualization is also extended to aggravating evidence offered by the prosecution when making the case for death.  In exploring this possibility, the Article draws attention to a crucial yet heretofore unexplored dynamic of capital sentencing trials.  Even if aggravation is expanded under a doctrine of adversarial parity, the defense’s evidentiary burden will always be substantially more onerous than the prosecution’s, with the case in mitigation delving into the defendant’s full biopsychosocial history across life.  Death is not only different.  It is also disparate. This Article thinks through some constitutional implications of death’s disparity, offering a new framework for reconceptualizing key tensions in the troubled evolution of Eighth Amendment capital trial doctrine.

January 31, 2024 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, January 30, 2024

Ohio becomes first state to have bill introduced for nitrogen gas executions after Alabama's success

As reported in this AP article, "Ohio’s Republican attorney general put his weight behind a legislative effort Tuesday to bring nitrogen gas executions to the state, joining what could be a national movement in pro-death penalty states to expand capital punishment on the heels of Alabama’s first use of the method last week." Here is more:

Attorney General Dave Yost said adding nitrogen gas as an execution alternative in Ohio could end an unofficial death penalty moratorium that Republican Gov. Mike DeWine declared in 2020.  The governor said at the time that lethal injection was “no longer an option” for Ohio because of difficulties finding drugs and repercussions the state could face from drugmakers if one of their pharmaceuticals was used in an execution.  The state’s last execution was in 2018.  “Saying that the law of Ohio should be thwarted because pharmaceutical companies don’t want to sell the chemicals is an abdication of the sovereignty of the state of Ohio, which still has this law on the books,” Yost said.

He was joined at a Tuesday news conference by Republican state Reps. Brian Stewart and Phil Plummer, who introduced a bill Tuesday to add the new method. Alabama used it for the first time Thursday, when convicted murderer Kenneth Eugene Smith, 58, was put to death with nitrogen gas administered through a face mask to deprive him of oxygen.... The Ohio bill would give condemned inmates a choice between lethal injection and nitrogen gas but would require their executions to go forward with nitrogen gas if lethal injection drugs are not available, Stewart said....  

Yost said nitrogen gas is abundant and would be easy for the state to procure from the private sector.  At least one private company, industrial gas distributor Airgas, has announced its opposition to supplying nitrogen for executions. Yost, a former prosecutor and potential 2026 gubernatorial contender, said he is not concerned that the method has been used only once and that Smith appeared to struggle for several minutes as he died....

Plummer, a former county sheriff, said lengthy delays are defeating part of the purpose of Ohio’s death penalty law: “We need some closure for the victims in cases like these ones.”  Stewart criticized DeWine for delaying so many executions over pharmaceutical companies’ unwillingness to see their products used to put people to death.  He noted that Florida and the federal government have continued administering lethal injections while Ohio’s unofficial pause has been in place.  Yost noted that the federal government had a stockpile of drugs, putting it in a potentially different position than Ohio.

Ohio’s last execution was on July 18, 2018, when Robert Van Hook was put to death by lethal injection for killing a man he met in a Cincinnati bar in 1985.  His was the 56th execution since 1999.  Amid the unofficial moratorium, bipartisan groups of lawmakers have repeatedly pushed bills to eliminate the state’s death penalty, including one this session....

DeWine’s spokesman, Dan Tierney, said the governor typically does not comment on pending legislation.  Tierney noted that no death penalty-related legislation, whether for or against, has moved in recent years. 

Ohio has 118 men and one woman on death row, according to the most recent state report.

A few recent related posts:

January 30, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (34)

Monday, January 29, 2024

"Will other states replicate Alabama’s nitrogen execution?"

The question in the title of this post is the headline of this lengthy AP article.  I think an important related question in whether a new execution method might enable more states to increase the pace of executions (which have averaged less than two per month nationwide over the last decade after averaging double or triple that rate in prior decades).  Here are some excerpts from the AP piece:

Alabama’s first-ever use of nitrogen gas for an execution could gain traction among other states and change how the death penalty is carried out in the United States, much like lethal injection did more than 40 years ago, according to experts on capital punishment.

Alabama Attorney General Steve Marshall said Friday that the execution of Kenneth Eugene Smith, a 58-year-old convicted of a 1988 murder-for-hire, went off as planned and his office is ready to help other states if they want to begin nitrogen executions. “Alabama has done it, and now so can you,” Marshall said at a news conference.

At least some prison officials in other states say they hope to closely analyze how the process worked in Alabama and whether to replicate it in their states. Oklahoma and Mississippi already have laws authorizing the use of nitrogen gas for executions, and some other states, including Nebraska, have introduced measures this year to add it as an option. “Our intentions are if this works and it’s humane and we can, absolutely we’ll want to use it,” said Steven Harpe, director of Oklahoma’s prison system....

Oklahoma was the first state to contemplate the use of nitrogen gas nearly a decade ago after the 2014 botched execution of Clayton Lockett who clenched his teeth, moaned and writhed on the gurney before a doctor noticed a problem with the intravenous line and the execution was called off before Lockett died, 43 minutes after the procedure began. A later investigation revealed the IV had become dislodged and the lethal chemicals were pumped into the tissue surrounding the injection site instead of into his bloodstream.

Numerous other states, including Alabama, have had problems for years administering lethal injection or obtaining the deadly drugs, particularly as manufacturers, many of them based in Europe, have objected to their drugs being used to kill people and prohibited their sale to corrections departments or stopped manufacturing them altogether.  Even as some death penalty states remain committed to pursuing the executions, capital punishment is undergoing a yearslong decline of use and support, and more Americans now believe the death penalty is being administered unfairly, according to a recent annual report.

A few recent related posts:

January 29, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (7)

Friday, January 26, 2024

Will other states move to nitrogen after Alabama's pioneering success with new execution method?

The question in the title of this post is was my first question in the wake of last night's newa that Alabama carried out an historic first execution using nitrogen gas.  This New York Times article provides this account of the execution and what it could mean:

Alabama carried out the first American execution using nitrogen gas on Thursday evening, killing a convicted murderer whose jury had voted to spare his life and opening a new frontier in how states execute death row prisoners.

The execution of the condemned prisoner, Kenneth Smith, 58, began at 7:53 p.m. Central time, and he was pronounced dead at 8:25 p.m. in an execution chamber in Atmore, Ala., according to John Q. Hamm, the state prison system’s commissioner.  The U.S. Supreme Court allowed the execution to move forward over the objections of its three liberal justices and concerns from death penalty opponents that the untested method could cause Mr. Smith to suffer.

Mr. Smith, who was strapped to a gurney with a mask placed on his head, appeared conscious for several minutes after the nitrogen gas started flowing into the mask, depriving him of oxygen, according to a pool report from five Alabama journalists who witnessed the execution.  State lawyers had previously claimed in court filings that an execution by nitrogen would ensure “unconsciousness in seconds.”  He then “shook and writhed” for at least two minutes before beginning to breathe heavily for several minutes.  Eventually, the journalists said, his breathing slowed until it was no longer apparent.

Mr. Hamm said it looked like Mr. Smith had tried to hold his breath as long as he could, and he downplayed Mr. Smith’s body movements, saying “nothing was out of the ordinary from what we were expecting.”...

Lee Hedgepeth, a reporter in Alabama who witnessed the execution, said Mr. Smith’s head moved back and forth violently in the minutes after the execution began. “This was the fifth execution that I’ve witnessed in Alabama, and I have never seen such a violent reaction to an execution,” Mr. Hedgepeth said.

Mr. Smith was one of three men convicted in the 1988 murder of Elizabeth Sennett, whose husband, a pastor, had recruited them to kill her.

It was the second time Alabama had tried to kill Mr. Smith, after a failed lethal injection in November 2022 in which executioners could not find a suitable vein before his death warrant expired.  Mr. Smith’s lawyers and the state’s attorney general, Steve Marshall, said Thursday’s execution was the first that had been carried out by nitrogen anywhere in the world.

Other states have looked to Alabama’s experience as they face mounting problems obtaining lethal injection drugs because of pressure from medical groups, activists and lawyers.  Mississippi and Oklahoma have authorized their prisons to carry out executions by nitrogen hypoxia, as the method is known, if they cannot use lethal injection, though they have never tried to do so. “Our proven method offers a blueprint for other states and a warning to those who would contemplate shedding innocent blood,” Mr. Marshall said, suggesting that the availability of an “efficient” execution method could act as a deterrent to criminals.

The Supreme Court’s order allowing the execution to go forward did not give an explanation, as is often the case when the justices decide on emergency applications.  The court’s three liberal members disagreed with the majority’s decision.

In a strongly worded dissent, Justice Sonia Sotomayor voiced concerns about Alabama’s new method. “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” she wrote. “The world is watching.”

Justice Elena Kagan, a separate dissent joined by Justice Ketanji Brown Jackson, wrote that she would pause the execution to give the court time to examine the “exceptional circumstances” surrounding Alabama’s new method of execution and Mr. Smith’s challenges.

The dissents from Justices Sotomayor and Kagan are available at this link.   In addition to "the world" watching, states have surely been watching this case closely.  That lower courts, and ultimately the Supreme Court, refused to interfere with this novel execution method likely will lead some some state legislators and prison officials to consider more seriously about nitrogen gas as a means of carrying out a death sentence.

At the same time, defendants facing execution by means of lethal injection might just prod states to adopt this new execution method.  In some states, defendants have contested lethal injection execution protocols by arguing that nitrogen gas would provide a more humane means to execute.  After this Alabama execution, such arguments may now be somewhat more forceful and may make some states even more likely to adopt nitrogen gas execution protocols.

January 26, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (45)

Wednesday, January 24, 2024

Federal courts so far refusing to block Alabama's plan to be first-of-its-kind, second execution

As reported in this new New York Times piece, the "U.S. Supreme Court and a federal appeals court each declined on Wednesday to intervene to stop Alabama from conducting the nation’s first-ever execution by nitrogen gas, putting the state on track to use the novel method to kill a death row prisoner."  Here is more on today's rulings:

Alabama plans to use nitrogen gas to kill Kenneth Smith, who was convicted of a 1988 murder, after the state botched its previous attempt to execute him by lethal injection in November 2022.  Barring any additional legal interventions, prison officials plan to bring him to the execution chamber in Atmore, Ala., on Thursday evening, place a mask on his face and pump nitrogen into it, depriving him of oxygen until he dies.

The Supreme Court declined to intervene in Mr. Smith’s appeal of a state court case, in which his lawyers had argued that the second execution attempt would violate his Eighth Amendment right to be free from cruel and unusual punishments.  The court’s order did not include an explanation or note any dissents.

Hours later, in response to a separate challenge by Mr. Smith’s lawyers, a federal appeals court also declined to halt the execution over the dissent of one of the three judges who had heard the case.  Mr. Smith’s lawyers said they would also appeal that case to the Supreme Court, potentially giving the justices another chance to intervene, though they have been reluctant to do so in last-minute death penalty appeals in recent years.

Nitrogen gas has been used in assisted suicide in Europe and elsewhere, and the state’s lawyers contend that the method — known as nitrogen hypoxia — is painless and will quickly cause Mr. Smith to lose consciousness before he dies.

But Mr. Smith and his lawyers have said they fear the state’s newly created protocol is not sufficient to prevent problems that could cause Mr. Smith severe suffering.  The lawyers said in court papers that if the mask were a poor fit, it could allow oxygen in and prolong Mr. Smith’s suffering, or if he becomes nauseous, he could be “left to choke on his own vomit.”

The execution is scheduled to take place around 6 p.m. Central time at the William C. Holman Correctional Facility, though it could be carried out any time until 6 a.m. the next morning.

A few prior related posts:

January 24, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (28)

Monday, January 22, 2024

Supreme Court grants cert to take another look at capital case of Richard Glossip

Almost exactly nine years ago, on January 23, 2015 to be precise, the Supreme Court granted certiorari in Glossip v. Gross to consider whether Oklahoma's execution methods complied with the Eighth Amendment.  The Supreme Court's ruling for the state in the 2015 version of Glossip did not fully resolve execution jurisprudence, and it also did not lead to Oklahoma executing Richard Glossip.  Nearly a decade later, as detailed in this new SCOTUS order list, the Supreme Court is going to take a look at the substance of Glossip's capital conviction and sentence in a case now titled Glossip v. Oklahoma.

The Glossip cert petition this time around presented this set of questions:

1. a. Whether the State’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law. See Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959).

b. Whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims. See Kyles v. Whitley, 514 U.S. 419 (1995).

2. Whether due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it. See Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).

Intriguingly, the SCOTUS cert grant today adds a question (and suggests it could be down one Justice for the case):

In addition to the questions presented, the parties are directed to brief and argue the following question: Whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment. Justice Gorsuch took no part in the consideration or decision of this motion and this petition.

January 22, 2024 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Sunday, January 21, 2024

Is Alabama going to be able to go forward with an historic execution this week?

Alabama has an execution scheduled for January 25 that would be historic in two ways: (1) it would be the first execution using nitrogen gas, and (2) it would be the first modern execution of a conemned prisoner whose execution failed in a previous attempt.  Though Kenneth Eugene Smith is continuing to litigate in a effort to preclude his unique execution, I am (not-too-confidently) expecting his execution will go forward.  Here is an abridged round-up of press pieces about this scheduled execution:

From the AP, "Alabama plans to carry out first nitrogen gas execution. How will it work and what are the risks?"

From CBS News, "Alabama readies never-before-used execution method that some veterinarians won't even use for pets"

From Courthouse News Service, "Federal panel hears appeal of pending nitrogen hypoxia execution"

From Fox News, "Minister attending nitrogen gas execution of Alabama prisoner asks state for extra safety precautions"

From The Marshall Project, "Vomiting, Seizures, Stroke: What Could Happen in the First Nitrogen Execution in the U.S."

From Popular Mechanics, "This Man Survived One Execution. Now, Alabama Will Try to Kill Him Again—With Nitrogen Gas."

January 21, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9)

Wednesday, January 17, 2024

Feds reportedly to allow Colorado nightclub mass murderer to plead guilty to avoid capital charges

As reported in this new AP piece, a "shooter who killed five people and endangered the lives of over 40 others at an LGBTQ+ nightclub in Colorado Springs plans to plead guilty to new federal charges for hate crimes and firearm violations under an agreement that would allow the defendant to avoid the death penalty, according to court documents made public Tuesday." Here is more:

Anderson Aldrich, 23, made a deal with prosecutors to plead guilty to 50 hate crime charges and 24 firearm violations, the documents show. Aldrich would get multiple life sentences in addition to a 190-year sentence under the proposed agreement, which needs a judge’s approval....

Aldrich was sentenced to life in prison last June after pleading guilty to state charges of murder and 46 counts of attempted murder — one for each person at Club Q during the attack on Nov. 19, 2022.

Word of the new charges and planned agreement come just days after federal prosecutors revealed they would seek the death penalty in another hate crime case — against a white supremacist who killed 10 Black people at a supermarket in Buffalo, New York....

Aldrich, who is nonbinary and uses they/them pronouns, also pleaded no contest to state charges for hate crimes under a plea agreement. The plea was an acknowledgment there was a good chance Aldrich would be convicted of those crimes without admitting guilt. The pleas carried the same weight as a conviction....

At the time of Aldrich’s sentencing in state court, Colorado Springs area District Attorney Michael Allen said the possibility of receiving the death penalty in the federal system was a “big part of what motivated the defendant” to plead guilty to the state charges....

Aldrich declined to speak at the sentencing hearing in state court, and haven’t said why they hung out at the club, then went outside and returned dressed in body armor. Aldrich began firing an AR-15-style rifle as soon as they came back in. Prosecutors say Aldrich had visited the club at least six times before that night and that Aldrich’s mother had forced them to go.

In a series of telephone calls from jail, Aldrich told The Associated Press they were on a “very large plethora of drugs” and abusing steroids at the time of the attack. When asked whether the attack was motivated by hate, Aldrich said that was “completely off base.” The district attorney called those statements self-serving and characterized the assertion as ringing hollow. He said Aldrich’s claim of being nonbinary is part of an effort to avoid hate crime charges, saying there was no evidence of Aldrich identifying as nonbinary before the shooting.

During hearings in the state case in February, prosecutors said Aldrich administered a website that posted a “neo-Nazi white supremacist” shooting training video. A police detective also testified that online gaming friends said Aldrich expressed hatred for the police, LBGTQ+ people and minorities, and used racist and homophobic slurs. One said that Aldrich sent an online message with a photo of a rifle trained on a gay pride parade....

The 2022 attack came more than a year after Aldrich was arrested for threatening their grandparents and vowing to become “the next mass killer ″ while stockpiling weapons, body armor and bomb-making materials. Those charges were eventually dismissed after Aldrich’s mother and grandparents refused to cooperate with prosecutors.

January 17, 2024 in Death Penalty Reforms, Offense Characteristics, Who Sentences | Permalink | Comments (12)

Friday, January 12, 2024

Feds officially announce decision to pursue death penalty for racist mass murderer in Buffalo

As reported in this AP article, "Federal prosecutors will seek the death penalty against a white supremacist who killed 10 Black people at a Buffalo supermarket, they said in a court filing Friday." Here is more about the decision and some context for a widely-watched case:

Payton Gendron, 20, is already serving a sentence of life in prison with no chance of parole after he pleaded guilty to state charges of murder and hate-motivated domestic terrorism in the 2022 attack. New York does not have capital punishment, but the Justice Department had the option of seeking the death penalty in a separate federal hate crimes case. Gendron had promised to plead guilty in that case if prosecutors agreed not to seek the death penalty.

In a notice announcing the decision to seek the death penalty, Trini Ross, the U.S. attorney for western New York, wrote that Gendron had selected the supermarket “in order to maximize the number of Black victims.” The notice cited a rage of factors for the decision, including the substantial planning leading to the shooting and the decision to target at least one victim who was “particularly vulnerable due to old age and infirmity.”

Relatives of the victims had expressed mixed views on whether they thought federal prosecutors should pursue the death penalty....

The Justice Department has made federal death penalty cases a rarity since the election of President Joe Biden, a Democrat who opposes capital punishment. This is the first time Attorney General Merrick Garland has authorized a new pursuit of the death penalty. Under his leadership, the Justice Department has permitted the continuation of two capital prosecutions and withdrawn from pursuing death in more than two dozen cases. Garland instituted a moratorium on federal executions in 2021 pending a review of procedures. Although the moratorium does not prevent prosecutors from seeking death sentences, the Justice Department has done so sparingly.

It successfully sought the death penalty for a antisemitic gunman who murdered 11 people at a Pittsburgh synagogue, which had been authorized as a death penalty case before Garland became attorney general. It also went ahead last year with an effort to get the death sentence against an Islamic extremist who killed eight people on a New York City bike path, though a lack of a unanimous jury meant that prosecution resulted in a life sentence. The Justice Department has declined to pursue the death penalty in other mass killings. It passed on seeking the execution of a gunman who killed 23 people at a Walmart in El Paso, Texas.

On May 14, 2022, Gendron attacked shoppers and workers with a semi-automatic rifle at a Tops Friendly Market in Buffalo after driving more than 200 miles (320 kilometers) from his home in rural Conklin, New York. He chose the business for its location in a predominantly Black neighborhood and livestreamed the massacre from a camera attached to his tactical helmet.

The dead, who ranged in age from 32 to 86, included eight customers, the store security guard and a church deacon who drove shoppers to and from the store with their groceries. Three people were wounded but survived. The rifle Gendron fired was marked with racial slurs and phrases including “The Great Replacement,” a reference to a conspiracy theory that there’s a plot to diminish the influence of white people.

Prior related posts:

January 12, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Wednesday, January 10, 2024

Federal district judge concludes condemned has not shown Alabama's nitrogen gas execution protocol is constitutionally infirm

As reported in this Reuters article, a "federal judge ruled on Wednesday that Alabama can proceed later this month with the first execution by nitrogen gas asphyxiation, saying that the condemned prisoner was unlikely to show the new method amounts to cruel or unusual punishment." Here is more:

Kenneth Smith, convicted for a murder-for-hire committed in 1988, is scheduled to be executed in Alabama on Jan. 25 using the method, in which execution officials will bind a mask to his face connected to a cylinder of nitrogen intended to deprive him of oxygen....

Judge R. Austin Huffaker of the U.S. District Court in Montgomery, Alabama, ruled against Smith, who sought an injunction halting the execution to allow his litigation to proceed. "Smith is not guaranteed a painless death," Huffaker wrote in his opinion, citing a U.S. Supreme Court precedent. He wrote that Smith "has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain."

Smith, 58, is one of two people alive in the U.S. to have survived a judicial execution attempt: Alabama botched his previously scheduled execution by lethal injection in November 2022 when multiple attempts to insert an intravenous line failed. Robert Grass, a lawyer representing Smith, said he planned to appeal the ruling.

The full 48-page opinion is available at this link, and here is part of a key final section of the court's discussion:

So, it is Smith’s burden to show a substantial likelihood that he will succeed on his Eighth Amendment claim before the court will enjoin his execution to allow him to litigate his challenge, and for good reason.  The status quo here is that Smith will be executed by nitrogen hypoxia on January 25, 2024, using the ADOC’s current Protocol.  Courts presume, based upon the history and development of capital punishment in this country and the legislative process, that the Defendants do not “seek[] to superadd terror, pain, or disgrace to their executions” unless and until a condemned person can make the requisite showing under Baze and GlossipBucklew, 139 S. Ct. at 1124–25 (citing Baze and Glossip).

Considering all the evidence presented and the parties’ arguments, Smith has not met that burden.  His evidence and allegations amount to speculation, at best “scientific controvers[y,]” well short “of showing that the method creates an unacceptable risk of pain.” Glossip, 576 U.S. at 882, 884.  As in Glossip, Smith’s own experts effectively conceded that they lacked evidence to prove Smith’s case beyond dispute. See id. at 884.  Proof of some theoretical risk does not clear Smith’s high hurdle: “[s]imply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Baze, 553 U.S. at 50.  Smith has argued and provided some evidence that the Protocol could theoretically result in some risk of pain if many other events occur, like vomiting or the dislodging of the mask during the execution procedure but — far from providing a feasible, readily implemented alternative nitrogen hypoxia protocol with his list of proposed amendments to the Protocol or his cursory allegations and evidence about the firing squad — he has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain when compared to either of his alleged alternatives, nor that either of his alternative methods would in fact significantly reduce that risk if used instead.

Smith is not guaranteed a painless death.  Bucklew, 139 S. Ct. at 1124.  On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework.  Having failed to show a substantial likelihood of success on the merits, Smith is not entitled to injunctive relief on his Eighth Amendment claim.

Though Smith is surely going to appeal to the Eleventh Circuit and SCOTUS, I doubt he will get a different outcome in the weeks ahead.

January 10, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (10)

"Six U.S. Execution Methods and the Disastrous Quest for Humaneness"

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

This chapter examines the history and current status of the United States' six execution methods: hanging, firing squad, electrocution, lethal gas, lethal injection, and nitrogen hypoxia.  While lethal injection remains the most common technique, inmates have continuously challenged injection's experimental and scientifically dubious procedures on the grounds they are inhumane and unconstitutional.  Indeed, this country's ongoing transition from one technique to another — then back again — abounds with legislative, judicial, and correctional evidence detailing why each method failed so appreciably to become more civilized than the method superseded.  This chapter concludes that every execution state's desire to ensure the death penalty's survival at any cost propels each execution method's celebrated introduction and disastrous perpetuation.

January 10, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Monday, January 08, 2024

A range of notable death penalty stories from a range of states to kick off 2024

A number of capital headlines/stories from a number of states caught my eye this morning.  Here's a quick round-up of some pieces from the start of the year:

From Alabama, "Alabama convicted killer waits to be executed this month by nitrogen gas"

From California, "Where Los Angeles County district attorney candidates stand on the death penalty"

From Florida, "Overwhelming Percentage of Florida’s Hurst Resentencing Hearings End in Life Sentences"

From Indiana, "The death penalty: Inside Indiana’s complicated history with capital punishment"

From Mississippi, "State still wants execution dates set for 2 men on Mississippi's death row"

From Missouri, "Missouri bill seeks to make rape, child sex trafficking punishable by death"

From Nebraska, "Nebraska Senator introduces bill to make nitrogen asphyxiation a legal method of execution"

From Utah, "Utah Judge Clears the Way for Use of the Firing Squad"

From West Virginia, "Senate President will push reinstatement of death penalty in WV"

From Wyoming, "The Last Time Wyoming Used the Death Penalty was in 1992"

January 8, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Thursday, December 28, 2023

Another accounting of the Biden DOJ's capital approach as it approaches a capital decision

The Washington Post has this lengthy new article on the capital punishment work of the Biden Administration's Justice Department.  the full headline highlights the themes: "Garland’s death-penalty record will soon include Buffalo killer decision; President Biden’s attorney general has stopped dozens of death-penalty cases he inherited, but continued two involving mass, hate-fueled killings."  Here are a few excerpts:

The Justice Department is nearing a decision over whether to pursue the death penalty for the White gunman who slaughtered 10 Black people at a Buffalo grocery store last year, a racist attack that could lead to the first new capital prosecution authorized by Attorney General Merrick Garland....

Payton Gendron, 20, faces charges on hate crimes and weapons violations for the May 2022 massacre. He already is serving a sentence of life in prison without parole after pleading guilty to New York state murder charges. Defense attorneys said he would plead guilty to the federal counts if prosecutors forego the death penalty.

Garland’s decision is freighted with political significance over whether he believes capital punishment is a just outcome for perpetrators of the nation’s deadliest mass killings. The attorney general has echoed concerns about the death penalty from civil rights groups and Democrats, including President Biden, who say it disproportionately targets minorities and the poor. But nearly three years into his tenure, Garland has sent conflicting signals about his stance.

Prosecutors this year took two death penalty cases Garland inherited to trial, while the attorney general has withdrawn the department’s intent to seek capital punishment in 32 others that also were filed before he took office. In 2021, he issued a moratorium on actually carrying out federal executions, which remains in place. But the Justice Department continues to aggressively fight appeals from the 40 inmates who are on federal death row.

Outside observers say Garland’s decision in the Gendron case could further clarify whether the Biden administration is closing in on defining a new “worst of the worst” standard, in which the death penalty is reserved for mass killers in an age of increasing acts of domestic terrorism. The two cases that went to trial this year, like the Buffalo case, both involved such crimes.

December 28, 2023 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Tuesday, December 26, 2023

A notable 2023 year in review in two major death penalty states

Florida and Texas have notable histories, both past and moden, in the application of the death penalty.  The year 2023 added to those histories in various ways, as these two recent year-in-review press pieces detail:

From Florida, "Florida’s death penalty faced major change in 2023, caused national impact: After years without executions, Florida carried out six this year — along with laws expanding the state’s death penalty."  An excerpt:

Florida is one of five states that regularly uses the death penalty — and in 2023 the state stood out for its efforts to increase and expand the use of capital punishment. The state’s moves to resume executions after three years, to lower the bar for juries to recommend death sentences and to expand the crimes eligible for death put Florida at the forefront of the issue nationally....

In the spring, lawmakers and Gov. Ron DeSantis changed state law so juries don’t have to be unanimous to recommend the death penalty. The new minimum is a vote of 8-4 for death. Lawmakers also passed a bill making child sex abuse offenses eligible for the death penalty, a change that contradicts U.S. and Florida Supreme Court precedent. Prosecutors in Florida’s 5th Judicial Circuit this month filed the first such charges, and DeSantis has said they have his “full support.”

From Texas, "Texas executions remained low as 8 prison inmates put to death, 2 from Houston area, in 2023."  An excerpt:

Texas' death row population is at its lowest level in decades and fewer defendants condemned to die by Harris County juries are being executed or sent to death row. 

The Texas Coalition to Abolish the Death Penalty said in its annual report that 2023 marked the smallest death row population in more than 38 years, with a third of those coming from Harris County convictions.  As of December, 67 inmates from Harris County remain on death row, according to Texas Department of Criminal Justice records.

The state put to deaths eight people this year — two of whom were from the Houston area. The number of executions was higher than during the pandemic, but lower than the years prior, according to state records.

December 26, 2023 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Wednesday, December 13, 2023

Alabama documents flags risks to others in plans to pioneer execution with nitrogen gas

NPR has this new story on Alabama's plans to become the first state execute an individual using nitrogen gas under the headline "Alabama's upcoming gas execution could harm witnesses and violate religious liberty."  Here are excerpts from a lengthy piece:

The state of Alabama plans to execute a prisoner in January using nitrogen hypoxia, a process so novel and untested that state officials required the man's spiritual adviser to sign a waiver that said he could be exposed to the gas.  The acknowledgment form, exclusively obtained by NPR, also reveals that the spiritual adviser, Rev. Dr. Jeff Hood, is required to stay at least three feet away from the prisoner, which may violate both their religious liberties.

If Alabama proceeds with the execution, it will be the first time any U.S. state uses nitrogen gas to put a prisoner to death, but the second time Alabama attempts to execute Kenneth Smith.  Alabama's first attempt in 2022 to execute him failed. Before the execution was ultimately called off last year, Smith spent four hours strapped to a gurney as workers tried to insert needles into his veins to inject him with drugs.  Smith's lawyers requested the state use nitrogen gas instead of lethal injection if they attempted another execution.

Hood had an early warning that this execution might be dangerous. "When I first got in touch with Kenny," he said, "one of the first things that he asked me was, 'are you prepared to die to be my spiritual adviser'?"

The Department of Corrections asked Hood to sign a legal document confirming that the new method could put him at risk. The document declared that it was possible, although "highly unlikely," that the hose supplying gas to Smith's mask could detach and "an area of free-flowing nitrogen gas could result, creating a small area of risk (approximately two (2) feet) from the outflow."  It was also possible that nitrogen gas could displace oxygen in the air above Smith's face and head, according to the document, but there would be gas sensors in the room as a safety precaution.  The Department of Corrections asked Hood to agree to remain at least three feet away "from the mask or any outflow of breathing gases discharging from the system."

Critics say the form demonstrates that Alabama has not adequately prepared for the execution and that nitrogen gas may pose serious threats to workers nearby.  "They could start to hyperventilate because their body would detect that they're in a low oxygen environment," said Dr. Joel Zivot, an anesthesiologist and associate professor at Emory University School of Medicine.  "And that severe hyperventilation can lead to a stroke."...

At the time of publication, the agency did not respond to a request for comment about their assessment of the risk to others in the room. NPR requested all other forms the Department of Corrections may have asked workers to sign, but the agency declined to share the documents. A representative said that disclosure would be "detrimental to public interest."...

This year, Hood has been present at four executions in Texas, Oklahoma, and Alabama. He's never been required to acknowledge a risk to his safety before. "There is no doubt in my mind that Alabama is the most ill-prepared, unprofessional execution squad that exists of those three," Hood said.

Despite his reservations, Hood agreed to be Smith's adviser and signed the form on Nov. 15. "I just cling to a real knowledge that, 'greater love hath no one than this, that one would give their life for their friend,'" said Hood, quoting scripture.

December 13, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3)

Friday, December 08, 2023

Reviewing the uncertain state of the death penalty in the Buckeye State

Writing in the Columbus Monthly, Andrew Welsh-Huggins has this terrific overview of the curious state of capital punisnment in Ohio. The full headline highlights the lengthy piece's themes: "Justice For None: What the Future Holds for Ohio’s Death Penalty: After a 5-year unofficial moratorium, the future of capital punishment in the state is unclear, frustrating both supporters and opponents." Here are excerpts from a piece worth reading in full:

The reasons behind the current de facto moratorium are multifaceted but begin with this: Republican Gov. Mike DeWine has said repeatedly that Ohio can’t obtain the three drugs used in its current execution protocol — midazolam, a sedative; pancuronium bromide or a related drug, a paralyzing agent; and potassium chloride, which stops the heart. Even if the state could locate those drugs, DeWine argues, his administration doesn’t want to risk pharmaceutical companies shutting off access to other drugs needed in state institutions, from state-funded medical facilities to psychiatric hospitals to prisons dispensing regular medication to inmates.

Since taking office in January 2019, DeWine has issued more than 40 reprieves affecting 27 death row inmates, including three reprieves as recently as mid-October.... DeWine’s position is of small comfort to death row inmates and their attorneys, since several states — including Missouri, Oklahoma and Texas — continue to carry out executions with lethal drugs with no apparent backlash from pharmaceutical companies. Asked about this discrepancy, DeWine press secretary Dan Tierney stuck to the party line: The concern remains that any drug, obtained directly or through third-party means, could jeopardize the state of Ohio’s access to pharmaceuticals.

As far as capital punishment itself, Tierney says the governor’s position hasn’t changed since December 2020, when at the end of his second year in office he told the Associated Press that while he still supports the death penalty as Ohio law, he has come to question its value since his days as a state senator when he helped write the state’s current law—enacted in 1981—because of the long delays between crime and punishment....

Bipartisan bills to abolish the death penalty have come and gone repeatedly in recent Ohio legislative sessions, with most never advancing beyond a single hearing.  But this fall, two bills have been introduced both in the House and the Senate, and the bills’ supporters think they have more momentum than in the past.  They note a significant selling point: These versions aren’t retroactive — should the legislation be approved and become law, the death penalty would still be in place for inmates currently sentenced to death....

Ohio’s unofficial moratorium also reflects a broader trend: On the books or not, death sentences are rarer and rarer.  Nationally, the number of executions carried out dropped by 82 percent between 1999 and 2022, according to the Washington, D.C.- based Death Penalty Information Center, while death sentences declined 92 percent during the same time period. Ohio had no death sentences last year or in 2021, and just one in 2020.  Meanwhile, DeWine signed a bill into law in early 2021 that prohibits the execution of individuals suffering from such serious mental illnesses as schizophrenia, schizoaffective disorder, bipolar disorder or delusional disorders at the time of their crimes. That law alone has removed four inmates from death row....

But adhering to the status quo isn’t good enough for Ohio’s top cop, Attorney General Dave Yost, who in his office’s most recent annual report on capital punishment, said the state was laboring under a “broken capital-punishment system.”  Yost, a Republican and a possible candidate for governor in 2026, used financial estimates of the death penalty from other states to conclude that the extra cost of imposing the death penalty on the 128 inmates on Death Row as of the end of 2022 might range between $128 million to $384 million.  “That’s a stunning amount of money to spend on a program that doesn’t achieve its purpose,” Yost wrote.

He added, “This system satisfies nobody.  Those who oppose the death penalty want it abolished altogether, not ticking away like a time bomb that might or might not explode. Those who support the death penalty want it to be fair, timely and effective.  Neither side is getting what it wants while the state goes on pointlessly burning through enormous taxpayer resources.”

December 8, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Monday, December 04, 2023

DPIC releases new report focused on racial history of Missouri’s death penalty

As reported in this DPIC press release, "the Death Penalty Information Center (DPIC) released a report that documents how racial bias and violence affected the past use of the death penalty in Missouri and how that history continues to influence the current administration of capital punishment in the state."  The full 43-page report, titled "Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today," is available here.  The executive summary can be found here, and here is how it begins:

Missouri is one of a handful of states that has consistently executed people in the last five years.  In 2023, Missouri executed four people.  Understanding the historical application of the death penalty in Missouri helps our understanding of how capital punishment is used today.

Historically, Missouri’s Death Penalty Was Applied Discriminatorily Based on Race

Decades before Missouri gained statehood, the territory adopted capital punishment laws that were applied based on race.  There were at least four crimes that could only be tried capitally if committed by an enslaved person.  After Missouri became a state in 1821 and had adopted superficially race-neutral capital punishment laws, the death penalty continued to be applied discriminatorily: enslaved people were four times more likely to be executed than white Missourians before 1865.

Missouri Has a Substantial History of Racial Violence Directed at Black Missourians

The first documented lynching in U.S. history happened in Missouri in 1838. By the late 1800s, racial terror lynchings had increased in regularity, particularly in Southern, former slave-holding states.  Throughout the 19th and 20th centuries, at least 60 Black Missourians were killed in lynchings, making it the state with the second highest number of racial terror lynchings outside of the South.

Although the number of lynchings declined, public executions continued in Missouri longer than all but one other state.  Public executions were a form of racial violence: there are examples of sheriffs providing execution attendees with souvenirs such as pieces of the ropes used to hang Black people and even the victim’s body parts.  After a quadruple execution in St. Louis, a drug store owner was permitted to display the severed head of a Black person who was executed in his shop.  The constant reminders of brutal lynchings and executions were used by white people to continually threaten and intimidate Black people.

December 4, 2023 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (9)

Friday, December 01, 2023

DPIC releases year-end report emphasizing small number of executing and death sentencing states in 2023

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2023: Year End Report Only Five States Conducted Executions and Seven States Imposed New Death Sentences in 2023, the Lowest Number of States in 20 Years." Here is the part of the report's introduction, with lots of data and details following thereafter:

This year is the 9th consecutive year with fewer than 30 people executed (24) and fewer than 50 people sentenced to death (21, as of December 1). The 23 men and one woman who were executed in 2023 were the oldest average age (tied with 2021) and spent the longest average number of years in prison in the modern death penalty era before being executed. As in previous years, most prisoners had significant physical and mental health issues at the time of their executions, some of which can be attributed to the many years they spent in severe isolation on death row. Continued difficulties obtaining lethal injection drugs led some states to explore new, untested methods of execution or revive previously abandoned methods. Other states enacted or continued pauses on executions while the state’s method of execution was studied....

The Supreme Court granted only one stay of execution, reflecting the view of some members of the Court that prisoners bring “last-minute claims that will delay the execution, no matter how groundless.” The Court granted certiorari in only four death penalty cases, all of which pertained to procedural issues, and turned away the overwhelming majority of petitions filed by death-sentenced prisoners. Some state officials and legislatures may once again feel unrestrained by the risk of judicial oversight or correction; Florida directly flouted Supreme Court precedent with new legislation making a non-homicide crime a death-eligible offense, while states like Alabama announced plans to use nitrogen gas in an untested, risky method of execution.

December 1, 2023 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences | Permalink | Comments (1)

Thursday, November 30, 2023

Oklahoma completes execution despite clemency recommendation by Oklahoma Pardon and Parole Board

As detailed in this new PBS News Hour piece, "Oklahoma executed death row inmate Phillip Hancock on Thursday, despite his claims of self defense and a recommendation for clemency by the Oklahoma Pardon and Parole Board."  Here is more:

Republican Gov. Kevin Stitt’s decision to allow the execution to move forward comes as some state Republicans and advocates call for a pause in executions and a review of Oklahoma’s 36 pending death row cases.

Hancock, 59, was convicted of two murders in 2001.  His attorneys and supporters maintain that he acted in self-defense, saying he was unarmed when he entered an Oklahoma City residence where Robert Jett Jr., 37, and James Lynch, 58, the two murder victims, were present.  Hancock has said he was attacked, beaten with a breakover bar, and threatened with a gun before managing to retrieve the weapon and fatally shooting the two men.  Hancock’s defense team argued the trial lacked physical evidence supporting the prosecution’s version of events.  A woman present during the incident testified that she could not witness the struggle, further complicating the narrative over what happened.

The state board voted 3-2 in favor of clemency in early November.  It was the fourth such recommendation since the state resumed executions in 2021, following a six-year moratorium. Stitt, who previously commuted the sentence of Julius Jones in 2021, did not intervene this time. He denied Hancock’s request for clemency just after 10 a.m. local time, when the execution was scheduled to begin....

Oklahoma has executed 122 people since 1976, the highest number of executions per capita in the country. 

“We are profoundly disappointed that Gov. Stitt has rejected the Pardon and Parole Board’s recommendation of clemency for Phillip Hancock,” Brett Farley of the Oklahoma Conservatives Concerned About the Death Penalty said in a statement. Oklahoma’s practice of capital punishment continues to be riddled with problems, including the inability of the state to prevent the execution of innocent people. Should the state proceed with the scheduled execution on Thursday, it will be yet another gross miscarriage of justice. Phillip’s case is one more reminder why we must insist state leaders reinstate a moratorium in order to correct these problems.”

Republican state Reps. Kevin McDugle and Justin J.J. Humphrey have been critical of Oklahoma’s death row sentences, saying people have been subject to system-wide failures in the state’s justice system, from ineffective defense counsel to prosecutorial overreach.  McDugle said that Hancock was undeserving of such a punishment.  “Right now I don’t believe in the death penalty in Oklahoma. I don’t,” McDugle told the PBS NewsHour in October.  “That’s why we are trying to fix it because if we can’t fix it to where we can execute those who deserve to be executed and quit executing those who don’t deserve to be executed … then we need to get rid of it.”

Earlier this year, supporters of Hancock, including his attorneys, provided the state board with key declarations.  One statement from Hancock’s former girlfriend claimed she arranged with one of the victims to lure Hancock to the house to be “taken care of.”  Hancock’s trial attorney, who admitted to a relapse of drug and alcohol addiction during the case, expressed embarrassment about his representation.  The foreperson of the jury that convicted Hancock provided a declaration that the majority of jurors believed Hancock initially acted in self-defense but later became the aggressor.

November 30, 2023 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Monday, November 27, 2023

Notable accounts of implementing Florida's new non-unanimous capital sentencing

This afternoon brought up two notable new items in my news feed concerning Florida's new experiences with its new laws for administering the death peanlty:

From the Death Penalty Information Center, "Florida Judge Imposes Life Sentence for Joshua McClellan, Overriding Non-Unanimous Jury Recommendation for Death":

On November 20, Florida Circuit Judge Heidi Davis sentenced Joshua McClellan to life in prison after a non-unanimous jury returned a recommendation of death in September by a 10-2 vote.  Judge Davis noted the mitigation evidence presented by Mr. McClellan’s defense, including mental health evaluations and testimony regarding his traumatic upbringing, as an explanation for her decision.  Mr. McClellan was one of the first defendants to receive a non-unanimous death recommendation under a new law signed earlier this year by Governor and presidential candidate Ron DeSantis, allowing death sentences when only 8 jurors vote in favor.

From the Tampa Bay Times, "Court weighs if Tampa rapper’s jury should be unanimous on death penalty: State law now allows death by a jury vote of 8-4. Courts disagree whether the new law can apply to pending cases":

This spring, the Legislature and Gov. Ron DeSantis approved a law that eliminated the requirement that juries be unanimous if they are to recommend the death penalty. The new minimum threshold is a vote of 8-4. Thus, even if four jurors vote for life in prison, a court can still impose capital punishment.  But the question lingers: What to do with defendants, like Adams, whose cases were pending when the law changed? Should they be subject to the new 8-4 rule?

Lawyers for [Billy] Adams argued in a court hearing last week that the change would amount to an ex post facto law — a law that applies retroactively — which is explicitly prohibited in the U.S. and Florida constitutions.

Assistant Public Defender Jamie Kane told a judge that the new law creates new pressure for the defense. Under the previous law, the defense only had to convince one juror that a life sentence was appropriate. Under the new law, they have to convince at least five.  “That is a big difference,” Kane said. “Our burden has increased dramatically.”

Hillsborough prosecutors responded that the new 8-4 standard was merely a procedural change in the law, and therefore it should apply to cases going forward, including Adams’. “Does this retroactively increase punishment for this crime?” Assistant State Attorney Lindsay Hodges said in the hearing.  “The answer is no. ... The punishment is still death.”

November 27, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)