Sentencing Law and Policy

Notable new SCOTUS accounting of stays in capital cases over the last decade

The Supreme Court does not start hear oral arguments to officially start its new Term until next Monday, but it does have its "long conference" scheduled for today and Bloomberg Law has this interesting new piece for capital case watchers.   The piece is headlined "Death Row Inmates Find Fewer Paths to Supreme Court Reprieves," it is is worth a full read. Here are excerpts:

Richard Glossip has had his last meal three times. It may be four if the US Supreme Court doesn’t agree at its private conference Tuesday to hear the Oklahoma death row inmate’s latest appeal.

Glossip’s execution dates have been blocked nine times, most recently by the high court in May, since he was convicted in 1998 of hiring a man to kill the owner of the motel he managed.  But his case is unusual: only one other inmate has had an execution put on hold since Justice Ruth Bader Ginsburg died in September 2020, giving President Donald Trump his third appointment to cement a 6-3 conservative majority on the court.

In that time, the justices have voted nine times to let a death sentence blocked by a lower court be carried out, according to Stephen Vladeck, a University of Texas at Austin School of Law professor, who’s been tracking emergency requests to the Supreme Court since 2019.  “There’s a good bet they vacate the death sentence in Glossip, but that’s not going to be a bellwether for anything,” Vladeck said.  “You can count on one finger the number of cases in the last few years where the state has joined the prisoner in urging the court to step in.”

Bloomberg Law, in one of the first attempts to identify the outcomes of all emergency requests to stay executions, identified more than 270 in its dockets database since Jan. 1, 2013.  The justices have agreed to block an execution 11 times, according to cases identified in Bloomberg Law’s docketing system and in reporting.  And of 21 emergency requests to vacate a stay put in place by a lower court that Bloomberg Law identified, 18 were granted. That shows the court is much more likely to let executions proceed than to put them on hold.

Those findings are almost certainly undercounted due to the variable nature of death penalty court filings.  The Supreme Court doesn’t require emergency applications to be labeled as a capital case, and it doesn’t have a complete and searchable list of all historical death penalty cases.  Groups like the Death Penalty Information Center track executions but they don’t track all appeals.

The only stay of execution granted since Ginsburg’s death, other than Glossip’s, was in 2021, when the court blocked Texas from putting John Henry Ramirez to death while it considered whether he could keep fighting the state’s refusal to let his pastor pray out loud and touch him during his execution.  Ramirez ultimately won when the court backed his religious requests in a 8-1 decision. Ramirez was eventually executed in 2022 with his religious adviser in the chamber....

The court’s conservative wing has been skeptical of emergency requests in death row appeals and has accused inmates of trying to delay their execution.  When the court ruled in Bucklew v. Precythe in 2019 that the Eighth Amendment’s ban on cruel and unusual punishment doesn’t guarantee prisoners a painless death, Justice Neil Gorsuch warned courts to watch out for such attempts.  “Last-minute stays should be the extreme exception, not the norm,” he said, adding that the last-minute nature of an application that could have been brought earlier or is an applicant’s attempt at manipulation “may be grounds for denial of a stay.”

Vladeck said that blesses the practice of deciding emergency applications without resolving a prisoner’s claims, something the court’s liberal wing has often pointed to as a reason for the court to put on the brakes....

Zack Smith, a legal fellow and manager of The Heritage Foundation’s Supreme Court and Appellate Advocacy Program, pushed back on the notion that the justices are denying cases without reviewing prisoners’ claims.  Death row inmates often challenge their convictions multiple ways in both state and federal courts, he said.

“It’s important to understand how much process is involved in any of these death penalty cases,” he said. “Some take multiple trips to the Supreme Court.”  At some point, after several layers of collateral review in cases in which the individual has either pleaded guilty or been found guilty by a jury of their peers, Smith said “a judgment has to be final.”

Oklahoma completes its third execution of 2023 (which is 18th in US this year)

As reported in this local article, "Convicted murderer Anthony Sanchez, 44, was put to death by lethal injection Thursday at the Oklahoma State Penitentiary in McAlester. Prison officials said the execution occurred at 10:19 a.m." Here is more:

Sanchez was convicted in 2006 of first-degree murder in the shooting death of Juli Busken, a 21-year-old dance student who had completed her courses at OU and was preparing to return to her parents' home in Arkansas and enroll in graduate school. The U.S. Supreme Court denied a last-minute petition to pause Sanchez's execution.

Authorities said Busken was raped and shot in the head after being abducted from a Norman apartment complex in 1996. Her body was later found at Lake Stanley Draper southeast of Oklahoma City.

Under state law, Sanchez had to give up a sample of his DNA when he went to prison in Oklahoma in 2002 for second-degree burglary. A DNA profile was eventually made from semen stains found on Busken's clothing. In 2004, the Oklahoma State Bureau of Investigation got a "hit" on the DNA that linked Sanchez to the Busken case.

Attorney General Gentner Drummond and his assistants told U.S. District Judge Joe Heaton in a legal brief last week that the odds that the match was a mistake were 1 in 200 trillion Caucasians, 1 in 20 quadrillion African Americans and 1 in 94 trillion Southwest Hispanics.... 'I am 100% innocent,' Anthony Sanchez wrote in letter to Oklahoma Gov. Kevin Stitt

Sanchez maintained his innocence, but he waived his clemency hearing before the Oklahoma Pardon and Parole Board. In April, the Oklahoma Court of Criminal Appeals ruled 5-0 against Sanchez, who, in a new challenge, claimed his father confessed to Busken’s murder before committing suicide last year. The OSBI concluded the father was not the killer after conducting more DNA tests in February. The OSBI did the testing after getting a sample of the father's blood from the medical examiner's office, which had investigated his death.

I note in the title of this post that this execution was the 18th in the US so far in 2023, which ties the total number of US execution for the full year of 2022. With six more serious execution dates listed by DPIC here, it seems quite possible that 2023 will have the most executions in the US since 2018.  And if a few more execution dates get added, it is still possible that there could end up more executions in 2023 than any year since 2014.

Prez Biden reportedly involved in rejecting plea deal terms for 9/11 defendants

As reported in this New York Times piece, "President Biden has rejected a list of proposed conditions sought by the five men who are accused of conspiring in the Sept. 11, 2001, terrorist attacks in exchange for pleading guilty and receiving a maximum punishment of life in prison, according to two administration officials."  Here is more about reported presidential involvement in the prosecution of notorious criminals:

An offer by military prosecutors, made in March 2022, that would spare them death sentences if they admitted to their alleged roles in the hijackings, remains on the table, officials said. But Mr. Biden’s decision to reject additional conditions lessens the likelihood of reaching such a deal....

The White House was asked to weigh in on a proposed plea agreement about a year and a half ago. In talks with prosecutors, defense lawyers said Khalid Shaikh Mohammed, the accused mastermind, and four other defendants wanted certain accommodations, including assurances they would not serve their sentences in solitary confinement and could instead continue to eat and pray communally — as they do now as detainees at Guantánamo Bay.

The prisoners also sought a civilian-run program to treat sleep disorders, brain injuries, gastrointestinal damage or other health problems they attribute to the agency’s brutal interrogation methods during their three to four years in C.I.A. custody before their transfer to Guantánamo Bay in 2006.

An agreement to meet such conditions for the detainees, potentially for the rest of their lives, carried major policy implications likely beyond the authority of a criminal court or a particular team of prosecutors.

But the White House has been leery of involvement in the case, which is politically fraught. Some relatives of the 3,000 victims want a trial with the prospect, however distant, of having the perpetrators of the worst terrorist attack on U.S. soil sentenced to death. Others oppose the death penalty on principle, have no faith in the tribunal system, or have become resigned to the idea that, because the defendants were tortured by C.I.A., capital punishment is unlikely.

More than a year passed as prosecutors awaited an answer on whether the administration would consent to the proposed conditions, referred to as joint “policy principles” in court filings. A filing on Wednesday, which came just days before the 22nd anniversary of the attacks, indicated that the administration had finally said it would not.

“The administration declines to accept the terms of the proposed joint policy principles offered by the accused in the military commissions case, United States v. Mohammed, et al,” prosecutors said in the filing, according to someone who had been shown a copy. It was not yet posted on the Pentagon’s war court website.

Mr. Biden, according to the officials familiar with the matter, adopted a recommendation by the defense secretary, Lloyd J. Austin III. The court filing does not offer a rationale for rejecting the proposed conditions, according to the officials, who spoke on the condition of anonymity to discuss the sensitive matter.

One official said Mr. Biden did not believe the proposals, as a basis for a plea deal, would be appropriate, and the other cited the egregious nature of the attacks. But Mr. Biden took no position on the general notion that a plea deal could eliminate the possibility of death sentences. At a military commission, a senior Pentagon official, called a convening authority, oversees the cases and decides such questions....

Prosecutors had been explaining the mechanics of admitting guilt in court proceedings in exchange for life sentences in meetings with small groups of family members in New York, Boston and Florida since at least May. They sent out a two-page letter to reach a wider group last month. “It cannot be overstated that a guilty plea is conclusive evidence of guilt,” it said.

The possibility of a deal stirred emotions among the relatives of the victims of the Sept. 11 attacks — both those who envisioned a trial and death sentence and those who wanted a resolution that would not face the possibility of an appeal.

Detailing challenges after Florida's move away from requiring capital jury unanimity

The Tampa Bay Times has this extended article about the legal uncertainties and other challenges in Florida in the wake of the state's recent reform to its capital punishment procedures.  The full headline of the piece provides a chaotic summary: "Florida death penalty changes causing ‘chaos,’ attorneys say: 'Undoubtedly, the new statute will plunge Florida’s death-penalty system into further instability and chaos,' one death penalty expert said." I recommend the full article, and here are a few excerpts:

A new state law lowering the number of jurors required to recommend death sentences has spurred a rash of litigation, triggered conflicting judicial rulings and infused an additional level of uncertainty in capital cases....

The law allows death sentences to be imposed based on the recommendations of eight of 12 jurors, an easier threshold than a previous requirement of unanimous jury recommendations.  The change — prompted by Parkland school shooter Nikolas Cruz receiving a life sentence after a jury did not unanimously recommend death — gave Florida the lowest death-penalty jury standard in the nation.

Allowing 8-4 recommendations is the latest in a series of changes in the capital-sentencing process since a 2016 U.S. Supreme Court decision in a case known as Hurst v. Florida.  The ruling found that the state’s death-penalty process was unconstitutional.

In October 2016, in the similarly named case of Hurst v. State, the Florida Supreme Court interpreted and applied the U.S. Supreme Court ruling and said unanimous jury recommendations were required.  The Legislature responded in 2017 by putting such a unanimous requirement in law.

Amid uncertainty over whether the unanimity requirement should be applied retroactively to older cases, justices ordered resentencing for about 150 Death Row inmates who were sentenced based on recommendations by non-unanimous juries.  Before 2016, inmates could be sent to Death Row based on majority — or 7-5 — jury recommendations.

About 90 resentencing proceedings were completed under the unanimity requirement before this year’s law went into effect.  More than three-fourths of those proceedings resulted in life sentences, with prosecutors often not asking for the death penalty in the resentencings.

When Gov. Ron DeSantis signed the 8-4 law this spring, nearly five-dozen Hurst resentencing cases were pending. That has led to disputes about which standard should apply....

The Legislature approved the change after an ideological shift in recent years on the Florida Supreme Court. Shortly after DeSantis took office in 2019, he appointed justices who established a conservative majority.  The court in 2020 reversed course on the death penalty and said unanimous jury recommendations were not necessary....

The change is affecting Death Row inmates preparing for resentencings because of the Hurst decision.  The unanimous standard was in place when the resentencings were ordered, leading their attorneys to argue it should continue to apply in the cases.

The new law also is having an impact on cases involving defendants accused of committing murders before DeSantis signed the law. Their attorneys also maintain the 8-4 threshold should not apply retroactively....

Judges — including in the same judicial circuit — are divided on the issue.  As circuit judges grapple with which standard should apply, a number of appeals have made it to the Florida Supreme Court.  But a “lead” case — if there will be one — has not emerged....

Melanie Kalmanson, an attorney who publishes the Tracking Florida’s Death Penalty blog, pointed to the state’s filings in the Gonzalez case to demonstrate what she called “widespread chaos” in the death-penalty system.  “There’s some indication that even the state is not sure how they want to address the litigation about the new statute,” she said.

Ohio prosecutors talking up nitrogen gas executions as a way to reboot state's dormant machinery of death

I flagged in this post a few days ago the dormant state of the death penalty in Ohio.  There has not been an execution in the Buckeye State in over five years even though the state has 122 condemned murderers currently on death row, and 31 of these murderers have exhausted all standard appeals.  The primary reason for this de facto execution moratorium has been the state's ugly history in carrying out lethal injection executions and extensive litigation surrounding the varying drugs and methods used therein.  That history has prompted Governor Mike DeWine to keep pushing back and pushing back execution dates for death row inmates while suggesting to the Ohio General Assembly that they need to address improving execution methods head on.

This new local article, headlined "Prosecutors want to resume executions using nitrogen hypoxia," reports that Ohio prosecutors have a new(?) idea for getting the state's machinery of death up and running again:

It's been five years since Ohio has executed its death penalty. Gov. Mike DeWine delayed executions due to limited access of the drug used for the lethal injection.  But Ohio prosecutors are looking to resume executions through alternative methods.  "We just want to find a pathway forward for the victims of these crimes," said Louis Tobin, the executive director of Ohio Prosecuting Attorneys Association.  

Tobin said Ohio needs to continue its using the death penalty to provide proper justice.  He said if there is a shortage of the drug needed for the lethal injection, Ohio can use nitrogen hypoxia.  "Filings by the defense bar and federal death penalty pleadings and in (the) Supreme Court of Ohio pleadings have acknowledged that it would be a painless method of execution," Tobin said.   The process of nitrogen hypoxia works by removing oxygen and letting a person die by inhaling nitrogen gas....

"Somebody who murders one young child is already facing that possibility without a death penalty," Tobin said, "and without the additional accountability that it provides, you're allowing them to kill the second and third child for free. They're free kills. So the death penalty is what justice demands sometimes. Either we're going to be a state that prioritizes public safety and prioritizes the victims of crime or we're not." 

In response to the Ohio Prosecuting Attorneys Association proposal, the governor’s office said only the Ohio General Assembly can change the methods for applying the death penalty.

As long-time readers know, there has long been discussion of execution by nitrogen gas as an alternative to lethal injections.  This discussion really picked up over the last decade as more and more states struggled with their lethal injection protocols.  And  in 2018, Alabama enacted a statute that formally authorized execution by nitrogen, and at least a few other states have execution protocol laws that would allow using this novel execution method.  But, as of now, no modern execution in the US has been completed using nitrogen gas and any efforts to switch execution methods in Ohio would surely engender significant state and federal litigation.

For a variety of reasons, I expect that Ohio's death penalty will remain dormant for the rest of Governor DeWine's time in office.  But, in a couple of years, a number of folks with a track record of support for the death penalty will likely start running to be Ohio's next Governor and it will be very interesting to see if the state's dormant death penalty gets any more attention.  In the meantime, folks can read up on nitrogen gas as an execution method via a small sample of prior posts on the topic: 

• Is nitrogen gas the best modern execution alternative to lethal injection?
• A worldly perspective on different execution methods
• Should problems with lethal injection prompt return of other execution methods?
• Effective discussion of nitrogen gas as execution method alternative
• Examining whether nitrogen gas could be a viable new method for executions 
• Making the case against nitrogen as an execution method 
• "Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"
• Might Alabama become the first state to use nitrogen gas for an execution?

Updating the (dormant) state of the death penalty in Ohio

The headline of this local article, "Ohio death row inmates spend 21 years waiting for execution date," caught my eye, and the piece includes a useful summary of the Buckeye State's modern death penalty history.  Here is an excerpt:

Ohio’s next execution of a death row inmate was originally on the calendar for exactly three months from now on November 16. But that date, like so many others, was recently pushed back.

It’s been five years since the state’s last execution. We found state officials are calling the system “broken” as Ohio’s unofficial death penalty moratorium continues.

The governor keeps pushing back execution dates for death row inmates as the struggle to find the drugs needed for lethal injection stretches on. 122 inmates are currently on death row in Ohio. 19 Investigates found 31 of those inmates are scheduled for execution....

The average time an inmate spends on death row is now 21 years. Ohio death row inmates are more likely to die from natural causes or suicide than lethal injection.

In the Ohio Attorney General’s most recent Annual Capital Crimes Report, state officials said “It is a system that is not fairly, equally or promptly enforced.”

“Ohio’s residents and their elected leaders should make one of two decisions: Either overhaul the capital punishment system to make it effective, or end it,” the report concluded.

The report cited studies showing it costs at least one million dollars per inmate to keep them on death row, which is much more than the cost of life in prison.

Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty

As reported in this AP piece, the "suspected architect of the Sept. 11, 2001, attacks and his fellow defendants may never face the death penalty under plea agreements now under consideration to bring an end to their more than decadelong prosecution, the Pentagon and FBI have advised families of some of the thousands killed." Here is more:

The notice, made in a letter that was sent to several of the families and obtained by The Associated Press, comes 1 1/2 years after military prosecutors and defense lawyers began exploring a negotiated resolution to the case.

The prosecution of Khalid Sheikh Mohammed and four others held at the U.S. detention center in Guantanamo Bay, Cuba, has been troubled by repeated delays and legal disputes, especially over the legal ramifications of the interrogation under torture that the men initially underwent while in CIA custody. No trial date has been set.

“The Office of the Chief Prosecutor has been negotiating and is considering entering into pre-trial agreements,” or PTAs, the letter said. It told the families that while no plea agreement “has been finalized, and may never be finalized, it is possible that a PTA in this case would remove the possibility of the death penalty.”

Some relatives of the nearly 3,000 people killed outright in the terror attacks expressed outrage over the prospect of ending the case short of a verdict. The military prosecutors pledged to take their views into consideration and present them to the military authorities who would make the final decision on accepting any plea agreement.

The letter, dated Aug. 1, was received by at least some of the family members only this week. It asks them to respond by Monday to the FBI’s victim services division with any comments or questions about the possibility of such a plea agreement. The FBI had no comment Wednesday on the letter....

Jim Riches, who lost his firefighter son Jimmy in 9/11, went to Guantanamo for pretrial hearings in 2009. He remains deeply frustrated that the case remains unresolved 14 years later.  He said he laughed bitterly when he opened the government’s letter Monday. “How can you have any faith in it?” Riches asked.  The update “gives us a little hope,” he said, but justice still seems far off.

“No matter how many letters they send, until I see it, I won’t believe it,” said Riches, a retired deputy fire chief in New York City.  He said he initially was open to the use of military tribunals but now feels that the process is failing and that the 9/11 defendants should be tried in civilian court.

The Obama administration at one point sought to do so, but the idea was shelved because of opposition from some victims’ relatives and members of Congress and city officials’ concerns about security costs.  As the 22nd anniversary of the attacks approaches, “those guys are still alive. Our children are dead,” Riches said.

"The Capital Shadow Docket and The Death of Judicial Restraint"

The title of this post is the title of this new paper on SSRN authored by Jenny-Brooke Condon. Here is its abstract:

The Supreme Court’s recent approach to late-state execution challenges on its otherwise opaque shadow docket illuminates a court comfortable with playing an aggressive, decisive role in America’s system of state killing.  The Court would prefer for us to think of its role differently — as a passive, mere agnostic participant in a process defined by judicial restraint.  The Court promotes this vision when it invokes judicial restraint to justify its refusal to second-guess the cruelty of challenged execution methods or when Justices cite federalism-based rationales for refusing to delay state enforcement of death sentences.  Even the oft-quoted refrain that “death is different” — the notion that the Court proceeds carefully to enforce the Eighth Amendment as applied to capital punishment — advances a narrative of the Court as careful, constrained, and once removed. In this telling, judicial restraint and constitutional regulation of the death penalty go hand in hand.

And yet, on the Supreme Court’s shadow docket, the Court’s death penalty jurisprudence is anything but restrained. For the last several years, the Court has regularly reversed lower court stays in a series of death cases presenting substantial issues.  While decisions addressing death penalty cases on the Court’s emergency orders docket is nothing new, the Court’s willingness to issue momentous, dispositive rulings in death cases through the shadow docket has emerged as an important feature of the Court’s constitutional regulation of the death penalty.  This Article contends that the Court’s capital shadow docket does not merely reflect changes in how the Court now approaches norms surrounding requests for emergency relief, as others have illuminated. The capital shadow docket is also a window into judicial regulation of the death penalty devoid of judicial restraint.

Notable pitch to expedite federal appeals of condemned Pittsburgh synagogue shooter

This editorial from the editorial board of the Pittsburgh Post-Gazette caught my eye this past week. The piece is headlined "Expedite synagogue shooter's death penalty appeals," and here are excerpts:

Now that Pittsburgh synagogue shooter Robert Bowers has been sentenced to death, there’s no reason to further delay the administration of justice. The Department of Justice and the federal courts should take every step possible to expedite the appeals.

Further, the convicted murderer and his legal team, having failed in their desperate attempt to convince a Western Pennsylvania jury to spare him, should decline to make unnecessary appeals.  There is no question of his guilt, and the jury convincingly rejected the proposed mitigating factors, while the defendant showed no remorse.  Finally, there is no sign whatsoever of the kind of prosecutorial misconduct that would throw the conviction and sentence into doubt.  Further litigation will only waste time and money, and will further prolong the healing process for the victims’ families and community....

The robust death penalty appeals process exists to minimize the possibility of a false conviction, but in this case there is no doubt as to the defendant’s guilt.  After an exhaustive process, including weeks of testimony, a jury of his peers found him culpable. Further, the defense already pursued every possible stratagem, including causing years of delays, to avoid the death sentence.  They all failed.  Spending years relitigating these matters will not enhance the administration of justice.

Due to the Department of Justice’s decision to pursue the death penalty, followed by innumerable delay tactics by the shooter’s defense team, it has taken nearly five years to complete merely the first step in the process — conviction and sentencing.  These excruciating years have denied victims’ families and the wider community a measure of closure.  Now, the system — including the shooter’s defense team — can do right by those who carry the wounds of October 27, 2018, by expediting the appeals.

Not mentioned in this article is the fact that Attorney General Merrick Garland ordered a nationwide moratorium on federal executions that has been in place for more than two years and seems unlikely to be rescinded as long as Joe Biden is the Oval Office.  So, even if appeals were expedited for the condemned Pittsburgh synagogue shooter, it is very unlikely that he would be executed on an expeditious schedule.  Nevertheless, I think this editorial sensibly suggests that an extra "measure of closure" would come whenever standard appeals are exhausted for this condemned mass murderer even if he were not to be executed anytime soon.  And yet, even if serious efforts were made to expedite the appeals in this case, I suspect that it would likely still take many years to exhaust them.

Florida complete its fifth execution of 2023, more than its total in prior five years

As reported in this AP piece, a "Florida man who recently dropped all legal appeals was executed Thursday for the 1988 murder of a woman who was sexually assaulted, killed with a hammer and then set on fire in her own bed." Here is more:

James Phillip Barnes, 61, was pronounced dead at 6:13 p.m. following a lethal injection at Florida State Prison in Starke.... The 61-year-old inmate was sentenced to death for the murder of nurse Patricia “Patsy” Miller. It was the fifth execution in Florida this year....

Barnes was serving a life sentence for the 1997 strangulation of his wife, 44-year-old Linda Barnes, when he wrote letters in 2005 to a state prosecutor claiming responsibility for killing Miller years earlier at her condominium in Melbourne on Florida’s east coast.

Barnes represented himself in court hearings where he offered no defense, pleaded guilty to killing Miller and did not attempt to seek a life sentence rather than the death penalty. Miller, who was 41 when Barnes killed her on April 20, 1988, had some previous unspecified negative interactions with him, according to a jailhouse interview he gave German film director Werner Herzog. “There were several events that happened (with Miller). I felt terribly humiliated, that’s all I can say,” Barnes said in the interview....

Barnes killed his wife in 1997 after she discovered that he was dealing drugs. Her body was found stuffed in a closet after she was strangled, court records show. Barnes has claimed to have killed at least two other people but has never been charged in those cases....

Though unusual, condemned inmates sometimes don’t pursue every legal avenue to avoid execution. The Death Penalty Information Center reports that about 150 such inmates have been put to death since the U.S. Supreme Court reaffirmed the death penalty as constitutional in 1976.

According to this DPIC page, Florida had no executions between 2020 and 2022, and only two each year in the prior two years.  The single-year record for executions in the Sunshine state is eight, though it seems no more executions are as of now yet scheduled in the state.  There are more than 300 people on the state's death row, though I am un sure how many have exhausted their appeals.

Pittsburgh synagogue shooter sentenced to death by federal jury

As reported in this AP article, the "gunman who stormed a synagogue in the heart of Pittsburgh’s Jewish community and killed 11 worshippers will be sentenced to death for perpetrating the deadliest antisemitic attack in U.S. history, a jury decided Wednesday."  Here is more on the notable federal sentencing jury determination:

Robert Bowers spewed hatred of Jews and espoused white supremacist beliefs online before methodically planning and carrying out the 2018 massacre at the Tree of Life synagogue, where members of three congregations had gathered for Sabbath worship and study. Bowers, a truck driver from suburban Baldwin, also wounded two worshippers and five responding police officers.

The same federal jury that convicted the 50-year-old Bowers on 63 criminal counts recommended Wednesday that he be put to death for an attack whose impacts continue to reverberate nearly five years later.  He showed little reaction as the sentence was announced, briefly acknowledging his legal team and family as he was led from the courtroom.  A judge will formally impose the sentence later.

Jurors were unanimous in finding that Bowers’ attack was motivated by his hatred of Jews, and that he chose Tree of Life for its location in one the largest and most historic Jewish communities in the U.S. so that he could “maximize the devastation, amplify the harm of his crimes, and instill fear within the local, national, and international Jewish communities.” They also found that Bowers lacked remorse....

The verdict came after a lengthy trial in which jurors heard in chilling detail how Bowers reloaded at least twice, stepped over the bloodied bodies of his victims to look for more people to shoot, and surrendered only when he ran out of ammunition.  In the sentencing phase, grieving family members told the jury about the lives that Bowers took — elderly people and intellectually disabled brothers among them — and the unrelenting pain of their loss. Survivors testified about their own lasting pain, both physical and emotional.

Through it all, Bowers showed little reaction to the proceeding that would decide his fate — typically looking down at papers or screens at the defense table — though he could be seen conversing at length with his legal team during breaks.  He even told a psychiatrist that he thought the trial was helping to spread his antisemitic message.

It was the first federal death sentence imposed during the presidency of Joe Biden, who pledged during his 2020 campaign to end capital punishment.  Biden’s Justice Department has placed a moratorium on federal executions and has declined to authorize the death penalty in hundreds of new cases where it could apply.  But federal prosecutors said death was the appropriate punishment for Bowers, citing the vulnerability of his mainly elderly victims and his hate-based targeting of a religious community....

Bowers’ lawyers never contested his guilt, focusing their efforts on trying to save his life.  They presented evidence of a horrific childhood marked by trauma and neglect.  They also claimed Bowers had severe, untreated mental illness, saying he killed out of a delusional belief that Jews were helping to cause a genocide of white people.  The defense argued that schizophrenia and brain abnormalities made Bowers more susceptible to being influenced by the extremist content he found online.

The prosecution denied mental illness had anything to do with it, saying Bowers knew exactly what he was doing when he violated the sanctity of a house of worship by opening fire on terrified congregants with an AR-15 rifle and other weapons, shooting everyone he could find.

The jury sided with prosecutors, specifically rejecting most of the primary defense arguments for a life sentence, including that he has schizophrenia and that his delusions about Jewish people spurred the attack.  Jurors did find that his difficult childhood merited consideration, but gave more weight to the severity of the crimes....

Survivors and other affected by the attack will have another opportunity to address the court — and Bowers — when he is formally sentenced by the judge.

After a 6-3 SCOTUS vote to deny review, Missouri completes execution of child killer who claimed mentally incompetence

As reported in this AP piece, a "man who abducted a 6-year-old Missouri girl and beat her to death at an abandoned factory two decades ago was put to death Tuesday evening, shortly after the U.S. Supreme Court rejected a request to block the execution over arguments he was mentally incompetent." Here is more:

Johnny Johnson, 45, received a lethal injection dose of pentobarbital at a state prison in Bonne Terre and was pronounced dead at 6:33 p.m. CDT, authorities said.  He was convicted of the July 2002 killing of Casey Williamson in the St. Louis area suburb of Valley Park.

Johnson, who had schizophrenia, expressed remorse in a brief handwritten statement released by the Department of Corrections hours before being executed.... Among those witnessing Johnson’s execution were several members of the girl’s family and the former prosecutor and police investigator who handled his case.

The U.S. Supreme Court, with Justice Sonia Sotomayor and two other justices dissenting, rejected a late request to stay the execution. In recent appeals, Johnson’s attorneys have said the inmate has had delusions about the devil using his death to bring about the end of the world....  Former St. Louis County Prosecutor Bob McCulloch called the delusions “nonsense” and said Johnson inflicted “unspeakable horrors” upon Casey. “He’s got some issues — significant issues,” McCulloch said moments before witnessing the execution. But “he knew exactly what he was doing.”...

At Johnson’s trial, defense lawyers presented testimony showing their client — an ex-convict who had been released from a state psychiatric facility six months before the crime — had stopped taking his schizophrenia medication and was acting strangely in the days before the slaying.

In June, the Missouri Supreme Court denied an appeal seeking to block the execution on arguments that Johnson’s schizophrenia prevented him from understanding the link between his crime and the punishment.  A three-judge federal appeals court panel last week temporary halted execution plans, but the full 8th U.S. Circuit Court of Appeals reinstated it. Johnson’s attorneys then filed appeals to the U.S. Supreme Court centered around his competency to be executed.

Gov. Mike Parson on Monday denied a request to reduce Johnson’s sentence to life in prison.  The clemency petition by Johnson’s attorneys said Casey’s father, Ernie Williamson, opposed the death penalty.  But Casey’s great aunt, Della Steele, wrote an emotional plea to the governor urging the execution be carried out to “send the message that it is not okay to terrorize and murder a child.”  Steele said grief from Casey’s death led to destructive effects among other family members....

The execution was the 16th in the U.S. this year, including three previously in Missouri, five in Texas, four in Florida, two in Oklahoma and one in Alabama.

This ten-page dissent from the denial of a stay and from the denial of certiorari, authored by Justice Sotomayor and joined by Justices Kagan and Jackson, includes these passages at its outset and end:

The Supreme Court of Missouri, over a noted dissent, denied Johnson a competency hearing because it concluded that he had not made a substantial threshold showing of insanity.  That was error.  A federal District Court then denied Johnson habeas relief.  A panel of the Eighth Circuit stayed his execution and issued a certificate of appealability (COA), which would have permitted his competency claim to be fully briefed and argued on the merits.  But the en banc Eighth Circuit, over a dissent from three judges, vacated that stay and declined to issue a COA because it concluded that no reasonable jurist could disagree with the District Court.  That too was error.  Because reasonable jurists could, did, and still debate whether the District Court should have granted habeas relief, the Eighth Circuit should have authorized an appeal.  I would grant the petition for a writ of certiorari, summarily vacate the order of the Eighth Circuit denying a COA, and grant Johnson’s request for a stay of execution pending appeal....

The Court today paves the way to execute a man with documented mental illness before any court meaningfully investigates his competency to be executed.  There is no moral victory in executing someone who believes Satan is killing him to bring about the end of the world.  Reasonable jurists have already disagreed on Johnson’s entitlement to habeas relief.  He deserves a hearing where a court can finally determine whether his execution violates the Eighth Amendment.  Instead, this Court rushes to finality, bypassing fundamental procedural and substantive protections.  I respectfully dissent.

Noticing one count in the latest federal indictment of former Prez Donald Trump could carry the death penalty

In many cases, even high-profile ones, I tend to be disinclined to focus too much on a defendant's sentencing prospects until a plea or a jury conviction seems forthcoming.  But with historic and repeated indictments of a former President who is also a front-running presidential candidate, it is hard not to talk about sentencing possibilities as soon as there is an actual indictment.  And, via an email tonight on the CrimProf listserve, Professor Jack Chin flagged a particularly interesting added sentencing element flowing from this latest indictment of former Prez Trump:

So one of the offenses Trump was charged with today carries a possible death sentence.  The NYT reports that seven people died in connection with the January 6 riots, so the conspiracy against rights is death eligible.  I assume a death notice will not be filed, and oppose the death penalty in all cases myself, but, if one supports the death penalty in principle, would seven be enough?

18 USC 241:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Alabama completes execution (seemingly without difficulty) after three Justices dissent from stay denial based on execution protocol concerns

As reported in this AP article, "Alabama executed a man on Friday for the 2001 beating death of a woman as the state resumed lethal injections after failed executions prompted the governor to order an internal review of procedures." Here is more:

James Barber, 64, was pronounced dead at 1:56 a.m. after receiving a lethal injection at a south Alabama prison. “Justice has been served. This morning, James Barber was put to death for the terrible crime he committed over two decades ago: the especially heinous, atrocious, and cruel murder of Dorothy Epps,” Attorney General Steve Marshall said in a statement.

Barber was convicted and sentenced to death for the 2001 beating death of Epps. Prosecutors said Barber, a handyman, confessed to killing the 75-year-old with a claw hammer and fleeing with her purse. Jurors voted 11-1 to recommend a death sentence, which a judge imposed. Before he was put to death, Barber told his family he loved them and apologized to Epps’ family....

It was the first execution carried out in Alabama this year after the state halted executions in November. Alabama Gov. Kay Ivey announced a pause on executions to conduct an internal review of procedures.... Alabama’s governor announced in February that the state was resuming executions. Alabama Corrections Commissioner John Hamm said prison system had added to its pool of medical professionals, ordered new equipment and conducted additional rehearsals.

The last-minute legal battle centered on Alabama’s ability to obtain intravenous access in past executions. Barber’s attorneys unsuccessfully asked the courts to block the execution, saying the state has a pattern of failing “to carry out a lethal injection execution in a constitutional manner.”...

Alabama Corrections Commissioner John Hamm said the two intravenous lines were connected to Barber with “three sticks in six minutes.” The Supreme Court denied Barber’s request for a stay without comment. Justice Sonia Sotomayor wrote a dissent from the decision that was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson. She said the court was allowing “Alabama to experiment again with a human life.”

Justice Sotomayor's opinion dissenting from the denial of the application for a stay runs 11 pages and is available at this link. Here is how it gets started:

Just last year in Alabama, in three consecutive executions by lethal injection, prison officials spent multiple hours digging for prisoners’ veins in an attempt to set IV lines.  Two of the men survived and reported experiencing extreme pain, including, in one case, nerve pain equivalent to electrocution.  After those executions failed, the State began what it claimed would be a “top-to-bottom” review of its lethal injection process.  Barber v. Governor of Ala., ___ F. 4th ___, ___, 2023 WL 4622945, *13 (CA11, July 19, 2023) (Pryor, J., dissenting).  During this review, conducted by the very agency that botched the executions, the State offered no explanations for the failures and reported “[n]o deficiencies” in its protocols. Id., at *15.

Now, the State seeks to execute James Edward Barber. Barber has timely raised an Eighth Amendment method of execution claim in federal court, arguing that he will be subject to the same fate as last year’s prisoners.  Yet Alabama plans to kill him by lethal injection in a matter of hours, without ever allowing him discovery into what went wrong in the three prior executions and whether the State has fixed those problems.  The Eighth Amendment demands more than the State’s word that this time will be different.  The Court should not allow Alabama to test the efficacy of its internal review by using Barber as its “guinea pig.”  Id., at *11.  It should grant Barber’s application for a stay of his execution.

Oklahoma completes execution for murder committed nearly 30 years ago

As reported in this AP piece, "Oklahoma executed a man Thursday for stabbing a Tulsa woman to death with a butcher knife in 1995 after his escape from a prison work center."  Here is more:

Jemaine Cannon, 51, received a lethal injection at 10:01 a.m. and was pronounced dead 12 minutes later at the Oklahoma State Penitentiary in McAlester. It was the second execution in Oklahoma this year and the ninth since the state resumed lethal injections in 2021.

Cannon was convicted of killing 20-year-old Sharonda Clark, a mother of two with whom Cannon had been living at an apartment in Tulsa after his escape weeks earlier from a prison work center in southwest Oklahoma. Cannon had been serving a 15-year sentence for the violent assault of another woman who suffered permanent injuries after prosecutors say Cannon raped her and beat her viciously with a claw hammer, iron and kitchen toaster.

A federal appeals court late Wednesday denied Cannon’s last-minute appeal seeking a stay of execution in which Cannon claimed, among other things, that he was Native American and not subject to Oklahoma jurisdiction. Asked if he had any last words, Cannon said: “Yes, I confess with my mouth and believe in my heart that God raised Jesus from the dead. Therefore I am saved. Thank you.”...

Clark’s eldest daughter, Yeh-Sehn White, and Clark’s sister, Shaya Duncan, witnessed Cannon’s execution and described it as peaceful. “In my opinion, he died in a very favorable way,” White said. “Unfortunately my mom did not have that opportunity.”...

In a statement sent to The Associated Press this week, Henricksen said the state’s decision to proceed with Cannon’s execution amounted to “historic barbarism.”

“Mr. Cannon has endured abuse and neglect for fifty years by those charged with his care,” Henricksen said. “He sits in his cell a model prisoner. He is nearly deaf, blind, and nearing death by natural causes. The decision to proceed with this particular execution is obscene.”

But White and prosecutors from the attorney general’s office urged the state to execute Cannon, and the board rejected clemency on a 3-2 vote.

A sign of the capital times?: Buckeye State marks five years without any executions

This local article, headlined "Ohio’s death penalty: Today marks five years since last inmate executed," notes a notable temporal landmark is Ohio's fascinating history with capital punishment.  Here are the details:

Inmate Robert Van Hook was executed at the Southern Ohio Correctional Facility in Lucasville on July 18, 2018.  An inmate has not been put to death in Ohio since.

Robin Maher, executive director of the Death Penalty Information Center in Washington, D.C., said the trend will likely continue.  “Ohio was once a pretty prolific executioner, so this is a real change,” she said....

Van Hook’s execution took place more than 30 years after he stabbed a man to death in Cincinnati after meeting him at a bar.  The 58-year-old had no remaining appeals, and Republican Gov. John Kasich rejected his request for clemency without comment.  At the time of the killing, Van Hook was suffering from long-term effects of untreated mental, physical and sexual abuse as a child and was depressed that his life seemed to be falling apart, his attorneys argued.

Between 1976 and 2018, what Maher refers to as the “modern era of the death penalty,” 56 inmates were executed in Ohio.  Currently, 123 inmates sit on Ohio’s death row, making it the sixth largest in the country, according to the Death Penalty Information Center....

Ohio joins the ranks of the majority of states who have either abolished the death penalty or have the option but have not used it in five years, or in most cases, even longer. Arkansas also has not used the death penalty in five years. Nebraska will join the list in August....

In Ohio, there are a number of reasons for the decline in executions, including access to the drugs used. “Ohio has been informed by drug companies that if their products are used in executions in Ohio, those same products will be withheld from all state agencies, including state-run hospitals and medical facilities,” according to a statement from the Department of Rehabilitation and Corrections. This effectively eliminates those companies as sources for the prison system to obtain drugs listed in the execution protocol.

As some readers may know, there has been robust litigation over execution protocols in the Buckeye State, and some extraordinary work by defense attorneys in this litigation seemed to have contributed to some Ohio leaders being content with a de facto moratorium on executions.  Because Governor Mike DeWine (and perhaps other state leaders) seem generally disinclined to try to get the state's machinery of death back in action, I would predict that the state is unlikely to have an execution before 2027.  But the death penalty has always been unpredictable in the state, and so I am disinclined to make any firm assertions about what the capital future holds.

Interesting account of mass clemency efforts on behalf of those on Louisiana's death row

In this post last month, I noted the notable news that almost all "of the 57 people on Louisiana's death row have asked Gov. John Bel Edwards to spare their lives, a historic request made after Edwards broke his silence on how he views capital punishment and pushed lawmakers to outlaw the practice."  Writing here at Bolts, Piper French has an extended follow up reviewing the clemency effort. The piece is fully titled "The Death Penalty on Trial in Louisiana: Petitions filed on behalf of dozens of people on death row are asking the governor for mass clemency, and showcasing the injustices that undergird capital punishment."  I recommend this article in full, and here is an excerpt:

Clemency is often conceived of as a discrete and individual mercy — as an exception, the opposite of policy.  On death row, we picture it as an eleventh-hour decision to spare a person’s life following efforts by advocates to highlight the tragic or unjust circumstances of their case.  But here, the petitioners say that in highlighting people’s stories, they’re not trying to persuade public officials to handpick which of the 57 is most deserving of mercy.

Instead, they’re hoping to showcase the systemic disparities that undergird each of their cases.  What if clemency were a form of policy, they ask — not an individual act, but a collective response to the barrage of injustices that have made the state’s death row a cross-section of its poorest and most marginalized groups?

The U.S. Supreme Court has declared that executing someone with an intellectual disability is unconstitutional, a criterion that fits 40 percent of the people on Louisiana’s death row.  Thirty-nine of the 57 have been diagnosed with brain damage or serious mental illness.  Three quarters are people of color, the vast majority of them Black.  Many allege prosecutorial misconduct and sorely deficient legal support.  “We are executing the most vulnerable people in our population,” said Calvin Duncan, an exoneree who served as a jailhouse lawyer to many on death row for about 19 of the 28 years he spent wrongfully locked up.

Time is running out.  Edwards leaves office in early January, and the frontrunner to succeed him staunchly supports the death penalty.  The next few months will determine whether Edwards translates his philosophical opposition to capital punishment into action by trying to speed up the process and by commuting every death sentence he can before his term is up.

The petitioners must first convince the Louisiana Board of Pardons, which must recommend cases to the governor before he can grant clemency and has already signaled the process may be lengthy, though Edwards, who has appointed the board’s five current members, can ask the board to consider capital cases in a meeting.  His office did not respond to a direct question about whether he would do so.

Not only is this a last-ditch effort to forestall the state executions of these 57 people — it’s also a call for Louisiana to end the use of the death penalty once and for all, in keeping with the growing number of states that have abandoned the practice.  In the last six years, five state legislative attempts to repeal capital punishment have failed.

A notable discussion of federal capital decision-making for mass shootings (that makes no mention of differing state sentencing realities)

The AP has this new lengthy discussion of DOJ decision making in two high-profile federal prosecutions of mass shooters that completely leaves out that one defendant will be facing state capital charges while the other will not.  The piece is headlined "How DOJ made different death penalty decisions in the Pittsburgh synagogue and Texas mall massacres," and here are some excerpts:

Two separate shootings 2,000 miles (3,218 kilometers) apart. One killed 11 at a Pittsburgh synagogue.  The other killed 23 at a Walmart in El Paso, Texas. Both were motivated by racial hate. Both involved gunmen who later claimed mental illness.

But earlier this year, the Justice Department authorized the death penalty only for the case in Pittsburgh, where jurors will soon answer the weightiest of questions: Should Robert Bowers be put to death?

Bowers’ trial is in the penalty phase after his June conviction for the 2018 antisemitic attack. A federal judge last Friday gave Patrick Crusius the maximum available sentence for the 2019 Walmart attack on Hispanics: life in prison. He pleaded guilty after the department took a death sentence off the table.

Contrasting decisions in such similar cases illustrates the department’s murky, often baffling and seemingly inconsistent death penalty policies. Department decision-making and the criteria it favors are also shrouded in secrecy. So how do those decisions get made and by whom?

President Joe Biden campaigned in part on a promise to abolish the U.S. death penalty. While he has taken no steps to fulfill that, his Justice Department has made some notable changes. In 2021, Garland announced a moratorium on federal executions while a review of execution procedures is completed. However, it doesn’t stop prosecutors from seeking death sentences. The department also withdrew permission for death sentences in 24 out of 29 cases authorized by prior administrations.

And the department hasn’t authorized death penalties for any of around 400 new indictments during Biden’s presidency that carried capital sentences. But it’s still mulling whether to authorize a death sentence for Payton Gendron, a white supremacist who killed 10 Black people at a Buffalo, New York, supermarket in 2022.

Critics of the department single out an enigmatic department division, the Capital Case Section. With just nine career attorneys and one administrator, it assists U.S. attorney’s offices with capital cases and plays a vital role advising department review committees, which vote on recommending death sentences, although Attorney General Merrick Garland has the final say.

Though many were hired under other administrations, all current staff worked in the section under President Donald Trump, who oversaw a historic six-month spree of 13 federal executions. Richard Burns, the team’s leader, became section chief during Trump’s term. Critics argue that carryover contributes to an unwelcome continuity. The department has fought as hard under Biden as under Trump to defeat all bids by some 40 inmates on federal death row in Terre Haute, Indiana, to have their death sentences tossed on racial bias and other grounds....

An Associated Press review of court filings and Biden-era staff guides offers clues about what influences the Justice Department’s decisions. They suggest the department is most likely to OK death sentences for racist and terrorist attacks and when victims’ families support it. Changes to department guidance also specify mental illness can count against approving death sentences, which is a departure from Trump-era guidance. At least two inmates executed under Trump had severe mental illnesses. The guidance was central to the Crusius decision, with department attorneys accepting he had schizoaffective disorder. They rejected claims Bowers’ psychotic episodes pointed to schizophrenia.

In April court filings explaining its Bowers decision, the department noted most victims’ families wanted Bowers to die if convicted. The department also sought its own mental evaluation of Bowers before the final decision on authorization. The defense refused, saying prosecutors wouldn’t assure them Bowers’ exam statements would not be used at trial. Government mental health experts were given access to Bowers just before trial.

Responding to criticism, the department also denied its decision was inconsistent with those concerning Crusius and others, saying Bowers’ shooting stood apart because older victims were uniquely vulnerable and the crime occurred in a house of worship. The judge in the Bowers case ultimately agreed.

This AP discussion is quite interesting, though it struck me as quite notable that the full article makes no mention at all of the fact that Patrick Crusius, the Walmart mass shooter, is certainly going to face a Texas state capital trial (as noted in local press).  Robert Bowers, the synagogue mass shooter, is likely not to face a Pennsylvania capital trial (and would almost certainly not get executed even if he did since the state has not executed anyone in nearly a quarter century).  I do not know if DOJ policies and practices make state laws and practices a formal consideration in capital prosecution decision-making, but I suspect it always has a way of influencing it.

Half way through 2023, is US on pace for the most executions in nearly a decade?

As we turn past the half-way point in the year, I thought it interesting to note that the first half of 2023 had a total of 13 executions and that at least ten more "serious" execution dates have already been set for the the second half of 2023 (according to this accounting from the Death Penalty Information Center).  A quick glance at this DPIC fact sheet shows that we have already had more executions in 2023 than took place in all of 2021.  And, if just a few more 2023 execution dates get set and most get carried out, this year could end up with more total executions in the United States than any year since 2015 (when there were 28) or even 2014 (when there were 35).

Of course, these yearly execution totals are a far cry from what the US experienced around the turn of the millennium: during the second term of Bill Clinton and the first term of George W. Bush (from 1997 through 2004), the US averaged over 73 executions per year (with a peak of 98 executions in 1999).  Stated a bit differently, while 2023 seems to be putting the US back on a pace for around two executions per month on average, not long ago this country was averaging over six executions per month.

These numbers strike me as especially interesting as another notable US Supreme Court Term comes to an end without much SCOTUS engagement with capital punishment jurisprudence.  The US Supreme Court's evolving doctrines and scrutiny of capital convictions and sentences over the last half-century have profoundly impacted the size and nature of death rows and whose death sentences get carried out.  I suspect the current group of Justices will not be inclined to get in the way if more states start showing even more interest in completing even more executions.  But I also sense other legal actors (eg, state courts and prosecutors) and various political and practical realities may still keep the US execution rate well below past recent peaks for the foreseeable future. 

Florida completes its fourth execution of 2023 of a man who spent nearly 40 years on death row

Though 2023 is not yet half over, Florida has now completed more executions this year than the state has in any single year since 2014.  This AP article reports on the state's fourth execution of the year, and here are some of the details:

A Florida man was executed Thursday for killing a 14-year-old babysitter and a 38-year-old mother of two in separate attacks months apart in 1984 while children were sleeping in the homes he targeted.

Duane Owen was pronounced dead at 6:14 p.m. after a lethal injection at Florida State Prison, according to Gov. Ron DeSantis’ office. One of Florida’s longest-held death row inmates, Owen was 23 at the time of the attacks and 62 when he was executed....

Owen was sentenced to death for the March 24, 1984, rape and fatal stabbing of Karen Slattery, 14, and for the rape and deadly hammer attack two months later on Georgianna Worden, 38. Both killings occurred in Palm Beach County. Authorities said Owen attacked two other women in Palm Beach County who survived.  All four attacks occurred just before and after Owen’s 23rd birthday. Of the more than 290 people on Florida’s death row, Owen was one of the longest held there....

It was Florida’s fourth execution this year after a hiatus in which there were none since 2019. Gov. DeSantis, a Republican, signed each of the death warrants in the months before announcing he was running for president....

Owen’s lawyers had argued that he shouldn’t be executed on grounds of insanity. The state Supreme Court rejected his latest appeal last week and the U.S. Supreme Court rejected it Wednesday. Owen’s lawyers had also argued that he was schizophrenic and suffered from delusions.

Prosecutors had argued that while Owen had mental health issues, nothing would preclude his being executed because he was aware it was punishment for his crimes. Psychiatrists for the state testified that Owen’s schizophrenia was an act that he discussed when being evaluated, but he otherwise showed no signs of the illness.

And while the defense had argued Owen had dementia and gender dysphoria, psychiatrists for the state said Owen had a good memory, didn’t appear to present himself as female and that gender dysphoria doesn’t make people more aggressive or cause delusional thinking. They said instead that Owen was sexually sadistic, according to court records.

Mass filing from Louisiana death row seeking mass clemency from Louisiana Gov

A helpful reader alerted me to this interesting new story coming from Louisiana, headlined "Almost all Louisiana death row prisoners ask John Bel Edwards to spare their lives." Here are the basics:

Nearly all of the 57 people on Louisiana's death row have asked Gov. John Bel Edwards to spare their lives, a historic request made after Edwards broke his silence on how he views capital punishment and pushed lawmakers to outlaw the practice.

A total of 51 clemency applications filed Tuesday morning with the Louisiana Board of Pardons and Committee on Parole do not ask Edwards to free all of those death row prisoners. Instead, the documents ask him to soften their sentences to life-in-prison — the only commutation available to people sentenced to die.

"Looking at these cases collectively makes it clear that the system is fundamentally broken," said Cecelia Kappel, executive director of the Capital Appeals Project, which led a group of attorneys who represent death row prisoners in filing the requests. "These applications show that the same problems of racial disparity, intellectual disability, severe mental illness, trauma, innocence and others repeat over and over in Louisiana’s death penalty cases."

Edwards granting the requests would mark a historic turn in the way Louisiana regards the death penalty. An avowedly Catholic Democrat from a long line of sheriffs, Edwards has long kept mum about his thoughts on the practice. He only recently came out in full-throated support of abolishing capital punishment, in the waning months of his governorship....

A shortage of lethal injection drugs has put a halt to capital punishment in Louisiana; the state last carried out an execution when Gerald Bordelon was voluntarily put to death in 2010 for the murder of his 12-year-old stepdaughter, Courtney LeBlanc. Prior to Bordelon's execution, the state had not put anyone to death since 2002....

Governors have granted only two clemency requests from death row inmates since Louisiana instated the death penalty in the 1970s. The first was for Ronald Monroe in 1989, whose guilt was doubted by then-Gov. Buddy Roemer. The second was for Herbert Welcome in 2003; Gov. Mike Foster concurred then with the Pardon and Parole Board's recommendation of clemency after the U.S. Supreme Court decision in Atkins v. Virginia, which found that executing people with intellectual disabilities violates the Eighth Amendment's prohibition on cruel and unusual punishment....

The clemency applications filed Tuesday with the pardons and parole board detail a range of mental health conditions the death row prisoners have. Among those requesting clemency is Antoinette Frank, the only woman on death row in Louisiana. Attorneys are requesting life sentences even in a few cases where they offered evidence of the prisoner's innocence in the clemency requests.

The fates of the people on death row, housed at the State Penitentiary at Angola, now lie in the hands of Edwards and the board of pardons and parole. The board's members — all of whom are appointed by Edwards — will weigh the applications individually and then pass their recommendations on to the governor.

Infamous murderer, the Unabomber Ted Kaczynski, dies in federal prison

The death of the infamous Unabomber, Ted Kaczynski, seems worth blogging in part because the threat of the death penalty seemingly played a role in Kaczynski's willingness to plead guilty and accept multiple LWOP federal sentences.  (Also, in my sentencing classes, I have long used the rich facts of Kaczynski's crimes and history to explore with students capital sentencing theories and procedures.)  This lengthy Washington Post piece provides lots of details about his life and crimes, and here are short excerpts:

For 17 years, he picked his victims with cold deliberation, leaving a grisly trail of nail- and razor-blade-packed pipe bombs across the nation that killed three people and injured 23 others, several of them maimed for life.

He knew none of his victims and struck unpredictably from coast to coast in seemingly random acts from 1978 to 1995, baffling law enforcement officers and gripping the country in a kind of menacing unease — until his capture in early 1996 in the remote mountains of Montana.  There, Ted Kaczynski, the scrawny, bearded anti-technology anarchist popularly known as the Unabomber, surrendered peaceably at the primitive plywood cabin he had called home for 25 years....

The Harvard-trained mathematics prodigy turned lone serial bomber died June 10 at a federal prison medical facility in Butner, N.C.  He was 81.... Tracking down the Unabomber led to one of the nation’s longest and most expensive investigations. Then came years of research tracing his habits, propensities and psychological markers.  Still, a veil of mystery remained over the ultimate purpose of his acts beyond simple anger at a world that wouldn’t listen to him....

In September 1995, he sent his manifesto, titled “Industrial Society and Its Future,” to The Post and the Times....  The rambling prose seemed eerily familiar to David Kaczynski, a social worker at an Albany, N.Y., shelter for runaway youths. He began to suspect, reluctantly, that his brother was the Unabomber....

David took his suspicions to the FBI, and analysts quickly spotted close parallels in phraseology, even misspellings. Directed by David, agents massed at the cabin in the Montana woods on April 3, 1996, and took Ted into custody. Inside the cabin, they found a cache of bombmaking components.  David received the FBI’s $1 million reward and said he would use it to aid families who suffered because of his brother’s actions.

On Jan. 22, 1998, after extensive legal jockeying to avoid both the death penalty and an insanity defense, Mr. Kaczynski pleaded guilty and acknowledged all 16 bombings and the deaths and injuries they caused.  Unrepentant, he was sentenced to four consecutive life terms plus 30 years by U.S. District Judge Garland E. Burrell Jr. in Sacramento.

UPDATE: The latest reporting is that Kaczynski killed himself as noted in this New York Post headline: "Unabomber Ted Kaczynski reportedly committed suicide inside his jail cell."

Missouri completes execution of man who murdered two jail guards back in the year 2000

As reported in this AP piece, a "Missouri man who shot and killed two jailers nearly 23 years ago during a failed bid to help an acquaintance escape from a rural jail was executed Tuesday evening." Here is more:

Michael Tisius, 42, received a lethal injection of pentobarbital at the state prison in Bonne Terre and was pronounced dead at 6:10 p.m., authorities said.  He was convicted of the June 22, 2000, killings of Leon Egley and Jason Acton at the small Randolph County Jail....

Tisius’ lawyers had urged the U.S. Supreme Court to block the execution, alleging in appeals that a juror at a sentencing hearing was illiterate, in violation of Missouri law.  The court rejected that motion Tuesday afternoon.  The Supreme Court previously turned aside another argument — that Tisius should be spared because he was just 19 at the time of the killings.  A 2005 Supreme Court ruling bars executions of those under 18 when their crime occurred, but attorneys for Tisius had argued that even at 19, when the killings occurred, Tisius should have had his sentence commuted to life in prison without parole.

Advocates for Tisius had said he was largely neglected as a child and was homeless by his early teens.  His path to the death chamber began in 1999 when, as an 18-year-old, he was jailed on a misdemeanor charge of pawning a rented stereo system.  In June 2000, Tisius was housed on that charge at the same county jail in Huntsville with inmate Roy Vance. Tisius was about to be released, and court records show the men discussed a plan in which Tisius, once he was out, would help Vance escape.

Just after midnight on June 22, 2000, Tisius went to the jail accompanied by Vance’s girlfriend, Tracie Bulington.  They told Egley and Acton that they were there to deliver cigarettes to Vance.  The jailers didn’t know that Tisius had a pistol.  At trial, Bulington testified that she looked up and saw Tisius with the gun drawn, then watched as he shot and killed Acton.  When Egley approached, Tisius shot him, too.  Both officers were unarmed.  Tisius found keys at the dispatch area and tried to open Vance’s cell, but couldn’t. When Egley grabbed Bulington’s leg, Tisius shot him several more times.

Tisius and Bulington fled but their car broke down later that day in Kansas.  They were arrested in Wathena, Kansas, about 130 miles (210 kilometers) west of Huntsville.  Tisius confessed to the crimes.

Sid Conklin, now presiding commissioner of Randolph County, was a Missouri State Highway Patrol officer who investigated the killings in 2000. Conklin said the deaths of the two young jailers — both in their 30s — still haunt the community.  “I hope this brings closure for all citizens of Randolph County,” said Conklin, who witnessed the execution.

Another now-retired highway patrol investigator, Randy King, described the jailers as “good, everyday people trying to make a living.” “I pray for the guy’s (Tisius’) soul, but it’s been 23 years and it’s time for justice to be served,” King said.  He also witnessed the execution.

Bulington and Vance are serving life sentences on murder convictions....

The execution was the 12th in the U.S. this year, and the third in Missouri. Only Texas, with four, has executed more people than Missouri this year.

New comments from Justice Breyer on punishment, sentencing, prisons, the death penalty and more

The Marshall Project has just released this notable and lengthy Q&A with retired SCOTUS Justice Stephen Breyer, which covers a number of topic that should be of interest to sentencing fans.  For full context and coverage, everyone should check out the full piece.  Here are just a few snippets that especially caught my eye:

Once, years ago, I asked Norm Carlson, who was a very distinguished and really well-respected head of the Bureau of Prisons.  We worked on the original [Sentencing Commission] guidelines.  We were talking about recidivism.  And I said, “Well, Norman, you’ve had years of experience.  You're very, very respected. If it were up to you, what would you do to reduce recidivism rates?”  And he said, as I recall, “To be honest, I don't know.”

And so people have all kinds of ideas, and it's worth trying different ones.  But it's hard to do.  It's hard — very, very hard — to do. The [federal sentencing] guidelines were an effort — and still are an effort — to have fairer sentences, to allow the judges to understand the sentence they give will be the sentence that’s served, and moreover, [to] try to prevent wide discrepancies for the same crime, same kind of criminal across the country in different places.  So how well has that succeeded?  Like most things in the criminal law, up to a point. And I think with experience over time, perhaps it will be better....

[The death penalty] is so unfairly administered.  There's neither rhyme nor reason.  The whole point of this criminal justice system is fairness. Is justice.  That's why it's called “criminal justice.”  And that is not an oxymoron, at least in theory.  So when I see that time after time, after time — I'm not saying “You're all innocent.”  But there are a couple of cases where I really wonder.

I thought, “What can I do?” It's not a big deal for the world that I would go out and announce I'm against the death penalty.  I want to do something, if I'm going to do this, that really explains what I've seen.  And that's what I tried to do in Glossip.  And it tries to explain to other people, who can explain it to state legislatures.  And all it is, is what I've seen over a couple of decades.  And by the way, it's going to get awful expensive.  Why reconsider it?  Because you can't have both: a system that is basically fair, a system that works honestly, a system that tries to treat people equally, and also have a death penalty, as I've seen it over 20 years.

Former Alabama Govs now urge the commutation of most of Alabama's death row

Through this recent Washington Post opinion piece, headlined "We oversaw executions as governor. We regret it.", former Alabama governors Robert Bentley and Don Siegelman explain why they would now be eager to commute most of the state's death row. Here are excerpts from the start and end of the piece:

Alabama has 167 people on death row, a greater number per capita than in any other state. As far as the two of us are concerned, that is at least 146 people too many. Here’s why.

As former Alabama governors, we have come over time to see the flaws in our nation’s justice system and to view the state’s death penalty laws in particular as legally and morally troubling. We both presided over executions while in office, but if we had known then what we know now about prosecutorial misconduct, we would have exercised our constitutional authority to commute death sentences to life....

As governors, we had the power to commute the sentences of all those on Alabama’s death row to life in prison. We no longer have that constitutional power, but we feel that careful consideration calls for commuting the sentences of the 146 prisoners who were sentenced by non-unanimous juries or judicial override, and that an independent review unit should be established to examine all capital murder convictions.

We missed our chance to confront the death penalty and have lived to regret it, but it is not too late for today’s elected officials to do the morally right thing.

This piece perhaps provides yet another data point in support of the so-called "Marshall hypothesis," the idea Justice Thurgood Marshall articulated in his Furman opinion that persons learning more about the administration and effects of capital punishment will come to reject it.  It also provides another data point for the reality that it seems much easier for politicians to turn against the death penalty once they are former office holders.

A couple of notable new international death penalty stories

A couple of new headlines and Associated Press stories concerning the application of the death penalty worldwide caught my attention this morning.  Here are links and the essential:

"Singapore hangs 2nd citizen in 3 weeks for trafficking cannabis despite calls to halt executions":

Singapore on Wednesday hanged another citizen for trafficking cannabis, the second in three weeks, as it clung firmly to the death penalty despite growing calls for the city-state to halt drug-related executions....  Under Singapore laws, trafficking more than 500 grams (1.1 pounds) of cannabis may result in the death penalty....

Singapore executed 11 people last year for drug offenses after a two-year hiatus due to the COVID-19 pandemic.  The hanging of one particular Malaysian believed to be mentally disabled sparked an international outcry and brought the country's capital punishment under scrutiny for flouting human rights norms.

"Executions worldwide rose dramatically in 2022, Amnesty International reports":

Executions worldwide increased by 53% in 2022 from a year earlier, with a significant rise in Iran and Saudi Arabia, Amnesty International said in an annual report Tuesday that also criticized Indonesia as having one of the highest numbers of new death sentences in Asia.

Amnesty said 70% of the executions in the Middle East and North Africa were carried out in Iran, where their numbers rose by 83% from 314 in 2021 to 576 in 2022.  The number of executions in Saudi Arabia tripled from 65 in 2021 to 196 in 2022.

Justice Thomas, joined by Justice Alito, dissents from SCOTUS denial of cert regarding challenge to execution methods

The particulars of constitutional challenges over execution methods has generated three modern Supreme Court Eighth Amendment rulings (Baze, Glossip, and Bucklew).  Though the state prevailed in all these rulings against condemned prisoners' various attacks on various lethal injection protocols, litigation over execution methods are still common and the applicable Eighth Amendment jurisprudence remains contested.  These realities provide the background for a dissent from the denial of cert in this morning's SCOTUS order list today by Justice Thomas, joined by Justice Alito, in Hamm v. Smith, No. 22–580. Here are excerpts from the intricate six-page dissent:

In this petition, the State now asks this Court to summarily reverse the Eleventh Circuit’s holding that Smith pleaded a viable Eighth Amendment claim. I would do so. The judgment below rests on flawed Circuit precedent that is irreconcilable with our method-of-execution case law....

In 2018, Alabama enacted a statute authorizing execution by nitrogen hypoxia for inmates who elected that method within 30 days of their sentences becoming final or, for those whose sentences were already final before June 1, 2018, within 30 days of that date.  Ala. Code §15– 18–82.1(b)(2). (Smith did not elect nitrogen hypoxia, so lethal injection remains the only method of execution authorized by state law in his case. §15–18–82.1(a).)  Nearly five years later, Alabama has yet to carry out any execution by nitrogen hypoxia or to finalize a protocol for implementing that method — which “ha[s] never been used to carry out an execution and ha[s] no track record of successful use” in any jurisdiction. Bucklew, 587 U. S., at ___ (slip op., at 22) (internal quotation marks omitted).

[T]he Eleventh Circuit has treated the existence of this Alabama statute as relieving inmates like Smith of their burden to plead and prove that nitrogen hypoxia is feasible and readily implemented in fact.... [But] whether the State has authorized the proffered alternative as a matter of state statutory law has no relevance to the plaintiff ’s burden of showing a constitutional violation.  Bucklew has already explained why: “[T]he Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes.” 587 U. S., at ___–___ (slip op., at 19–20)....

When the question is whether the Eighth Amendment requires a State to replace its chosen method with an alternative method in executing the plaintiff, it is simply irrelevant, without more, that the State’s statutes authorize the use of the alternative method in other executions that are to take place sometime in the indefinite future.  Here, Smith alleged only that, and nothing more. He therefore failed to state a claim, and the Eleventh Circuit erred by holding otherwise.

The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction. Even if “the burden of the alternative-method requirement ‘can be overstated,’” Bucklew, 587 U. S., at ___ (KAVANAUGH, J., concurring) (slip op., at 1), it remains an essential element of an Eighth Amendment method-of-execution claim, and it must be appropriately policed lest it become an instrument of dilatory litigation tactics.  The comparative analysis set forth in Baze, Glossip, and Bucklew contains an inherent risk of incentivizing “an inmate intent on dragging out litigation . . . to identify only a method of execution on the boundary of what’s practically available to the state.”  Middlebrooks v. Parker, 22 F. 4th 621, 625 (CA6 2022) (Thapar, J., statement respecting denial of rehearing en banc).  The Eleventh Circuit’s approach of treating any statutorily authorized method as available as a matter of law — even an entirely novel method that may not be readily implementable in reality — only heightens that danger.  In turn, and as a result, it “perversely incentivize[s] States to delay or even refrain from approving even the most humane methods of execution” any earlier than the moment they are prepared to put them into practice.  Price v. Dunn, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring in denial of certiorari) (slip op., at 11).

"The Eighth Amendment's Time to Shine; Previewing Florida's Imminent Constitutional Crisis in Capital Punishment"

The title of ths post is the tile of this new piece authored by Melanie Kalmanson now available via SSRN.  Here is its abstract:

In April 2023, Florida Governor DeSantis enacted legislation that lowers the jury vote necessary to impose a sentence of death in the state to 8-4.  The new statute removes the procedural safeguards that were implemented after the U.S. Supreme Court held in 2016 that Florida's capital sentencing scheme violated defendants' right to jury trial under the Sixth Amendment.

Litigation about the constitutionality and application of the new statute has already started and will likely continue for a while until the full effect of the statute is determined.  This Essay previews some of the issues that will be litigated and forecasts that the Eighth Amendment will be the star of the show in this Act of the play on Florida’s constitutional crises in capital punishment. 

US Supreme Court stays the execution of Richard Glossip

As reported in this AP article, the "Supreme Court on Friday blocked Oklahoma from executing death row inmate Richard Glossip for his role in a 1997 murder-for-hire after the state’s attorney general agreed Glossip’s life should be spared." Here is more:

Glossip had been scheduled to be put to death on May 18 despite statements by new Oklahoma Attorney General Gentner Drummond that Glossip did not receive a fair trial.  An Oklahoma appeals court subsequently upheld Glossip’s conviction and the state’s pardon and parole board deadlocked in a vote to grant him clemency.

The high court put the execution on hold indefinitely while it reviews the case.  Justice Neil Gorsuch took no part in the decision, presumably because he dealt with the case earlier as an appeals court judge.

“There is nothing more harrowing than the thought of executing a man who the state now admits has never received a fair trial,” Glossip attorney Don Knight said in a statement.  “Our hope is that the court will reverse the decision of the (Oklahoma Court of Criminal Appeals) and vacate Mr. Glossip’s conviction once and for all.”

Drummond, a Republican, said in a statement he was grateful for the high court’s decision. “I will continue working to ensure justice prevails in this important case,” he said.  In a rare move, Drummond, the state’s top prosecutor, supported a high-court reprieve for Glossip, telling the justices, “Glossip’s trial was unfair and unreliable.”

But Drummond also has said he does not believe Glossip is innocent of the murder-for-hire killing of Glossip’s former boss, Barry Van Treese, in 1997. Another man, Justin Sneed, admitted robbing and killing Van Treese after Glossip promised to pay him $10,000. Sneed received a life sentence in exchange for his testimony and was the key witness against Glossip....

Former Oklahoma County District Attorney David Prater has long said he believes Glossip persuaded Sneed to kill Van Treese. He said that while Sneed’s testimony was most compelling, there was plenty of evidence to corroborate it. “When police came to talk to Glossip about Van Treese’s whereabouts, he directed him away from the room he knew Van Treese was in,” Prater said Friday. “At any point, Glossip had the opportunity to tell the police that Sneed did this. He never did that. He even helped Sneed clean up everything.”

Prater said Sneed and Glossip also both had a large amount of cash that Prater said they stole from Van Treese’s car. “In light of Gentner Drummond’s position regarding the stay, I don’t feel like the Supreme Court had much of a choice,” Prater said. “But the truth will come out.”

Two separate independent investigations have revealed problems with the prosecution’s case. Drummond said Sneed lied on the stand about his psychiatric condition and his reason for taking the mood-stabilizing drug lithium, and that prosecutors knew Sneed was lying. Also, evidence was destroyed, Drummond said.

Some Republican state lawmakers who support the death penalty have joined the growing chorus of Glossip supporters who are seeking to overturn his conviction. “We’re just ecstatic,” state Rep. Kevin McDugle said in a brief telephone interview on Friday.

Glossip’s case has been to the Supreme Court before. He was given a reprieve in 2015, although the court later ruled 5-4 against him in a case involving the drugs used in lethal executions.  Glossip has been just hours away from being executed three separate times. His last scheduled execution, in September 2015, was halted just moments before he was to be led to the death chamber when prison officials realized they had received the wrong lethal drug. That mix-up helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

A few prior recent relates posts:

• Oklahoma Gov grants 60-day execution stay for Richard Glossip while courts consider innocence claim 
• New Oklahoma Attorney General formally moves to set aside Richard Glossip's capital conviction
• Oklahoma Court of Criminal Appeals, rejecting state AG's motion, refuses to set aside Richard Glossip's capital conviction

Florida completes execution of murderer nearly 40 years after his (repeat) crime

As reported in this AP piece, a "Florida man was executed Wednesday for breaking into a woman’s home and stabbing her to death in 1986, a crime committed months after he was released from prison for a rape." Here are more details:

Darryl B. Barwick, 56, was pronounced dead at 6:14 p.m. Wednesday following a lethal injection at Florida State Prison, the office of Republican Gov. Ron DeSantis said. The U.S. Supreme Court denied the inmate’s final appeal for a stay of execution earlier in the day.

After being brought into the death camber, Barwick said, “I can’t explain why I did what I did. It’s time to apologize to the family ... I’m sorry.” He added that he state needs to show more compassion and kindness for people, criticizing Florida’s sentencing of teenagers to life in prison....

Barwick didn’t meet in person with family members in his final hours, but had spoken with them by phone in recent days, prison officials said ahead of the 6 p.m. execution time. Officials said no relatives of the victim had arranged to witness the execution....

Barwick had confessed to killing 24-year-old Rebecca Wendt in her Panama City apartment on March 31, 1986, after watching her sunbathing outside and following her back to her room. He said he intended to rob Wendt but then killed her as she resisted, stabbing her 37 times as she tried to fight him off....

He was convicted of first-degree murder, armed burglary, attempted sexual battery and armed robbery in November 1986, and sentenced to death two months later on the jury’s 9-3 recommendation. The Florida Supreme Court threw out that conviction in 1989 because of prosecutorial misconduct. Barwick was again convicted at his 1992 retrial, and that jury unanimously recommended death.

Barwick killed Wendt less than three months after he was released from prison for raping a 21-year-old woman at knifepoint, according to court records. In his confession for Wendt’s killing, Barwick said he stabbed her because he did not want to go back to prison.

DeSantis signed Barwick’s death warrant last month. It was the third execution conducted in Florida this year after a hiatus dating back to 2019. It also was the state’s 102nd execution since the reinstatement of the death penalty in 1976.

With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?

Fifteen years ago, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the US Supreme Court decided, by a 5-4 vote, that the Constitution prohibits a state from imposing the death penalty for the crime of child rape.  In the words of the majority opinion: "Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments."

In Florida, a multi-month effort to push back on this doctrine culminiated today in the signing of a new law to permit sentencing a child rapist to death.  Here are the basics from this USA Today piece:

Florida Gov. Ron DeSantis has signed into law a measure making child rape subject to the death penalty, defying a United States Supreme Court ruling. "In Florida, we stand for the protection of children," DeSantis said at a Monday press conference in Brevard County. "We think that in the worst of the worst cases the only appropriate punishment is the ultimate punishment."

But, in 2008, U.S. Supreme Court justices issued a 5-4 ruling barring states from imposing the death penalty for the rape of a child, when the crime does not involve a child’s death. The court rules that applying the death penalty in such cases would amount to “cruel and unusual punishment.”

DeSantis, though, has said he thinks the current conservative-majority U.S. Supreme Court may be willing to revisit the earlier ruling. "We think that decision was wrong," he said at the press conference. "This bill sets up a procedure to be able to challenge that precedent."

I see that the new Florida death penalty law, House Bill 1297, states expressly that "a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the Florida Constitution and the United States Constitution."  I suppose that provision helps to provide a means for a test case to emerge in which lower Florida (and federal habeas) courts would presumably feel obligated based on the Kennedy precedent to strike down a capital child rape sentence, but then Florida would keep appealing in the hope of getting the Supreme Court to take up the case and overrule Kennedy. 

In addition to wondering about the facts of any "Kennedy test case," I cannot help but wonder how long it might take to get to SCOTUS.  There are, surely, hundreds of cases of young child sexual abuse in Florida with the child under age 12 as required by this law.  But, while there will be death eligible cases right away, we would need a prosecutor to charge under this new law and a jury to return a death verdict and recommended sentence before the appeals get going in earnest.  And the appeals would surely take quite some time before SCOTUS would even have a chance to take up a challenge to Kennedy.

Notably, 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 on still on this Court.  I suspect Justice Gorsuch would be a vote to reverse Kennedy, and that Justices Sotomayor, Kagan and Jackson would not be.  I would guess that one, and perhaps both, of Justices Kavanuagh and Barrett would, perhaps on originalist grounds, reverse Kennedy.  But when might they get the chance and are many of the Justices really eager to take this up?  

Lengthy press series explores the modern history of the death penalty and executions in Arizona

Throughout this week, the Arizona Mirror has run a series of lengthy articles on the death penalty authored by journalist Michael Kiefer and defense attorney Dale Baich.  This set of pieces is called “Poorly Executed: How Arizona has failed at carrying out the death penalty,” which provides a sense of its main themes, and is described as "a five-part series exploring the modern history of the death penalty and executions in Arizona."  Here are headlines and links to the five pieces:

Part 1: Witness to an execution

Part 2: The ‘Golden Age of executions’ comes to an end

Part 3: IVs and ironies

Part 4: ‘The experiment failed,’ halting executions in Arizona

Part 5: The politics behind executions

"Gender, Violence, and the Death Penalty"

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

This article undertakes the first and only comprehensive analysis of gender-based violence (“GBV”) in the lives of all women currently on death row.  We examine the prevalence of GBV and how it has shaped the lives and affected the criminal prosecutions of women facing execution.  Our research reveals, for the first time, that almost every woman on death row in the United States has experienced GBV and that the great majority have experienced multiple incidents of GBV.

Further, our research shows that both in the United States and around the world, defense attorneys frequently fail to present evidence of GBV in women’s capital trials.  When they do introduce such evidence, they fail to fully explain the nature of their clients’ victimization and the harm they have suffered as a result.  Moreover, we show that prosecutors frequently rely on gendered tropes to discredit women’s accounts of violence such as childhood sexual abuse, rape, and intimate partner violence.  Consequently, those who sentence women to die rarely comprehend the extensive trauma that the women have endured throughout their lives, and how that trauma relates to their legal and moral culpability.

Three Justices dissent from denial of cert in Tennessee felony-murder capital case

The Supreme Court this morning issued this order list with a lot of certiorari denials (and grants in two related cases involving government social-media activity).  There was one notable statement in dissent from the denial of certiorari by Justice Sotomayor, joined by Justices Kagan and Jackson, in Burns v. Mays, No. 22–5891.  The seven-page dissent starts this way:

Petitioner Kevin Burns, a defendant sentenced to death for felony murder, brought a 28 U.S.C. §2254 petition claiming inadequate assistance of counsel at the penalty phase of his trial.  Burns asserts that counsel failed to present mitigating evidence tending to show that he did not shoot either of the two victims killed during a robbery in which he participated. Such evidence does not bear on Burns’ guilt, since his participation in the underlying robbery suffices to render him guilty of felony murder.  Evidence that Burns did not pull the trigger, however, was plainly relevant to the jury’s determination whether to sentence him to death.  The Sixth Circuit avoided this obvious conclusion only by mischaracterizing Burns’ claim as being about counsel’s failure to introduce residual doubt evidence (i.e., evidence that Burns was not, in fact, guilty of felony murder).  From there, the Sixth Circuit concluded that the claim must fail because this Court has never established a right to introduce residual doubt evidence at sentencing.

Burns argues, and the State does not contest, that the Sixth Circuit’s analysis turned on two erroneous legal assumptions and clearly conflicts with several decisions of this Court.  Burns asks this Court to take summary action to correct these fundamental legal errors so that his claim may be fairly considered before the State executes him. The Court, however, declines to intervene.  I would summarily vacate the error-laden (and precedential) decision below and remand for further consideration of Burns’ claim.  I respectfully dissent from the Court’s failure to do so.

"Abolition Then and Now: The Role of Furman's Failure in Today's Abolition Success"

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

On the fiftieth anniversary of Furman v. Georgia, one cannot help but draw comparisons between the sociopolitical context in which we find ourselves today, and the one in which the Justices found themselves in 1972.  Once again, the death penalty is dying — history, it would seem, is repeating itself.  But beneath these surface similarities lie important differences between the two eras, and what they mean for the larger abolition story.  Abolition today is not a story about the highest court in the land; rather, it is a story about a movement from the bottom-up, with states ending the death penalty on their own.  Instead of aiming high, abolitionists are aiming low.  In two ways, Furman itself played a part in this dramatic shift.  First, the backlash to Furman taught abolitionists that the Supreme Court’s “help” may do more harm than good, halting change already in progress, and that the Court would be a fickle friend. Hence the lesson to aim low.  Second, the Supreme Court’s reaction to Furman’s backlash in Gregg v. Georgia inadvertently set in motion the means to make this dramatic shift happen.  Gregg’s attempt to tame the death penalty created a mass of complicated doctrine, and that gave rise to a cadre of specialized capital defenders to navigate it. Those defenders are the foot soldiers of today’s abolition movement, killing the death penalty by saving one life at a time.  The modern path to abolition is not without its downsides, but the upside to states ending the death penalty on their own is that this time when the death penalty dies, it may well stay that way for good.

"The Illusion of Heightened Standards in Capital Cases"

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

The death penalty has gained its legitimacy from the belief that capital prosecutions are more procedurally rigorous than noncapital prosecutions.  This Article reveals how a project of heightened capital standards, set in motion when the Supreme Court ended and then revived the death penalty, was set up to fail.

In establishing what a constitutional death penalty would look like, the Court in 1976 called for heightened standards of reliability in capital cases.  In the late 1970s and early 80s, the Supreme Court laid out specific constitutional procedures that must be applied in capital cases, and left the door open for the Eighth Amendment to do even more. In the decades that followed, state and federal courts have fueled a perception of heightened procedural rigor in capital cases by referring repeatedly to the heightened standards applicable in capital cases.

However, a review of courts’ application of a standard of “heightened reliability” reveals that (1) courts routinely use the language of “heightened” standards while simultaneously applying exactly the same constitutional tests that are used in noncapital cases and demonstrating no serious effort to tie procedural rigor to the severity of punishment; and (2) even more problematic, some courts have shown a willingness to use the “heightened reliability” language to justify a lesser procedural protection for capital defendants than that applied to noncapital cases — a perverse application of what was clearly intended to be an added measure of assurance that the death penalty is reserved only for those who are truly guilty and who are the most culpable.

This decades-long failure to observe meaningfully heightened constitutional standards calls into question the death penalty’s institutional legitimacy and raises particular concerns in light of current Supreme Court trends.

Oklahoma Court of Criminal Appeals, rejecting state AG's motion, refuses to set aside Richard Glossip's capital conviction

As detailed in this prior post, earlier this month, Oklahoma's Attorney General filed a motion to vacate the conviction of death row inmate Richard Glossip in the Oklahoma Court of Criminal Appeals.  That motion today was rejected, as detailed in this local article headlined "Oklahoma court won't overturn Richard Glossip's conviction; execution date set."  Here are the details:

A state appeals court has rejected a request to vacate the conviction of a high-profile death row inmate. The Oklahoma Court of Criminal Appeals on Thursday said it will not vacate Richard Glossip’s murder conviction following a request from Attorney General Gentner Drummond.

After an independent review of Glossip's case cast doubt on the death row inmate's murder conviction, Drummond asked the appeals court to vacate Glossip's conviction. Drummond said he will review the ruling and consider his next steps. He expressed opposition to the state moving forward with Glossip's execution.

"While I respect the Court of Criminal Appeals’ opinion, I am not willing to allow an execution to proceed despite so many doubts," Drummond said in a statement. "Ensuring the integrity of the death penalty demands complete certainty."

An attorney for Glossip said he will file an appeal with the U.S. Supreme Court. Don Knight, Glossip’s attorney, said it is “unconscionable” for the Oklahoma appeals court to force the state to move forward with this execution....

Glossip was convicted of first-degree murder for allegedly orchestrating the 1997 beating death of his Glossip has long maintained that he was framed for Van Treese’s murder. His attorneys claim that their client was set up by a motel maintenance man who they argue killed Van Treese during a botched robbery and shifted the blame to avoid getting the death penalty himself.

Glossip’s fifth application for post-conviction relief provides no new information to convince the court to overturn his conviction, according to the 5-0 opinion written by Judge David Lewis. “This case has been thoroughly investigated and reviewed in numerous appeals,” Lewis wrote in the majority opinion. "Glossip has been given unprecedented access to prosecution files, including work product, yet he has not provided this Court with sufficient information that would convince the Court to overturn the jury’s determination that he is guilty of first-degree murder.”...

The appeals court also refused to delay Glossip's execution any further. Glossip is set to die by lethal injection on May 18.

The full 25-page ruling of the Oklahoma Court of Criminal Appeals is available at this link.

In 6-3 ruling, SCOTUS rules for Texas capital defendant concerning statute of limitation for seeking DNA testing in § 1983 action

The Supreme Court handed down a notable criminal procedure ruling this morning in Reed v. Goertz, No. 21-422 (S. Ct. April 19, 2023) (available here). Justice Kavanaugh wrote the opinion for the Court which starts this way:

In many States, a convicted prisoner who still disputes his guilt may ask state courts to order post-conviction DNA testing of evidence.  If the prisoner’s request fails in the state courts and he then files a federal 42 U.S.C. §1983 procedural due process suit challenging the constitutionality of the state process, when does the statute of limitations for that §1983 suit begin to run?  The Eleventh Circuit has held that the statute of limitations begins to run at the end of the state-court litigation denying DNA testing, including the state-court appeal. See Van Poyck v. McCollum, 646 F. 3d 865, 867 (2011).  In this case, by contrast, the Fifth Circuit held that the statute of limitations begins to run when the state trial court denied DNA testing, notwithstanding a subsequent state-court appeal. See 995 F. 3d 425, 431 (2021). We conclude that the statute of limitations begins to run at the end of the state-court litigation.

Justice Thomas authored a lengthy solo dissent that starts this way:

The Texas Court of Criminal Appeals (“CCA”) affirmed the denial of petitioner Rodney Reed’s state-law motion for postconviction DNA testing. Reed petitioned this Court for certiorari, arguing that the CCA’s interpretation and application of the relevant state law violated his federal due process rights. After we denied his petition, Reed repackaged it as a complaint in Federal District Court, naming respondent (the Bastrop County District Attorney) as a placeholder defendant. Like his earlier certiorari petition, Reed’s complaint assails the CCA’s state-law reasoning as inconsistent with due process, and it seeks a declaration that the CCA’s interpretation and application of state law was unconstitutional.

Reed’s action should be dismissed for lack of subjectmatter jurisdiction. Federal district courts lack appellate jurisdiction to review state-court judgments, and Reed’s action presents no original Article III case or controversy between him and the district attorney. Because the Court erroneously holds that the District Court had jurisdiction over Reed’s action, I respectfully dissent.

Justice Alito wrote a shorter dissent joined by Justice Gorsuch that has these opening pragraphs:

As the Court notes and the parties agree, the statute of limitations for Reed’s claim is two years. Ante, at 4; Brief for Petitioner 17; Brief for Respondent 17. Reed filed his complaint on August 8, 2019, and the lower courts held that this was too late. The question before us is when the 2-year statute of limitations began to run, that is in legal parlance, when Reed’s claim “accrued.” As the parties agree, the general rule is that a claim accrues when the plaintiff has “a complete and present cause of action,” Wallace v. Kato, 549 U. S. 384, 388 (2007) (internal quotation marks omitted). Reed contends that his claim did not accrue until the Texas Court of Criminal Appeals (CCA) denied his petition for rehearing on October 4, 2017, and thus refused to retract the interpretation of Article 64 that the court had unanimously adopted on April 12, 2017. Goertz, on the other hand, argues that Reed’s claim accrued no later than the date of the CCA’s April 12 decision, and because that date preceded the federal lawsuit by more than two years, Goertz maintains that we should affirm the Fifth Circuit’s decision that Reed’s complaint was filed too late.

As I will explain, there is room for debate about exactly when Reed’s DNA testing claim accrued, but in my view, the notion that this did not take place until rehearing was denied is clearly wrong.

Rounding up some notable recent death penalty policy and practice stories

Most weeks bring a number of press pieces on a number of capital punishment topics.  But so many death penalty headlines and stories caught my eye in the last few days that I decided only this round-up allowed me to keep up with a bunch of notable stories:

From ABC11, "NC faith leaders ask Governor Cooper to commute sentences of death row inmates"

From Arizona Capitol Times, "Court reinstates death penalty for man who killed University of Arizona professor"

From Cleveland.com, "Ohio’s broken death-penalty system may be wasting hundreds of millions of dollars, AG warns"

From The Hill, "Pence calls for expedited death penalty for mass shooters during NRA speech"

From MassLive, "10 years on, Boston Marathon bomber at the center of death penalty debate"

From the National Catholic Reporter, "Catholic governor calls on Louisiana lawmakers to abolish the death penalty as 'a pro-life state'"

From the Pittsburgh Post-Gazette, "The sisters of two Tree of Life shooting victims want the death penalty: ‘We owe it to our brothers’"

From Reuters, "Florida to allow death penalty with 8-4 jury vote instead of unanimously"

Florida complete its 100th modern execution ... of double murderer 34 years after crime

As reported in this AP article, "Florida executed a man known as the “ninja killer” on Wednesday for the 1989 slayings of a couple visiting the state from New Jersey." Here is more:

Louis Bernard Gaskin, 56, was pronounced dead at 6:15 p.m. after receiving a lethal injection, the governor’s office said. He was convicted of killing Robert Sturmfels, 56, and Georgette Sturmfels, 55, on Dec. 20, 1989, in their Flagler County winter home on Florida’s northeastern coast....

The execution, scheduled for 6 p.m., started without delay.  When asked if he had any final statement, Gaskin said: “Justice is not about the crime. It’s not about the criminal. It’s about the law.”  Gaskin then referred to the legal proceedings surrounding his case and the appeals and finished his statement saying, “Look at my case.”...

Republican Gov. Ron DeSantis has been signing death warrants at a rapid pace this year as he prepares his widely expected presidential campaign.  He oversaw only two executions in his first four years in office, both in 2019.

This execution came six weeks after Donald Dillbeck, 59, was put to death for the 1990 murder of Faye Vann, 44, in Tallahassee, and three weeks before the scheduled execution of Darryl B. Barwick for slaying Rebecca Wendt, 24, in 1986 in Panama City.  Barring any stays for Barwick, it will be the shortest period that three executions have been carried out in Florida since three were put to death within 36 days in 2014 under former Gov. Rick Scott, also a Republican.

Gaskin’s death marked the state’s 100th execution since the reinstatement of the death penalty in 1976. There are an additional 297 people on Florida’s death row, which is located at Florida State Prison, about 40 miles southwest of Jacksonville.

Gaskin, who was dubbed the “ninja killer” because he wore all-black ninja clothing during the crimes, shot his victims with a .22-caliber rifle, investigators said.  He was convicted of first-degree murder.  Property that he stole from the Sturmfels’ home — a clock, two lamps and a videocassette recorder — was found at his residence and were intended to be Christmas gifts for his girlfriend, according to investigators.  He was also convicted of armed robbery, burglary and the attempted murder that same night of another couple who lived nearby....

Jurors voted 8-4 in 1990 to recommend the death sentence, which the judge accepted.  Florida law now requires a unanimous jury vote for capital punishment, although the Legislature could send DeSantis a bill this week that would allow 8-4 jury recommendations for capital punishment.  The state and U.S. supreme courts have rejected appeals Gaskin filed since his death warrant was signed.  The latest denial came Tuesday.

New Oklahoma Attorney General formally moves to set aside Richard Glossip's capital conviction

As reported in this local article, Oklahoma "Attorney General Gentner Drummond is releasing the final report from Independent Counsel on the same day he has filed a motion to vacate the conviction of death row inmate Richard Glossip." Here is more:

The motion was filed with the Oklahoma Court of Criminal Appeals (OCCA) three days after the Independent Counsel Rex Duncan submitted his findings from the comprehensive review ordered by Drummond. While the report did not declare Glossip is innocent, it documented multiple instances of error that cast doubt on the conviction, even though many of these issues have been previously addressed by the OCCA.

“The State has reached the difficult conclusion that justice requires setting aside Glossip’s conviction and remanding the case to the district court,” states the April 6 motion. Drummond said his final decision in this matter is based on a careful consideration of the law and what he deemed is in the best interests of justice....

Glossip has been on Oklahoma’s death row for nearly 25 years. He was initially charged with accessory to murder on Jan. 15, 1997, after the murder of his boss, Barry Van Treese. A co-worker of Glossip’s confessed to beating Van Treese to death in an Oklahoma City motel room. As part of a plea agreement to avoid the death penalty, the co-worker testified that Glossip offered to pay him for the killing.

As a result, Glossip was charged and eventually convicted of first-degree murder in 1998. The co-worker, who was the prosecution’s key witness against Glossip and the murderer of Van Treese, was convicted and received a sentence of life without the possibility of parole.

The Oklahoma Court of Criminal Appeals later overturned Glossip’s conviction for ineffective assistance of counsel. He was convicted and sentenced to death again at a 2004 retrial.

With the Glossip case long dogged by doubt and controversy, Drummond sought answers shortly after taking office. He quickly learned that the State had long withheld a box of materials from Glossip’s defense team. Drummond promptly provided access to those materials, referred to as “Box 8,” and appointed an Independent Counsel to conduct a comprehensive review of the case. Box 8, and the findings from that review, formed much of the basis for the State’s motion to vacate Glossip’s conviction and remand to the district court....

The motion can be read here.

The Independent Counsel report can be read here.

As many readers of this blog likely know, Richard Glossip's case has long been in the headline not only because of his wrongful concviction claims, but also because he was the capital defendants whose Eighth Amendment challenges to certain lethal injection execution protocols were rebuffed in the 2015 Supreme Court ruling in Glossip v. Gross.

Three Justices dissent from denial of cert in Louisiana capital case based on Brady issue

The Supreme Court issued this morning another order list with no new grants of certiorari and lots of cert denials.  One of those cert denials, in the Louisiana capital case of Brown v. Louisiana, generated a short dissent by Justice Jackson, which was joined by Justices Sotomayor and Kagan. Here are excerpts from the dissent:

The central question before this Court is whether the prosecution violated Brown’s due process rights by failing to disclose this confession [by Edge, a codefendant].  Brady v. Maryland, 373 U.S. 83 (1963).  Because the evidence was plainly “favorable” and “material” to Brown’s penalty phase, id., at 87, I would have granted certiorari and summarily reversed....

The Louisiana Supreme Court nevertheless held that Edge’s confession was not favorable to Brown because it did not specify who actually killed the victim, nor did it expressly state that Brown was “not present or not involved.” 347 So. 3d, at 836.  The requirement that the withheld evidence must speak to or rule out the defendant’s participation in order for it to be favorable is wholly foreign to our case law....

We have repeatedly reversed lower courts — and Louisiana courts, in particular — for similar refusals to enforce the Fourteenth Amendment’s mandate that favorable and material evidence in the government’s possession be disclosed to the defense before trial. See, e.g., Kyles, 514 U.S., at 422, 450–453; Smith, 565 U.S., at 76–77; Wearry, 577 U.S., at 392–394, 396.  This Court has decided not to grant Brown’s petition for certiorari, but that determination should in no way be construed as an endorsement of the lower court’s legal reasoning.  In my view, the Louisiana Supreme Court misinterpreted and misapplied our Brady jurisprudence in a manner that contravenes settled law.

Another push to try to end the death penalty in Ohio

As reported in this local piece, there is another effort afoot to abolish capital punishment in the Buckeye state.  The article is fittingly headlined "Lawmakers call for an end to capital punishment in Ohio. Again."  Here are excerpts:

Although Ohio hasn't executed anyone since 2018, a dozen state senators are banding together to abolish the death penalty. It is unclear if they'll garner enough support to end capital punishment in Ohio.

The first major hurdle is Senate President Matt Huffman, R-Lima, who opposes ending the death penalty. However, Huffman said he would hold a vote on the bill if a majority of the 33-member Senate wanted it.

The effort to end the death penalty is a familiar one for State Sen. Nickie Antonio, D-Lakewood. She has sponsored abolition bills every session for the past dozen years. "I believe it's indeed time for the state of Ohio to take the pragmatic, economically prudent, principled step to end capital punishment, which has been found to be expensive, impractical, unjust, inhumane and in the past even erroneous," Antonio said Tuesday at a statehouse news conference. She noted 11 people on Ohio Death Row have been exonerated.

Antonio said that every year she introduces the abolition bill, she has more bipartisan support. This time, she's starting out with five Republican and seven Democratic co-sponsors.  State Sens. Steve Huffman, R-Tipp City, and Michele Reynolds, R-Canal Winchester, both said their religious faith spurred them to join Antonio's effort. Steve Huffman is Matt Huffman's cousin.

"I believe that life begins at conception and ends at natural death. Like many people of faith, I believe that all human lives are deserving of dignity... even people that have committed heinous crimes," Reynolds said. The bill would replace capital punishment sentences with life in prison without parole.

Currently, there are 138 people on Ohio Death Row.  The state has executed 56 men since February 1999 when it resumed executions.  No executions have been carried out since Republican Mike DeWine became governor in January 2019.  DeWine has postponed executions, citing issues in obtaining supplies of lethal injection drugs.

DeWine, who voted for the current law when he was a state senator, has remained mum about his current personal view of the death penalty.  County prosecutors and Ohio Attorney General Dave Yost support the death penalty. Yost, a Republican, issued a statement that said Ohio's capital punishment system fails to deliver justice to families of murder victims.

Some prior related posts:

• Fascinating death penalty development in Ohio (from 2012)
• Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty? (from 2019)
• Can a new conservative group help get the death penalty abolished in Ohio? (from 2020)
• New poll indicates considerable support for death penalty repeal among Ohio GOP legislators (from 2022)

Continuing criticism for Prez Biden's Justice Department for attending to the rule of (capital) law

Last month, as discussed here, the Washington Post published a lengthy article engaging in considerable hand-wringing about federal death penalty developments under the headline "Justice Department standards on federal death penalty called confusing."  This month, the AP has this lengthy article with some similar hand-wringing under the headline "Biden’s Justice Dept. keeps hard line in death row cases."  Here are excerpts:

Death penalty opponents expected Biden to act within weeks of taking office to fulfill his 2020 campaign promise to end capital punishment on the federal level and to work at ending it in states that still carry out executions. Instead, Biden has taken no steps toward fulfilling that promise.

But it’s not just inaction by Biden.  An Associated Press review of dozens of legal filings shows Biden’s Justice Department is fighting vigorously in courts to maintain the sentences of death row inmates, even after Attorney General Merrick Garland temporarily paused executions.  Lawyers for some of the over 40 death row inmates say they’ve seen no meaningful changes to the Justice Department’s approach under Biden and Trump.

“They’re fighting back as much as they ever have,” said Ruth Friedman, head of the defender unit that oversees federal death row cases.  “If you say my client has an intellectual disability, the government ... says, ‘No, he does not.’ If you say ‘I’d like (new evidence),’ they say, ‘You aren’t entitled to it.’”

Administration efforts to uphold death sentences for white supremacist Dylann Roof, who killed nine Black church-goers, and Boston Marathon bomber Dzhokhar Tsarnaev are better known. Lower-profile cases ... have drawn less scrutiny.  The Justice Department confirmed that since Biden’s inauguration it hasn’t agreed with a single claim of racial bias or errors that could lead to the overturning of a federal death sentence....

In announcing the 2021 moratorium, Garland noted concerns about how capital punishment disproportionately impacts people of color and the “arbitrariness” — or lack of consistency — in its application.  He hasn’t authorized a single new death penalty case and has reversed decisions by previous administrations to seek it in 27 cases.

Garland recently decided not to pursue death for Patrick Crusius, who killed nearly two dozen people in a racist attack at a Texas Walmart. His lawyers have said he had “severe, lifelong neurological and mental disabilities.” He could still be sentenced to death under state charges.  Garland also took the death penalty off the table for a man accused in 11 killings as part of a drug trafficking ring.... 

Prosecutors decide before trial whether or not to seek the death penalty, and current death row inmates were all tried under previous administrations. Prosecutors have less leeway after a jury’s verdict than before trial.  Court challenges after trials are also often not about whether it was appropriate to pursue the death penalty, but whether there were legal or procedural problems at trial that make the sentence invalid.  “It’s a very different analysis when a conviction has been entered, a jury has spoken,” said Nathan Williams, a former Justice Department lawyer who prosecuted Roof. “There has to be a respect for the appellate process and the legal approaches that can be taken.”

A Justice Department spokesman said prosecutors “have an obligation to enforce the law, including by defending lawfully obtained jury verdicts on appeal.” The department is working to ensure “fair and even-handed administration of the law in capital-eligible cases,” he said.  Inmate lawyers dispute that prosecutors have no choice but to dig in their heels, saying multiple mechanisms have always existed for them to fix past errors.

Justice officials announced this month that they wouldn’t pursue death in the resentencing of Alfonso Rodriguez Jr., convicted of killing North Dakota student Dru Sjodin.  But that only happened after a judge vacated the original death sentence.  Notably in 2021, the department agreed with lawyers for Wesley Coonce, sentenced to death for killing a fellow inmate in a mental health unit, that lower courts should look again at intellectual disability questions in his case. But the Supreme Court disagreed, declining to hear his case or remand it to lower courts....

Garland’s criteria for letting some capital cases proceed isn’t clear, though the department often consults victims’ families. Some feel strongly that suspected or convicted killers should face death.  Inmate attorneys have asked for all capital cases to get a fresh look. Garland has appeared to take one step in that direction.

The department this year restored written guidance emphasizing that staff can be proactive in fixing egregious errors in capital cases, though none has invoked that option.  Garland also re-set processes in which capital defendants can, in certain circumstances, ask the department to consent to their bids for relief.

Even though this article primarily higlights various ways in which AG Garland has not kept a "hard line" on capital cases, the headline and theme of the piece seems to be focused on the notion that DOJ ought not be seeking to uphold presumptively lawful death sentences. 

Prior related post:

• Is it really so hard to make sense of AG Garland's federal capital punishment administration?  

A couple of notable new capital cases on the latest SCOTUS "relist watch"

I noticed that this latest Relist Watch by John Elwood over at SCOTUSblog includes two new relisted capital cases.  Though I am not sure cert should be expected on either of these two cases, they both raise "evergreen" issues in the capital punishment arena.  Here are John's full descriptions (with links from the original):

The state of Alabama sentenced Kenneth Eugene Smith, the respondent in Hamm v. Smith, to die for murdering Elizabeth Dorlene Sennett in a murder-for-hire plot.  Smith challenged Alabama’s lethal injection process as unconstitutionally cruel and unusual, and he proposed nitrogen hypoxia as an alternative means of execution under the Supreme Court’s procedures for method-of-execution claims.  The Eighth Amendment inquiry focuses on whether the state’s chosen method of execution “cruelly superadds pain to the death sentence” by asking whether the state has “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain.”  The U.S. Court of Appeals for the 11th Circuit held that nitrogen hypoxia is “feasible and readily implemented” because Alabama adopted a statute authorizing that method of execution.  The state has petitioned for certiorari, arguing that that nitrogen hypoxia is not yet “feasible and readily implemented” because the state has not developed a protocol for that method of execution.

Kevin Burns, the petitioner in Burns v. Mays, was convicted and sentenced to death for killing two people (and wounding two others) during a botched robbery. A divided panel of the U.S. Court of Appeals for the 6th Circuit held that Burns had not received constitutionally ineffective assistance of counsel.  Before the Supreme Court, Burns argues that he received constitutionally ineffective assistance of counsel because his lawyer failed to ask the jury not to sentence him to death because of “residual doubt” about his guilt as permitted by state law, because he failed to introduce evidence that a co-defendant was the actual shooter, and because counsel conducted only one or two hours of work to prepare for the sentencing phase of the trial.  Burns argues that his entitlement for relief is so clear that the Supreme Court should summarily reverse.

Arizona Supreme Court refuses to order its Gov to proceed with an execution ... for now

As detailed in some recent prior posts (linked below), a local prosecutor and crime victims had sued the new Gov of Arizona after her pledge not to move forward with a scheduled execution.   Late yesterday, the Arizona Supreme Court, for the time being, refused to order the execution to move forward.  This local article, which includes a link to last night's order from the Arizona court, provides this review:

Gov. Katie Hobbs is not compelled to carry out an execution warrant for death row prisoner Aaron Gunches, according to an order from the Arizona Supreme Court.  The court, in a ruling issued Wednesday, says its role is to “issue a warrant of execution that authorizes the director of the state department of corrections to carry out the execution.”

But the law does not mandate the governor act on the warrant, the court said.... The court acknowledged that the Arizona Constitution provides that the governor “shall take care that the laws be faithfully executed," and that the governor is obligated to protect victims' rights to justice and due process, but it said those were "mixed questions of law and fact that are not properly before us."

The court denied the petition, made by Karen Price, sister of the victim, to force the governor to enforce the warrant.  Price, however, could advocate for execution on other grounds....

The Maricopa County Attorney's Office responded to the decision with a statement.  "With this ruling, the court recognizes that the Governor’s actions have constitutional implications, and the Governor has a duty to follow the law. We are assessing next steps to ensure the law is upheld and victims receive justice," the statement said.

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward
• Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

"After McCleskey"

The title of this post is the title of this recent paper authored by Robert Tsai recently posted to SSRN. Here is its abstract:

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause.  In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system.  Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates.  One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether.

But that would be wrong and incomplete.  For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision.  It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith.  It is also based on archival research into their case files.  Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.”  Instead of forsaking structural equality claims, they doubled down on them.  Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it.  They also scrambled to formulate reliable quantitative evidence of intentional discrimination.  Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts.

Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable.  For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

Idaho about to become latest state to authorize execution by firing squad

As reported in this AP piece, "Idaho is poised to allow firing squads to execute condemned inmates when the state can't get lethal-injection drugs, under a bill the Legislature passed Monday with a veto-proof majority."  Here is more:

Firing squads will be used only if the state cannot obtain the drugs needed for lethal injections — and one death row inmate has already had his scheduled execution postponed multiple times because of drug scarcity.

The move by Idaho lawmakers is in line with those by other states that in recent years have scrambled to revive older methods of execution because of difficulties obtaining drugs required for longstanding lethal injection programs. Pharmaceutical companies increasingly have barred executioners from using their drugs, saying they were meant to save lives, not take them.  Idaho Republican Gov. Brad Little has voiced his support for the death penalty but generally does not comment on legislation before he signs or vetoes it.

Only Mississippi, Utah, Oklahoma and South Carolina currently have laws allowing firing squads if other execution methods are unavailable, according to the Death Penalty Information Center.  South Carolina’s law is on hold pending the outcome of a legal challenge.

Some states began refurbishing electric chairs as standbys for when lethal drugs are unavailable. Others have considered — and at times, used — largely untested execution methods.  In 2018, Nevada executed Carey Dean Moore with a never-before-tried drug combination that included the powerful synthetic opioid fentanyl. Alabama has built a system for executing people using nitrogen gas to induce hypoxia, but it has not yet been used.

During a historic round of 13 executions in the final months of Donald Trump’s presidency, the federal government opted for the sedative pentobarbital as a replacement for lethal drugs used in the 2000s. It issued a protocol allowing firing squads for federal executions if necessary, but that method was not used.  Some lawyers for federal inmates who were eventually put to death argued in court that firing squads actually would be quicker and cause less pain than pentobarbital, which they said causes a sensation akin to drowning.

However, in a 2019 filing, U.S. lawyers cited an expert as saying someone shot by firing squad can remain conscious for 10 seconds and that it would be “severely painful, especially related to shattering of bone and damage to the spinal cord.”...

Idaho Sen. Doug Ricks, a Republican who co-sponsored that state's firing squad bill, told his fellow senators Monday that the state's difficulty in finding lethal injection drugs could continue “indefinitely” and that he believes death by firing squad is “humane.”...

But Sen. Dan Foreman, also a Republican, said firing-squad executions would traumatize the people who who carry them out, the people who witness them and the people who clean up afterward. “I've seen the aftermath of shootings, and it's psychologically damaging to anybody who witnesses it,” Foreman said.  “The use of the firing squad is, in my opinion, beneath the dignity of the state of Idaho.”

The bill originated with Republican Rep. Bruce Skaug, prompted in part by the state's inability to execute Gerald Pizzuto Jr. late last year.  Pizzuto, who now has terminal cancer and other debilitating illnesses, has spent more than three decades on death row for his role in the 1985 slayings of two gold prospectors.

The Idaho Department of Correction estimates it will cost around $750,000 to build or retrofit a death chamber for firing squad executions.  Agency Director Jeff Tewalt last year told lawmakers there would likely be as many legal challenges to planned firing squad executions as there are to lethal injections.  At the time, he said he would be reluctant to ask his staffers to participate in a firing squad.

"The 'Cruel and Unusual' Legacy of the Star Chamber"

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

Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary discretion over the infliction of the death penalty.

All three accounts face familiar and formidable historical challenges.  There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the horrific sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685.  Each of the major interpretations fails to account for important pieces of the Oates puzzle.

The methods of punishment inflicted on Oates were two days of horrific flogging, recurring stands in the pillory, and life imprisonment.  These methods were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First Congress.  Oates’s sentence was not, by contemporary standards, disproportionate. His perjuries caused the executions of numerous innocents, quite possibly by torture.  By the standards of the times, he deserved hanging.

The Eighth Amendment, however, responded to anti-federalist fears that Congress might adopt torturous methods of capital punishment.  Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do.

This Article argues that prevailing accounts are breathtakingly incomplete.  The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641.  Sentencing Oates, Jeffreys claimed for King's Bench all the Star Chamber's lawless power to determine punishments less than capital.  The English Article 10 repudiated this attempt to resurrect the Star Chamber.  Then Congress, responding to anti-federalist fears about Congress adopting European-style executions by torture, freighted the "cruel and unusual" language with two additional meanings.  The clause now applied to capital, as well as noncapital, penalties.  It now also restricted legislative as well as judicial discretion.  Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment.  Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.

At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature.  It may also be, practically speaking, a matter of life and death.

Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

As reported in this local article, headlined "'No law allows it': Maricopa County prosecutor challenges Gov. Hobbs' refusal to proceed with execution," notable litigation is afoot over execute powers and execution plans in the Grand Canyon State.  Here are the interesting details (with links from the originals):

Gov. Katie Hobbs faces a court fight over whether she can block a scheduled execution. 

Maricopa County Attorney Rachel Mitchell joined a crime victims' rights group Monday in asking the Arizona Supreme Court to order Hobbs to carry out the execution of convicted murderer Aaron Gunches.  "No law allows the governor to unilaterally suspend executions," Mitchell's court brief said....

The amicus brief supports the Arizona Voice for Crime Victims' petition for special action by the high court, filed on behalf of Karen Price, sister of Gunches' murder victim, Ted Price. 

Two weeks ago, Hobbs said the state wouldn't proceed with executions until her office's review of death-penalty procedures was complete.  The day before, the state Supreme Court had granted an execution warrant for Gunches with a date of April 6.

The first-term Democratic governor issued an executive order in January establishing a death penalty review commission. She cited questions about the Department of Corrections execution protocols and lack of transparency.  Democratic Attorney General Kris Mayes immediately paused executions. 

In her brief, Mitchell noted the "current execution protocol is the product of extensive litigation and multiple settlements with death row inmates."

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward