Sentencing Law and Policy

"How Coronavirus is Disrupting the Death Penalty"

The title of this post is the headline of this new Marshall Project piece highlighting some topics I have been tracking recently.  Here are excerpts:

With a signature from Gov. Jared Polis, Colorado on Monday became the 22nd state to abolish the death penalty. But the governor’s long-planned intervention comes at a moment when capital punishment is already at a standstill across the nation for a very different reason: coronavirus.

The growing global pandemic—reaching 163 countries and more than 15,000 deaths—has at least temporarily saved two condemned men from execution in Texas, with more delays sought elsewhere. The pandemic has also stopped trials in which the death penalty was being sought. It has even upended the process for defense attorneys to try to exonerate their clients facing capital punishment.

“Almost every aspect of legal representation is at a halt in the judicial system,” said Amanda Marzullo, a consultant with the Innocence Project. “People are effectively unable to prepare and investigate their cases.”...

Executions are frequently put on hold due to Supreme Court decisions and lethal injection drug shortages, but rarely do natural events play such a disruptive role. One example was in 2017, when Juan Castillo’s execution was delayed after Hurricane Harvey hit Texas. (He was executed the following year despite his long-standing claims of innocence.)

And more stays may be coming. Last week, lawyers for Oscar Smith asked the Tennessee Supreme Court to delay his June 4 execution. They said they plan to ask Gov. Bill Lee for clemency but cannot put together an application “without putting themselves and others at risk” of contracting the virus. Executions are also scheduled for May in Missouri and June in Ohio, although the latter state lacks lethal injection drugs. Several other defense lawyers told The Marshall Project they plan to ask for delays.

With trials halted around the country, the number of new death sentences will drop, at least temporarily. Even before Colorado’s governor signed the abolition bill, a judge in Adams County postponed the trial of Dreion Dearing, who was facing a death sentence for the murder of Deputy Heath Gumm in 2018. (Dearing can still face death despite the repeal due to the timing of his charges, according to the Denver Post.) Judge Mark Warner had previously been criticized by defense lawyers for pushing the trial forward and having 250 potential jurors gather at one time, even as other courts were closing down. In Texas, jury selection for a death penalty trial in San Antonio was halted for 30 days.

In Tarrant County, Texas, prosecutors agreed to postpone the trial of Reginald Kimbro, who faces a potential death sentence if he’s convicted of the rapes and murders of two young women in 2017. Kimbro’s lawyer Steve Gordon said many jurors were elderly, and witnesses were slated to travel from Arkansas....

The slowdown caused by the COVID-19 crisis is even affecting cases that would not go to trial for months. People who face a death sentence typically work with a defense investigator whose job is to gather information to sway the jury towards mercy. These specialists do most of their interviewing in person, because it allows them to gain sensitive information about mental health issues and trauma. “If you knock on somebody’s door during a pandemic, you’re creating more barriers to relationship-building,” said Elizabeth Vartkessian, who oversees investigations for the non-profit Advancing Real Change, Inc.

There is at least one notable exception to this slowdown, which will test how long the disruption may last. Last week, a judge in Corpus Christi, Texas, approved a request from the Nueces County District Attorney's office and set an execution date for John Ramirez, who was convicted of fatally stabbing a man during a 2004 robbery. Ramirez is scheduled to die on Sept. 9.

Prior recent related posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 
• Colorado death penalty repeal official, and Gov commutes three capital sentences as he signs repeal
• Might COVID-19 ultimately bring an end to the death penalty in the United States?  

Colorado death penalty repeal official, and Gov commutes three capital sentences as he signs repeal

As reported in this local article, "Gov. Jared Polis signed a bill Monday making Colorado the 22nd state to abolish the death penalty, and he also commuted the sentences of the three killers on death row."  Here is more:

They will instead serve life sentences without the possibility of parole, Polis said.  “The commutations of these despicable and guilty individuals are consistent with the abolition of the death penalty in the State of Colorado, and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the State of Colorado,” he said....

The historic end of executions in Colorado comes after about 36 hours of debate at the legislature this year and a push by Republicans to instead put the issue on the 2020 ballot. Proponents called the death penalty “cruel and unusual punishment.”  They said its use in cases is uneven, and the litigation surrounding it is not only costly to taxpayers but forces families to relive their loved ones’ killings. Only one person has been executed in the state since 1976....

Arapahoe District Attorney George Brauchler, however, called the signing a win for criminals.  “The decision to pass and sign the death penalty repeal bill should bring a smile to the faces of future serial killers, terrorists, cop killers, mass murderers, child killers, and those in prison who decide to kill again,” he wrote in a statement.  “We have also reduced the protections for witnesses to crime by lowering the bar for their murders.  Colorado’s pro-offender legislature and its current governor have signaled that those lives are worth more protection than those of their victims.

The newly signed bill specifies that the death penalty can’t be used in cases for crimes committed on or after July 1, and currently, at least one defendant in Adams County is facing trial in a case that could result in the death penalty.  Dreion Dearing is accused of killing Adams County Deputy Heath Gumm.  “For all intents and purposes, the death penalty in Colorado is now a thing of the past,” said Jim Castle, the attorney for Sir Mario Owens, one of three men on death row.

Robert Ray and Owens were convicted of fatally shooting Gregory Vann, 20, at a 2004 party in Lowry Park. Javad Marshall-Fields was wounded in the shooting, and he and his fiancee Vivian Wolfe were planning to testify about the shooting before Ray ordered that they be killed. Owens was convicted for their 2005 murders in Aurora. They were 22 years old.

The other man on death row was Nathan Dunlap who was convicted in 1993 of fatally shooting employees who were closing for the night at Chuck E. Cheese in Aurora. He killed Ben Grant, 17; Sylvia Crowell, 19; Colleen O’Connor, 17; and Margaret Kohlbert, 50.  Bobby Stephens survived.  Dunlap received a temporary reprieve from former Gov. John Hickenlooper in 2013.  The three black men went to the same high school in Denver at different times....

The issue of the repeal doesn’t follow strict party lines.  A handful of Democrats opposed the measure while a few Republicans backed it. “As the death penalty has been a failure in several aspects, I felt compelled to fight for its repeal,” said Colorado Sen. Jack Tate, a Centennial Republican and sponsor of the Colorado bill.  “I applaud the governor’s leadership in signing this bill and moving Colorado towards a system that produces justice for all.”...

Sen. Rhonda Fields, an Aurora Democrat, joined opponents against the bill because of the killing of her son, Marshall-Fields, and his fiancée Wolfe — their killers were two of three men on death row in the state. Similarly, Aurora Democrat Rep. Tom Sullivan fought against the bill.  His son, Alex, was killed in the Aurora theater shooting.

Relatedly, the one on-going capital trial in Colorado, which moved forward last week, has now wisely been put on hold due to COVID-19 concern.

Prior recent related posts:

• Colorado on the verge of abolishing the state's death penalty
• With death penalty repeal legislation, Colorado Gov contemplating commutations for three now on death row 

Might COVID-19 ultimately bring an end to the death penalty in the United States?

Upon seeing this new story, headlined "U.S. Coronavirus Lockdown to Last 10-12 Weeks, Top Trump Official Says," I am now thinking it may not be too early to start wondering if one echo effect of this global pandemic could be the functional or formal end to the death penalty in the United States.  Texas has already postponed two executions (links below), and that furthers my thinking that there is now a real possibility we might not end up having any more executions in 2020.  Moreover, I would be surprised if any new executions get scheduled for 2020 even if some existing executions dates stay in place later in the year.  Consequently, the US would seem to now be on pace for its lowest number of executions in nearly four decades.

Further, at this time of extraordinary uncertainty and disruption and social distancing, it is essentially impossible to conduct a fair and orderly capital trial.  As courts struggle to figure out how to keep functioning at all during this period, on-going capital trials should and likely will be suspended (and perhaps resolved via pleas).  New capital cases are unlikely to be brought, and I see now a real possibility that we might not end up having any more capital sentences imposed in 2020.  This DPIC fact sheet details that we had 34 death sentences in 2019; I will be surprised if we end up with more than 10 in 2020. 

We will get back to some form of normal before too long, I hope.  But the likely economic woes the country will be facing as we rebuild necessarily means we are going to need to be more efficient and effective in our use of limited government time and resources.  As those who work in capital systems know well, modern death penalty administration is the antithesis of efficient and effective use of government time and resources.  Whatever happens with the death penalty while we deal with COVID-19, I think there will be very strong arguments that this punishment is a kind of "legal luxury" that we really cannot and ought not invest resources in while we try to rebuild after COVID-19.

Prior related capital COVID posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 

Noticing potency of our culture of death as Denver capital trial moves forward amidst global pandemic

Those of a certain age can recall a time in which certain politicians regularly preached about the importance of promoting a "Culture of Life."  As one who follows closely the administration of the death penalty in the US,  I have long been inclined to derisively lament what I called a "culture of death" too often leading too many courts and other legal actors to devote, in my view, too much of their scarce resources to capital cases.  (I wrote a 2008 article on the topic focused particularly on the Supreme Court: "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'.")

These thoughts all came to mind today in these fraught times upon seeing this local article from Denver headlined "Court will not test potential jurors for coronavirus in Adams County death penalty case."  Here are the remarkable particulars:

A high-profile death penalty trial in the killing of an Adams County Sheriff’s deputy is going forward despite defense attorneys’ concerns for the health of their client, jurors and court personnel during the novel coronavirus pandemic.  Public defenders for Dreion Dearing, 24, argued in court filings that jury selection should not go on as scheduled Friday without screening and testing procedures for the virus in place for prospective jurors.

Dearing is accused of fatally shooting sheriff’s deputy Heath Gumm, 31, during a January 2018 chase.  He is charged with first-degree murder and faces the death penalty if convicted, despite the state legislature’s vote to repeal the death sentence in cases filed on or after July 1.  The bill has yet to be signed into law by Gov. Jared Polis.  The repeal would not apply to Dearing’s case even if Polis signs the bill, which he is expected to do.

Adams County District Court Judge Mark Warner denied the defense’s request for testing Thursday in part because the 17th Judicial District Court has already taken a variety of precautions, including cancelling most proceedings and ordering those who show symptoms or think they may have been exposed to COVID-19 not to come to the courthouse. Chief Judge Emily Anderson also ordered that people in the courthouse be allowed to wear masks and gloves and carry hand sanitizer.

“Based on the foregoing and the reasons set forth on the record on March 18, 2020, the Court will deny the Defendant’s requests concerning individual virus screening of prospective jurors,” Warner wrote in an order filed Thursday, adding that he would have court staff monitor jurors for potential infection and alert any prospective jurors who might have been exposed to the virus if such exposure is discovered. Jury selection will continue as planned on Friday, Warner wrote in his order. Already, jurors have been called to the courthouse in groups of 250 to complete questionnaires, and public defenders have raised concerns about the closeness of those prospective jurors and the possibility that the novel coronavirus is unknowingly spreading among the groups.

“We remain seriously concerned that the court has exposed, at this point, 1,700 people to a virus and we believe a doctor or medical professional needs to tell us how we can safely proceed,” Maureen Cain, director of legislative policy and external communications for the Colorado State Public Defender’s office, said Thursday.

The process to select the 18 jurors in the trial will begin in earnest Friday, despite a request from the district attorney’s office that the proceedings be moved to April 6, which the defense objected to. The trial is expected to last for weeks.

Despite the fact that the President's Coronavirus Guidelines urges all of us to avoid social gatherings "in groups of more than 10 people," it seems that trying to make sure a defendant can be condemned to death is thought so important that we have to bring together nearly 2000 prospective jurors in groups of 250.  What?!!?!?!?   

If this was going on in Texas (where, notably, two scheduled executions have been postponed as noted here and here), I suppose I could wrap my head around the eagerness for capital business as usual despite a global pandemic.  But as the article above highlights, death penalty repeal legislation was passes earlier this year in Colorado, which means it is extraordinarily unlikely the defendant here would get a death sentence or face execution even if convicted.  So, in the pursuit of a capital verdict that will not even be worth the paper it is written on, this court is prepared to expose hundred of people to a deadly virus.  Got it.

Texas Court of Appeals stays a second execution for 60 days due to COVID-19

As reported in this local piece, headlined "Texas Court of Criminal Appeals stops another scheduled execution because of the coronavirus," it seems that the coronavirus outbreak has now clearly created a de facto moratorium on executions in at least one significant state.  Here are the basic details:

A Texas court has stopped a second execution because of the new coronavirus that has swept through the state and world.

The Texas Court of Criminal Appeals issued a stay Thursday for next Wednesday’s scheduled execution of Tracy Beatty, a 59-year-old man convicted more than 15 years ago of killing his mother. Earlier this week, the same court halted the execution planned Wednesday for John Hummel for the same reason.

“We have determined that the execution should be stayed at the present time in light of the current health crisis and the enormous resources needed to address that emergency,” the court said in the order Thursday. The court’s stay lasts for 60 days, after which a new execution date can be set.

Beatty’s attorney filed a motion to halt his upcoming execution shortly after the court stayed Hummel’s execution Monday, citing the “unprecedented proportions” of the pandemic....

As in Hummel’s case, prosecutors were opposed to stopping the execution, however. Smith County District Attorney Jacob Putman said in a filing that COVID-19, the disease caused by the coronavirus discovered in December 2019, has not been shown to impact the state’s ability to carry out an execution. “There has been no evidence that the ‘enormous resources needed to address that emergency’ will also include the handful of TDCJ personnel who will carry out Beatty's execution,” he wrote.

Seven other executions are scheduled in Texas through September, with two set in April.

Given the CDC has urged all of us to avoid gatherings of more than 10 people for the next eight weeks, I would expect April and even May execution dats to also get postponed in this way. And if we are not getting back to normal by May, it will be interesting to see if still further executions get delayed due to the on-going pandemic.

Prior related post:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 

"Appeals Court Delays Texas Execution Due To Coronavirus Outbreak"

The title of this post is the headline of this notable story out of Texas concerning another remarkable echo effect of the global pandemic we are facing. Here are the details:

The outbreak of the novel coronavirus prompted the top Texas criminal appeals court on Monday to stay for 60 days the scheduled execution of a man condemned for killing his family.

The Texas Court of Criminal Appeals rejected all grounds of John William Hummel’s appeal but said it would postpone the scheduled Wednesday execution “in light of the current health crisis and the enormous resources needed to address the execution.”

Hummel, 44, was convicted in 2011 of capital murder in the December 2009 fatal stabbing of his pregnant wife, Joy Hummel, 45, and fatal bludgeoning of his father-in-law, Clyde Bedford, 57, with a baseball bat. Evidence showed he also used the bat to beat to death Jodi Hummel, his 5-year-old daughter, before he torched their home in the Fort Worth suburb or Kennedale. However, he was only convicted of capital murder in the deaths of his wife and father-in-law....

One of the issues that Michael Mowla, Hummel’s attorney, had raised in his efforts to stop the execution was a concern that the process involved with putting Hummel to death “may itself assist in spreading COVID-19.”

A number of people either take part or witness the execution in the death chamber at the state penitentiary in Huntsville, including correctional officers, attorneys, physicians and family members or friends of the inmate and of the victims. “Gathering all these people in one location presents a substantial risk of transmission of COVID-19/Coronavirus if anyone is infected,” Mowla wrote in a petition to the appeals court last week....

The Texas Department of Criminal Justice had been prepared to carry out the execution as officials had instituted a screening process for people who would have witnessed it, said agency spokesman Jeremy Desel. Execution witnesses would have been subject to the same screening that department employees have to go through before entering a prison unit. The screening involves questions based on travel, potential exposure to the coronavirus and health inquiries, Desel said.

The death chamber is not a heavy traffic area and is completely isolated from all parts of the prison in Huntsville, Desel said. “But it is thoroughly cleaned, consistently and constantly. We are taking precautions throughout the prison system,” he said.

Notably, according this Upcoming Executions page on the Death Penalty Information Center's website, Texas has five other executions scheduled over the next 60 days. I would predict that, unless we get some very good news about the spread of COVID-19 very soon, all these other executions would appear very likely to be postponed. In addition, I would be surprised if Texas or any other state were to start scheduling any new executions anytime soon.

This DPIC fact sheet details that we have so far five executions in the United States this year. As of this writing, I am thinking we might not end up having any more executions in 2020, which would mean the country would have its lowest number of executions since 1983.

Despite prominent calls for clemency, Alabama completes execution of Nathaniel Woods

As reported in this local article, Nathaniel Woods "was executed Thursday evening on a 2005 conviction of being an accomplice to the murder of three police officers." Here is more about a case that had receive considerable attention prior to tonight's execution:

Nathaniel Woods, 43, was pronounced dead at 9:01 p.m. after an execution that lasted 15 minutes.  The three Birmingham police officers — Charles Bennett; Carlos "Curly" Owen and Harley Chisholm III — were killed on June 17, 2004 with a semi-automatic rifle while entering a drug house.

Woods was put to death amid a storm of appeals and protests from supporters, who noted that Woods did not actually kill the officers; that Woods' attorneys missed key deadlines in his appeals, and that the trigger man — also on death row — said Woods was not involved....

Family members of the officers who attended the execution said Woods was as guilty as the man who pulled the trigger.  "Our loved ones took their last breath while upholding the law to make (Birmingham) a safer place," said Rhonda Hembd, the sister of Harley Chisholm, after the execution.  "Our families will not have closure until Kerry Spencer’s execution date. May God have mercy on their souls.  Until then may our loved ones rest in peace."...

The Woods family and hundreds of thousands of people appealed to Gov. Kay Ivey to extend clemency to Woods....  In a statement Thursday night, Ivey accused Woods of luring the police officers into the house, and said two other individuals had been executed in Alabama since 1983 "for being an accomplice to capital murder."

“After thorough and careful consideration of the facts surrounding the case, the initial jury’s decision, the many legal challenges and reviews, I concluded that the state of Alabama should carry out Mr. Woods’ lawfully imposed sentence this evening," the statement said.

Though Woods acknowledged he and Spencer sold drugs, he is not accused of actually killing the officers and by all accounts did not have a gun at the time of the shooting.  But at his 2005 trial, prosecutors argued that Woods had "conspired" with the shooter, Kerry Spencer.  Alabama law makes a person legally accountable for the behavior of another person if he or she "procures, induces or causes such other person to commit the offense."  Prosecutors did not provide evidence that Woods held or fired a gun during the incident.

A jury convicted Woods and voted 10-2 to sentence him to death.  Spencer told The Appeal last month that Woods was not involved and that "there was no plan to kill the police."...

U.S. Sen. Doug Jones of Alabama said in a statement Thursday he called Ivey's office to express concerns about the case.  "Given the questions and mitigating issues involved in this case — and the finality of a death sentence — a delay is warranted to provide time for a thorough review of all the facts and circumstances to truly ensure that justice is done," the statement said.

Kim Kardashian West sent a tweet urging Ivey to commute Woods' sentence, and later shared a number for Gov. Ivey's office.  The rapper and actor T.I. also called on followers to contact Ivey. The family of former Alabama and Green Bay Packers quarterback Bart Starr also called for clemency.

Colorado on the verge of abolishing the state's death penalty

As reported in this local article, the "bill to repeal Colorado’s death penalty cleared its final legislative hurdle Wednesday afternoon in a 38-27 vote in the House of Representatives, and the governor’s office says he will sign the measure." Here is more:

The measure passed its third reading Wednesday morning after passing its second reading early Tuesday morning after an 11-hour debate period.  There was more than five hours of emotional testimony from lawmakers before the final vote Wednesday.  Passage of the bill, HB20-100, was all-but a foregone conclusion after the bill cleared the Senate late last month because of the strong Democratic majority in the House.

Some Republicans — and Democrats — made their final pleas to send the question of whether to repeal the death penalty to voters, as they have sought in prior discussions about the bill.  Rep. Tim Geitner again tried to offer an amendment to refer the question to voters — but that attempt failed despite five Democrats voting for it.  Rep. Tom Sullivan, a Democrat whose son was killed in the Aurora theater shooting, was also among those who opposed passage of the measure during prior debate this week.

Much of the opposition from lawmakers came because they feel families of murder victims will not get closure if the death penalty is not on the table for the killers.  But many Democrats pointed that there are other options, which they say are more cost-effective, than capital punishment....

In the end, three Democrats voted against the measure — Reps. Kyle Mullica, Brianna Titone and Tom Sullivan — all of whom said they would be voting "no" during Wednesday's debate.  Zero Republicans voted for the measure.  But Democrats hold an advantage in the House and had the votes to pass the bill Wednesday.

Colorado is now the 22nd state to abolish the death penalty.

The measure repeals the state’s death penalty for any crimes charged by prosecutors on or after July 1, 2020. There are currently three people on Colorado’s death row: Robert Ray, Sir Mario Owens and Nathan Dunlap.  Ray and Owens were convicted of killing Javad Marshall-Fields, the son of Sen. Rhonda Fields, D-Aurora, and Marshall-Fields fiancée in 2005, and Fields’ opposition to the repeal has been a key point of contention in this year’s debate after it caused last year’s repeal measure to fail.  New Republican sponsorship in the Senate offset Fields’ opposition to the measure and allowed it to pass the Senate.

The 2020 repeal measure was the sixth attempt by lawmakers in recent years to get rid of the death penalty in Colorado — but the first to succeed.  A spokesperson for Polis confirmed Tuesday night that the governor will sign the bill.

Voting 5-4 on predictable lines, SCOTUS approves of appellate reweighing of aggravating and mitigating circumstances to uphold a death sentence

The Supreme Court this morning handed down a notable (and notably short) opinion in the capital case of McKinney v. Arizona, No, 18-1109 (S. Ct. Feb. 25, 2020) (available here), which rules that an appeals court can, and a jury need not, reweigh aggravating and mitigating circumstances to uphold a death sentence. The court split 5-4 with Justice Kavanaugh writing the majority opinion and with Justice Ginsburg authoring a dissent joined by Justices Breyer, Sotomayor, and Kagan.

Key passages from McKinney should be of interest not only to those who follow capital punishment jurisprudence, but also those who care about jury trial rights and the reach of precedents like Apprendi and Ring.  Here are excerpts from the seven-page majority opinion:

Nearly 20 years [after James McKinney was sentenced to death], on federal habeas corpus review, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit decided by a 6 to 5 vote that, in sentencing McKinney, the Arizona courts had failed to properly consider McKinney’s posttraumatic stress disorder (PTSD) and had thereby run afoul of this Court’s decision in Eddings v. Oklahoma, 455 U.S. 104 (1982)....  McKinney contends that after the Ninth Circuit identified an Eddings error, the Arizona Supreme Court could not itself reweigh the aggravating and mitigating circumstances.  Rather, according to McKinney, a jury must resentence him.

McKinney’s argument does not square with this Court’s decision in Clemons...  [which held] that “the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review.”  The Court explained that a Clemons reweighing is not a resentencing but instead is akin to harmless-error review in that both may be conducted by an appellate court...

In deciding whether a particular defendant warrants a death sentence in light of the mix of aggravating and mitigating circumstances, there is no meaningful difference for purposes of appellate reweighing between subtracting an aggravator from one side of the scale and adding a mitigator to the other side.  Both involve weighing, and the Court’s decision in Clemons ruled that appellate tribunals may perform a “reweighing of the aggravating and mitigating evidence.”  In short, a Clemons reweighing is a permissible remedy for an Eddings error....

Under Ring and Hurst, a jury must find the aggravating circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range....  Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances.

McKinney ... asserts that the Arizona Supreme Court’s 2018 decision reweighing the aggravators and mitigators constituted a reopening of direct review. Because this case (as McKinney sees it) is again on direct review, McKinney argues that he should receive the benefit of Ring and Hurst — namely, a jury resentencing with a jury determination of aggravating circumstances.

But the premise of that argument is wrong because the Arizona Supreme Court’s reweighing of the aggravating and mitigating circumstances occurred on collateral review, not direct review. In conducting the reweighing, the Arizona Supreme Court explained that it was conducting an independent review in a collateral proceeding.... Under these circumstances, we may not secondguess the Arizona Supreme Court’s characterization of state law.  As a matter of state law, the reweighing proceeding in McKinney’s case occurred on collateral review.

And here is how Justice Ginsburg's seven-page dissent gets started (with cites and footnotes removed):

Petitioner James Erin McKinney, convicted in Arizona of two counts of first-degree murder, was sentenced to death in 1993.  At that time, Arizona assigned capital sentencing to trial judges.  To impose a death sentence, the judge had to find at least one aggravating circumstance and “no mitigating circumstances sufficiently substantial to call for leniency.” Ariz. Rev. Stat. Ann. §13–703(E) (1993).  In 2002, in Ring v. Arizona, 536 U.S. 584 (2002), this Court held Arizona’s capital sentencing regime unconstitutional....  Here in dispute, does Ring apply to McKinney’s case?  If it does, then McKinney’s death sentences — imposed based on aggravating factors found by a judge, not a jury — are unlawful.

The Constitution, this Court has determined, requires the application of new rules of constitutional law to cases on direct review.   Such rules, however, do not apply retroactively to cases on collateral review unless they fall within one of two exceptions.  This Court has already held that Ring does not fall within those exceptions.  Thus, the pivotal question: Is McKinney’s case currently on direct review, in which case Ring applies, or on collateral review, in which case Ring does not apply?  I would rank the Arizona Supreme Court’s proceeding now before this Court for review as direct in character.  I would therefore hold McKinney’s death sentences unconstitutional under Ring, and reverse the judgment of the Arizona Supreme Court.

Via statement after cert denial, Justice Sotomayor makes lengthy case highlighting doubts about guilt of Texas capital defendant

In the middle of a lengthy order list with mostly just cert denials of interest to criminal justice fans (two of which I will discuss in a coming post), Justice Sonia Sotomayor issued this lengthy statement respecting the denial of certiorari in the capital case of Reed v. Texas, No. 19–411.  The bulk of the seven-page statement discusses the evidence raising doubts about the guilt of Rodney Reed, and here are the Justice's closing paragraphs:

In the instant petition for a writ of certiorari, Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests.  Misgivings this ponderous should not be brushed aside even in the least consequential of criminal cases; certainly they deserve sober consideration when a capital conviction and sentence hang in the balance.  In the pending tenth state habeas proceeding, however, Reed has identified still more evidence that he says further demonstrates his innocence.  It is no trivial moment that the Texas courts have concluded that Reed has presented a substantive claim of actual innocence warranting further consideration and development on the merits.  While the Court today declines to review the instant petition, it of course does not pass on the merits of Reed’s innocence or close the door to future review.

In my view, there is no escaping the pall of uncertainty over Reed’s conviction.  Nor is there any denying the irreversible consequence of setting that uncertainty aside.  But I remain hopeful that available state processes will take care to ensure full and fair consideration of Reed’s innocence — and will not allow the most permanent of consequences to weigh on the Nation’s conscience while Reed’s conviction remains so mired in doubt.

Prior related post:

• Texas Court of Criminal Appeals issues stay of execution so trial court can examine Rodney Reed's "Brady, false testimony, and actual innocence claims"

Tennessee completes yet another execution using the electric chair

As reported in this AP piece, a "convicted murderer was put to death in Tennessee's electric chair Thursday, becoming the state's fifth prisoner over 16 months to choose electrocution over the state's preferred method of lethal injection."  Here are the basics:

Nicholas Sutton, 58, was pronounced dead at 7:26 p.m. at the Riverbend Maximum Security Institution in Nashville.

Asked if he had any last words, Sutton looked directly into the witness room and spoke clearly. “I would like to thank my wife for being such a good witness to the Lord, and my family and many friends who loved and supported me and tried so very hard to save my life,” Sutton said. He also spoke of his Christian faith, saying that Jesus Christ had “fixed him.” He added, “I'm just grateful to be a servant of God, and I'm looking forward to being in his presence."

Sutton was sentenced to death in 1986 for killing fellow inmate Carl Estep in a conflict over a drug deal while both were incarcerated in an East Tennessee prison, where Sutton had been serving time for the killings of his grandmother and two others when he was 18....

Sutton's supporters, including several family members of his victims and prison workers, had recently asked Gov. Bill Lee to commute the sentence, saying Sutton had rehabilitated himself in prison and was not the same person who first entered prison 40 years ago. His supporters included two prison workers who credited Sutton with saving their lives.

Retired Correction Lt. Tony Eden had stated in an affidavit included with Sutton's clemency petition that Sutton confronted a group of armed inmates during a prison riot in 1985 and helped get Eden to safety “If Nick Sutton was released tomorrow, I would welcome him into my home and invite him to be my neighbor,” Eden wrote.

But Lee said Wednesday that he would not intervene to stop the execution. And two last-ditch appeals to the U.S. Supreme Court were denied Thursday evening. The justices, in an emailed statement, gave no explanation for their decision.

Sutton had not indicated why he chose electrocution — an option for inmates whose crimes were committed before the state adopted lethal injection as its preferred execution method — but other inmates have said they thought the electric chair would be quicker and less painful.

In the death chamber after Sutton's last words, officers placed a large wet sponge on his head and a cap over it. They then attached to the cap a black shroud that covered Sutton's face. At 7:18 p.m. two jolts of electricity, with a pause in between, were delivered to his body, which stiffened and partially lifted out of the chair as his hands balled up. It was over in just under a minute....

Inmates' attorneys have argued without success that both lethal injection and electrocution violate the Constitution's ban on cruel and unusual punishment. The electric chair fell out of favor in the 1990s following several gruesomely botched executions, including a Florida execution in which smoke and flames shot from the head of the condemned inmate. Only one other state, Virginia, has used electrocution in recent years, and it has not done so since 2013.

During Tennessee's last electrocution in December, witnesses said they saw smoke or steam coming from the side of inmate Lee Hall's head. But witnesses on Thursday said they saw nothing unusual.

Over the last decade of litigation surrounding lethal injections as a means of execution (which contributed to states' struggling to secure lethal drugs), I have presumed that many legislatures and state prison officials have been disinclined to look to the electric chair as an alternative for fear of engendering even more litigation and controversy over execution methods.  But, it seems Tennessee has been able to move forward with this older execution method without too much litigation or other problems getting in their way.  And yet, interestingly, it still does not seem that other states struggling with lethal injection difficulties are inclined to follow the Tennessee path.

A few recent related posts:

• Noting that condemned Tennessee inmates are opting for electrocution over lethal injection 
• Five years after problematic executions led to halt, Oklahoma plans to restart its machinery of death 

Noting that condemned Tennessee inmates are opting for electrocution over lethal injection

This New York Times piece, headlined "Afraid of Lethal Injection, Inmates Are Choosing the Electric Chair," reviews execution trends nationwide just before Tennessee is scheduled to conduct another state killing through the use of the electric chair. Here are excerpts:

Nicholas Sutton, like other death row inmates in Tennessee, has a choice in how the state will end his life.  The default, as set by state law, would be a series of injections, one to sedate him, followed by others that would paralyze him and stop his heart.  Yet Mr. Sutton, like four other inmates executed before him in Tennessee since 2018, has chosen the state’s other option: Two cycles of 1,750 volts of electricity.

Nationally, the electric chair is a method of the past; no other state has used it since 2013.  But inmate advocates and lawyers say the condemned men in Tennessee are choosing electrocution because they fear being frozen in place and feeling intense discomfort while drugs work to kill them.

In Ohio, a federal judge recently wrote that part of the state’s lethal injection protocol is akin to waterboarding, and botched procedures in other states have left men writhing in agony....

Tennessee joined other states more than two decades ago in turning to lethal injection as the primary method for executions, with lawmakers viewing it as a visibly calmer and less violent alternative to electrocution. But that view has been challenged in recent years, as errors and problematic executions, including one in Oklahoma in 2014 in which an inmate regained consciousness, have gained widespread notice.  Many pharmaceutical companies have also made it more difficult for states to acquire the proper drugs, not wanting them associated with ending lives.

The death penalty, in general, has been on the decline in the United States, with seven states carrying out 22 executions in 2019, the second-lowest number since 1991.  Last year, New Hampshire became the 21st state, and the last in New England, to abandon capital punishment....

But other states have doubled down.  Last week, state officials in Oklahoma announced that lethal injection deaths would resume after a five-year hiatus and a series of botched executions....

With his execution scheduled for Thursday night, Mr. Sutton was moved on Tuesday into death watch at the Riverbend Maximum Security Institution, a facility in Nashville situated in a crook of the Cumberland River that houses Tennessee’s death row for men.

Is Ohio really likely to repeal the death penalty "in the next year or so"?

The question in the title of this post come in response to this local article, headlined "Conservatives organize to end Ohio’s death penalty," reporting on the latest indication that the Buckeye State may be moving pretty swiftly toward death penalty abolition.  Here are the details:

As Ohio’s years-long struggle to obtain execution drugs continues with no end in sight, there’s a new effort underway to completely abolish capital punishment in the state – this time, with increasing involvement by conservatives.

But though activists say they’re confident that state lawmakers will soon get rid of the death penalty, whether legislators will actually take such action isn’t a foregone conclusion.

At a Statehouse news conference Tuesday, the newly created Ohio chapter of Conservatives Concerned About the Death Penalty released a list of conservatives in favor of abolishing Ohio’s death penalty, under which more than 50 people have been put to death since the state resumed executions in 1999.

The list includes a number of former Republican officeholders, including former Attorney General Jim Petro, ex-Gov. Bob Taft, and longtime U.S. Rep. Pat Tiberi. Several former staffers of ex-Gov. John Kasich also signed on – though Kasich himself has not.

Only three people on the list are sitting GOP lawmakers: state Reps. Craig Riedel of Defiance, Laura Lanese of suburban Columbus, and Niraj Antani of the Dayton area.

Ohio House Speaker Larry Householder, a Perry County Republican, has repeatedly said that his support of the death penalty is eroding. Gov. Mike DeWine, a Greene County Republican, has put a freeze on executions in Ohio because pharmaceutical companies have refused to sell drugs to the state for use in lethal injections, though he has stayed silent about whether he continues to support the death penalty.

Hannah Kubbins, director of the non-partisan Ohioans To Stop Executions, said she and Hannah Cox, national manager for Conservatives Concerned About the Death Penalty, have already spoken with a majority of Ohio lawmakers about getting rid of capital punishment. “I think that we will see repeal in the next year or so,” Kubbins said in an interview. “The conversations are encouraging. …It’s becoming a conservative-led, bipartisan-supported movement.”

Some Republican lawmakers, she said, were already skeptical about capital punishment on religious grounds, or because of concerns about the high taxpayer-funded expense of putting someone to death. Others, she said, are becoming anti-death penalty because of Ohio’s problems with death drugs. Another factor is conservatives’ preference for smaller government. “To give big government power over life and death is rather concerning to a lot of us,” Lanese said Tuesday.

Despite the optimism, repealing Ohio’s death penalty is anything but a done deal. Senate President Larry Obhof, a Medina Republican, said earlier this month that it’s “unlikely” that the Ohio General Assembly would abolish the death penalty completely in the next year, adding that most lawmakers still favor executions in “particularly heinous cases.”...

Lanese said while she admires Kubbins’ optimism about lawmakers abolishing the death penalty within a year, such a move won’t happen overnight. “We’re going to chip away at this,” Lanese said. “I do know that this is a deeply held belief for a lot of people on both sides, so it’s going to take a lot of work – especially with conservatives.”

I am following this discussion so closely in part because I am based in Ohio and have former students involved in capital litigation.  But I also continue to view Ohio as an important bellwether, and I think it could prove especially significant foe there to be repeal of the death penalty in a state that has executed many persons in the past and that is currently controlled entirely by GOP officials.

Prior related posts:

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

So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions

Though SCOTUS is in the midst of a long all-star break, SCOTUSblog continues to post some notable new copy.  A couple of new posts on the death penalty caught my eye and are worthy reads:

• SCOTUS for law students: The Supreme Court and the death penalty
• The federal death penalty at the Supreme Court

The latter of these two posts notes that the "Department of Justice has recently announced its intention to resume federal executions, prompting challenges that are currently pending."  That last phrase reminded me that, as reported here, back in early December the Supreme Court denied an application to lift a lower court injunction precluding federal executions while stating that it would "expect that the Court of Appeals will render its decision with appropriate dispatch."  In a companion two-page statement authored by Justice Alito (joined by Justices Gorsuch and Kavanaugh) ended this way:

The Court has expressed the hope that the Court of Appeals will proceed with “appropriate dispatch,” and I see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days.  The question, though important, is straightforward and has already been very ably briefed in considerable detail by both the Solicitor General and by the prisoners’ 17-attorney legal team.  For these reasons, I would state expressly in the order issued today that the denial of the application to vacate is without prejudice to the filing of a renewed application if the injunction is still in place 60 days from now.

We are now 73 days from when these matters were addressed by the Supreme Court on December 6, 2019, and these issues were argued before the DC Circuit now more than a month ago.  I am still expecting that an opinion will be coming from the DC Circuit this month, but the fact that we are already two week past the 60-day "recommendation" from Justice Alito serves as yet another reminder of how slowly the wheels of capital justice can turn.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?
• DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 
• SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions
• Dispute over legality of new federal execution protocol up for argument in DC Circuit 

Can a new conservative group help get the death penalty abolished in Ohio?

The question in the title of this post is prompted by this recent local press piece, headlined "Conservative group vows to end the death penalty."  Here are excerpts:

Activists have pushed to end the death penalty for years but there's a new effort to abolish it by a new group of more recent converts — conservative Republicans.  "Conservatives Concerned with the Death Penalty" includes prominent former lawmakers like Governor Bob Taft and former Congressman Pat Tiberi.

Governor Mike DeWine has delayed several upcoming executions because the state's previous methods of lethal injection are on hold in the courts. An alternative that will pass legal muster hasn't been figured out. House Speaker Larry Householder said in December the death penalty may not be enforceable.

“I’ve been pro-death penalty pretty much my entire career as a political operative," said Michael Hartley, a Republican operative for more than 20 years.  Hartley said he saw the toll executions had on the attorneys general and governors he worked for and that made him re-evaluate his stance.  “It is a pro-life state, it’s a fiscally responsible state and when you look at that, a lot of people question if it matches their values," he said. “We can’t even deliver our own mail.  Why should they be in charge of executing humans?”

He is part of the group "Conservatives Concerned with the Death Penalty."  That group will formally launch in Ohio on Tuesday....  Hartley said some conservatives have soured on the death penalty because it doesn't make fiscal sense. Executing an inmate costs more money in legal fees than imprisoning them for life.  Morally, Hartley said he can't stand for it after learning of people being exonerated after they've already been killed. “If we’ve executed one person that was innocent, this shouldn’t exist," Hartley said.

When state lawmakers might vote on abolishing the death penalty is unknown.  Not all Republicans, who have large majorities in both the Ohio House and Senate, have changed their minds about it.  Hartley said if Ohio were to end the death penalty, it could spark similar bans across the Midwest and rest of the nation.

This press notice from the national Conservatives Concerned About the Death Penalty group reports on speakers schedule for an Tuesday morning press conference that includes one active member of the Ohio General Assembly, namely Representative Laura Lanese, R-Grove City.  If there were another dozen or so Republican Ohio House members prepared to support abolition (and a comparable number in the state Senate), I might actually start thinking this could possibly happen.

Prior related posts:

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

Five years after problematic executions led to halt, Oklahoma plans to restart its machinery of death

As reported in this press piece, headlined "Oklahoma to resume injection executions, 5 years after drug mix-ups, national ridicule," the Sooner State is talking about getting back to carrying out death sentences. Here are the basics:

Oklahoma will resume executions by the lethal injection method, officials said Thursday.  The surprise announcement came at a news conference by Gov. Kevin Stitt, Attorney General Mike Hunter and Corrections Department Director Scott Crow.

Efforts will continue to develop a way to carry out the punishment with nitrogen gas, officials said.  However, the law allowing the state to develop a method using nitrogen gas only allows nitrogen to be used if the drugs for lethal injection are unavailable.

It has been more than five years since the last execution in the state.  The death penalty still has widespread support in Oklahoma despite the national ridicule that followed an injection mistake in 2014 and drug mix-ups in 2015.

"It is important that the state is implementing our death penalty law with a procedure that is humane and swift for those convicted of the most heinous of crimes," Gov. Stitt said. "Director Crow and Attorney General Mike Hunter have worked diligently and thoroughly to create a path forward to resume the death penalty in Oklahoma, and the time has come to deliver accountability and justice to the victims who have suffered unthinkable loss and pain."

More than 40 murderers are awaiting execution in the state.  Almost 30 have exhausted their appeals and are eligible to have execution dates set.  The last scheduled execution, on Sept. 30, 2015, was called off after a doctor discovered the wrong deadly drug had been supplied.  Executions have been on hold in Oklahoma because of that mix-up. Officials acknowledged afterward that the same mistake had been made in the execution carried out in January 2015....

The three drugs used for executions will continue to be midazolam, vecuronium bromide and potassium chloride. Two years ago, officials announced Oklahoma would switch to using nitrogen gas because of the problems associated with the lethal injection method.  The Corrections Department director at the time complained that it was increasingly difficult to find a reliable supplier of the drugs.  "I was calling all around the world, to the back streets of the Indian subcontinent, to procure drugs," Director Joe Allbaugh said.

Since that announcement, officials have been working on a way to carry out executions with nitrogen gas, a method never used in the United States for the death penalty. Allbaugh said a year ago he had yet to find a manufacturer of a gas delivery device willing to sell it for use in executions.  Officials have discussed building a device on their own.

Texas completes execution of mass murderer of his own family

As reported in this news piece, "Dallas man was executed Thursday evening for a shooting in which he killed his wife, two children and two other relatives during a drug-fueled rage nearly 18 years ago."  Here is more context surrounding what was the third execution in the United States this year (and the second in Texas):

Prosecutors say Abel Ochoa was high on crack cocaine and looking for money to buy more drugs when he started shooting inside his home in August 2002. Ochoa, 47, was pronounced dead at 6:48 p.m., 23 minutes after receiving a lethal injection at the state penitentiary in Huntsville for the slayings of his wife, Cecilia, 32, and his 7-year-old daughter, Crystal. He also killed his 9-month-old daughter, Anahi; his father-in-law, 56-year-old Bartolo Alvizo; and his sister-in-law, 20-year-old Jacqueline Saleh, and seriously injured his sister-in-law Alma Alvizo....

Jonathan Duran, who watched Ochoa die, said he accepted Ochoa's apology. “I accepted the fact as a child, at 12 years old, when I buried my mother, my sisters, my aunt and my grandfather,” Duran said. “Nothing's going to bring them back. It's up to us to keep their memory alive, rebuild what we lost. I can't ever replace my mother or my sisters.

“After 17 years, me, my family, .. the whole tree. We can finally say we got closure, we got justice."...

The execution was carried out after the U.S. Supreme Court turned down a request by Ochoa's attorneys to halt it. They wanted a review of whether his rights were violated because he initially wasn’t allowed to film a prison interview with his legal team for his state clemency petition. A Texas appeals court this week turned down a different request for a stay on claims that there were problems with paperwork related to Ochoa's death warrant. The Texas Board of Pardons and Paroles also turned down a clemency petition.

Ochoa's attorneys said in court documents that his death sentence should be commuted to a life sentence because of “his deep and sincere remorse.” Ochoa’s trial attorneys had described him as a hard-working, law-abiding citizen whose life unraveled amid a 2½-year addiction to crack....

At trial, Ochoa’s attorneys argued that he shot his family in a cocaine-induced delirium and had brain damage from drug abuse. Ochoa testified that he didn’t remember shooting his family.

Howard Blackmon, one of the Dallas County prosecutors who tried the case, said he argued that Ochoa killed his family in frustration and anger. “It’s just a horrendous set of circumstances for a parent just to murder, gun down their own children,” said Blackmon, who is now a criminal defense lawyer in Dallas.

Alma Alvizo testified that Ochoa had become aggressive toward his wife after learning she had a son from a previous relationship. Alvizo said her sister told her Ochoa had pointed a gun at her three weeks before the killings.

Latest issue of Ohio State Journal of Criminal Law full of capital punishment discussion

Just like a New Yorker forgets to make time to visit the Statute of Liberty, I sometimes forget to blog about exciting sentencing work done in my own backyard.  Specifically, I have failed to previously note that that latest issue of the Ohio State Journal of Criminal Law has a half-dozen articles on the death penalty authored by a number of notable folks.  Here are title and likes of the pieces:

A Personal Journey into the Morass of Ohio's Death Penalty by Lawrence Herman

Abolition of the Ohio Death Penalty?—Not for Lack of Trying by Margery Malkin Koosed

From Proponent to Opponent: My Lifelong Struggle with the Death Penalty by Jim Petro

Ohio's Modern Death Penalty—From Architect to Opponent by Justice Paul Pfeifer

Why Europe Abolished Capital Punishment by John Quigley and S. Adele Shank

Tinkering with the Machinery of Death: Lessons from a Failure of Judicial Activism by Kent Scheidegger

Ohio legislators predict more talk, but no likely action, on state's dormant death penalty

As regular readers know, Ohio has not had an execution in over 18 months and Gov Mike DeWine has repeatedly delayed scheduled executions because of concerns about the state's execution drugs.  This stalemate has led to some talk of legislative repeal, but this local news story, headlined "Ohio lawmakers unlikely to address state’s death-penalty problems soon," suggests that both executions and repeal are unlikely in the near future:

Ohio legislative leaders indicated Tuesday that they will likely not take action anytime soon to abolish or formally freeze the state’s death penalty despite ongoing problems with finding lethal-injection drugs.

Speaking at the Associated Press’ annual legislative preview event, House Speaker Larry Householder and Senate President Larry Obhof acknowledged that fellow Republican Gov. Mike DeWine is in a “dilemma” by having to repeatedly reschedule execution dates because pharmaceutical companies have refused to sell the state the drugs used in lethal injections.

However, Householder said House Republicans, who hold a legislative supermajority, are “very much mixed” when it comes to what to do about the problem. “I do not know if we will have legislation this year,” the speaker said. “We continue to have discussions, [and] they are extremely mixed, as all of us have questions about this.  But we are talking, and I think that’s good.”

Householder again expressed qualms about keeping the death penalty in Ohio, saying it’s “extremely expensive to put someone to death” and that “we have a law on the books that quite frankly we can’t enforce.”  He ruled out switching the state’s execution method to a firing squad or hanging. “I think maybe it's a far greater penalty on people to have to live by themselves in a cell and deal with the demons that they have in their life every single day for the crimes that they've committed,” the speaker said.

Obhof said it’s “unlikely” that lawmakers would abolish the death penalty completely in the next year, as most lawmakers favor keeping Ohio’s death penalty for “particularly heinous cases.”  However, he predicted that both the House and Senate will “have substantial discussions about where we want to head overall” in the coming months.

Multiple bills have been introduced in recent years to abolish Ohio’s death penalty, mostly by Democrats. Those bills have gone nowhere, though legislation to prohibit executions of the severely mentally ill is currently moving through the legislature....

Ohio hasn’t put anyone to death since Robert Van Hook in July 2018. Since taking office last year, DeWine has postponed executions seven times, stating there will be no more executions in Ohio until the state can procure execution drugs. DeWine expressed concerns that if companies find that Ohio used its drugs to put people to death, they will refuse to sell any of its drugs (not just the ones used in executions) to the state.  That would endanger the ability of thousands of Ohioans — such as Medicaid recipients, state troopers, and prison inmates — to get drugs through state programs.

In addition, DeWine said he was concerned about a judge’s ruling last year that the lethal-injection drugs Ohio had been using were unconstitutional because they produced a painful drowning sensation comparable to the torture tactic of waterboarding.  That ruling was later overturned on appeal, but it still gives DeWine pause.

As of December, Ohio had 138 people on Death Row.  Twenty-four executions have been scheduled — the next being June 17, when Romell Broom, a murderer and child rapist from Shaker Heights, is set to be put to death.  Broom survived a botched execution attempt in 2009, after state officials tried unsuccessfully for two hours to find a vein to use for the lethal-injection drugs.

Prior related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Amidst persistent difficulties with lethal injection drugs, Ohio legislator to propose use of fentanyl taken from drug busts for executions 
• Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty? 
• Has Ohio really had its last execution? 

"Black Deaths Matter: The Race-of-Victim Effect and Capital Punishment"

The title of this post is the title of this new essay authored by Daniel Medwed now available via SSRN. Here is its abstract:

The racial dimensions of the death penalty are well-documented.  Many observers assume this state of affairs derives from bias—often implicit and occasionally explicit — against black defendants in particular.  Research points to an even more alarming factor.  The race of the victim, not the defendant, steers cases in the direction of death.  Regardless of the perpetrator’s race, those who kill whites are more likely to face capital charges, receive a death sentence, and die by execution than those who murder blacks.  This short Essay adds a contemporary gloss to the race-of-victim effect literature, placing it in the context of the Black Lives Matter movement and showing how it relates to the broader, systemic devaluation of African-American lives.

Georgia completes second execution in US in 2020

As reported in this local article, "Georgia has executed Donnie Lance for the 1997 murders of his ex-wife and her boyfriend in Jackson County." Here are some more details about the crime and prelude to the second execution completed in the United States in the year 2020:

Lance, 65, who was sentenced to death in 1999, was given a lethal injection of pentobarbital at the Georgia Diagnostic and Classification Prison in Jackson. He declined to make a final statement, to hear a final prayer.  He’d already spent the day praying with family, including his adult kids, who had tried to stop the state from executing for the deaths of their mother, Joy Lance, 39, and her boyfriend, Dwight “Butch” Wood Jr., 33....

The U.S. Supreme Court denied Lance’s final appeals at roughly 8:15 p.m., clearing the way for his execution. The high court, in two separate orders, declined to hear Lance’s requests that it halt his execution on grounds of alleged prosecution misconduct and lower-court rulings that denied his request for DNA testing....

Lance’s attorneys have also argued that the jury that convicted him and sentenced him to death should have known he had brain damage and an IQ that makes him borderline intellectually disabled.  Lance has maintained his innocence, and his grown children have spent months unsuccessfully calling for DNA testing on case evidence to confirm whether he killed their mother....

In January 2019, the U.S. Supreme Court declined to hear Lance’s appeal, which included information about his trial attorney’s failure to submit any mitigating evidence in the sentencing phase of the trial. Justice Sonia Sotomayor dissented, saying Lance’s lawyer should have presented evidence of his client’s cognitive impairments. Justices Ruth Bader Ginsburg and Elena Kagan joined in the dissent.Sotomayor said multiple experts had testified in a previous hearing that Lance, a former race car driver, had frontal lobe damage. (The frontal lobe of the brain controls myriad cognitive processes, including memory, reasoning and language.) Sotomayor said the experts also agreed that Lance’s IQ was borderline for intellectual disability.... Tammy Dearing [Wood’s sister] said she sympathizes with the Lance children, but their father made his bed. “We as taxpayers have supported this man for too long,” she said. “There’s so many things we missed out on as a family. I watched Butch’s kids grow up without a dad.”

Reversing state precedent, Florida Supreme Court cuts back on reach of SCOTUS Sixth Amendment capital ruling in Hurst

A little more than four years ago, the US Supreme Court declared unconstitutional Florida's death penalty procedure in Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2016) (available here), and that ruling raised a host of tough questions about what Hurst meant for roughly 400 persons then on death row in Florida.  I have not been able to follow closely all the Florida state rulings seeking to apply Hurst over the last four years, but a helpful reader made sure I did not miss the latest consequential ruling from the Florida Supreme Court, Florida v. Poole, No. SC18-245 (Fla. Jan. 23, 2020) (available here), which was handed down yesterday.  This local press article, headlined "Florida Supreme Court says unanimous jury not needed for death penalty in major reversal," provides some of the details and context:

In a stunning reversal of a previous decision, the Florida Supreme Court ruled Thursday that a unanimous jury should not be required to sentence someone to death. Federal law, and every state that has the death penalty except Alabama, require unanimous juries for the death penalty, rather than a simple majority.

Florida law used to only require that a majority of the jury make a recommendation to the judge on whether to sentence a defendant to die. The judge then issues a final ruling based on that recommendation. But after a decision by the Florida Supreme Court in 2016 struck down that model in a case called Hurst v. State, the Legislature changed its law to mandate a unanimous jury.

But Thursday’s ruling opens the door for state lawmakers, if they wish, to return Florida to one of the few states that don’t require a unanimous jury to impose the death penalty. “It is no small matter for one Court to conclude that a predecessor Court has clearly erred,” the majority opinion of four justices states. But, “in this case we cannot escape the conclusion that ... our Court in Hurst v. State got it wrong.”

In the majority opinion, the justices wrote that their own court’s prior decision was made in error, because the justices at the time had misinterpreted a U.S. Supreme Court ruling that found Florida’s death sentencing process unconstitutional.

The U.S. Supreme Court’s ruling did not, in fact, mean that a jury had to unanimously sentence a person to death, they wrote. Rather, that court only said that a jury had to unanimously find that a defendant was eligible for the death penalty, because of so-called “aggravating factors,” such as if the crime was “especially heinous, atrocious, or cruel” or was committed against a child under 12. But the final decision of whether a defendant should be sentenced to die does not require unanimity, Florida’s highest court said.

What does this decision mean? For one, it means the man, Mark Anthony Poole, who brought this case to the Supreme Court after he was sentenced to death with only the majority of a jury, will once again get the death penalty, after his sentence was previously vacated. He has been convicted of first degree murder, attempted first degree murder, sexual battery, armed burglary and armed robbery.

There are 157 death row cases where the person was eligible for a new sentence under the 2016 ruling. Since then, those cases have been going through various stages of re-sentencing, according to the Washington-based Death Penalty Information Center....

In a blistering dissent, Justice Jorge Labarga said the decision by the majority will return Florida to its status as “an absolute outlier." He was the lone dissent. There are currently only five justices on Florida’s Supreme Court, because two of Gov. Ron DeSantis’ three appointments were recently promoted to federal courts.

“In the strongest possible terms, I dissent,” Labarga wrote. “Death is indeed different. When the government metes out the ultimate sanction, it must do so narrowly and in response to the most aggravated and least mitigated of murders. ... this Court has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida."

Labarga also noted that Florida “holds the shameful national title as the state with the most death row exonerations” — all the more reason to keep the unanimous jury safeguard in place. Twenty-nine people on death row in Florida have been exonerated since 1973, according to the Death Penalty Information Center.

Responding to Labarga’s dissent, Justice Alan Lawson wrote that this decision does not change Florida’s state law, which requires the unanimous jury. “The majority today decides constitutional questions, not political ones,” Lawson wrote. “If the Florida Legislature considers changing (the law) to eliminate the requirement for a unanimous jury recommendation before a sentence of death can be imposed, the fact that this legislative change would make Florida an ‘outlier’ will surely be considered in the ensuing political debate.”

I presume the capital defendant here, Anthony Poole, will appeal this ruling to the US Supreme Court.  Notably, SCOTUS is actively considering jury unanimity issues this term in Ramos v. Louisiana and capital sentencing procedure in McKinney v. Arizona.  So, stay tuned.

Has Ohio really had its last execution?

The question in the title of this post is prompted by the statement of a notable Ohio statesman in this local public radio piece headlined "Creator Of Death Penalty Law Says Ohio Won't Have Another Execution." Here is more:

There hasn’t been a killer put to death in Ohio in 18 months.  And the state’s last execution has likely taken place, according to the architect of Ohio’s 1981 death penalty law. But prosecutors say killing off capital punishment entirely would be a mistake.

Ohio’s last execution was in July 2018 -- the next one, in March, seems unlikely, since Gov. Mike DeWine has issued eight execution delays since taking office last year.

But there were still six death sentences handed down last year. Lou Tobin with the Ohio Prosecuting Attorneys Association said he’s concerned what would happen if the death penalty were repealed.  “All of the challenges that we see to the death penalty right now will switch to life without parole. And the next thing you know we won't have life without parole either," Tobin said.

Polls are mixed on public backing of the death penalty, and some Republicans conservatives, including House Speaker Larry Householder (R-Glenford), have said their support is waning or is gone.

Former Ohio Supreme Court Justice Paul Pfeifer wrote the death penalty law and now opposes the way it’s used.  But he said he highly doubts lawmakers would go for abolishment.  “I think it'll be a tough sell to get the legislature to repeal the death penalty that’s on the books," Pfeifer said.

Pfeifer, who is now with the Ohio Judicial Conference, admitted the death penalty has been good for one thing -- plea bargains, to avoid trials that are painful for the victims’ survivors and costly for the courts.  Tobin agreed, and suggested to make sure a death sentence could followed through, lawmakers should look for new ways to carry out executions.

“The statute should provide for lethal injection, any other method of execution that's been found to be constitutional.  And I think we should explore the possibility of using nitrogen gas a protocol that Oklahoma is exploring right now," Tobin said.  Tobin also suggested the federal government or other capital punishment states could help Ohio get lethal injection drugs, or that Ohio should once again allow pharmacies to make those drugs and be shielded from public disclosure.  The last time that was permitted, no pharmacies offered to do so. DeWine has cited drug access problems as the reasons for delaying executions.

Pfeifer said ultimately, it is up to the governor, who can delay sentences or commute to life without parole.  Pfeifer recalled a similar situation with the Ohio governor who oversaw the last two executions before the US Supreme Court struck down capital punishment.  He noted there was a nine-year gap between those executions in 1963 and the court’s ruling in 1972.  “Jim Rhodes was governor of this state for four terms, for 16 years.  But there were two executions when he was brand new [as] governor and then no more happened.  He never said he was against the death penalty.  It just didn't magically happen.”...

There have been 56 executions since the state resumed the death penalty in 1999, after the 1981 statute Pfeifer helped create.  And the state is eighth in the country in total number of executions.  But Pfeifer said he thinks Ohio has seen its last execution -- which he said is a good thing.

For those interested in hearing even more on this topic, I had the honor of doing an hour-long local public radio segment, available here, on "The Future of Ohio's Death Penalty." 

Georgia parole board commutes death sentences shortly before today's scheduled execution

As reported in this AP piece, "Georgia’s parole board on Thursday spared the life of a prisoner just hours ahead of his scheduled execution, commuting his sentence to life without the possibility of parole."  Here is more:

Jimmy Fletcher Meders, 58, had been scheduled to receive a lethal injection at 7 p.m. Thursday at the state prison in Jackson. But the State Board of Pardons and Paroles released its decision granting him clemency around 1 p.m.

Meders is only the sixth Georgia death row inmate to have a sentence commuted by the parole board since 2002. The last to have a sentence commuted was Tommy Lee Waldrip, who was spared execution on July 9, 2014....

Meders was convicted of murder and sentenced to die for the October 1987 killing of convenience store clerk Don Anderson in coastal Glynn County.

The parole board, which is the only authority in Georgia that can commute a death sentence, held a closed-door clemency hearing for Meders on Wednesday.  According to the commutation order, the board considered Meders' lack of a criminal record prior to Anderson's killing, the fact that he had only one minor infraction during 30 years on death row, the jury's desire during deliberations to impose a life without parole sentence and the support for clemency from the jurors who are still living....

Meders was sentenced to death in 1989, four years before a change in the law that allowed a sentence of life without the possibility of parole for capital cases. In the clemency application submitted to the parole board, his lawyers argued that it was clear that the jury wanted that option.  The application cited a note the jurors sent to the judge after 20 minutes of deliberations: “If the Jury recommends that the accused be sentence to life imprisonment, can the Jury recommend that the sentence be carried out without Parole??”

Meders' lawyers also gathered sworn statements from the six jurors who are still alive and able to remember the deliberations.  They all said they would have chosen life without parole if it had been an option and supported clemency for Meders.

Additionally, an analysis by Meders' attorneys of Georgia cases for which the death penalty was sought between 2008 and 2018 shows that in cases like his, with a single victim and few aggravating factors, juries don't choose the death penalty today and prosecutors rarely seek it in such cases.

The official commutation is available at this link.

Texas completes first execution of 2020

As detailed in this local piece, "Texas, the state that has put to death more people than any other by far, carried out the nation’s first execution of the decade Wednesday." Here are some of the particulars:

John Gardner was executed for the 2005 Collin County murder of his soon-to-be ex-wife. Tammy Gardner was shot and killed in her home weeks before the couple’s divorce was finalized, according to court records. She called 911 before she died to say her husband had shot her.

With no pending appeals, John Gardner was taken into Texas’ death chamber in Huntsville and injected with a lethal dose of pentobarbital at 6:20 p.m. He was pronounced dead 16 minutes later....

John Gardner had a history of domestic violence, including the shooting of a previous wife who later died from her injuries, court records state.

He had argued for years that his crime should not have been prosecuted as a capital murder, which is the only crime in Texas that can result in the death penalty. A capital murder conviction in his case required the jury to decide that the killing was committed during another felony crime — home burglary or retaliation for his wife being a witness in their upcoming divorce proceeding.

Instead, his appellate attorneys said, John Gardner’s trial lawyers should have raised an “abandonment rage” defense. They argued that he didn’t break into his wife’s house and that he shot her to prevent her from leaving him, not because she was going to testify against him in court. Texas and federal courts rejected the argument....

Texas has seven more executions scheduled through May.

As detailed in this article from Georgia, another state has another execution scheduled for Thursday.

Dispute over legality of new federal execution protocol up for argument in DC Circuit

As noted in this post, roughly six weeks ago the US Supreme Court refused the Justice Department's request to vacate a district court stay of scheduled federal executions.  That stay, as reported here, was based on the district court's conclusion that DOJ's new execution protocol "exceeds statutory authority."  Notably, the short SCOTUS order upholding the stay indicated that the Court expected the Court of Appeals to review the merits of the stay "with appropriate dispatch."  The DC Circuit's dispatch, as reported in this Bloomberg Law article, has led to oral argument today in front of a three-judge panel.  Here are the details:

The Trump administration’s quest to resume federal executions faces its latest hurdle on Wednesday when an appellate panel hears arguments in a case that was at the U.S. Supreme Court previously and soon may be headed back there.

Though the broader political themes that accompany capital punishment lurk in the background of the dispute, the three judge panel at the U.S. Court of Appeals for the District of Columbia Circuit is tasked with looking at a narrower issue: essentially whether any difference between the words “method” and “manner” is enough to derail several executions for now....

Judges hearing the case are Bill Clinton appointee David Tatel and Trump appointees Gregory Katsas and Neomi Rao. Rao replaced Supreme Court Justice Brett Kavanaugh on the D.C. Circuit.

They’re reviewing the Nov. 20 ruling from Washington district judge Tanya S. Chutkan, who granted a preliminary injunction to federal death row prisoners Alfred Bourgeois, Daniel Lewis Lee, Wesley Ira Purkey, and Dustin Lee Honken. The uniform lethal injection protocol announced by the Department of Justice last year to carry out all federal executions likely violates the Federal Death Penalty Act, Chutkan found....

The death penalty act says that the U.S. marshal “shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed.” The act “provides no exceptions to this rule and does not contemplate the establishment of a separate federal execution procedure,” Chutkan said in effectively blocking the executions.

The statute’s use of the word “manner” includes not just execution method but also execution procedure, she said. The judge rejected the government’s argument that the law only gave the states the authority to decide the “method” of execution, like whether to use lethal injection or an alternative. But “manner” in the context of the federal act means “the method of execution,” the Justice Department said in a brief filed Jan. 13.

What’s more, the government says, Chutkan’s and the prisoners’ reading of the act leads to absurd results, like potentially causing the federal government to use less humane methods of execution than those used in some states, and giving states the power to “make it impossible to implement some federal death sentences.”

After Chutkan’s November injunction, the Justice Department appealed quickly to the D.C. Circuit, which declined to overturn it. The government then appealed that denial to the Supreme Court, which upheld the D.C. Circuit on Dec. 6 but sent the case back down for further review.

If the case is appealed back to the Supreme Court by whichever side loses in the D.C. Circuit this time, at least three of the nine justices are poised to side with the government. Samuel Alito, Neil Gorsuch, and Kavanaugh issued a statement accompanying last month’s order, saying that the government “has shown that it is very likely to prevail when this question is ultimately decided.”

The D.C. Circuit’s decision could come relatively quickly after Wednesday’s argument. The high court said in its order that it expects the appeals court to “render its decision with appropriate dispatch,” and the separate statement from Alito, Gorsuch, and Kavanaugh said there’s no reason the appeals court can’t rule within the next 60 days, which is less than a month from now.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?
• DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 
• SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions

"Who challenges disparities in capital punishment?: An analysis of state legislative floor debates on death penalty reform"

the title of this post is the title of this new article just published in the Journal of Ethnicity in Criminal Justice and authored by David Niven and Ellen Donnelly.  Here is its abstract:

In McCleskey v. Kemp, the Supreme Court tasked legislatures, rather than courts, with redressing racial disparities in capital punishment.  Elected officials must then decide to amend disparate death penalty procedures.  Analyzing floor debates, we explore why legislators make arguments for racial disparity or fairness in deliberations of death penalty reforms.  Results suggest views on race and the death penalty are products of partisanship, constituency composition, and the race/ethnicity of legislators, with the interaction of these factors being most predictive of argumentation.  Findings illuminate who leads discourse on fairness in criminal justice and the limits of legislative responses to racial injustice.

Lots of items of capital interest at Death Penalty Information Center

I frequent the Death Penalty Information Center website on a regular basis for all sorts of data and other detailed information about the administration of the death penalty in the modern era. But the site also keeps up with some capital punishment news and research (with DPIC's abolitionist bent), and the last few weeks have had a number of notable new postings. Here is a sampling that seemed worth flagging here:

"Louisiana Reaches Ten Years Without an Execution"

"Criticism by Government Leaders, Victim’s Son Fuel Growing Doubts About Viability of Ohio’s Death Penalty"

"Death Sentences Decline by More than Half in Decade of the 2010s"

"Report Addresses Death-Row Family Members’ Barriers to Mental Health Care"

"Law Review: New Article Highlights Decline of Judicial Death Sentences"

"Controversial Mississippi Prosecutor Recuses Himself from Further Involvement in Curtis Flowers’ Case"

Two jurisdictions to watch closely in 2020 for the future of the US death penalty

Though I am surely biased by my proximity, I do not think I am wrong to have long viewed Ohio as an especially interesting and important state with respect to the modern administration of the death penalty.  And this recent Columbus Dispatch column, headlined "Will the new year bring an end to Ohio’s elusive death penalty?," suggest reasons why the Buckeye State might be an especially interesting potential capital punishment bellwether this year.  Here is how the piece starts and ends:

Among the new year's possibilities, 2020 may see Ohio end its death penalty.  Reason One is that the state has run out of places to buy the substances specified for administering lethal injections.  Reason Two is the colossal cost to taxpayers of defending in the appeals courts virtually every death sentence that Ohio metes out (with some of those costs for compensating public defenders representing, as is only right, death row inmates).

As to practicality and cost, two of Ohio's most powerful leaders, Republican Gov. Mike DeWine and Ohio House Speaker Larry Householder, a Republican from Perry County's Glenford, have expressed serious concerns.  The unavailability of execution drugs means, in practice, that Ohio is facing a de facto moratorium on executions.

Meanwhile, Householder said this in mid-December, as The Dispatch reported: "We may have a law in place that allows for a death penalty that we can't carry out. And the question is: Are the costs that are associated with that and retrials and all these things, at the end of the day, is it worth that?"...

In courtroom after courtroom, what an Ohio death sentence might really mean is imprisonment for life — if you can call that a life — without any possibility of liberty. The question is whether Ohio should admit the reality of its death penalty, or, at a cost of millions of taxpayer dollars in legal fees, keep denying the obvious.

During most of the past 15 years when Ohio death penalty stories have been very dynamic, the federal death penalty was largely dormant. But the Trump Administration took efforts to gear up the federal federal machinery of death in summer 2019. Executions were temporarily block by court order right before the end of this year, but this long Intercept article, headlined "In The Shadow Of The Federal Death Chamber, Executions Are On Hold — For Now," highlights how the possible return of federal executions in 2020 may impact folks near the site of the federal execution chamber and in lots of other places.

Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty?

The question in the title of this post is prompted by this remarkable new brief story in the Columbus Dispatch headlined "Householder says legislature may dump Ohio’s death penalty law." Here are the details:

House Republicans have started talking about whether the state should keep a death penalty law on its books if Ohio can’t buy the cocktail of drugs needed to carry out those sentences. “We don’t know that there is an option right now,” Ohio House Speaker Larry Householder told reporters Thursday. “We may have a law in place that allows for a death penalty that we can’t carry out. And the question is: Are the costs that are associated with that and retrials and all these things, at the end of the day, is it worth that?”

Ohio didn’t execute anyone in 2019, but the Buckeye State ranks seventh in the nation for number of people on death row. Republican Gov. Mike DeWine pushed back six execution dates this year, in part because of the problems Ohio has had with drug companies that are increasingly adamant that their drugs not be used in executions.

“We have been talking about, you know, is there support today to get rid of the death penalty or not,” Householder said. “We’ve been having those discussions.” But the speaker made clear that as of yet there’s been no resolution on the best way forward.

Though Ohio is still a bellwether state and though I still think of it as a purple state, its General Assembly is very red as Republicans outnumber Democrats in the Ohio Senate 24 to 9 and in the Ohio House of Representatives 61 to 38.  Consequently, it is a big story and a sign of the times that such a GOP-dominated legislature is even talking openly about possibly repealing the death penalty.  I doubt repeal will really move forward anytime soon, but it is still very telling and significant that GOP state leaders seem more interested in talking about repeal than in talking about possible alternative execution methods.

DPIC releases year-end report asserting that "capital punishment continued to wither across the United States in 2019"

This new press release from the Death Penalty Information Center, titled "Death Penalty Erodes Further in 2019 as New Hampshire Abolishes and California Imposes Moratorium," provides a summary of the DPIC's on-line 2019 year-end report on the administration of the death penalty in the United States.  Here are excerpts from the report's introduction:

Capital punishment continued to wither across the United States in 2019, disappearing completely in some regions and significantly eroding in others.  New Hampshire became the 21st state to abolish the death penalty and California became the fourth state with a moratorium on executions.  With those actions, half of all U.S. states have abolished the death penalty or now prohibit executions, and no state in New England authorizes capital punishment at all.

The use of the death penalty remained near historic lows, as states conducted fewer than 30 executions and imposed fewer than 50 new death sentences for the fifth year in a row.  Seven states executed a total of 22 prisoners in 2019.  With several penalty-phase outcomes still undetermined, DPIC projects that between 35 and 37 new death sentences will be imposed in 2019.

In the Midwest, Ohio suspended executions in the wake of a court decision comparing its execution process to waterboarding, suffocation, and being chemically burned alive.  On December 11, Indiana marked the ten-year point without an execution.  Death sentences in the American West set a record low, Oregon substantially limited the breadth of its death-penalty statute, and — also for the fifth straight year — no state west of Texas carried out any executions.  32 U.S. states have now either abolished the death penalty or have not carried out an execution in more than a decade.

Public opinion continued to reflect a death penalty in retreat.  Support for capital punishment remained near a 47-year low and 60% of Americans — a new record — told Gallup they preferred life imprisonment over the death penalty as the better approach to punishing murder.

While most of the nation saw near-historic lows in death sentences and executions, a few jurisdictions bucked the national trend. Death sentences spiked in Cuyahoga County (Cleveland), Ohio to three in 2019 and five in the last two years, more than in any other county in the country.  The U.S. government attempted to restart federal executions after a 16-year hiatus, using an execution protocol that had not been submitted to the public for comment or the courts for review.  However, its plan to carry out five executions in a five-week period fizzled when the U.S. Supreme Court declined to disturb a lower court injunction temporarily halting the executions....

Executions continued to be geographically isolated, with 91% of all executions taking place in the South, and 41% in Texas alone.  Scott Dozier, a mentally ill death-row prisoner who gave up his appeals and unsuccessfully attempted to force Nevada to execute him, committed suicide on death row....

In an unusually rancorous Supreme Court year, the Justices sparred over the circumstances in which stays of execution should be granted.  The Court ruled that potentially torturous executions were not unconstitutional unless they involved “superadded pain” and the prisoner — even if impeded by state secrecy practices — proved that an established and less painful alternative method to execute him was available to the state.  There were few decisions on the substance of death penalty law and the term was more notable for significant allegations of discriminatory practices that the Court chose not to review.

I have reprinted here the DPIC graphic on number of death sentences imposed, as the steep decline in the number of death sentences strikes me as the most telling and consequential aspect of the decline of the modern use of the death penalty. But there is a lot of other notable data in the DPIC report that ought to hearten those who disfavor capital punishment.

Reviewing two notable SCOTUS sentencing oral arguments finishing up the 2019 calendar

I flagged here a few days ago the SCOTUSblog argument previews before SCOTUS talked to counsel Tuesday in Holguin-Hernandez v. U.S., No. 18-7739 and Wednesday in McKinney v. Arizona, No. 18-1109.  The SCOTUSblog folks now have posted reviews of both the arguments, and here are links and their starts:

"Argument analysis: Court likely to rule that a defendant preserves appellate challenge to length of sentence merely by arguing for lower one, but precise wording of opinion will be important" by Rory Little:

Justice Byron White, who as a retired justice hired a law clerk named Neil Gorsuch, once wrote that “a prime function of this Court’s certiorari jurisdiction [is] to resolve” conflicts between the federal circuits.  Yesterday the court heard argument in Holguin-Hernandez v. United States to review a sentencing rule of the U.S. Court of Appeals for the 5th Circuit that is out of step with nine other circuits. The argument was unusually brief, just over 45 minutes, and the transcript reads as somewhat desultory.  It seems clear that the 5th Circuit will be reversed; indeed, one can wonder why the court even bothered with briefing and argument (but see below).  A need to fill the argument calendar?  Or perhaps Gorsuch, who asked no questions, is imbued with White’s circuit-split-correction spirit.  In any case, Justice Sonia Sotomayor asked the only really difficult question: “How do we write this opinion?” in order to offer the doctrinal “clarity” that the solicitor general has requested.

"Argument analysis: Justices debate impact of 'do-over' in capital case" by Amy Howe:

[On Wednesday] the Supreme Court heard oral argument in the case of James McKinney, who was sentenced to death for two murders in 1991.  After the U.S. Court of Appeals for the 9th Circuit threw out McKinney’s death sentence four years ago, the Arizona Supreme Court reinstated it.  The state court first rejected McKinney’s argument that a jury, rather than a judge, should resentence him. It then concluded that the mitigating evidence — that is, the evidence why McKinney should not receive the death penalty — was not “sufficiently substantial” to warrant a lesser sentence.  Although it wasn’t entirely clear, after an hour of debate ..., McKinney appeared to face an uphill battle in convincing the justices to overturn the Arizona Supreme Court’s most recent ruling.

With the holiday season upon us, the Supreme Court now does not have any other oral arguments scheduled for a full month. When the Court is back to hearing arguments in January 2020, it will have on its calendar a notable white-collar crime case in Kelly v. US (January 14) and yet another of the never-ending ACCA cases with Shular v. US (January 21).

Texas completes last scheduled execution for 2019

As reported in this local article, a "Texas inmate was executed by lethal injection Wednesday evening for killing a supervisor at a state prison shoe factory in Amarillo nearly 17 years ago."  Here is more:

Travis Runnels, 46, was convicted of slashing the throat of 38-year-old Stanley Wiley on January 29, 2003. Runnels was the state’s final execution in 2019.

Runnels, belted to the death chamber gurney, responded “No” when the warden asked if he had a final statement.  As the lethal dose of the powerful sedative pentobarbital began, he smiled and mouthed words and a kiss toward three female friends and two of his attorneys who watched through a window a few feet from him.  Then he blurted out “Woof, woof!” just before taking four quick breaths and snoring four times before all movement stopped.

Runnels was pronounced dead at 7:26 p.m., 22 minutes after the drug began flowing into his arms, making him the 22nd inmate put to death this year in the U.S. and the ninth in Texas.

He never looked at the sister and brother-in-law of his victim, who watched through a window in an adjacent witness room.  Outside the Huntsville Unit prison, several hundred Texas corrections officers stood in formation, and Wiley’s sister, Margaret Robertson, hugged or shook the hands of many of them as she and her husband left the prison.

Prosecutors say Runnels killed Wiley at the Texas Department of Criminal Justice Clements Unit because he didn’t like working as a janitor at the shoe factory.  They said Runnels had wanted to transfer to a job at the prison barber shop and was angry at Wiley because that hadn’t happened....

He had been serving a 70-year sentence for an aggravated robbery conviction from Dallas when he killed Wiley with a knife used to trim shoes.  The factory makes shoes for inmates in the state prison system.

Earlier Wednesday, the U.S. Supreme Court turned down an appeal by Runnels’ attorneys, who said a prosecution witness at his 2005 trial provided false testimony and that no defense was presented because his lawyers advised him to plead guilty and called no witnesses....  Lower courts and the Texas Board of Pardons and Paroles had also turned down Runnels’ attorneys’ requests to stop his execution.

Four inmates who were convicted in the deaths of state correctional officers or other prison employees have been put to death since 1974, while three others remain on death row, according to Texas Department of Criminal Justice.

With only 22 total executions in the US, the year 2019 marks the third lowest total number of executions in a year in the last three decades. (There were only 20 executions in 2016 and only 14 in 1991.)

Also, as we close out the third year of the Trump administration, we have now had a total of only 70 executions in the United States. In comparison, the first three years of Prez Clinton's first term saw 125 executions; the first three years of Prez GW Bush's first term had 202 executions; the first three years of Prez Obama's first term saw 141 executions.

Two notable SCOTUS sentencing arguments to finish up 2019

In this post last week I flagged the criminal cases on the Supreme Court's argument schedule for this month.  The next two days close with a sentencing bang with arguments scheduled for Tuesday in Holguin-Hernandez v. U.S., No. 18-7739 and for Wednesday in McKinney v. Arizona, No. 18-1109.  The SCOTUSblog folks have great previews of these cases, and here are links and their starts: 

"Argument preview: What arguments are preserved, and how, in federal sentencing appeals?" by Rory Little:

When a federal criminal defendant has already requested a lower sentence than the judge ultimately imposes, must that defendant again note an objection after the sentence is announced, to preserve anything other than “plain error” appellate review?  The general doctrine that a failure to object can forfeit an appellate claim is well-established.  Thus Federal Rule of Criminal Procedure 52(b) provides that an “error … not brought to the [trial] court’s attention” may be reviewed only for “plain error.”  On the other hand, Rule 51(b) explains that “[a] party may preserve a claim of error by informing the court — when the court ruling is made or sought — of the action the party wishes the court to take.”

Tuesday the justices will hear argument in Holguin-Hernandez v. United States to resolve a circuit split about how these two rules play out in federal sentencing proceedings.  It is an unusual case because the solicitor general has conceded that the U.S. Court of Appeals for the 5th Circuit erred, so the court has appointed an amicus to argue in support of the judgment.

"Argument preview: Justices to take on procedural – but important – questions in case of Arizona death-row inmate" by Amy Howe:

It has been nearly 30 years since James McKinney and his half-brother killed two people while robbing the victims at their homes.  A judge in Arizona sentenced McKinney to death, but in 2015 the U.S. Court of Appeals for the 9th Circuit threw out McKinney’s death sentence.  On Wednesday, the Supreme Court will hear oral argument in the dispute between McKinney and the state over how his case should proceed.

McKinney was convicted by a jury for the 1991 murders of Christine Mertens and Jim McClain, but he was sentenced to death by a judge.  Although McKinney’s lawyers offered evidence that McKinney suffers from post-traumatic stress disorder as a result of the horrific abuse that he experienced as a child, the judge did not take that evidence into account when making his decision, because the law in effect at the time barred him from considering mitigating evidence that was not linked to the cause of the crime.

The Arizona Supreme Court upheld McKinney’s sentence, but in 2015 the U.S. Court of Appeals for the 9th Circuit ruled that the sentencing judge and the Arizona Supreme Court should have considered the evidence of McKinney’s PTSD, as required by Supreme Court’s 1982 decision in Eddings v. Oklahoma, in which the justices ruled that a sentencer in a capital case cannot decline to consider relevant mitigating evidence.

After the 9th Circuit’s decision, Arizona asked the Arizona Supreme Court to fix the error that the 9th Circuit had identified by reviewing McKinney’s death sentence again.  The state supreme court rejected McKinney’s argument that the Supreme Court’s recent cases required a jury, rather than a judge, to resentence him.  And it upheld McKinney’s death sentence, concluding that the mitigating circumstances in his case were not “sufficiently substantial” to warrant a lesser sentence.  McKinney asked the justices to weigh in on that ruling, which they agreed to do earlier this year.

There are two questions before the justices.  The first is whether the Arizona Supreme Court was required to apply current law — rather than the law that was in effect when McKinney’s conviction became final in 1996 — when weighing the mitigating and aggravating evidence to determine whether a death sentence was warranted.... The second question before the justices is whether, regardless of whether he is resentenced under the law in effect in 1996 or the law in effect now, McKinney is entitled to a new sentencing in the trial court, rather than the Arizona Supreme Court.

SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions

The Supreme Court on Friday night released this short order in response the the Department of Justice's request to lift an injunction the precludes federal executions scheduled to start early next week:

The application for stay or vacatur presented to THE CHIEF JUSTICE and by him referred to the Court is denied. We expect that the Court of Appeals will render its decision with appropriate dispatch."

Along with the order comes an interesting little "Statement ... respecting the denial of stay or vacatur" authored by Justice Alito and joined by Justices Gorsuch and Kavanaugh. Here is part of that statement:

The Government has shown that it is very likely to prevail when this question is ultimately decided.  The centerpiece of the District Court’s reasoning was that Congress referred to the “manner” and not the “method” of execution, but there is strong evidence that this reading is not supported either by the ordinary meaning of these two terms or by the use of the term “manner” in prior federal death penalty statutes.  Moreover, the District Court’s interpretation would lead to results that Congress is unlikely to have intended.  It would require the BOP to follow procedures that have been attacked as less safe than the ones the BOP has devised (after extensive study); it would demand that the BOP pointlessly copy minor details of a State’s protocol; and it could well make it impossible to carry out executions of prisoners sentenced in some States.

Vacating the stay issued by the District Court for the District of Columbia would not necessarily mean that the prisoners in question would be executed before the merits of their Administrative Procedure Act claim is adjudicated. They remain free to seek review on other grounds.  Nevertheless, in light of what is at stake, it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.

The Court has expressed the hope that the Court of Appeals will proceed with “appropriate dispatch,” and I see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days.  The question, though important, is straightforward and has already been very ably briefed in considerable detail by both the Solicitor General and by the prisoners’ 17-attorney legal team.  For these reasons, I would state expressly in the order issued today that the denial of the application to vacate is without prejudice to the filing of a renewed application if the injunction is still in place 60 days from now.

Tennessee completes execution of blind murderer via electrocution

As reported in this local piece, "Tennessee executed death row inmate Lee Hall in the electric chair Thursday night, marking the fourth time the state has used the method since 2018."  Here is more:

Hall, 53, was pronounced dead at 7:26 p.m. CST, according to the Tennessee Department of Correction. Media witnesses described what appeared to be a faint trail of white smoke rising from Hall's headeach time the lethal current coursed through his body. One witness described seeing what appeared to be a drop of blood on Hall's white shirt as the second current was applied.

Hall, also known as Leroy Hall Jr., was sentenced to death for killing his ex-girlfriend Traci Crozier in 1991. He was found guilty of first-degree murder and aggravated arson by a Hamilton County jury in 1992.

Hall was the 138th person put to death in Tennessee since 1916, and the sixth inmate executed since the state resumed capital punishment in August 2018. Hall also is believed to be only the second legally blind death row inmate executed since the U.S. reinstated the death penalty in 1976.

Tennessee was originally set to execute Hall in April 1998, and again in 2016. Legal delays blocked those dates, but the courts and Gov. Bill Lee refused to intervene this time.

Executions have become a grim routine in Tennessee since the state resumed them in 2018. Much of Hall's execution matched others that preceded his, according to the six media witnesses. But the smoke they described was unusual. Federal public defender Kelley Henry said it was evidence of torture.

Henry represents many death row inmates and has witnessed an electrocution in Tennessee. She said the smoke could be a sign that the execution team did not douse Hall with enough saline solution, which is used to conduct electricity, or that the sponge strapped to his head had melted.

Department of Correction spokesperson Dorinda Carter, who witnessed Hall's execution, said the vapor was "a small amount of steam, not smoke, which is a natural function of the combination of solution and heat." In an emailed statement, Carter said the execution "went as designed without any complications."

Tennessee has used the electric chair to execute four death row inmates, including Hall, since 2018. None of the witnesses at the other three executions reported seeing smoke or steam....

After the execution, Crozier's sister Staci Wooten said 28 years of pain had ended for her family. “Our family’s peace can begin, but another family’s hell has to begin,” she said, reading from a prepared statement. “We all fought this battle for you, Traci, and today we won.”

Hall released his own statement apologizing to Crozier's family. His attorney John Spragens shared it after the execution. “I’m sorry for the pain I caused," Hall's statement read. “I ask for your forgiveness, and I hope and pray that someday you can find it in your heart to forgive me." Hall also apologized to his family, including his brother David who attended the execution. "I hope this brings peace," Hall's statement read. "I don't want them to worry about me anymore."

Lots of notable headlines as possible resumption of federal executions approaches

As noted in this AP piece, on Monday night the US Department of Justice formally asked the Supreme Court to stay or vacate a lower court preliminary injunction now blocking scheduled federal executions that are scheduled to take place starting on the morning of December 9.  These developments have, unsurprisingly, started generating ever more news and commentary.  Here are a few piece that caught my eye:

• From The Hill, "14 states ask Supreme Court to let Trump resume federal executions"

• From the New York Times, "I Oversaw Executions. We Cannot Resume the Federal Death Penalty. The system has too many flaws for the Trump administration to carry out the executions it has scheduled for Monday."

• From The Atlantic, "I Know What It’s Like to Carry Out Executions: The experience of participating in the state-sanctioned killing of another human being has shaped me forever—and is why I believe this country should not pursue federal capital punishment."

• From Newsweek, "Attorney General William Barr Claims This Execution is for Us — But We Don't Want It" 

Terrific new Intercept series on capital punishment titled "The Condemned"

I received an email yesterday alerting me to exciting news that "The Intercept has published "The Condemned,” an investigative series by award-winning reporters Liliana Segura and Jordan Smith focused on the modern application and history of the death penalty in the United States. Here is more from the email:

The death penalty entered its “modern era” in 1976, when the U.S. Supreme Court upheld a new set of statutes in the landmark decision Gregg v. Georgia. This new Intercept series examines the use of capital punishment since 1976 and is partially based on an analysis of an unprecedented dataset that The Intercept began compiling in the summer of 2016, on all individuals sentenced to die in active death penalty jurisdictions during the past 43 years.

Amazingly, this data did not exist. Previously available information was often flawed, and many states either do not track this data or do so in a haphazard way. The Bureau of Justice Statistics collects demographic and other data about states’ death row populations, but Congress has blocked the public disclosure of this information.

With this new dataset, now available on GitHub, The Intercept is offering journalists, activists, lawyers, and anyone interested in the topic, a single and comprehensive resource covering the state of the death penalty as it exists in the U.S. today. .

“We limited our inquiry to active death penalty states, to focus on capital punishment as it exists today,” write Segura and Smith. “We were curious not only about who had been executed, but how many people had been removed from death row — a sizeable but largely invisible population. We wanted to see how many people had been re-sentenced, commuted, or released; how many had died awaiting execution; and how long people spent on death row. And we wanted to see who is on death row today.”

Their findings show that capital punishment remains as “arbitrary and capricious” as ever –– and “that the ‘modern” death penalty era remains animated by the same racial dynamics that have always defined capital punishment,” writes Segura.

The series’s four initial stories have been written by reporters Jordan Smith and Liliana Segura: in “Counting the Condemned,” Segura and Smith outline the many ways in which capital punishment has failed as a policy, particularly in its racism, arbitrary application and failure to deliver on claims of public safety.

“The Abolitionists,” also bylined by Segura and Smith, show how the abolition of the death penalty has become a bipartisan issue — and a national movement;

“The Power to Kill,” by Jordan Smith, looks at the pushback against Florida State Attorney Aramis Ayala after she determined that capital punishment is an unjust practice;

and “Death and Texas,” by Liliana Segura, shows that racial disparities on the Texas death row have increased even as death sentences decline.

DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions

As noted in this post from 10 days ago, a federal district judge last month blocked the scheduled executions of four condemned federal prisoners via this 15-page order based on the contention that the Justice Department's planned execution protocol "exceeds statutory authority."  Not surprisingly, the Justice Department sought review in the DC Circuit, and today via this three-sentence order a panel of judges denied the motion to stay or vacate the lower court's preliminary injunction.  This Reuters article reports on the ruling and its context:

A U.S. appeals court on Monday dealt another setback to plans by President Donald Trump’s administration to resume the death penalty at the federal level after a 16-year hiatus, denying a Justice Department bid to pave the way for four scheduled executions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit denied the department’s request to overturn a judge’s decision that at least temporarily stalled plans for executing four convicted murderers. The first was scheduled to die on Dec. 9.

U.S. District Judge Tanya Chutkan last month issued a stay putting on hold the planned executions until a long-running legal challenge to the department’s lethal injection protocol can be resolved. The appeals court found that the administration had “not satisfied the stringent requirements” to block Chutkan’s ruling....

The last federal execution took place in 2003. Since then, protracted litigation over the drugs historically used in lethal injection executions prevented the government from continuing the practice.

Shawn Nolan, a lawyer for the men facing federal execution, welcomed the court’s ruling. “The courts have made clear that the government cannot rush executions in order to avoid judicial review of the legality and constitutionality of its new execution procedure,” Nolan said....

Under Trump’s Democratic predecessor Barack Obama, the Justice Department abandoned its previous three-drug protocol due to a shortage of one of them, an anesthetic called sodium thiopental. The legal fight fell dormant during Obama’s tenure but was revived in July. Barr scheduled the executions of five inmates for December and January and unveiled a new protocol that involved using a single drug, pentobarbital, for lethal injections.

Four of the five inmates have joined the 2005 lawsuit. They have argued that a U.S. law called the Federal Death Penalty Act requires the federal government to follow the “manner” of execution prescribed in the state where an inmate was convicted. The law, as a result, prevents the federal government from creating a single nationwide execution protocol, they argued. Chutkan ruled that the condemned inmates were likely to succeed on their claims that the protocol violates the Federal Death Penalty Act, and found that Barr likely had overreached his authority.

Daniel Lewis Lee, a white supremacist convicted in Arkansas for murdering a family of three, was scheduled to be the first of the inmates to be executed, at a federal prison in Indiana on Dec. 9. A fifth inmate who Barr had ordered executed, Lezmond Mitchell, won a stay of execution from another federal appeals court in October.

The panel of the DC Circuit ruling her was made up of Circuit Judges Rogers, Griffith, and Rao.  Given the composition of this panel (which includes a recent appointee of Prez Trump), I suspect the Justice Department will not bother with seeking en banc review and instead will press its case to SCOTUS (as Attorney General Barr promised to do, if needed).  Assuming the Justice Department gets its papers to SCOTUS before the end of this week, the Justices should be able to rule on the matter in some manner before the first scheduled execution on Dec. 9.  Interesting times.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?

Father of Parkland school shooting victim urges state prosecutors to abandon capital prosecution of shooter

This opinion piece from Florida, headlined "Parkland parent: Drop death penalty for shooter, let him rot in jail," provides a notable plea to prosecutors from Michael Schulman.  Here are excerpts:

On February 14, 2018, my son, Scott J. Beigel, was murdered by this active shooter at Marjory Stoneman Douglas High School in Parkland....  I read the Nov. 24 Sun-Sentinel editorial, “Delay the Nikolas Cruz trial or accept his plea,” — and could not agree more.

To put the students and faculty through the trauma of reliving that horrible day is cruel and unnecessary. “Going for the death penalty” will not bring our loved ones back to us.  It will not make the physical scars of those wounded go away.  In fact, what it will do is to continue the trauma and not allow the victims to heal and get closure.

Understand, that in order to get the death penalty, the state has to take the trial for the murder of our family members to conclusion.  In all likelihood, that means many of us would have to testify at the trial and relive February 14, 2018, again and again, as we all sit in a courtroom for weeks.

We would be putting ourselves through this for the chance that the shooter would get what we all believe he deserves: the death penalty.  Yet, even following a trial, the shooter could be sentenced to life without parole — the same sentence the shooter has already agreed to accept for in exchange for a guilty plea.  Pursuing the death penalty means subjecting ourselves to the trauma of a trial, reliving the murder of our loved ones for a result we could have obtained without that trauma.

Now let’s imagine the jury finds that the shooter should be put to death. The average time an inmate in Florida spends on death row prior to execution is more than 16 years, according to the Florida Department of Corrections. During those 16 years of time, there will be numerous appeals. Imagine if the shooter wins just one of those appeals and a court judge orders a new trial. We will then have to go back to court and re-open our wounds by testifying again. This is not healthy. This will not help us heal and get any kind of closure....

To State Attorney Michael Satz, and to the living victims of the Marjory Stoneman Douglas massacre, let the shooter rot in jail for the rest of his life. Let us try and get some closure! Let us try and move forward with our lives.

Prior related posts:

• Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz
• Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty? 
• In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida
• "Nikolas Cruz’s birth mom had a violent, criminal past. Could it help keep him off Death Row?" 
• A year after tragedy, taking stock of the agony (and wondering about the costs) already surrounding the capital prosecution of Parkland shooter Nikolas Cruz 

"Americans Now Support Life in Prison Over Death Penalty"

The title of this post is the headline of this new report from the polling organization Gallup.  Here is some of its text:

For the first time in Gallup's 34-year trend, a majority of Americans say that life imprisonment with no possibility of parole is a better punishment for murder than the death penalty is.

The 60% to 36% advantage for life imprisonment marks a shift from the past two decades, when Americans were mostly divided in their views of the better punishment for murder.  During the 1980s and 1990s, consistent majorities thought the death penalty was the better option for convicted murderers.

The Oct. 14-31 survey was conducted before a Texas state court halted the scheduled execution of Rodney Reed in mid-November. A number of prominent politicians and celebrities joined legal activist groups in lobbying Texas officials to spare Reed amid new evidence that could exonerate him.

Even as Americans have shifted to viewing life imprisonment without parole as preferable to execution, a majority still favor use of the death penalty, according to Gallup's long-term death penalty trend question, which was updated in an Oct. 1-13 poll.  That question, first asked in 1936, simply asks Americans if they are "in favor of the death penalty for a person convicted of murder," without providing an alternative option. Currently, 56% of U.S. adults say they are in favor of the death penalty for convicted murderers in response to this question.

Support for the death penalty, as measured by the historical Gallup question, has been steady over the past three years.  However, it is down seven percentage points from 2014, the last time Gallup asked the life imprisonment versus death penalty question.  The percentage in favor of using the death penalty has been lower than it is now, most notably during the mid-1960s through early 1970s.  A 1966 survey found 42% of Americans in favor and 47% opposed to the death penalty, the only time more have expressed opposition than support....

Since 2014, when Gallup last asked Americans to choose between life imprisonment with no parole and the death penalty, all key subgroups show increased preferences for life imprisonment.  This includes increases of 19 points among Democrats, 16 points among independents, and 10 points among Republicans.

Five years ago, most Democrats already favored life imprisonment to the death penalty, but now nearly eight in 10 do.  Independents' preferences have flipped, from being slightly pro-death penalty in 2014 to favoring life imprisonment now.  Republicans remain in favor of the death penalty, but to a lesser degree.

Republicans are one of the rare groups in society to indicate a preference for the death penalty over life imprisonment.  Political conservatives (51%) are another.  Democrats and political liberals (77%) are two of the subgroups most likely to believe life imprisonment is a better punishment for murder than the death penalty.  Postgraduates (73%), nonwhites (72%) and young adults (70% of those aged 18-29) are other groups who widely believe life imprisonment is preferable to execution.

Two-thirds of women, versus 53% of men, advocate punishing convicted murderers by means of life imprisonment rather than the death penalty.

Americans' opinions of the death penalty, which have shown many shifts over the past 80 years, continue to evolve.  The percentage of Americans who are in favor of the death penalty, generally, has fallen to 45-year lows.  And when given an explicit alternative, for the first time in at least 30 years, more say life imprisonment with no possibility of parole is a better punishment for murder than the death penalty.

As public opinion has changed on the death penalty, so has state law.  Five states have abolished the death penalty this decade, leaving 29 where it is legal.  Several states where the death penalty is legal have instituted moratoriums on its use or are considering abolishing it. Many recent cases that have cast doubt on death penalty convictions in light of new evidence may be helping to move public opinion away from it.

How quickly could litigation over federal execution procedures get to SCOTUS?

The question in the title of this post is prompted by this AP article serving as follow-up to this past week's news, noted in this post, that a federal district court has halted pending scheduled federal executions based claim that planned execution protocol "exceeds statutory authority."  The AP piece is headlined "DOJ would take halted executions to high court" and here are excerpts:

Attorney General William Barr told The Associated Press on Thursday that he would take the Trump administration’s bid to restart federal executions after a 16-year hiatus to the Supreme Court if necessary. Barr’s comments came hours after a district court judge temporarily blocked the administration’s plans to start executions next month. The administration is appealing the decision, and Barr said he would take the case to the high court if Thursday’s ruling stands.

He said the five inmates set to be executed are a small portion of 62 death row inmates. “There are people who would say these kinds of delays are not fair to the victims, so we can move forward with our first group,” Barr said aboard a government plane to Montana, after he met with local and federal law enforcement officials in Cleveland.

The attorney general unexpectedly announced in July that the government would resume executions next month, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. Some of the chosen inmates challenged the new procedures in court, arguing that the government was circumventing proper methods in order to wrongly execute inmates quickly.

U.S. District Judge Tanya S. Chutkan put the cases on ice while the challenge plays out. She said in a Wednesday evening ruling that the public is not served by “short-circuiting” legitimate judicial process. “It is greatly served by attempting to ensure that the most serious punishment is imposed lawfully,” she wrote.

Her ruling temporarily postpones four of the five scheduled executions beginning next month; the fifth had already been halted. It’s possible the government could win an appeal in time to begin executions Dec. 9, but that would be an unusually fast turnaround.

“This decision prevents the government from evading accountability and making an end-run around the courts by attempting to execute prisoners under a protocol that has never been authorized by Congress,” said the inmates’ attorney, Shawn Nolan. “The court has made clear that no execution should go forward while there are still so many unanswered questions about the government’s newly announced execution method.”...

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. Barr said in July that the Obama-era review had been completed, clearing the way for executions to resume.

He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.

Chutkan said in her opinion that the inmates’ legal challenge to the procedure was likely to succeed because the Federal Death Penalty Act requires that federal executions employ procedures used by the states in which they are carried out.

On Thursday, Barr defended the protocols, saying the Bureau of Prisons has been testing and conducting practice drills ahead of the first execution. He would not say where the cocktail of drugs would come from. “I was kept advised and reports were given to me, scientific tests, the drills they are running through,” Barr said.

Those chosen were among inmates who had exhausted their appeals, and the cases were forwarded to senior Justice Department officials who reviewed the cases and made recommendations to him, Barr said....

The death penalty remains legal in 30 states, but only a handful regularly conduct executions. Texas has executed 108 prisoners since 2010, far more than any other state. Though there hasn’t been a federal execution since 2003, the Justice Department has continued to approve death penalty prosecutions, and federal courts have sentenced defendants to death.

I was certain that DOJ would be inclined to appeal this ruling to the DC Circuit and even to SCOTUS as needed in order to try to move forward with executions.  But I am quite uncertain about just how quickly this litigation (and other litigation surrounding these capital cases) would move forward.  It is not uncommon for capital litigation to move though federal courts quickly on the eve of a scheduled state execution, but that often comes after an array of issues have first been reviewed by state court and often come with a deferential standard of review under applicable law.  It has been a very long time since any federal courts have had to consider any modern claims for relief on the eve of a scheduled federal execution. I have no idea if DOJ is going to press for an expedited appeal schedule or if the DC Circuit or SCOTUS will be inclined to fast-track these matters.

Though I am not following all of the relevant litigation, I assume that objections to the federal execution protocol is just one of a number of claims being brought by the death row prisoner with executions dates. As flagged in this post from July, I am especially interested to know how these particular defendants were put in the front of the execution queue and whether this selection process was constitutionally sound. And I suspect the lawyers representing those of federal death row have a lot of other question they are bringing to court in this process.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 

Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority"

As explained in this Politico article, a federal district "judge has blocked the scheduled executions of four federal death row inmates, effectively freezing the Trump administration’s effort to resume imposing the death penalty in a federal system that saw its last execution more than a decade and a half ago."  Here is a link to the ruling and a summary from this press account: The order issued Wednesday night by U.S. District Court Judge Tanya Chutkan halts four executions that U.S. officials planned to carry out starting next month.

The order issued Wednesday night by U.S. District Court Judge Tanya Chutkan halts four executions that U.S. officials planned to carry out starting next month. The only other execution that officials had put on the calendar, also for December, was blocked last month by the 9th Circuit U.S. Court of Appeals.

In July, Attorney General William Barr announced plans to resume executions at the federal penitentiary in Terre Haute, Ind. He suggested the practice had been allowed to languish for too long and said it would deliver justice in cases involving what he called the “worst criminals.” Barr announced a new federal death penalty protocol that would use a single drug, pentobarbital, in lieu of a three-drug “cocktail” employed in the most recent federal executions.

In the wake of Barr’s announcement, a series of death row prisoners joined a long-dormant legal challenge to that previous method and asked Chutkan to block their execution under the new protocol until their legal challenges to it were fully adjudicated.

In her ruling Wednesday, Chutkan said the death row inmates appeared likely to prevail on their arguments that the new protocol violates longstanding federal law because the procedures to be used vary from state law. A 1994 federal statute says federal executions shall be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.”

Justice Department attorneys argued that the use of lethal injection was sufficiently similar regardless of the drugs used or other details of the execution protocol, but Chutkan ruled that the law likely requires federal authorities to adopt the same drugs or drugs and a similar process.

“Requiring the federal government to follow more than just the state’s method of execution is consistent with other sections of the statute and with historical practices. For all these reasons, this court finds that the FDPA [Federal Death Penalty Act] does not authorize the creation of a single implementation procedure for federal executions,” wrote the judge, an appointee of President Barack Obama. “There is no statute that gives the [Bureau of Prisons] or DOJ the authority to establish a single implementation procedure for all federal executions,” Chutkan added.

In granting the injunction, Chutkan noted the obvious fact that permitting the executions would deprive the inmates of their ability to pursue their legal challenges. She also turned aside the Justice Department’s claim that time was of the essence, noting that revisions to the federal death penalty protocol languished for years after shortages developed of at least one drug used in the earlier cocktail.

The earliest of the five executions that federal officials planned to carry out in the coming weeks was scheduled for Dec. 9. “While the government does have a legitimate interest in the finality of criminal proceedings, the eight years that it waited to establish a new protocol undermines its arguments regarding the urgency and weight of that interest,” the judge wrote.

When AG Barr announced the planned resumption of executions back in July and set five execution dates, I fully expected that some or all of the executions would be delayed by litigation. This particular basis for delay strike me as especially interesting because it will force the Justice Department to debate whether to appeal this ruling or to just try to adjust its protocols in light of the concerns expressed in this ruling. Either way, I am now inclined to confidently predict that we will not see a federal execution in 2019 and probably not in 2020.

Texas Court of Criminal Appeals issues stay of execution so trial court can examine Rodney Reed's "Brady, false testimony, and actual innocence claims"

As noted in this prior post, many questions have been raised about the guilt of Texas death row inmate Rodney Reed, who had been scheduled to be executed on November 20.  But, as this Hill piece reports, that execution was stayed late Friday:

The Texas Court of Criminal Appeals ruled Friday to stay indefinitely the upcoming execution of Texas inmate Rodney Reed, who had been convicted in a 1996 slaying.

Citing an appeal filed by Reed’s attorney’s this week that claimed, among other things, that the state provided false testimony, the court ruled to halt the execution scheduled for Wednesday “pending further order of this Court.”

The decision came shortly after the Texas Board of Pardons and Paroles on Friday unanimously recommended delaying Reed’s execution.

The developments come amid national scrutiny over Reed’s case, as supporters of the inmate say newly uncovered evidence raises serious doubts about his guilt in the case of the killing of 19-year-old Stacey Stites.

Prosecutors accuse Reed of raping and strangling Stites in Bastrop, Texas, more than 20 years ago. However, in an application for clemency, Reed’s attorneys wrote that new evidence has “contradicted and, in all key respects, affirmatively disproven, every aspect of the State’s expert-based case against Mr. Reed” and implicates Stites’s then-fiance.

Efforts to stop the execution have been aided by high-profile calls from celebrities including Beyoncé, Kim Kardashian West, Oprah Winfrey, Rihanna, Questlove and more.

The TCCA's oder is available at this link, and here is a key passage:

On November 11, 2019, Applicant filed the instant subsequent writ application in the convicting court.  Applicant raises four claims in this application: (1) that the State suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) that the State presented false testimony in violation of due process; (3) that Applicant’s trial counsel were ineffective; and (4) that Applicant is actually innocent.

After reviewing the application, we find that Applicant’s Brady, false testimony, and actual innocence claims satisfy the requirements of Article 11.071 § 5.  Accordingly, we remand those claims to the trial court for further development.

Georgia completes execution after federal courts turn back final appeals

As reported in this AP piece, a person "convicted of killing a Georgia convenience store clerk 25 years ago was put to death late Wednesday night."  Here is more:

Inmate Ray Jefferson Cromartie, 52, was pronounced dead at 10:59 p.m. Wednesday after an injection of pentobarbital at the state prison in Jackson.  He made no last statement but requested a prayer to be recited before the drugs began flowing.

Cromartie was convicted and sentenced to die for the April 1994, slaying of Richard Slysz at a convenience store in Thomasville, near the Georgia-Florida line.  The state said Cromartie also had shot and gravely wounded another convenience store clerk days before the killing.

Wednesday's execution came shortly after the U.S. Supreme Court, without explanation, rejected two appeals by the inmate's attorneys....  Cromartie had insisted through his attorneys that he didn't shoot either clerk.  The defense lawyers had also recently asked state and federal courts to allow DNA testing of evidence collected from the shootings that they say could prove he wasn't the shooter.  Lawyer Shawn Nolan called the denial of DNA tests "so sad and frankly outrageous" in a statement after the execution....

The state countered that the DNA evidence being sought couldn't prove his innocence.  Evidence at trial showed Cromartie borrowed a handgun from his cousin April 7, 1994, entered the Madison Street Deli that night and shot clerk Dan Wilson in the face, seriously injuring him.  Wilson couldn't describe his attacker and surveillance camera footage wasn't clear enough to conclusively identify the shooter.

Days later on April 10, Cromartie and Corey Clark asked Thaddeus Lucas to drive them to another store to steal beer, testimony showed.  Lucas parked, and the other two entered the Junior Food Store.  Cromartie shot Slysz twice in the head, prosecutors said.  Unable to open the cash register, Cromartie and Clark fled after Cromartie grabbed two 12-packs of beer.  In both cases, Cromartie told others he had shot the clerks, evidence showed.

Lucas and Clark testified against Cromartie at the September 1997 trial that concluded with his death sentence.  Lucas and Clark each pleaded guilty to lesser charges, served prison time and were released....

Cromartie's attorneys filed a complaint in federal court challenging the constitutionality of the Georgia law governing post-conviction DNA testing and the way the state's courts apply it.  That filing also sought an order to allow DNA testing. Last week, lawyers filed a statement from Lucas in federal court in Valdosta claiming he overhead Clark tell someone else he shot Slysz.

U.S. District Judge Mark Treadwell, in an order Tuesday, rejected that move, writing that Lucas' statement was "not new reliable evidence of Cromartie's actual innocence."  A three-judge panel of the 11th U.S. Circuit Court of Appeals upheld Treadwell's decision late Wednesday before the U.S. Supreme Court rejected a request to intervene....

Cromartie was the third person executed by Georgia this year.  The state says it uses the sedative pentobarbital for injections, but Georgia law bars the release of any information about the drug's source.

Two upcoming executions with still lots of questions swirling

As noted in this recent NBC News piece, a lot of officials and celebrities are raising a lot of questions about the guilt of Texas death row inmate Rodney Reed. Reed is scheduled to be executed by Texas next week, on November 20, based on his conviction in the 1996 rape and murder of Stacey Stites.

But tonight there is an execution scheduled in Georgia, and it is not without questions as well as detailed in this local article headlined "As execution nears, co-defendant says condemned man likely isn’t killer." Here are the basics:

A co-defendant of Georgia death row inmate Ray “Jeff” Cromartie, sentenced to be executed for murder, said recently he had no idea who pulled the trigger.... [T]he co-defendant says he's been keeping a secret the past 25 years that makes him believe Cromartie most likely wasn’t the gunman.

“I keep hearing that Jeff Cromartie is the shooter and I know that is probably not true,” Thad Lucas wrote in an affidavit released Monday, claiming he overheard another man confess to the shooting.  Lucas was the getaway driver for the 1994 store robbery turned shooting in South Georgia.  He and fellow defendant Corey Clark testified for the state, avoiding the death penalty and murder charges.

At the time, Clark testified that Cromartie was the gunman. Cromartie said it was Clark.  Now Lucas, who is Cromartie’s half-brother, says he overheard Clark confess to the crime. He said he didn’t come forward before now because he feared no one would listen....

Cromartie is scheduled to die at 7 p.m. Wednesday.  His attorneys are fighting for new DNA testing that they say could prove Cromartie didn’t pull the trigger.  Cromartie doesn’t deny involvement in the robbery, but he has maintained he wasn’t the shooter.

Generally speaking, Georgia’s party to a crime law could have made Cromartie eligible for the death penalty whether he pulled the trigger or not.  But his attorneys said the party to a crime law doesn’t apply now because prosecutors explicitly argued at trial that Cromartie fired the fatal shots.

On Monday, Cromartie’s attorney Shawn Nolan said the defense team was preparing a filing for the U.S. Supreme Court, asking it to halt the execution based on Lucas’ statement. “No court has ever heard or considered this new evidence of Ray Cromartie’s innocence,” Nolan said.  “The state has denied his requests for DNA testing for years.  Mr. Cromartie’s jury sentenced him to death based on their conclusion he was the shooter. If he was not the shooter, his death sentence is not valid and his execution must not proceed."

Lots of victims/families and former officials urge Trump Administration not to move forward with federal executions

The Washington Post has this notable new article headlined "Hundreds of victims’ relatives, ex-officials ask Trump administration to halt federal executions."  Here are excerpts:

Hundreds of relatives of murder victims, current and former law enforcement officials and former judges have signed letters urging the Trump administration to call off its plans to resume federal executions next month.  The letters, which are signed by a wide range of current and former officials across the justice system as well as 175 people whose loved ones were slain, plead with President Trump and Attorney General William P. Barr to stop the executions.

These messages offer several explanations and requests. The relatives of murder victims — the largest single group to sign the letters — call for an end to the death penalty, denouncing the process as wasteful and something that only extends their grieving.  “We want a justice system that holds people who commit violence accountable, reduces crime, provides healing, and is responsive to the needs of survivors,” they write.  “On all these measures, the death penalty fails.”

Barr announced over the summer that the Trump administration would carry out the first federal executions since 2003, scheduling them to resume on Dec. 9.  The move breaks with recent declines in both death penalty activity nationwide as well as public support for the practice.  “The Justice Department upholds the rule of law — and we owe it to the victims and their families to carry forward the sentence imposed by our justice system,” Barr said in a July statement declaring that executions would resume.  The Justice Department said five executions were scheduled for December and January and promised that more would follow.

The letters asking Barr and Trump to stop the executions — intended to arrive at the White House and Justice Department on Tuesday — contain pleas from victims’ families as well as current and former prosecutors, police chiefs, attorneys general, judges and corrections officials, all citing their experiences and perspectives in arguing against resuming executions as scheduled.

Copies of the letters were shared with The Washington Post before they were submitted. A spokesman for the White House did not immediately respond to a message seeking comment Tuesday.  A Justice Department spokesman declined to comment on the letters and referred a reporter to Barr’s earlier statement announcing the resumption of executions.

In one letter, current and former prosecutors and other law enforcement officials express fears about innocent people being convicted, the financial cost of death penalty cases and racial disparities. “We are deeply concerned that the federal government plans to proceed with executions despite serious questions about the fairness and reliability of the system that condemned them,” they write.

The current and former officials — a group including some of the “progressive prosecutors” who won district attorney jobs after campaigning for criminal justice reforms — note that they include a mix of people who support and oppose the death penalty. Rather than calling for an end to capital punishment, they ask for “a comprehensive review of the system” before any federal executions can occur.  “It’s too big a risk and there’s nothing to be gained,” Jim Petro, a Republican and a former Ohio attorney general who signed the letter, said in an interview....

In the letter signed by murder victims’ relatives, they argue that the death penalty “exacerbates the trauma of losing a loved one,” wastes money, does not deter crime and, due to the lengthy appeals process that keeps the cases going, delays the healing process.  Gail Rice — whose brother, Bruce VanderJagt, was a Denver police officer slain in 1997 by a man who killed himself — said she became an active death-penalty opponent after his death. Rice, who signed the letter to Trump and Barr, said her years working in prison and jail ministries showed her that justice is not fairly administered. “I’ll be praying for them,” she said of relatives of victims in the cases that led to the scheduled federal executions. “I would certainly tell them … please don’t listen to judges or prosecutors or legislators that are going to tell you this is wonderful, it brings closure, it brings healing. Because believe me, it doesn’t.”

The message in the letter from victims’ relatives echoes a plea from Earlene Peterson, who has separately asked the Trump administration not to kill Daniel Lewis Lee, the first federal inmate scheduled to be executed.  The Justice Department said Lee killed a family of three, among them an 8-year-old-girl and her mother — Sarah Powell and Nancy Mueller, Peterson’s granddaughter and daughter.  “I can’t see how executing Daniel Lee will honor my daughter in any way,” Peterson said in a video statement released last month. Peterson, noting that she voted for Trump and plans to do so again, said she wants the president to know: “I don’t want this to happen.”

Lots of capital headlines from the Lone Star State

Texas is always making news when it comes to the administration of the death penalty, and yesterday had a number of notable headlines about a number of notable cases:

An execution: "El Paso death row inmate Justen Grant Hall executed for woman's strangulation in 2002"

A removal from death row: "Bobby Moore's death sentence is changed to life in prison after lengthy court fights over intellectual disability"

Increasing attention to innocence claim for person scheduled to be executed Nov 20: "Texas is about to execute a man for murder. His lawyers say someone else confessed to the crime."

UPDATE:  A helpful reader made sure I did not miss another notable Texas capital headline today:

A stay: "Federal judge delays execution of “Texas Seven” prisoner over claims of religious discrimination"

 

South Dakota completes execution after delays awaiting final SCOTUS appeals

As reportedin this AP piece, in South Dakota "Charles Rhines was executed by lethal injection at 7:39 p.m., after the U.S. Supreme Court denied to halt his execution despite three late appeals."  Here are more details of the crime and appeals:

Rhines, 63, ambushed 22-year-old Donnivan Schaefer in 1992 when Schaefer surprised him while he was burglarizing a Rapid City doughnut shop where Schaeffer worked. Rhines had been fired a few weeks earlier.  Rhines ambushed him, stabbing him in the stomach. Bleeding from his wound, Schaeffer begged to be taken to a hospital, vowing to keep silent about the crime; instead, he was forced into a storeroom, tied up and stabbed to death.

Steve Allender, a Rapid City police detective at the time of the killing who is now the city's mayor, said Rhines' jury sentenced him to death partly because of Rhines' "chilling laughter" as he described Schaeffer's death spasms. "I watched the jury as they listened to the confession of Charles Rhines on audiotape and their reaction to his confession was appropriate. Any human being would be repulsed by the things he said and the way he said them," Allender told KELO....

Media witnesses to the execution said Rhines appeared calm, and it took only about a minute for the pentobarbital used by the state to take effect. They said when he finished speaking, he closed his eyes, then blinked, breathed heavily and died.

Rhines had challenged the state's use of pentobarbital, arguing it wasn't the ultra-fast-acting drug he was entitled to. A circuit judge ruled it was as fast or faster than other drugs when used in lethal doses and speculated that Rhines wanted only to delay his execution.  The U.S. Supreme Court rejected that appeal, as well as his arguments that he was sentenced to die by a jury with an anti-gay bias and that he wasn't given access to experts who could have examined him for cognitive and psychiatric impairments.

Intriguingly, the appeal concerning access to experts related to the operation of South Dakota clemency process, and it prompted a short statement from Justice Sotomayor respecting the denial or cert.  Here are excerpts from that statement:

In order to assist them in preparing a state clemency application, Rhines’ federal habeas attorneys retained medical experts to evaluate Rhines.  State officials, as well as a state court, refused to grant the experts access to Rhines in prison.  The Federal District Court below also denied Rhines’ request for access....

It is unclear from this record whether an expert evaluation is necessary to Rhines’ clemency application.  Although Rhines’ experts believed there were additional grounds for investigation — including traumatic events that Rhines suffered earlier in his life — Rhines, as the State notes, has already been evaluated by several psychiatric experts in a different context.  For that reason, I do not dissent from the denial of certiorari.  I write separately, however, to note that this Court’s denial of certiorari does not represent an endorsement of the lower courts’ opinions.  I also write separately to emphasize that clemency is not “a matter of mercy alone,” but rather is the “‘fail safe’ in our criminal justice system.”  Harbison v. Bell, 556 U. S. 180, 192 (2009) (quoting Herrera v. Collins, 506 U. S. 390, 415 (1993)).  By closing the prison doors in this context, a State risks rendering this fundamental process an empty ritual.

"The Decline of the Judicial Override"

The title of this post is the title of this notable new paper now on SSRN authored by Michael Radelet and G. Ben Cohen.  Here is its abstract:

Since 1972, the Supreme Court has experimented with regulation of the death penalty, seeking the illusive goals of consistency, reliability, and fairness.  In this century, the court held that the Sixth Amendment prohibited judges from making findings necessary to impose a death sentence.  Separately, the court held that the Eighth Amendment safeguarded evolving standards of decency as measured by national consensus.

In this article, we discuss the role of judges in death determinations, identifying jurisdictions that initially (post 1972) allowed judge sentencing and naming the individuals who today remain under judge-imposed death sentences.  The decisions guaranteeing a jury determination have so far been applied only to cases that have not undergone initial review in state courts.  Key questions remain unresolved, including whether the evolving standards of decency permit the execution of more than 100 individuals who were condemned to death by judges without a jury's death verdict before implementation of the rules that now require unanimous jury votes.