Sentencing Law and Policy

Spotlighting ever longer stays on death row before executions

NPR has this lengthy new piece headlined "U.S. inmates condemned to die are spending more time on death row." I recommend the full piece, and here are excerpts from the beginning:

After spending decades on Arizona's death row, Clarence Dixon was executed on Wednesday for the 1978 murder of Deana Bowdoin.  At 66 years old, Dixon is just the most recent example of the growing population of aging inmates on America's death row.

"We're seeing death sentences near record lows. We're seeing executions at near record lows," Robert Dunham, the executive director of the Death Penalty Information Center, told NPR. "There are fewer and fewer people on death row overall and the ones who remain on death row have been there longer."...

The average time between sentencing and execution has increased by two-thirds in the past 20 years — from 11.4 years in 2000 to 18.9 years in 2020, according to the most recent available data from the Bureau of Justice Statistics.  Experts who spoke to NPR said this trend is due, in part, to changed opinions on capital punishment in the U.S., and a lengthier appeals process that delay executions.

For victims' families and these inmates, waiting decades to see their cases resolved takes its toll.  Some experts say 20 to 40 years on death row at the literal expense of the state raises questions of fair treatment of prisoners....

As of 2020, the average age of death row inmates nationally was 52 years old, according to the Bureau of Justice Statistics.  More than 56% were white, 41% were Black. Men made up the majority of those prisoners — about 98%.

Arizona completes execution for murder committed 44 years ago

As reported in this local article, "Arizona executed Clarence Dixon at the state prison in Florence on Wednesday for the 1978 murder of 21-year-old ASU student Deana Bowdoin."  Here is more:

Dixon was executed at 10:30 a.m., according to Deputy Corrections Director Frank Strada. "I do and always will proclaim my innocence — now let's do this shit," Dixon said in his last statement, according to Strada.

Troy Hayden, a media witness from Fox News, said the execution team had trouble getting IVs into Dixon, who grimaced and appeared to be in pain while this was happening. Dixon seemed defiant and proclaimed his innocence in a calm voice.

Dixon made several comments to the medical team, insulted them, told them "they worshipped death," mocked their Hippocratic oath, and addressed the woman he was convicted of killing, Deana Bowdoin, according to Hayden. Hayden said Dixon referenced Bowdoin several times directly, and said she knew he didn't kill her.

Hayden said execution team members took 25 minutes to insert IVs into Dixon's body, eventually resorting to making an incision and inserting an IV into Dixon's groin. Dixon was grimacing and appeared to be in pain while the execution team attempted to insert the IVs, Hayden said, but he appeared to lose consciousness a few minutes after the drugs were administered. "They did have to wipe up a fair amount of blood," said Paul Davenport, a media witness from The Associated Press, who saw the incision taking place....

"Today the process has been finalized," said Leslie Bowdoin James, the sister of Deana Bowdoin, adding that her husband just died 12 days ago. Addressing the media, Bowdoin read a list of numbers that she said were important to her. "Forty-three and 20: the number of hearings and the number of years I have attended since the indictment," she said. "Thirteen: The number of women that this inmate victimized. One and zero: The number of sisters I had up until, and after, January 7, 1978."...

Gov. Doug Ducey issued a statement after Dixon’s execution, calling it justice served. “Today the family of Deana Bowdoin was provided the justice they've long been waiting for,” the governor’s statement stated. “The void left by Deana's murder 44 years ago will never be filled, but the sentence carried out this morning is a solemn reminder that we are a nation of laws and it is the responsibility of the state to enforce them.”

Dixon's attorneys made several attempts to stop or postpone the execution, maintaining he was mentally incompetent to understand why he was being executed. But multiple courts found that while Dixon may have harbored delusions about a judicial conspiracy to kill him, he was aware of his circumstances and constitutionally eligible to be put to death....

The Arizona Board of Executive Clemency denied requests from Dixon's attorneys for a commutation or reprieve.  His attorneys asked for mercy, saying Dixon was blind, frail and in poor health and didn't represent a danger to society or anyone in the prison system.  But the board denied the requests, saying Dixon had failed to show any remorse for his crimes....

Arizona has not carried out an execution since the botched execution of [Joseph] Wood, which took nearly two hours to complete.  The state claims it has refined its execution protocols and is planning to use a single drug, pentobarbital, for executions, instead of the combination of drugs that were used on Wood.  Pentobarbital was used successfully by the federal government in a series of executions conducted in 2020.

Dixon’s execution marks a return to the death penalty for Arizona after a troubled history that includes the state attempting to acquire execution drugs illegally in 2015 and more recently failing to accurately determine the shelf life of the pentobarbital the state plans to use moving forward....

According to the Arizona Attorney General's Office, there are more than 20 people on death row who have exhausted their appeals. Frank Atwood, sentenced in Pima County in 1987 for the murder of an 8-year-old girl, Vicki Lynne Hoskinson, is scheduled to be executed June 8.

Missouri completes execution of murderer who had death sentences reversed three times

As reported in this AP piece, a "Missouri man who killed a couple during a robbery at their rural home more than a quarter of a century ago was put to death Tuesday, becoming just the fifth person executed in the United States this year."  Here is more:

Carman Deck, 56, died by injection at the state prison in Bonne Terre.  He was pronounced dead at 6:10 p.m.  His fate was sealed a day earlier when neither the U.S. Supreme Court nor Republican Gov. Mike Parson stepped in to halt the execution.  Deck’s death sentence was overturned three times before for procedural issues.

Just four other people have been executed in the U.S. in 2022— Donald Anthony Grant and Gilbert Ray Postelle in Oklahoma, Matthew Reeves in Alabama and Carl Wayne Buntion last month in Texas.  Eleven people were executed in the U.S. last year, the fewest since 1988.

Court records show that Deck, of the St. Louis area, was a friend of the grandson of James and Zelma Long in De Soto, about 45 miles southwest of St. Louis. He knew the couple, in their late 60s, kept a safe in their home....  Deck ordered the couple to lie on their stomachs on their bed.  Court records said Deck stood there for 10 minutes deciding what to do, then shot James Long twice in the head before doing the same thing to Zelma Long....

Prosecutors said Deck later gave a full account of the killings in oral, written and audiotaped statements.  He was sentenced to death in 1998, but the Missouri Supreme Court tossed the sentence due to errors by Deck’s trial lawyer.  The U.S. Supreme Court threw out his second sentence in 2005, citing the prejudice caused by Deck being shackled in front of the sentencing jury.

He was sentenced to death for a third time in 2008.  Nine years later, U.S. District Judge Catherine Perry determined that “substantial” evidence arguing against the death penalty in Deck’s first two penalty phases was unavailable for the third because witnesses had died, couldn’t be found or declined to cooperate.  In October 2020, a three-judge panel of the 8th U.S. Circuit Court of Appeals restored the death penalty, ruling that Deck should have raised his concern first in state court, not federal court.  Appeals of that ruling were unsuccessful.

Multiple Tennessee executions put on hold as Gov orders "third-party review" lethal injection process

Tennessee had multiple executions scheduled for 2022.  But, as reported in this post a few weeks ago, the first of these scheduled executions was postponed by the Gov at the last minute because of concerns with the state's lethal injection process.  Now, as reported in this local article, "Tennessee Gov. Bill Lee has paused all executions in the state through 2022." Here are the details and context:

Lee announced the move in a news release early Monday morning, saying the pause will give time for a third-party review and a complete assessment over the lethal injection process.  “I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” Lee said.  “However, the death penalty is an extremely serious matter, and I expect the Tennessee Department of Correction to leave no question that procedures are correctly followed.”...

U.S. Attorney Ed Stanton will oversee the independent review for Tennessee, the release said.  The review will include an exploration into circumstances that led to testing the lethal injection chemicals for only potency and sterility but not endotoxins ahead of the April 21 execution, clarity of the lethal injection process manual that was last updated in 2018 and adherence to testing policies since the update.

“An investigation by a respected third-party will ensure any operational failures at TDOC are thoroughly addressed,” Lee said.  “We will pause scheduled executions through the end of 2022 in order to allow for the review and corrective action to be put in place.”

Three of four executions in Tennessee have been carried out by electric chair since 2019, the release said. Death row inmates are given the choice between lethal injection and the electric chair in Tennessee.  Lethal injection is the default method for execution in the state.

Smith's execution was set to be the first since February 2020 due to COVID-19 delays.  He was one of five death row inmates set to be executed in Tennessee this year.  The Tennessee Supreme Court will set new dates for the 2022 executions, the release said.

Governor Lee's official statement is available at this link.

New Grid feature take close look at "past and uncertain future of executions in America"

The publication Grid has this terrific new dive into the US death penalty under this full title: "The death penalty: The past and uncertain future of executions in America; Fewer people are being sentenced to death, and concerns about cruelty and racial bias remain, but some states are trying to move ahead with executions anyway."  Though that title reveals some key themes to Grid's overall review, the full coverage is thoroughly engaging because it includes three different reporters unpacking three different "lenses" of the story.  Here are the headlines of each of the pieces:

Legal: "Shifting views of 'cruel and unusual'"

Science: "Medical groups and drug companies push back"

Policy: "Support for executions wanes, but racial bias persists"

In addition to the discussion of the issue through different lenses, the Grid piece has some really cool data graphics.  One sets out the yearly particulars behind this execution factoid: "A majority of all 14,480 recorded executions since 1800 have been by hanging.  About a third have been by electric chair, 1 in 10 by lethal injection and less than 1 percent by firing squad."

Texas Court of Criminal Appeals stops execution and remands Melissa Lucio's case for review of her conviction

Because her case had received considerable attention and because she seemed to have a colorable claim of actual innocence, I was expecting that Melissa Lucio's scheduled execution would not go forward this week.  But I was unsure who would stop it and how.  Today we found out, as detailed in this local article headlined "Melissa Lucio’s execution halted by Texas Court of Criminal Appeals."  Here are the details:

The Texas Court of Criminal Appeals on Monday halted the scheduled Wednesday execution of Melissa Lucio, whose death sentence has drawn international outcry as more people come to doubt her guilt in her 2-year-old daughter’s death.

The court sent Lucio's case back to the Cameron County court where she was originally tried to weigh whether she is actually innocent, as well as whether the state presented false testimony at trial and hid evidence from the defense.  The court's ruling came minutes before the Texas Board of Pardons and Paroles was scheduled to vote on whether to recommend that the governor delay Lucio's execution for at least 120 days.  The board later said that it would no longer make a recommendation because of the court's ruling....

In a statement provided by her attorneys, Lucio said she was thankful for those who spoke out for her and was "grateful the Court has given me the chance to live and prove my innocence. Mariah is in my heart today and always.  I am grateful to have more days to be a mother to my children and a grandmother to my grandchildren."

Questions over Mariah Alvarez’s death and Lucio’s role in it have lingered since the now-53-year-old mother was sentenced to death in 2008.  In recent months, concerns about Lucio’s possible innocence — greatest among them whether Mariah’s fatal head trauma was caused by abuse or an accidental fall down the stairs — have only been amplified.

More than two-thirds of the Texas Senate and a majority of the Texas House of Representatives pleaded for the parole board and governor to halt Lucio’s execution. The lawmakers have been joined by an ever-growing list of people, including at least five of Lucio’s former jurors....

The admissions to child abuse, which Lucio has since recanted, were the main evidence presented at trial, where jurors found she was guilty of capital murder and worthy of a death sentence.  Lucio’s advocates have since condemned the trial judge for not letting the jury hear critical testimony from mental health professionals that could have explained why Lucio, a longtime victim of sexual abuse and domestic violence, would falsely confess.

Texas' highest criminal court sent Lucio's case back to her trial court to weigh multiple questions.  Lucio's latest appeal argued false evidence from the state — largely that jurors heard a Texas Ranger testify he could tell by Lucio's demeanor in her interrogation that she was guilty, and the medical examiner's definitive conclusions that Mariah's injuries were from child abuse — swayed the jury to wrongly convict Lucio.  Her attorneys also argue new scientific evidence has debunked claims made at trial that definitively established the marks on Mariah's back were from a bite.  They said science also now shows Lucio would be very likely to falsely confess.

Finally, the appeal argued the prosecution hid potentially helpful evidence, including interviews of Lucio's older children after Mariah's death that corroborated Lucio's statement that Mariah fell down the stairs. "It would have shocked the public’s conscience for Melissa to be put to death based on false and incomplete medical evidence for a crime that never even happened," Vanessa Potkin, Lucio's lawyer with The Innocence Project, said in a statement after Monday's ruling.

Despite the wide-ranging concerns with Lucio’s police interrogation and trial, appellate courts have previously upheld her conviction and sentence, even though a majority of judges on a conservative court found the case troublesome. 

Prior related posts:

• Might Texas be on the verge of executing an innocent woman? 
• Highlighting just some of the notable US executions scheduled for the next few weeks

Arizona court rejects condemn man's petition objecting to too many law enforcement members on state Board of Clemency

This new NPR piece, headlined "In rejecting death row inmate's case, judge says law enforcement isn't a profession," reports on this interesting state court ruling from last week concerning the Arizona clemency process. Here are the details and context:

An Arizona inmate who is mere weeks away from his scheduled execution argued the state's clemency board was unfairly loaded with law enforcement. But a state judge has disagreed, saying that law enforcement does not meet the definition of a "profession."

Earlier this month, the Arizona Supreme Court issued an execution warrant – the first in eight years – for Clarence Wayne Dixon, a 66-year-old prisoner convicted of first-degree murder. But Dixon's attorneys argued Tuesday that the Arizona Board of Clemency, which is set to meet on April 28 to decide whether to stay the execution, is illegally made up of too many members who had careers in law enforcement.

This past Tuesday, Maricopa County Superior Court Judge Stephen Hopkins ruled against Dixon. "Historically, law enforcement has not been thought of as a "profession," Hopkins said in his decision. "It is not regulated as other professions are, and has little of the characteristics of what is typically considered a profession."...

Arizona law prohibits "No more than two members from the same professional discipline" from serving on the clemency board at the same time. The current board is made up of: one former superior court commissioner and assistant attorney general; a former federal agent with over 30 years' experience; a retired officer who spent 30 years with the Phoenix Police Department; and a 20-plus-year detective, also with the Phoenix PD. The fifth seat on the board is currently vacant.

Dixon was serving seven life sentences for the 1985 kidnapping, rape and assault of a Northern Arizona University student, according to court documents, when investigators connected him with a murder that took place seven years earlier. In 2001, DNA evidence linked Dixon to the January 1978 murder of Deana Bowdoin, a 21-year-old student at Arizona State University. She was found dead in her apartment, having been strangled and stabbed. A jury sentenced Dixon to death in 2008....

Dixon's execution, which appears all but certain at this time, will be the first to be carried out in Arizona since the botched execution of Joseph Rudolph Wood in 2014. Wood's execution should have taken a matter of minutes, NPR previously reported, but instead, the prisoner took more than two hours to die.

Based on the ruling, it seems that Dixon also asserted a due process violation, perhaps based only on the statutory requirement or maybe independently.  The court address that issue this way: "To be sure, courts have recognized due process rights in connections with boards of parole, pardon, or clemency.  See generally Chapter Three, The Law of Probation and Parole.  However, to the Court’s knowledge no case anywhere has recognized a due process right in the particular makeup of such a board."

Though executions are declining, questions about methods and how to litigate them persist

From 1995 to 2005, there were nearly 750 executions in the United States (747 to be exact, an average of 68 per year), almost all of which were by lethal injection, and relatively few of which were significantly delayed by uncertainty or litigation over execution methods.  But by the mid 2000s, litigation challenging the constitutionality of lethal injection began to pick up steam and the Supreme Court began to take up a number of different matters relating to this litigation.  (I blogged, somewhat cheekily, about all the lethal injection "scrummages" during this period.)

Fast forward another 16 years, and there have been "only" another 540 executions in the US from 2006 until today (an average of 34 per year), and there have been fewer executions in the last five years than in a number of single years in the 1995-2005 period.  The considerable amount of litigation over lethal injection is surely part of the reason for the modern decline, even with the Supreme Court repeatedly upholding lethal injection as a method of execution in landmark cases like Baze v. Kentucky (2008) and Glossip v. Gross (2015).

I provide all this background as a mini preview and prelude to the execution method litigation that SCOTUS will be hearing oral argument on Monday.  Nance v. Ward is about what procedural means condemned prisoners must use to challenge execution methods, and I suspect the history just recounted could impacting how various Justices approach this case.  Still, as discussed in the  SCOTUSblog preview post here authored by Lee Kovarsky, complicated procedural precedents may make this matter hard to predict.  That post concludes this way:

Nance is ultimately a case about how aggressively the Supreme Court wants to suppress method-of-execution claims, which it generally views as legalistic ploys to delay imposition of valid death sentences.  If it adopts Georgia’s preferred rule, then it will meaningfully alter the form and timing of Eighth Amendment challenges, and it will substantially reduce judicial enforcement against the states.  The court’s general disposition towards method-of-execution claims notwithstanding, the court agreed to review a lower court decision against a prisoner — which raises the very real prospect that Nance might be a case in which the court is actually prepared to rule in the prisoner’s favor.

Texas completes execution of its oldest death row inmate, while elderly condemned in Tennessee gets temporary reprieve

As detailed in this AP story, "Texas’ oldest death row inmate was executed Thursday for killing a Houston police officer during a traffic stop nearly 32 years ago." Here is more:

Carl Wayne Buntion, 78, was executed at the state penitentiary in Huntsville. He was condemned for the June 1990 fatal shooting of Houston police officer James Irby, a nearly 20-year member of the force. The U.S. Supreme Court had declined a request by Buntion’s attorneys to stop his execution.

Buntion had been on parole for just six weeks when he shot the 37-year-old Irby. Buntion, who had an extensive criminal record, was a passenger in the car that Irby pulled over. In 2009, an appeals court vacated Buntion’s sentence, but another jury resentenced him to death three years later....

With his execution, Buntion became the oldest person Texas has put to death since the Supreme Court lifted its ban on capital punishment in 1976. The oldest inmate executed in the U.S. in modern times was Walter Moody Jr., who was 83 years old when he was put to death in Alabama in 2018.

Buntion was also the first inmate executed in Texas in 2022. Although Texas has been the nation’s busiest capital punishment state, it had been nearly seven months since it carried out an execution. There have been only three executions in each of the last two years, due in part to the coronavirus pandemic and delays over legal questions about Texas’ refusal to allow spiritual advisers to touch inmates and pray aloud in the death chamber.

In March, the U.S. Supreme Court said states must accommodate requests to have faith leaders pray and touch inmates during executions. Texas prison officials agreed to Buntion’s request to allow his spiritual adviser to pray aloud and touch him while he was put to death.

Meanwhile, as discussed in this other AP piece, a much different outcome transpired in a nearby state with similar execution plans:

Tennessee’s governor on Thursday called off what was to have been the state’s first execution since the start of the pandemic, granting a temporary reprieve to the oldest inmate on death row for what was called an “oversight” in preparations for the lethal injection.

Republican Gov. Bill Lee didn’t elaborate on what exactly forced the surprise 11th-hour stop to the planned execution of 72-year-old Oscar Smith. The inmate was to have received a three-drug injection only a short while later in the evening at a Nashville maximum security prison.

“Due to an oversight in preparation for lethal injection, the scheduled execution of Oscar Smith will not move forward tonight. I am granting a temporary reprieve while we address Tennessee Department of Correction protocol,” Lee said in a statement. “Further details will be released when they are available.”

Kelley Henry, an attorney with the federal public defender’s office representing Smith, called for an independent entity to investigate, saying no execution should happen until questions are answered about what had occurred. Henry said the governor did the “right thing” by stopping the execution which would “certainly have been torturous to Mr. Smith.”

Smith was convicted of the 1989 killings of his estranged wife and her two teenage sons. Shortly before the governor intervened, the U.S. Supreme Court had denied a last-hour bid by Smith’s attorneys to block the execution plan.

Dorinda Carter, a Department of Correction spokesperson, said the state Supreme Court would need to reschedule the execution. She said Smith would be removed from death watch and returned to his cell on death row. She declined to provide additional information and referred questions to the governor’s office.

It was to have been Tennessee’s first execution since the start of the pandemic. Hours earlier, Smith had been served what was supposed to be his last meal, including a double bacon cheeseburger and apple pie, and was notified his spiritual adviser could be present in the execution chamber.

Firing squad execution stayed, while another execution date set, by South Carolina Supreme Court

Notable capital developments in South Carolina are covered in the CNN piece, which starts this way: "South Carolina's Supreme Court issued a temporary stay of execution Wednesday for Richard Bernard Moore, who was scheduled to be the first person executed by firing squad in the state." Here is more:

Lindsey Vann, one of Moore's attorneys, told CNN last week that they asked the state's highest court to put the execution on hold in order to give them time to appeal his conviction to the US Supreme Court.

Moore, who was sentenced to death for the 1999 murder of a convenience store clerk, was scheduled to be executed April 29. In a court filing last week, he chose firing squad over the electric chair.. He did not have the option of choosing lethal injection, as South Carolina does not have the necessary drugs, according to the filing. The state Department of Corrections previously told CNN it has not been in possession of a usable dose of lethal injection drugs since 2013.

Moore chose to die by firing squad but added in a statement he will not lose hope in two pending court challenges to the constitutionality of the state's death penalty method. "I believe this election is forcing me to choose between two unconstitutional methods of execution, and I do not intend to waive any challenges to electrocution or firing squad by making an election," he said in the statement.

He chose firing squad, as required 14 days before the date of his execution, because "I more strongly oppose death by electrocution," he wrote. Moore, 57, would be the first person executed in South Carolina in more than a decade.

Last year, the state Legislature passed a law that made electrocution the state's primary execution method, though death row prisoners have the option to choose a firing squad or lethal injection instead if the options are available....

Also Wednesday, the state set an execution date for Brad Keith Sigmon, who was sentenced in 2002 for two murders. Sigmon, who had a stay of execution last year, is scheduled to die May 13.

As I understand matters, Sigmon will now need to select between electrocution and a firing squad as his method of execution by the end of next week.  So it may still only be a matter of weeks before South Carolina conducts an "old school" execution.

Highlighting just some of the notable US executions scheduled for the next few weeks

This Upcoming Executions page at the Death Penalty Information Center has listed six executions scheduled to be carried out by five states over the next three weeks.  Given that there have only been three executions nationwide so far in 2022 and that there were only eight state executions in all of 2021, the fact that six executions might be completed in the span of a few weeks is itself noteworthy.  But, as this Voice of America article details, there are some particularly notable aspects of some of these scheduled executions.  Here is excerpts from the VOA piece:

Capital punishment has been on the wane in the United States but an upcoming slate of executions has refocused attention on the use of the death penalty.

Richard Moore, a 57-year-old African-American man, is to be executed in South Carolina on April 29 for the 1999 murder of a convenience store clerk during a robbery. It would be the first execution in the southern state in over a decade.

Recent US executions have been carried out by lethal injection but South Carolina has been forced to abandon that method because drug manufacturers are refusing to supply the necessary ingredients. So Moore had the choice between the electric chair and a firing squad made up of three rifle-toting volunteers from the Corrections Department. He chose the firing squad....

There have been three executions in the United States this year. There were 11 in 2021, down from 17 in 2020. Only one of the executions in 2021 was of a woman and of the more than 1,540 people executed in the United States since 1976, only 17 have been women. Melissa Lucio, 53, could be the 18th.

Lucio, a Mexican-American mother of 14, is scheduled to be executed by lethal injection in Texas on April 27 for the 2007 death of her two-year-old daughter, Mariah. Lucio claims a confession was coerced by police during a five-hour interrogation and that the toddler's death was actually caused by an accidental fall down a staircase.

Her case has been championed by the Innocence Project, which fights for the wrongly convicted, and reality TV star Kim Kardashian, who has urged Texas Governor Greg Abbott to grant clemency for Lucio.....

Also scheduled to be executed in Texas in coming days is Carl Wayne Buntion, who was sentenced to death in 1991 for the murder of a Houston police officer. Buntion, who does not dispute his guilt, is scheduled to die by lethal injection on April 21.

At 78, he is the oldest man on Death Row in Texas and his lawyers have argued that executing him now - more than 30 years after the crime - would constitute "cruel and unusual punishment." Texas law also requires it be established that Buntion would "likely harm others if he is not executed," his lawyers said.

Buntion, they said, poses no danger to anyone and suffers from multiple ailments including arthritis, vertigo, hepatitis, sciatic nerve pain, and cirrhosis. "Mr. Buntion is a frail, elderly man," his lawyers said in a petition to the Texas Board of Pardons and Parole, "and will not be a threat to anyone in prison if his sentence is reduced to a lesser penalty."

Buntion also has been in solitary confinement for the past 20 years, restricted to his cell for 23 hours a day.

Notable dissent from three Justices on consideration of racial bias in capital case jury selection

This morning's SCOTUS order list had a lot of denials of cert, along with one dissent that generated a somewhat lengthy opinion.  The opinion in Love v. Texas, No. 21–5050, was technically a dissent from the denial of summary vacatur; Justice Sonia Sotomayor authored this seven-page dissent, which Justices Breyer and Kagan joined. This opinion started and ended this way:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.”  Buck v. Davis, 580 U.S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted).  When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid.  The seating of a racially biased juror, therefore, can never be harmless.  As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed, “the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U.S. 719, 729 (1992).

In this case, petitioner Kristopher Love, a Black man, claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race.  29 Record 145.  The Texas Court of Criminal Appeals never considered Love’s claim on the merits.  Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned.  That decision was plainly erroneous.  An already-expended peremptory strike is no cure for the seating of an allegedly biased juror.  The state court thus deprived Love of any meaningful review of his federal constitutional claim.  I would summarily vacate the judgment below and remand for proper consideration....

Over time, we have endeavored to cleanse our jury system of racial bias.  One of the most important mechanisms for doing so, questioning during voir dire, was properly employed here to identify a potential claim of bias.  Safeguards like this, however, are futile if courts do not even consider claims of racial bias that litigants bring forward.  The task of reviewing the record to determine whether a juror was fair and impartial is challenging, but it must be undertaken, especially when a person’s life is on the line.  I would ensure that Love’s claim is heard by the Court of Criminal Appeals, rather than leave these questions unanswered.  I respectfully dissent.

Condemned due to be executed in South Carolina in two weeks opts for firing squad over electric chair

As detailed in this AP article, a "South Carolina prisoner scheduled to be the first man executed in the state in more than a decade has decided to die by firing squad rather than in the electric chair later this month, according to court documents filed Friday."  Here is more:

Richard Bernard Moore, 57, is the also first state prisoner to face the choice of execution methods after a law went into effect last year making electrocution the default and giving inmates the option to face three prison workers with rifles instead.

Moore has spent more than two decades on death row after being convicted of the 1999 killing of convenience store clerk James Mahoney in Spartanburg. If executed as scheduled on April 29, he would be the first person put to death in the state since 2011 and the fourth in the country to die by firing squad in nearly half a century. The new law was prompted by the decade-long break, which corrections officials attribute to an inability to procure the drugs needed to carry out lethal injections.

In a written statement, Moore said he didn’t concede that either method was legal or constitutional, but that he more strongly opposed death by electrocution and only chose the firing squad because he was required to make a choice. “I believe this election is forcing me to choose between two unconstitutional methods of execution, and I do not intend to waive any challenges to electrocution or firing squad by making an election,” Moore said in the statement.

Moore’s attorneys have asked the state Supreme Court to delay his death while another court determines if either available method is cruel and unusual punishment. The attorneys argue prisons officials aren’t trying hard enough to get the lethal injection drugs, instead forcing prisoners to choose between two more barbaric methods. His lawyers are also asking the state Supreme Court to delay the execution so the U.S. Supreme Court can review whether his death sentence was a disproportionate punishment compared with similar crimes. The state justices denied a similar appeal last week.

South Carolina is one of eight states to still use the electric chair and one of four to allow a firing squad, according to the Washington-based nonprofit Death Penalty Information Center. Only three executions in the United States have been carried out by firing squad since 1976, according to the nonprofit. Moore’s would mark the first since Ronnie Lee Gardner’s 2010 execution by a five-person firing squad in Utah....

Moore is one of 35 men on South Carolina’s death row. The state last scheduled an execution for Moore in 2020, which was then delayed after prison officials said they couldn’t obtain lethal injection drugs. During Moore’s 2001 trial, prosecutors said Moore entered the store looking for money to support his cocaine habit and got into a dispute with Mahoney, who drew a pistol that Moore wrestled away from him. Mahoney pulled a second gun, and a gunfight ensued. Mahoney shot Moore in the arm, and Moore shot Mahoney in the chest. Prosecutors said Moore left a trail of blood through the store as he looked for cash, stepping twice over Mahoney.

"The Return of the Firing Squad?"

The question in the title of this post is the headline of this notable new Marshall Project piece, which gets started this way:

Six years ago, a man on death row in Nevada named Scott Dozier said he wanted to give up his legal fight and be executed, but there was a problem.  Prison officials couldn’t find lethal injection drugs.  Amid the ensuing legal turmoil, Dozier tossed off his own solution, telling me during an interview, “I’d have been just as happy if they took me out back and shot me.”

Dozier’s death, in 2019, was ruled a suicide, but now his words seem prescient. On Thursday, South Carolina scheduled the execution of Richard Moore — convicted of murder in a 2001 convenience story robbery — for April 29. Because state officials say they can’t secure lethal injection drugs, they will give him the choice between the electric chair and the firing squad.  Officials have spent $53,000, by their own estimate, to renovate part of a prison to allow a three-person firing squad to carry out executions, including adding bulletproof glass to protect witnesses.

South Carolina’s not alone: Oklahoma and Mississippi have also formally adopted the firing squad, though Utah remains the only state that has actually used the method in the last century. The U.S. Supreme Court has told death row prisoners that if they want to fight lethal injection in court, they need to propose an alternative. Following dozens of botched, evidently painful lethal injections in recent years, prisoners in at least 10 states have been making a surreal argument: They would prefer the firing squad.

So, are we really about to start shooting prisoners?  Although the method strikes many as cruel and archaic, conversations with scholars and a review of history suggest we should also ask why we have so consistently avoided the firing squad. The answers suggest that this is about more than just another execution method.  The firing squad dredges up some of the core contradictions at the heart of American capital punishment.

“It’s an almost instantaneous death, it’s the cheapest, it’s the simplest, it has the lowest ‘botch’ rate,” said Corinna Lain, a law professor at the University of Richmond.  (Federal judges have made similar points.)  At the same time, it’s “more honest,” she said.  Lain and other scholars have argued that Americans have long wanted — not always consciously — to disguise the violence of capital punishment.  “We don’t want a mess,” wrote Douglas B. Kamerow, a former assistant surgeon general, in The BMJ, a medical journal published by the British Medical Association.  “We want these evil people to disappear, to be dead, but most of us don’t want to feel bad about how they died.”

South Carolina Supreme Court engages in notable debate over how it engages in capital proportionality review

This local article from South Carolina, headlined "‘Our system is broken.’ SC Supreme Court justice assails death sentence in Upstate case," reports on an interesting ruling from the top court in the Palmetto State. Here are the basics and the context from the press piece:

An associate justice of the South Carolina Supreme Court issued a rare and blunt dissent Wednesday in an Upstate death penalty case about a 1999 convenience store robbery that four of the five justices agreed to uphold.

“In the nearly 13 years I have served on this Court, I have voted to affirm eleven death sentences on direct appeal and have never dissented,” Associate Justice Kaye Hearn wrote in her 14-page dissent. But the spur-of-the moment killing committed by Richard Moore in 1999 during a convenience store robbery in Spartanburg County is so different from the usual brutal premeditated slayings for which South Carolina juries give out the death penalty that condemning Moore to death is disproportional, or so far out of line, as not to be lawful, Hearn wrote.

“The death penalty should be reserved for those who commit the most heinous crimes in our society, and I do not believe Moore’s crimes rise to that level,” Hearn wrote, calling South Carolina’s system “broken.”

In Wednesday’s majority opinion, four Supreme Court justices upheld Moore’s death sentence in a case that centered on the issue of whether the sentence was proportional, or roughly the same as, other death sentences for similar crimes. The majority, in an opinion written by Chief Justice Donald Beatty, wrote that Moore’s crime had the aggravating factors set out in the law — such as killing during an armed robbery — that qualified a person for the death penalty, Moore, now 57, has been on South Carolina’s death row 21 years.

The full ruling in Moore v. Stirling, Opinion No. 28088 (S.C. April 6, 2022), is available at this link.  Here is how the majority opinion starts:

Richard Bernard Moore ("Moore") filed a petition for a writ of habeas corpus challenging the proportionality of the death sentence that was imposed for his murder conviction. The Court ordered briefing and granted Moore's motion to argue against the precedent of State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982).  In Copeland, the Court discussed the requirement in S.C. Code Ann. § 16-3-25(C)(3) (2015) that this Court undertake a comparative proportionality review of "similar cases" in death penalty matters.  After review of the record and applicable law and consideration of the parties' arguments, we clarify Copeland and note the Court is not statutorily required to restrict its proportionality review of "similar cases" to a comparison of only cases in which a sentence of death was imposed.  We conclude, however, that Moore has not established that he is entitled to habeas relief.

And here is how the dissent begins:

This Court has never found a single death sentence disproportionate dating back to 1977, the first time comparative proportionality review was required by the General Assembly. This includes the forty-three individuals who have been executed by the State of South Carolina during this modern era of capital punishment, and all of the thirty-five inmates currently housed on death row who have exhausted their direct appeal.  The State characterizes these statistics — currently, approximately zero for seventy-seven — as proof that our capital sentencing scheme functions as it should.  I write separately to express my view that our system is broken and to disagree with that part of the majority opinion which finds Petitioner Richard Moore's sentence proportionate to his crime.

Might Texas be on the verge of executing an innocent woman?

The question in the title of this post is prompted by this AP article discussing the case of Melissa Lucio, who is scheduled to be executed by the state of Texas in three weeks.  Here are excerpts:

During hours of relentless questioning, Melissa Lucio more than 100 times had denied fatally beating her 2-year-old daughter. But worn down from a lifetime of abuse and the grief of losing her daughter Mariah, her lawyers say, the Texas woman finally acquiesced to investigators. “I guess I did it,” Lucio responded when asked if she was responsible for some of Mariah's injuries.

Her lawyers say that statement was wrongly interpreted by prosecutors as a murder confession — tainting the rest of the investigation into Mariah’s 2007 death, with evidence gathered only to prove that conclusion, and helping lead to her capital murder conviction. They contend Mariah died from injuries from a fall down the 14 steps of a steep staircase outside the family’s apartment in the South Texas city of Harlingen.

As her April 27 execution date nears, Lucio’s lawyers are hopeful that new evidence, along with growing public support — including from jurors who now doubt the conviction and from more than half the Texas House of Representatives — will persuade the state’s Board of Pardons and Paroles and Gov. Greg Abbott to grant an execution reprieve or commute her sentence....

Lucio's lawyers say jurors never heard forensic evidence that would have explained that Mariah's various injuries were actually caused by a fall days earlier. They also say Lucio wasn't allowed to present evidence questioning the validity of her confession.

The Texas Attorney General’s Office maintains evidence shows Mariah suffered the “absolute worst” case of child abuse her emergency room doctor had seen in 30 years. “Lucio still advances no evidence that is reliable and supportive of her acquittal,” the office wrote in court documents last month....

Lucio, 53, would be the first Latina executed by Texas and the first woman since 2014. Only 17 women have been executed in the U.S. since the Supreme Court lifted its ban on the death penalty in 1976, most recently in January 2021.

In their clemency petition, Lucio’s lawyers say that while she had used drugs, leading her to temporarily lose custody of her children, she was a loving mother who worked to remain drug-free and provide for her family. Lucio has 14 children and was pregnant with the youngest two when Mariah died....

In 2019, a three-judge panel of the 5th U.S. Circuit Court of Appeals overturned Lucio’s conviction, ruling she was deprived of “her constitutional right to present a meaningful defense.” However, the full court in 2021 said the conviction had to be upheld for procedural reasons, “despite the difficult issue of the exclusion of testimony that might have cast doubt on the credibility of Lucio’s confession.”

Three jurors and one alternate in Lucio’s trial have signed affidavits expressing doubts about her conviction. “She was not evil. She was just struggling. ... If we had heard passionately from the defense defending her in some way, we might have reached a different decision,” juror Johnny Galvan wrote in an affidavit.

In a letter last month to the Board of Pardons and Paroles and to Abbott, 83 Texas House members said executing Lucio would be “a miscarriage of justice.”...

Abbott can grant a one-time, 30-day reprieve. He can grant clemency if a majority of the paroles board recommends it. The board plans to vote on Lucio’s clemency petition two days before the scheduled execution, Rachel Alderete, the board’s director of support operations, said in an email. A spokeswoman for Abbott’s office did not return an email seeking comment.

Abbott has granted clemency to only one death row inmate, Thomas Whitaker, since taking office in 2015. Whitaker was convicted of masterminding the fatal shootings of his mother and brother. His father, who survived, led the effort to save Whitaker, saying he would be victimized again if his son was executed. Lucio’s supporters have said her clemency request is similar in that her family would be retraumatized if she’s executed.

Applying RLUIPA, Supreme Court rules 8-1 in favor of condemned Texas inmate seeking religious touching in execution chamber

The US Supreme Court handed down a lengthy and notable death penalty administration ruling today with Ramirez v. Collier, No. 21-5592 (S. Ct. Mar. 24, 2022) (available here). Chief Justice Roberts authored the opinion of the Court, which every Justice other than Justice Thomas joined. Justices Sotomayor and Kavanaugh did author concurring opinions.  Here is the start and end of the Court's opinion:

A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari....

We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Here is the start of Justice Thomas's dissenting opinion:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25.  Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas.  This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

South Carolina joins handful of states authorizing firing squad as execution method

As reported in this local article, "executions by a state-approved firing squad are now able to be carried out in South Carolina." Here is more:

The S.C. Department of Corrections informed the state’s Attorney General Alan Wilson Friday that it is now able to execute death row inmates using a three-person firing squad using live ammunition if an inmate chooses that method.

The Legislature passed a law in 2021 that makes the electric chair South Carolina’s primary method of execution, but gives inmates the option to choose death by firing squad or lethal injection if available. Lethal injection has been unavailable for years in South Carolina.

The executions will be carried out at the department’s Broad River Correctional Institution outside of downtown Columbia, after the agency spent about $53,600 on supplies and materials to make the changes and comply with state law.

To carry out the execution, the agency said the firing squad will stand behind a wall and use rifles.  But the department did not specify what type of rifle or what kind of ammunition.  All firing squad members will be volunteers.  The rifles will not be visible to the witness room, and, unlike the electric chair, the witnesses will only be able to see the right side of the inmate’s profile. Witnesses will be separated from the chamber by bullet-resistant glass.

The inmate, wearing a prison-issued uniform, will be giving the opportunity to make a last statement and then will be strapped into the execution chair and a hood will be placed over their head.  A “small aim point will be placed over his heart by a member of the execution team,” at which point the warden will read the execution order and the team will fire, the department said.  When the inmate is declared dead and the curtain is moved, witnesses will be escorted out.

South Carolina has 35 inmates now on death row.  The last execution was carried out in 2011.  The state has been unable to carry out executions because it lacks the drugs necessary for the lethal injection method. In large part because of the delay, lawmakers added the firing squad option to the law.

South Carolina is now one of four states that offer the firing squad as an execution option, according to the Death Penalty Information Center. The other states are Utah, Mississippi and Oklahoma.

Some notable headlines about the state and possible fate of capital punishment in the US

I have seen an array of notable news and commentary concerning the administration of the death penalty this week, enough to justify this round up:

From The Atlantic, "A Good Man, At One Time: How a Mississippi inmate became an advocate for his own execution"

From CommonWealth, "Tsarnaev again faces death penalty, but support for capital punishment dropping"

From the Death Penalty Information Center, "Tennessee Sets Three Execution Dates for Most-in-Nation 5 Pending Executions in 2022"

From The Hill, "Reinstatement of marathon bomber's death sentence exposes Democrats' need to hide radicalism"

From The Intercept, "RUSH TO JUDGMENT: Is Texas Sending Melissa Lucio to Die for a Crime That Never Happened?"

From the Ohio Capital Journal, "Ohio gets closer to abolishing death penalty"

From the New York Times, "This Sedative Is Now a Go-To Drug for Executions. But Does It Work?"

From Verdict, "As Oklahoma Goes, So Goes America’s Death Penalty?"

From Vox, "Why some Republicans are turning against the death penalty"

Voting 6-3, SCOTUS reinstates vacated death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

The Supreme Court this morning handed down its ruling in US v. Tsarnaev, No. 20-443 (S. Ct. March 4, 2022) (available here).  When the US Supreme Court back in March 2021 decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, the smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looked even smarter after the Supreme Court oral argument in October 2021 which revealed a predictable ideological split and strongly suggested a majority of Justices were inclined to reinstate Tsarnaev's death sentence.  Here is how Justice Thomas's opinion for the Court gets started:

On April 15, 2013, Dzhokhar and Tamerlan Tsarnaev planted and detonated two homemade pressure-cooker bombs near the finish line of the Boston Marathon.  The blasts hurled nails and metal debris into the assembled crowd, killing three while maiming and wounding hundreds.  Three days later, the brothers murdered a campus police officer, carjacked a graduate student, and fired on police who had located them in the stolen vehicle.  Dzhokhar attempted to flee in the vehicle but inadvertently killed Tamerlan by running him over. Dzhokhar was soon arrested and indicted.

A jury found Dzhokhar guilty of 30 federal crimes and recommended the death penalty for 6 of them. The District Court accordingly sentenced Dzhokhar to death. The Court of Appeals vacated the death sentence. We now reverse.

Justice Barrett authored a concurrence joined by Justice Gorsuch which starts this way:

In this case, the First Circuit asserted “supervisory power” to impose a procedural rule on the District Court. Because that rule (which required a district court to ask media-content questions on request in high-profile prosecutions) conflicts with our cases (which hold that a district court has broad discretion to manage jury selection), I agree with the Court that the First Circuit erred.

I write separately to note my skepticism that the courts of appeals possess such supervisory power in the first place.

Justice Breyer authored the sole dissent, which was joined by Justice Sotomayor and mostly by Justice Kagan.  It starts this way:

During the sentencing phase of his murder trial, Boston Marathon bomber Dzhokhar Tsarnaev argued that he should not receive the death penalty primarily on the ground that his older brother Tamerlan took the leading role and induced Dzhokhar’s participation in the bombings.  Dzhokhar argued that Tamerlan was a highly violent man, that Tamerlan radicalized him, and that Dzhokhar participated in the bombings because of Tamerlan’s violent influence and leadership.  In support of this argument, Dzhokhar sought to introduce evidence that Tamerlan previously committed three brutal, ideologically inspired murders in Waltham, Massachusetts. The District Court prohibited Dzhokhar from introducing this evidence.  The Court of Appeals held that the District Court abused its discretion by doing so. 968 F. 3d 24, 73 (CA1 2020).

This Court now reverses the Court of Appeals.  In my view, the Court of Appeals acted lawfully in holding that the District Court should have allowed Dzhokhar to introduce this evidence.

Will the US Supreme Court be interested in any issues being pressed by Charleston church shooter Dylann Roof?

The question in the title of this post was prompted by this new AP article headlined "Dylann Roof takes church shooting appeal to US Supreme Court."  Here are excerpts:

Attorneys for convicted Charleston church shooter Dylann Roof have asked the U.S. Supreme Court to decide how to handle disagreements over mental illness-related evidence between capital defendants and their attorneys, an issue that has played a role throughout his case over the 2015 racist slayings of nine members of a Black South Carolina congregation.

When a capital defendant who has been ruled competent to stand trial and his attorneys “disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?” Roof’s appellate team wrote in their petition, filed late last month with the high court.  Justices’ consideration is “needed to resolve a deep divide among the lower courts over who — client or lawyer — gets to decide whether mitigation evidence will be introduced at a capital penalty hearing.”

Roof’s self-representation and desire to block any evidence potentially portraying him as mentally ill — even if it could have helped him avoid the death penalty — has been a constant part of his case.  During the sentencing phase of his death penalty trial, Roof fired his legal team and opted to represent himself.  This move, his appellate attorneys have written, successfully prevented jurors from hearing evidence about his mental health, “under the delusion” that “he would be rescued from prison by white-nationalists — but only, bizarrely, if he kept his mental-impairments out of the public record.”

Roof made his decision, his team argued in the petition, “after the district court told him that counsel could introduce evidence depicting him as mentally ill over his objection.” But there is a disconnect, his attorneys argued, between how such cases have been handled in the 4th Circuit versus other jurisdictions, where “the vast majority of state and federal courts hold otherwise, leaving this deeply personal choice to a defendant.”

Notably, this AP article is only focused on one of three questions presented in Roof's recently filed cert petition. Here are all there issues set forth in this document:

1. When a competent capital defendant and his counsel disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?

2. Does the Commerce Clause authorize Congress to regulate an intrastate, noneconomic, violent offense based solely on the defendant’s pre-offense uses of interstate highways, GPS navigation, the Internet, and the telephone?

3. Should federal courts assess legislation enacted under the Thirteenth Amendment using the same tests that apply to legislation enacted under the Fourteenth and Fifteenth Amendments, where the three Reconstruction Amendments share substantively-identical enforcement provisions?

A few of many prior related posts:

• Should I be more troubled by Dylann Storm Roof being allowed to defend himself at his federal capital trial? 
• Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial
• "Why Dylann Roof Has a Right to the Death Penalty" ... OR "Why Dylann Roof Representing Himself Is A Constitutional Tragedy"
• Charleston church shooter Dylann Roof to have appeal of his death sentence heard by (unusual) Fourth Circuit panel 
• Unusual Fourth Circuit panel affirms federal convictions and death sentence for Charleston church shooter Dylann Roof 

New poll indicates considerable support for death penalty repeal among Ohio GOP legislators

I have now lived and worked as a law professor in Ohio for almost 25 years, and throughout all these years the state's implementation of its capital punishment systems has been always dynamic and often dysfunctional. Though there has not been an execution in Ohio since Mike DeWine became the state's governor in 2019, this DPIC page highlights that Ohio has had more executions in the modern death penalty era than more than a half-dozen southern capital states (not even counting Ohio's botched 2009 effort to execute Romell Broom).  Also, as this DPIC page details, Ohio also has the sixth largest death row in the nation, as well as a remarkable number of pending death warrants that are repeatedly getting stayed by Gov DeWine due to concerns about Ohio's lethal injection methods.

I highlight all this background because it helps details why I think it would be quite a big deal as a matter of policy for Ohio to move away from capital punishment.  And, thanks to a helpful email, I saw a notable recent new poll of Ohio legislators indicating that repeal of the death penalty in Ohio might also really be possible as a matter of politics.  Notably, there has been a considerable legislative push in recent years for repeal, and next week has scheduled a hearing on Ohio House Bill 183, a bill expressly written to "abolish the death penalty."

Notably, as of this writing, this death penalty repeal bill has 25 sponsors.  Perhaps unsurprisingly, the majority of the sponsors are Democrats, but more than a few in hat group are Republicans.  And, perhaps surprisingly, this new Gongwer News Service poll of Ohio state legislators suggests there may be quite considerable support among Ohio GOP legislators for ending capital punishment.  Specifically, the poll asked "Should Ohio eliminate the death penalty?" and among Republicans legislators who responded 46% said "Yes" only 39% said "No" and 14% said "Undecided."

Critically, this new poll only had 44 respondents, which is just a third of all the members of the Ohio General Assembly, and I do not believe there is any way to tell how representative the Republicans respondents to the poll are.  Still, assuming a majority of Democratic legislators in Ohio are prepared to support death penalty repeal, there would really only need to be a sizable minority of GOP members of Ohio General Assembly to favor abolition to have a real chance to get a death penalty repeal bill to the desk of Governor DeWine.  I am still quite disinclined to think repeal will happen soon in Ohio, but this poll certainly leads me to now think the possibility is not so far-fetched.

"Dead Right: A Cautionary Capital Punishment Tale"

The title of this post is the title of this intriguing new article authored by Joseph Margulies, John Blume and Sheri Lynn Johnson now available via SSRN. Here is its abstract:

At least 228 people executed in the modern era — or more than one in every seven — were right too soon.  That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late.  Roughly 30% of our total include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively.  But the great majority of the people identified in our study raised claims based on doctrine that had already been clearly established by the Supreme Court.  If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief.  Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them.  This resistance was particularly egregious in Texas and Florida.  In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least 36. At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution.  The result is a system that routinely kills people even when they are right.

"Death by Dehumanization: Prosecutorial Narratives of Death-Sentenced Women and LGBTQ Prisoners"

The title of this post is the title of this interesting new article now available via SSRN authored by Jessica Sutton, John Mills, Jennifer Merrigan and Kristin Swain.  Here is its abstract:

At the core of every capital sentencing proceeding is a guarantee that before condemning a person to die, the sentencer must consider the humanity and dignity of the individual facing the ultimate sanction.  This principle — that “death is different” and, therefore, requires consideration of the “diverse frailties of humankind” — echoes throughout the Supreme Court’s Eighth Amendment jurisprudence.  And yet courts are reluctant to remedy the devastating impact of prosecutorial arguments that dehumanize marginalized persons facing the death penalty, condemning these arguments while nevertheless “affirm[ing] resulting convictions based on procedural doctrines such as harmless error.”

These dehumanizing prosecutorial narratives are particularly problematic — and effective — when used against LGBTQ+ people, whose very identities have been criminalized, pathologized, and used as justification for condemning them to death.  Dehumanizing stereotypes not only reinforce and leverage social biases as factors in aggravation, but also “other” LGBTQ+ defendants in such a way as to minimize the impact of mitigating evidence.

This paper explores the use of dehumanizing prosecutorial narratives that target LGBTQ+ people in the pursuit of state-sponsored execution and argues that such narratives violate the Constitution’s protection of the dignity of persons facing loss of life or liberty.  Part I of this paper examines the history of dehumanization and criminalization of LGBTQ+ people, particularly those with multiple marginalized identities.  Part II sets forth examples of the most common death-seeking portrayals of LGBTQ+ defendants, including the Woman-Hating Gay Predator, the “Hardcore” Man-Hating Lesbian, and the Gender-Bending Deviant.  Part III analyzes how these dehumanizing stereotypes further disadvantage LGBTQ+ defendants by undermining mitigating evidence.  Finally, Part IV, drawing inspiration from the work of Pauli Murray, proposes a reframing of the constitutional doctrines limiting prosecutorial arguments in support of a death sentence, proposing that a focus on the dignity of the individual and the dignitary harm to the individual should be at the center of the inquiry.

Oklahoma completes its second execution of 2022

As detailed in this local article, "Oklahoma on Thursday executed convicted murderer Gilbert Ray Postelle without any of the issues that led to condemnation of the state's lethal injection procedure in the past." Here is more:

"He didn't seem to be struggling at all with his breath," said one media witness, Dylan Goforth of The Frontier, an online news site. "It happened really quick. ... It didn't seem like he was having any trouble." Postelle was declared dead at 10:14 a.m. at the Oklahoma State Penitentiary. He was 35.

He apologized at his clemency hearing in December for killing four people but made no final statement Thursday.

The execution was the fourth since the state resumed lethal injections in October after a hiatus of more than six years. It came just days before the start of a federal trial that will determine whether any more executions will be carried out this year.

Attorney General John O'Connor, whose assistants will represent the state at the trial, said the execution was carried out "with zero complications."...

Postelle was convicted of murdering four people on Memorial Day 2005 outside a trailer in Del City. He was sentenced to death for two of the murders and to life in prison without the possibility of parole for the other two. He was 19 at the time of the murders. He acted along with his older brother and their father in a blitz attack involving assault rifles.

Shot the most was the trailer's resident, Donnie Swindle. Postelle's father had accused Swindle of causing his motorcycle accident the year before. Also killed were Amy Wright, James Alderson and Terry Smith....

Swindle's sister, Shelli Milner, called Postelle a monster who stole four innocent people's lives. "To know that he will never walk this Earth again does give me a little more peace than I had yesterday, but I will never have peace knowing what he did to my brother Donnie, to Amy, to James and to Terry," she told reporters after the execution. "He got what he deserved today."

Group of elected prosecutors pledge to work toward elimination of the death penalty nationwide

This new NBC News story reports on a notable new joint statement on the topic of capital punishment put together by the Fair and Just Prosecution folks.  First the context from the press:

Fifty-six elected prosecutors from 26 states pledged to work to effectively end the death penalty, including by refusing to support the execution of people with intellectual disabilities, seeking commutations, and helping to overturn sentences in cases of racial bias, negligent defense counsel or other misconduct.

"Many of us have been on the front lines of the effort to reform the American death penalty. Others have witnessed — and in some cases been directly involved in — prosecutorial efforts to seek capital punishment," the joint statement, shared by Fair and Just Prosecution, a bipartisan network of elected prosecutors, said Thursday.  "Although we hold varied opinions surrounding the death penalty and hail from jurisdictions with different starting points on the propriety of this sentence, we have all now arrived at the same inexorable conclusion: our country's system of capital punishment is broken."

The coalition of district attorneys and state attorneys general is made up of mostly Democrats, but includes at least one Republican — Christian Gossett, the district attorney of Winnebago County, Wisconsin — and they hail from some of the largest counties and cities in the country, as well as rural communities.  Eleven of the states they represent still have the death penalty, including Arizona, Georgia, North Carolina and Texas.

Here are the last two paragraphs from this joint statement:

We are duty-bound to counter these egregious injustices and we pledge to use our power as prosecutors, whenever and however it may be appropriate, to do so.  For those of us in states where the death penalty is still permitted, we will uphold Supreme Court precedent and the interests of justice by refusing to seek the death penalty against people with intellectual disabilities, post-traumatic stress disorder, histories of traumatic brain injury, or other intellectual or cognitive challenges that diminish their ability to fully understand and regulate their own actions.  We will support efforts to identify individuals currently on death row in our jurisdictions who experienced these challenges and to seek commutations or other just resolutions.  We will also support efforts to overturn existing death sentences in cases that feature a colorable claim of innocence, racial bias, egregiously inadequate or negligent defense counsel, discovery violations, or other misconduct that render us unable to stand by the sentence in good faith. This is the bare minimum that justice demands of us.

As elected prosecutors, we serve as ministers of justice and are obligated to seek outcomes that advance equity, fairness, community safety, and the rule of law.  And we are also obligated to reject arbitrariness, racism, and cruelty. We pledge to abide by these obligations by refusing to seek the death penalty against individuals with cognitive impairments or otherwise diminished culpability.  And we further commit to work toward the elimination of our nation’s failed death penalty system, once and for all.

Declines in 2021 leaves US death row populations at lowest level in three decades

Thanks to this posting at the Death Penalty Information Center, I just saw that the NAACP Legal Defense and Educational Fund has released its Fall 2021 edition of Death Row USA. The full LDF report runs 61 pages, but the DPIC summary provides these notable highlights:

In its Fall 2021 edition of Death Row USA (DRUSA), released February 7, 2022, LDF reported that the number of people on state, federal, or military death rows or facing possible capital resentencing across the United States had fallen to 2,455 as of October 1, 2021, down by 98 from LDF’s Fall 2020 report.  It is the lowest total since January 1991 when 2,412 people were on U.S. death rows or faced jeopardy of being resentenced to death.  Death row, which peaked at 3,717 in the July 2001 DRUSA report, has declined by 34.0% since then.

LDF found that the capital convictions or death sentences of 219 people listed in its report have been reversed, leaving roughly one in eleven cases awaiting retrial or resentencing or with grants of relief still subject to prosecutorial appeal.  Excluding those individuals, the number people in the United States facing active death sentences fell to 2,236 from its from total of 2,326 in October 2020.

LDF reported that 849 people, or 34.6% of those on death row or facing capital resentencing as of October 1, 2021 were in states with moratoria on executions.  Including those in other states whose death sentences have been reversed, LDF calculated that there were 1,034 currently unenforceable death sentences, comprising 41.4% of all active cases in which a death sentence has been imposed.  That left 1,438 death-row prisoners with currently enforceable death sentences.

California’s death row declined to 695 prisoners but remained more than double the size of death row in any other state. It was followed by Florida (333), Texas (198), and Alabama (170).  Nationwide, 42.4% of death-row prisoners were white, 41.2% were Black, 13.6% Latinx, 1.9% Asian, and 1.0% were Native American. Among states with at least 10 prisoners on death row, Texas (72.2%), Louisiana (72.3%), California (67.2%), Nebraska (66.7%), and Pennsylvania (61.5%) were the states with the highest percentage of individuals of color on death row. Two percent of all death-row prisoners are women.

"Narrowing Death Eligibility in Idaho: An Empirical and Constitutional Analysis"

The title of this post is the title of this new paper recently posted to SSRN authored by Aliza Cover.  Here is its abstract:

The death penalty is a uniquely severe punishment — the ultimate, irreversible act of violence by state against citizen.  Because “death is different” from all other punishments, the Eighth Amendment restricts its use, mandating that it “be reserved for the worst of crimes and limited in its instances of application.”  Capital punishment statutes must narrow death eligibility, meaningfully differentiating between those “worst” murderers, who may be subject to the death penalty, and the rest of murderers, who may not.

This Article reports the findings of an empirical study designed to evaluate how effectively Idaho’s capital punishment scheme serves this constitutional narrowing requirement in practice.  The study involved a review of first-and second-degree murder convictions in cases filed from June 2002 through the end of 2019 to determine how many of these cases would have been factually eligible for the death penalty under the terms of Idaho’s statutes — regardless of whether they were pursued as capital cases by the prosecution.  This review revealed that 86–90% of all murder convictions were factually first-degree murder cases, and 93–98% of factual first-degree murder cases were eligible for the death penalty.  These findings strongly suggest that Idaho’s statute fails to fulfill the constitutional narrowing requirement.

The study also produced results on how frequently the death penalty is sought and imposed in death-eligible cases in Idaho.  The prosecution filed a notice of intent to seek the death penalty in 21% of factually death-eligible cases; the prosecution proceeded to a capital trial in 5% of death-eligible cases; and a death sentence was obtained in 3% of death-eligible cases.  These findings — which combine a high rate of death eligibility with a low rate of death-charging and death-sentencing — strongly suggest that death is an “unusual” punishment in Idaho, with important implications for its constitutionality under Furman v. Georgia.

"Life 'Or' Death"

The title of this post is the title of this new article authored by Marlee Russell now available on SSRN. Though focused on Mississippi law, the issue of "or" in state constitutions is one that arises in a number of other states. Here is this article's abstract:

This Article argues that the death penalty violates the Mississippi State Constitution because of the state’s prohibition of cruel “or” unusual punishments. By using the word “or” instead of “and,” Mississippi guarantees its citizens with a broader protection than the Eighth Amendment guarantees.  The different language should cause punishments, specifically the death penalty, to be evaluated under a separate standard for each prong of this protection.

Part I of this paper will argue that lethal injection is torture, explaining the methods, procedures, and associated risks during administration of the drugs.  Part II will show how lethal injection violates the Mississippi State Constitution due to the differences between conjunctive and disjunctive interpretations of the constitutional language.  Part III will prove that the remaining methods of execution in Mississippi violate the constitution because of their rare and unusual use in the state.  Part IV will suggest a new standard for evaluating if a punishment is cruel or unusual in Mississippi based on this language.

Oklahoma completes first execution of 2022

As reported in this AP piece, "Oklahoma executed a man Thursday for the brutal slayings of two hotel workers during a robbery in 2001."  Here is more about the first execution completed in the United States in 2022:

Donald Grant, 46, received a lethal injection at the Oklahoma State Penitentiary in McAlester and was declared dead at 10:16 a.m. It was the first execution in the U.S. in 2022 and the third in Oklahoma since the state resumed lethal injections in October following a nearly seven-year hiatus....

Shirl Pilcher, the sister of one of Grant's victims, Brenda McElyea, said her family felt that justice had been served. “Although Donald Grant's execution does not bring Brenda back, it allows us all to finally move forward knowing justice was served," Pilcher said after witnessing his execution.

Grant had asked a federal judge to temporarily halt his execution, arguing that he should be reinstated as a plaintiff in a separate lawsuit challenging Oklahoma’s three-drug lethal injection protocol as presenting a risk of unconstitutional pain and suffering. But both a federal judge and a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver previously denied that request.  The U.S. Supreme Court denied Grant’s request on Wednesday.

Several Oklahoma death row inmates with pending execution dates have sought to delay their executions after John Grant convulsed on the gurney and vomited after receiving the first dose of midazolam, a sedative, during his October execution.  John Grant's execution was the state's first since problems with the state's lethal injection protocols in 2014 and 2015 led to a de facto moratorium.

Richard Glossip was just hours away from being executed in September 2015 when prison officials realized they received the wrong lethal drug.  It was later learned the same wrong drug had been used to execute an inmate in January 2015.  The drug mix-ups followed a botched execution in April 2014 in which inmate Clayton Lockett struggled on a gurney before dying 43 minutes into his lethal injection — and after the state’s prisons chief ordered executioners to stop.

During a clemency hearing in November, Donald Grant admitted killing Brenda McElyea and Felicia Suzette Smith so that there would be no witnesses to his robbery of the Del City hotel. Court records show both women were shot and stabbed, and Smith was also bludgeoned.  Prosecutors say both women also begged him to spare their lives before he killed them. During November's hearing, he expressed “deep, sincere remorse” and apologized for the killings, but the state’s Pardon and Parole Board voted 4-1 against recommending clemency....

Two of Donald Grant's attorneys, Susan Otto and Emma Rolls from the federal public defender's office, argued that he was mentally ill and had suffered brain damage that made him a candidate for mercy.  They also discussed Grant’s childhood growing up in a New York City housing project during the crack epidemic of the 1980s, a time when he was frequently beaten and members of his family experienced alcoholism, drug addiction and mental illness.  But the board also heard from members of McElyea's family, who tearfully urged them to reject clemency for him.

Supreme Court takes up procedural issues around challenging execution methods and habeas matters

Via this order list, the US Supreme Court this afternoon granted certiorari in five new cases, two of which involve criminal procedure.  This SCOTUSblog post reviews the high-profile religion case of the bunch and provides this very brief account of the two criminal matters:

• Nance v. Ward, involving the procedures by which an inmate must raise his challenge to the method by which the state intends to execute him.
• Shoop v. Twyford, involving (among other things) whether a court must determine whether evidence would help an inmate seeking a writ of habeas corpus and whether the court can consider that evidence before the court grants an order allowing the inmate to develop new evidence.

Though there were less than a dozen executions throughout the US last year, the Supreme Court now will decided three notable death penalty cases this Term on jury and penalty phase procedures (Tsarnaev), on how executions can be carried out when the condemned seeks a spiritual advisor (Ramirez) and now on how condemned can proceed with challenges to execution methods (Nance).  So while less than .001% of incarcerated persons face execution in recent years, about 5% of the Supreme Court's docket this year involved death penalty matters.

Will SCOTUS take up challenge to Georgia's remarkable standard for implementing Eighth Amendment's ban on executing the intellectually disabled?

The question in the title of this post is prompted by this new Sidebar piece by Adam Liptak for the New York Times about Georgia's unique way for (not quite) protecting the intellectually disabled from an unconstitutional execution. The full piece is a great read under this full headline: "Language Mistake in Georgia Death Penalty Law Creates a Daunting Hurdle: The Supreme Court will decide whether to hear a challenge to the law, which requires that defendants in capital cases who are intellectually disabled prove it 'beyond a reasonable doubt' — a phrase that was inserted in error."  Here are excerpts:

The U.S. Supreme Court will soon decide whether to hear [an Eighth Amendment] case, which challenges a Georgia law that places an extraordinary burden on capital defendants seeking to be spared execution.  In the process, the justices could clarify whether it is just the words or also the music of their precedents that binds lower courts.

The case concerns Rodney Young, who was convicted in 2012 of killing the son of his estranged girlfriend.  Mr. Young grew up in New Jersey, where his schools classified him, in the language of the time, as “mentally retarded.”  These days, they would call him intellectually disabled.

A 2002 Supreme Court decision, Atkins v. Virginia, ruled that the Eighth Amendment forbids putting intellectually disabled people to death.  But the Georgia law at issue in the case, unique in the nation, requires capital defendants seeking to be spared execution to prove they are intellectually disabled beyond a reasonable doubt.

That is the standard that ordinarily applies to the government in criminal cases. It is intended to be hard to meet and, in the context of prosecutions, is meant to tolerate letting some guilty people go free rather than risk sending innocent ones to prison. The Georgia law inverts this dynamic, tolerating the executions of some intellectually disabled people.... The Atkins decision largely let states decide who qualified as intellectually disabled. But two later decisions, in 2014 and 2017, struck down measures creating, as Justice Anthony M. Kennedy put it, “an unacceptable risk that persons with intellectual disability will be executed.”

The Georgia law has a curious origin story.  Enacted in 1988, it was the first in the nation to ban the execution of intellectually disabled people, predating the Atkins decision by 14 years. But it was drafted in haste. “I dropped the ball,” Jack Martin, one of the provision’s drafters, told the Georgia House of Representatives in 2013. He and his co-author, Mr. Martin said, had not meant to impose a reasonable doubt standard, but they put a key clause in the wrong place. “It was sloppy draftsmanship, pure and simple,” Mr. Martin said. “I don’t think anybody intended that to happen.”

Almost every other state requires defendants to prove they are intellectually disabled by just a preponderance of the evidence — that is, by showing it to be more likely than not. The difference in the two standards matters, lawyers with the American Civil Liberties Union, which represents Mr. Young, told the Supreme Court in a recent petition asking the justices to hear his case. “In the states that apply a preponderance-of-the-evidence standard, approximately one-third of those asserting that they are intellectually disabled succeed in invoking the Eighth Amendment’s protection,” they wrote. “In Georgia, not a single person convicted of intentional murder has prevailed at trial in establishing that he is intellectually disabled.”...

Dissenting from the Georgia Supreme Court’s decision upholding the state law, Justice Charles J. Bethel said simple logic demonstrated that the law created, in the words of the U.S. Supreme Court, “an unacceptable risk” that some intellectually disabled people would be executed. In his concurring opinion, Justice Nahmias, who served as a law clerk to Justice Antonin Scalia and is now the chief justice of the Georgia Supreme Court, acknowledged that the question in the case was a close one and that the reasoning in U.S. Supreme Court precedents “certainly casts doubt on this state’s uniquely high standard of proof.”

Justice Nahmias added another consideration, one seemingly grounded in a realistic assessment of the U.S. Supreme Court’s new conservative supermajority. “If I had to guess today,” he wrote, “I would say that it is likely that if the United States Supreme Court, as currently comprised, is called on to decide whether Georgia’s beyond-a-reasonable-doubt standard for proof of intellectual disability violates the Eighth Amendment, a majority of the justices would not extend the holdings” of the decisions in 2014 and 2017 “to strike down our state’s statute, notwithstanding the reasoning of the majority opinions in those two cases.”

Japan hangs three persons for "extremely ghastly" crimes, completing first executions in two years

As reported in this CBS News piece, "Japan hanged three death-row inmates on Tuesday, its first executions in two years, amid growing criticism by human rights groups of the country's use of the death penalty."  Here is more about those executed and unique way Japan goes about carrying out death sentences:

One of the three, Yasutaka Fujishiro, was convicted of killing seven people and setting fire to their house in 2004, while the other two, Tomoaki Takanezawa and Mitsunori Onogawa, were convicted in the 2003 killings of two pinball parlor employees.

Executions are carried out in high secrecy in Japan, where prisoners are not informed of their fate until the morning they are hanged.  Since 2007, Japan has begun disclosing the names of those executed and some details of their crimes, but information is still limited.

Justice Minister Yoshihisa Furukawa said at a news conference that the three had committed "extremely ghastly" crimes and the punishment was appropriate.

Furukawa declined to comment on the timing of the executions, often carried out during the year-end holiday season when parliament is in recess, which opponents say is an attempt by the government to reduce criticism.  Japan's parliament had its final session of the year on Tuesday. "As justice minister, I authorized their executions after giving extremely careful considerations again and again," Furukawa said.

Japan now has 107 people on death row at detention centers, instead of regular prisons.  It has maintained the death penalty despite growing international criticism, saying the punishment is needed to take into consideration the victims' feelings and as a deterrence for heinous crime.

Japan and the U.S. are the only two countries in the Group of Seven industrialized nations that use capital punishment. A survey by the Japanese government showed an overwhelming majority of the public supports executions, Furukawa said.

He defended the short notice given to inmates about to be executed, citing a "serious mental impact" on them if they learn their fate way in advance. Two death-row inmates recently filed a lawsuit against the government saying the system causes psychological distress and seeking compensation over mental suffering from living in uncertainty until the last day of their lives....

The executions were the first since Dec. 26, 2019, when a Chinese citizen convicted in the 2003 killing of a family of four in Fukuoka was put to death. He was one of three hanged that year. In 2018, Japan executed 15, including 13 Aum Shinrikyo cult members convicted in a deadly 1995 nerve gas attack on Tokyo's subways.

DPIC releases year-end report emphasizing "continuing decline of death penalty" in 2021

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2021: Year End Report; Virginia’s Historic Abolition Highlights Continuing Decline of Death Penalty." Here is the starts of the report's introduction, with lots of data and details following thereafter:

The death penalty in 2021 was defined by two competing forces: the continuing long-term erosion of capital punishment across most of the country, and extreme conduct by a dwindling number of outlier jurisdictions to continue to pursue death sentences and executions.

Virginia’s path to abolition of the death penalty was emblematic of capital punishment’s receding reach in the United States.  A combination of changing state demographics, eroding public support, high-quality defense representation, and the election of reform prosecutors in many key counties produced a decade with no new death sentences in the Commonwealth.  As the state grappled with its history of slavery, Jim Crow, lynchings, and the 70th anniversary of seven wrongful executions, the governor and legislative leaders came to see the end of the death penalty as a crucial step towards racial justice.  On March 24, Virginia became the first southern state to repeal capital punishment, and expanded the death-penalty-free zone on the U.S. Atlantic coast from the Canadian border of Maine to the northern border of the Carolinas.

In the West, where an execution-free zone spans the Pacific coast from Alaska to Mexico, the Oregon Supreme Court began removing prisoners from the state’s death row based on a 2019 law that redefined the crimes that constitute capital murder.  Nationwide, mounting distrust of the death-penalty system was reflected in public opinion polling that measured support for capital punishment at near half-century lows.  With Virginia’s abolition, a majority of states have now abolished the death penalty (23) or have a formal moratorium on its use (3).  An additional ten states have not carried out an execution in at least ten years.

2021 saw historic lows in executions and near historic lows in new death sentences.  As this report goes to press, eighteen people were sentenced to death, tying 2020’s number for the fewest in the modern era of the death penalty, dating back to the Supreme Court ruling in Furman v. Georgia that struck down all existing U.S. death-penalty statutes in 1972.  The eleven executions carried out during the year were the fewest since 1988.  The numbers were unquestionably affected by the pandemic but marked the seventh consecutive year of fewer than 50 death sentences and 30 executions.  Both measures pointed to a death penalty that was geographically isolated, with just three states — Alabama, Oklahoma, and Texas — accounting for a majority of both death sentences and executions.

"Bureau of Justice Statistics releases "Capital Punishment, 2020 – Statistical Tables"

Today the Justice Department's Bureau of Justice Statistics has released this new report with data on the administration of capital punishment in the United States through the end of 2020. (As I have noted before, though BJS provides great data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.)

This new BJS report provides notable and clear statistical snapshots about the death penalty in the US, and the document starts with this introduction and these "highlights" on the first two pages of a 26-page document:

At yearend 2020, a total of 28 states and the Federal Bureau of Prisons (BOP) held 2,469 prisoners under sentence of death, which was 94 (4%) fewer than at yearend 2019.  During 2020, the number of prisoners under sentence of death declined for the twentieth consecutive year.  California (28%), Florida (14%), and Texas (8%) held half of the prisoners under sentence of death in the United States on December 31, 2020.  The BOP held 51 prisoners under sentence of death at yearend.

Five states and the BOP executed a total of 17 prisoners in 2020.  The BOP executed 10 prisoners, which accounted for 59% of the executions carried out in 2020.

This report presents statistics on persons who were under sentence of death in 2020, state and federal death penalty laws in 2020, and historical trends in executions.  At yearend 2020, a total of 31 states and the federal government authorized the death penalty.

• Colorado repealed the death penalty provision of its first-degree murder statute in July 2020, and the governor commuted the death sentences of the three prisoners under previously imposed sentences of death to life without the possibility of parole. ƒ
• Seven states received a total of 14 prisoners under sentence of death in 2020, the smallest annual number reported since the U.S. Supreme Court invalidated capital punishment statutes in several states in 1972 (see Furman v. Georgia, 408 U.S. 238 (1972)).
• ƒNineteen states removed a total of 91 prisoners from under sentence of death by means other than execution in 2020.
• ƒDuring 2020, 17 states and the BOP reported a decrease in the number of prisoners held under sentence of death, 16 states reported no change, and no states reported an increase in the number of prisoners held under sentence of death.
• ƒThe largest declines in the number of prisoners under sentence of death in 2020 occurred in California (down 24 prisoners) and Pennsylvania (down 14).
• ƒThe majority (98%) of prisoners under sentence of death were male.
• ƒAt yearend 2020, about 56% of prisoners under sentence of death were white and 41% were black.
• Among prisoners under sentence of death at yearend 2020 with a known ethnicity, 15% were Hispanic. ƒ
• Prisoners under sentence of death on December 31, 2020 had been on death row for an average of 19.4 years.
• ƒPrisoners executed during 2020 had been on death row for an average of 18.9 years.

Oklahoma completes final 2021 scheduled execution in the United States

As reported in this local article, headlined "Bigler Stouffer executed in Oklahoma without problems of previous lethal injections," the latest and last execution in Oklahoma took place this morning and here are the details:

Oklahoma executed inmate Bigler Jobe "Bud" Stouffer II Thursday without the issues that caused the last three lethal injections to be described as botched.

The convicted murderer was pronounced dead at 10:16 a.m. at the Oklahoma State Penitentiary. It was the state's second execution in a month and a half after the practice was halted for more than six years. "No vomiting, no erratic movements or anything like that. Just, you could see his chest moving as he appeared to breathe. That's about it," said one media witness, Sean Murphy of The Associated Press.

The execution process began at 10:01 a m., Corrections Department Director Scott Crow told reporters. Stouffer was declared unconscious at 10:06 a.m. For his last words, Stouffer said, "My request is that my Father forgive them. Thank you," media witnesses reported.

In a policy change, Stouffer was allowed to have his personal spiritual advisor, Baptist minister Howard Potts, in the execution chamber with him. Potts put a hand on Stouffer's foot and read from a Bible, witnesses said. Early in the process, the advisor said something that made Stouffer laugh.

At 79, Stouffer is the oldest inmate in Oklahoma history to be executed. He is the second oldest inmate to be executed in the nation since the U.S. Supreme Court reinstated the death penalty in 1976.

He was put to death by lethal injection for the fatal shooting of Putnam City elementary school teacher Linda Reaves in 1985. He maintained to the end he was wrongfully convicted. "He felt like if he couldn't prove his innocence while alive then his attorneys would prove it after he was gone," said Goforth, who works for The Frontier.

Three more executions are set for next year. As many as 26 more could be scheduled next year if death row inmates lose a legal challenge to the lethal injection process at a trial in Oklahoma City federal court. The trial is set to begin Feb. 28.

Stouffer filed his own legal challenge after his execution was set. He sought to have his execution delayed until after the trial but was turned down in court three times. The U.S. Supreme Court denied his last request for a stay about 8 a.m. Thursday.

His attorneys also had sought clemency for him. Gov. Kevin Stitt last week rejected a recommendation to commute his sentence to life in prison without the possibility of parole.

Stouffer spent more than three decades on death row because he was tried twice. He was first convicted in 1985. He was granted a retrial in 2000 when a federal appeals court agreed his defense attorneys had been inept. He was convicted again in 2003 but did not exhaust his appeals of that conviction until 2017....

After the execution, the family of the murder victim thanked the governor and Attorney General John O'Connor for their willingness to carry justice through. "Although long in coming, justice has prevailed," a cousin, Rodney C. Thomson, told reporters at the penitentiary....

His spiritual advisor told the Oklahoma Pardon and Parole Board in November that Stouffer turned his incarceration into a spiritual ministry and regularly shared his faith with other death row inmates.

According to this Death Penalty Information Center page, there are no more executions scheduled for 2021.  That means the total number of US executions this year was only 11, the lower total yearly number in more than three decades (there were 11 executions in 1988 in the US).  For a host of reasons, I am inclined to predict that execution numbers will start trending back up in coming years.  But, then again, almost everything about the administration of the death penalty in the United States has a way of becoming unpredictable.

Three deep dives into ugly realities of Alabama's justice system

One often hears talk of Texas justice being unique, but there are really distinctive stories to tell about criminal justice realities in every state.  To that end, consider three new lengthy recent pieces about crime and punishment in Alabama.  I recommend all of these deep dives:

From AL.com, "Alabama parole rate far short of board’s own recommended guidelines"

From Politico, "‘A humanitarian crisis’: Why Alabama could lose control of its dangerous prisons: Alabama sends so many people to prison that the state can no longer safely house its inmates, consequences of a tough-on-crime mentality among politicians and the public that keeps aggressive sentencing laws on the books."

From the New York Times, "He Never Touched the Murder Weapon. Alabama Sentenced Him to Die.: Nathaniel Woods was unarmed when three Birmingham police officers were fatally shot by someone else in 2004.  But Woods, a Black man, was convicted of capital murder for his role in the deaths of the three white officers."

Pervis Payne has death sentences set aside (based on intellectual disability) three decades after SCOTUS affirmed them (with focus on victim impact evidence)

This local article reports on a notable development in a capital case that caught my attention because it involves a defendant who was involved in a major development in Supreme Court capital jurisprudence more than 30 years ago.  The press piece is headlined "Pervis Payne death penalty set aside, judge will decide if life sentences are concurrent or consecutive," and here are excerpts:

Rolanda Holman remembers being 13 years old, listening to the judge sentence her brother, Pervis Payne, to death by the electric chair. The judge said, “May God have mercy on his soul," Holman recalled.

Thirty-four years later, Holman and her family know that Payne won't be dying by the death penalty after Judge Paula Skahan signed an order Tuesday vacating his capital sentence....

Skahan's action came after the Shelby County District Attorney's office announced Thursday that it was dropping its pursuit of the death penalty against Payne after a state expert examined Payne and records "and could not say that Payne's intellectual functioning is outside the range for intellectual disability," according to a news release.

Both the U.S. and Tennessee supreme courts have ruled that it is unconstitutional to execute someone with an intellectual disability. In April, Tennessee legislators created a law allowing death row inmates like Payne to appeal their sentences on intellectual disability grounds. Since the court finds that Payne is a person with intellectual disability, his capital sentence must be vacated, Skahan wrote in her order....

Payne will serve two life sentences in prison for the murders of Charisse and Lacie Christopher. However, whether those sentences will be concurrent or consecutive is currently being debated.

Steve Jones, assistant district attorney, argued Tuesday that a transcript of the original sentencing 34 years ago shows the judge saying that Payne's sentences ought to be served consecutively.

That, [attorney Kelley] Henry said, would make Payne ineligible for parole until he is 85. Henry argued, however, that precedent shows the court has the discretion to rule his sentences should be carried out at the same time, which would make him eligible for parole in about six years. “Consecutive sentencing would be an effective life without parole for Mr. Payne and we suggest that would not be justice for him and his family," Henry said. "Elder Carl Payne deserves a chance to hug his son as a free man. And we will continue our fight to exonerate Mr. Payne.”

A hearing will be held Dec. 13 to determine whether the life sentences should be held consecutively or concurrently.

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

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

It is quite remarkable that it took newly 20 years for Payne to be moved off death row after the US Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment precluded the execution of the intellectually disabled.  But it is perhaps even more remarkable that this is the same defendant whose case made it all the way to the Supreme Court more than 30 years ago. In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court reversed prior precedents limiting victim impact evidence and held "that, if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar."  Is this a fitting time for the aphorism "what goes around comes around," especially if it is a capital case?

California's Committee on Revision of the Penal Code recommends abolishing capital punishment in the state

During a busy week last week, I missed this notable capital news from California: "Panel recommends repealing death penalty in California: The recommendation to end capital punishment comes after California voters rejected two ballot measures to abolish executions over the last decade and voted to speed up executions in 2016."  Here are the basics from the start of the news story:

As nearly 700 condemned California prisoners wait in limbo under a death penalty process halted by the governor, a key criminal justice panel on Wednesday recommended making the state’s temporary freeze on executions permanent.  The Committee on Revision of the Penal Code, a seven-member board formed by the state Legislature last year to propose criminal justice reforms, released a 39-page report recommending that capital punishment be repealed in the Golden State.

“More than forty years of experience have shown that the death penalty is the opposite of a simple and rational scheme,” the report states. “It has become so complicated and costly that it takes decades for cases to be fully resolved and it is imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional.”  

Poring through data on death sentences imposed and carried out since capital punishment was reinstated in California in 1978, the panel concluded the post-conviction litigation process has become “almost unfathomably long and costly.”  The report cites staggering racial disparities in who gets sentenced to death, with people of color making up 68% of those on death row in California.  It further notes that about a third of condemned prisoners suffer from mental illness, according to figures cited in a federal class action over mental health care in California prisons.  

Additionally, the report highlights that innocent people are sometimes executed.  It describes how 185 prisoners sentenced to death across the U.S. were later exonerated, including five formerly condemned prisoners in California.

The full report, which is available at this link, includes these passages in its executive summary:

After a thorough examination, the Committee has determined that the death penalty as created and enforced in California has not and cannot ensure justice and fairness for all Californians.

More than forty years of experience have shown that the death penalty is the opposite of a simple and rational scheme.  It has become so complicated and costly that it takes decades for cases to be fully resolved and it is imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional.  Hundreds of California death sentences adjudicated in state and federal courts have been reversed or otherwise thrown out as unconstitutional while only 33 people are currently eligible for execution. 

Furthermore, recent efforts to improve, simplify and expedite California’s system of capital punishment have failed to accomplish their stated goals and may have made things even worse.

For the reasons in this report, which includes new data presented here for the first time, the Committee unanimously recommends repealing California’s death penalty.  Because we appreciate that this is a difficult goal, in the interim, the Committee unanimously recommends reducing the size of California’s death row by the following means:

• Award clemency to commute death sentences.
• Settle pending legal challenges to death sentences.
• Recall death sentences under Penal Code § 1170(d)(1).
• Limit the felony-murder special circumstance.
• Restore judicial discretion to dismiss special circumstances.
• Amend the Racial Justice Act of 2020 to give it retroactive application.
• Remove from death row people who are permanently mentally incompetent.

Are more conservatives really turning away from the death penalty?

The question in the title of this post is prompted by this new Wall Street Journal article headlined "More Conservatives Turn Away From Death Penalty."  In addition, Demetrius Minor his this new opinion piece from Newsweek, headlined "Republicans Across the Country Are Joining the Fight to End the Death Penalty," provides this accounting:

[I]n deep red Utah are considering ending the state's death penalty. Governor Spencer Cox, who has previously revealed his support for the death penalty, says he is now open to "reevaluating" his stance on the issue. He is joined by Utah County Attorney David Leavitt, another Republican who has said his office would no longer seek death penalty prosecutions....

And this isn't just occurring in Utah. There is a nationwide trend of Republican- controlled state legislatures re-thinking capital punishment driven by the fiscal, moral, and cultural conservative values that should lead us to oppose the death penalty. Virginia repealed the death penalty in March 2021 with bipartisan support. Pennsylvania, Kansas, Wyoming, Kentucky, Georgia, Montana, Washington, and Ohio all have had Republican-sponsored bills this year, with a total of 40 Republican sponsors.

In Ohio, a political bell-weather state that has become very red in recent election cycles, former Congresswoman and now State Representative Jean Schmidt and Sen. Stephen Huffman are Republican prime sponsors of bills to end the death penalty. They are clear that the death penalty is a contradiction to their conservative beliefs.

I do sense that a few more GOP leaders are a bit more comfortable expressing capital opposition, and yet I am unclear if this is a major trend or really anything all that new.  Notably, I have seen (and blogged) about stories claiming or advocating for softer support for capital punishment among those on the right, and yet polling numbers do not show any real shift.  Gallup released its latest polling on the death penalty this past week, and here is its discussion of the political dynamics:

Gallup began asking its historical death penalty trend question in its annual Crime survey beginning in 2000. During this time, there have been two notable shifts in death penalty attitudes. Between 2011 and 2016, the percentage expressing support showed a drop to 61% from 66% in the preceding decade. In the past four years, support has fallen further to an average 56%.

Both Democrats and independents show declines in their support for the death penalty, including similar drops (eight and seven percentage points, respectively) since 2016. Between the 2000-2010 and 2011-2016 time periods, Democratic support dropped more (eight points) than independent support did (three points). Now, 39% of Democrats and 54% of independents are in favor of the death penalty.

Meanwhile, Republicans' support for the death penalty has held steady, with 79% currently supporting it, unchanged since 2016 and barely lower than the 80% registered between 2000 and 2010.

Here is a sampling of some older posts on this front through the years:

• A new world of death penalty politics? (from 2006)
• "When Governments Kill: A conservative argues for abolishing the death penalty" (from 2009)
• New group opposing death penalty emerges at CPAC (from 2013)
• Is there a "growing movement against death penalty – on the right"? (from 2015)
• Are there really now lots more conservatives in lots of states "starting to question the cost and legality of capital punishment"? (from 2016)
• New commentary at The American Conservative makes the case for "Why Conservatives Should Oppose the Death Penalty" (from 2019)

Can Oklahoma's current governor really preclude all future governors from further clemency grants for Julius Jones?

I just had a chance this morning to look at this actual executive order that Oklahoma Governor J. Kevin Stitt signed to commute the death sentence of Julius Jones to life imprisonment without the possibility of parole.  The document is interesting in part because it states that the Pardon and Parole Board's recommendation of a commutation to a "sentence of life with the possibility of parole" was not authorized by the Oklahoma Constitution or Oklahoma law and that the "Oklahoma Constitution and other laws of the State also do not provide the Governor authority to grant any such recommendation."  But speaking of a lack of authorization, I was especially struck by this additional part of the executive order:

The Governor has the power to grant commutations "upon such conditions and with such restrictions and limitations as the Governor may deem proper .... "  I hereby place the following conditions upon this commutation:

Julius Darius Jones shall not be eligible to apply for or be considered for a commutation, pardon, or parole for the remainder of his life.

In addition to laws prohibiting the Pardon and Parole Board from recommending and the Governor from granting to Julius Jones life with parole, now or in the future, the Pardon and Parole Board's Rules prevent Jones from re-applying for commutation.  Title 515, Chapter 15, Subchapter 15 of the Oklahoma Administrative Code states, "After receiving a favorable commutation of a sentence from the Governor, an Inmate is ineligible to apply for an additional commutation on the same sentence."

Though I strongly dislike and disfavor any policy of ever precluding a person from ever re-applying for clemency, I suppose I can see some viable legal basis for state laws or rules to preclude repeated clemency applications.  But, critically, this order seems to be trying to preclude all future Oklahoma executive officials from being able to even "consider" Jones "for a commutation, pardon, or parole for the remainder of his life."  And at the start of this order, Gov Stitt states his condition even more broadly: "I ... hereby commute the death sentence of Julius Darius Jones to life imprisonment without the possibility of parole, on the conditions that he shall never again be eligible to apply for, be considered for, or receive any additional commutation, pardon, or parole."  (Emphasis added.)

Jones is likely to live in prison for many decades, and further evidence of his innocence or other changed circumstances in the years ahead might want some future governor to consider and possibly grant some other form of clemency.  I do not think there is any legal basis for a current governor to tie the hands of all future governors in the way, but I suspect Jones and his allies will be disinclined to worry or litigate about this future issue while still celebrating his removal from Oklahoma's death row.

A few prior related posts:

• Might Oklahoma really try to move forward with seven executions over the next six months?
• Oklahoma board recommends clemency for Julius Jones who claims innocence from death row
• Oklahoma Gov commutes death sentence of Julius Jones, who claims innocence, to life without the possibility of parole 

Oklahoma Gov commutes death sentence of Julius Jones, who claims innocence, to life without the possibility of parole

A high-profile Oklahoma capital case involving claims of innocence took a notable turn just hours before a scheduled execution, as reported in this local press piece:

Julius Jones was scheduled to be executed at 4 p.m. Thursday at the Oklahoma State Penitentiary in McAlester. Oklahoma Gov. Kevin Stitt, however, announced at noon Thursday he has commuted Jones' sentence to life without the possibility of parole.

Jones, now 41, has been on death row for more than half of his life for the murder of Paul Howell. Jones has maintained his innocence, saying he was not responsible for the fatal shooting in Edmond in 1999. Jones' family insists he was at home.

The Oklahoma Pardon and Parole Board voted 3-1 on Nov. 1 to recommend Oklahoma Gov. Kevin Stitt grant clemency to Jones and reduce his sentence to life in prison with the possibility of parole....

Amanda Bass, the attorney for Julius Jones released the following statement after Gov. Kevin Stitt commuted Jones' sentence to life without the possibility of parole: "Governor Stitt took an important step today towards restoring public faith in the criminal justice system by ensuring that Oklahoma does not execute an innocent man. While we had hoped the Governor would adopt the Board's recommendation in full by commuting Julius's sentence to life with the possibility of parole in light of the overwhelming evidence of Julius's innocence, we are grateful that the Governor has prevented an irreparable mistake."...

“The governor just announced he’s going to grant clemency,” Tiffany Crutcher announced to the crowd outside the Oklahoma State Penitentiary in McAlester. The crowd erupted in shouts of joy. Supporters broke into tears, including Paige Patton who began to praise, “Thank you, Lord.”

The celebration lessened as Crutcher announced that the Governor's decision was to commute Jones' sentence to life without parole. The fight to prove Jones' innocence is not over, and his supporters will not stop, she said. “Julius will get to see sunlight,” Crutcher said. “Julius will not be underground, he will get to hug his family.”

A few prior related posts:

• Might Oklahoma really try to move forward with seven executions over the next six months?
• Oklahoma board recommends clemency for Julius Jones who claims innocence from death row 

Mississippi completes its first execution since 2012, the tenth in the US in 2021

As reported in this AP piece, "A man who pleaded guilty to killing his estranged wife and sexually assaulting her young daughter as her mother lay dying was put to death Wednesday evening, becoming the first inmate executed in Mississippi in nine years." Here is more:

David Neal Cox, 50, abandoned all appeals and filed court papers calling himself “worthy of death” before the state Supreme Court set his execution date.  He received a lethal injection and was pronounced dead at 6:12 p.m. CST at the Mississippi State Penitentiary at Parchman.

Cox had pleaded guilty in 2012 to capital murder for the May 2010 shooting death of his estranged wife, Kim Kirk Cox. He also pleaded guilty to multiple other charges, including sexual assault.  A jury handed down the death sentence....

Cox appeared to take several deep breaths after the lethal chemicals started flowing through a clear plastic tube into his body, and his mouth moved some. After several minutes, the local coroner pronounced him dead.

Among those who gathered to witness the execution was Cox’s now 23-year-old stepdaughter.  She was 12 when he sexually assaulted her three times in front of her wounded mother as he held them and one of her younger brothers hostage on the night of May 14 and May 15, 2010, in the small town of Sherman.

Mississippi carried out six executions in 2012.  The state does not have any others scheduled among the more than 30 people currently on its death row.  States have had difficulty finding lethal injection drugs because pharmaceutical companies began blocking the use of their products to carry out death sentences....

A group that opposes executions, Death Penalty Action, said killing an inmate who surrendered all appeals would amount to “state-sponsored suicide.” The group petitioned Republican Gov. Tate Reeves to block the execution of Cox, but Reeves’ spokeswoman said the governor would not intervene because Cox admitted to ”horrific crimes.”

Noting the SCOTUS "state of capital punishment" without discussing the state of capital punishment

Adam Liptak has this notable new New York Times "Sidebar" piece headlined "In Death Penalty Cases, an Impatient Supreme Court; Recent rulings, including one turning down a death row inmate’s request supported by the prosecution, offer telling glimpses of the state of capital punishment."  Here are excerpts (with a bit of emphasis added):

Two weeks ago, on the same day it heard arguments about the future of abortion rights in Texas, the Supreme Court turned down an appeal from a federal prisoner facing execution.  The move was in one sense routine, as the court has grown increasingly hostile to arguments made by death row inmates.   This became apparent in the final months of the Trump administration, when, after a hiatus of 17 years, the federal government executed 13 inmates.  “Throughout this expedited spree of executions, this court has consistently rejected inmates’ credible claims for relief,” Justice Sonia Sotomayor wrote in a dissent at the time.

The court’s impatience was also evident last week at an argument over whether an inmate’s pastor could pray with and touch him in the death chamber.  Several conservative justices expressed dismay at what they said was last-minute litigation gamesmanship in death penalty cases.

Still, the case the court turned down two weeks ago was exceptional, providing a telling glimpse of the state of capital punishment in the United States.  The court rejected the inmate’s petition even though the prosecution agreed that his case deserved a fresh look.  In an 11-page dissent, Justice Sotomayor, joined by Justices Stephen G. Breyer and Elena Kagan, said the majority had crossed a new bridge. “To my knowledge, the court has never before denied” such relief “in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt,” Justice Sotomayor wrote.

The case concerned Wesley P. Coonce Jr., who was serving a life sentence for kidnapping and carjacking when he helped murder another prisoner in the mental health ward of a federal prison.  A murder committed by an inmate already serving a life sentence is a capital crime, and he was sentenced to death.  Lawyers for Mr. Coonce asked the justices to return his case to an appeals court for reconsideration of his argument that he could not be executed because he was intellectually disabled.  There had been, the lawyers wrote, an important new development that could alter the appeals court’s analysis....

While the majority did not explain its thinking, a 2014 dissent from Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, provided a hint. Justice Alito wrote that the meaning of the Eighth Amendment should not be determined by “positions adopted by private professional organizations.”  The majority may also have thought that the Biden administration had its own tools to address Mr. Coonce’s case, notably by granting him clemency.

As the title of this post is meant to highlight, I am struggling a bit to see how the denial of cert by SCOTUS in Coonce serves as a "glimpse of the state of capital punishment in the United States."  For starters, the state of capital punishment in the United States is largely one of modern desuetude.  As detailed in this DPIC fact sheet, in 1999 there were 279 death sentences imposed and 98 executions; in 2019 there were 24 death sentences imposed and 22 executions.  Moreover, I am pretty sure Coonce still can have his death sentence reviewed via a 2255 motion and perhaps via other means, so maybe the case really is a "glimpse" into the various means capital defendants have to get their claims reviewed.

Moreover, as highlighted by the clemency point, what this case really shows to me is that the Biden Administration would rather push for courts to take people off death row rather than do it on their own.  After all, if lawyers in the Justice Department have genuinely concluded that Coonce is intellectually disabled, their constitutional oath would seemingly call for them to ask for Prez Biden to moved him off death row since the Eighth Amendment precludes an execution of someone intellectually disabled.  That DOJ is merely urging here a "fresh look" strikes me far more as a "glimpse" into the state of the Biden Administration's actions on capital punishment.

Rounding up reviews of SCOTUS oral arguments on religious liberty in death chamber

On Tuesday morning, the US Supreme Court heard oral argument in Ramirez v. Collier to consider whether a condemned prisoner can have his pastor physically touch him and audibly pray in the execution chamber while he is being executed.  I have not yet had a chance to listen to the oral argument (which is available here), but a quick scan of a number of press reports suggests the Justices were split on the matter.  Here is a partial round-up of blog and press comment on the argument:

From NPR, "Supreme Court conservatives are skeptical on spiritual advisers in death chamber"

From SCOTUSblog, "Court debates inmate’s request for prayer and touch during execution, but a key justice remains silent"

From Slate, "The Supreme Court’s Conservatives Finally Found a Religious Objection They Don’t Like"

From USA Today, “Texas death row case: Supreme Court wrestles with religious freedom in the execution chamber.”

Gearing up for SCOTUS argument in Ramirez on religious liberty in death chamber

On Tuesday morning, the US Supreme Court will hear Ramirez v. Collier, which presents these issues:

(1) Whether, consistent with the free exercise clause and Religious Land Use and Institutionalized Persons Act, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, considering the free exercise clause and RLUIPA, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest.

Here is some of the press I have seen previewing the case:

From Bloomberg Law, "Lawyer Takes Rare Case on Religion, Executions to U.S. Top Court"

From Newsweek, "Conservatives Find Rare Common Ground With ACLU in Death Penalty Religious Freedom Case"

From SCOTUSblog, "Court to clarify the right of death-row inmates to receive spiritual guidance during execution"

From Time, "‘Why Can’t I Hold His Hand?’ The Supreme Court Will Decide What Comforts a Pastor Can Offer During an Execution"

From Vox, "The Supreme Court must decide if it loves religious liberty more than the death penalty"

From the Washington Post, "Supreme Court considers a minister’s role at the time an inmate is put to death"

Prior related posts:

• SCOTUS stays Texas execution and grants cert on death row inmate's request for pastor's touch during execution 
• A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty? 
• Second Texas inmate gets execution stay based on religion claim SCOTUS considering in Ramirez 
• Texas completes state's third execution of 2021
• Third Texas inmate gets execution stay based on religion claim SCOTUS considering in Ramirez 
• More executions postponed in Texas as SCOTUS considers religious liberty in death chamber 

Oklahoma board recommends clemency for Julius Jones who claims innocence from death row

This local article reports on a notable development in a high-profile case in Oklahoma involving the next death row inmate scheduled to be executed in the coming weeks. Here are the details:

The Oklahoma State Pardon and Parole Board on Monday recommended clemency for death row inmate Julius Jones.  The board voted 3-1 in favor of granting clemency for Jones, who has been on death row for more than 20 years for the 1999 murder of Edmond businessman Paul Howell.  One board member recused themselves from the vote.

Along with clemency, the Oklahoma Pardon and Parole Board recommended commuting Jones' death sentence to life with the possibility of parole.

"The Pardon and Parole Board has now twice voted in favor of commuting Julius Jones’s death sentence, acknowledging the grievous errors that led to his conviction and death sentence," Jones' lawyer, Amanda Bass, said in a news release.  "We hope that Governor Stitt will exercise his authority to accept the Board’s recommendation and ensure that Oklahoma does not execute an innocent man."

"My son Julius has been on death row for over twenty years for a murder he did not commit, and every day of that has been a waking nightmare for my family," Jones' mother, Madeline Davis-Jones, said in a news release....

Gov. Kevin Stitt will now decide Jones' fate.  He has not said how he plans to decide in the case, only saying that he wouldn't decide until after the clemency hearing.  His office released the following statement to KOCO 5: "Governor Stitt is aware of the Pardon and Parole Board’s vote today. Our office will not offer further comment until the governor has made a final decision."

Jones spoke during Monday's clemency hearing, giving his account of the night Howell was killed, the days after and his trial.

The recommendation comes more than a month after the same Pardon and Parole Board recommended that Jones' sentence be commuted, which set up Monday's clemency hearing. It also came less than a week after Oklahoma resumed executions for the first time since 2015.  The state put John Grant to death last week.  Although a decision on Jones' fate is up in the air, his execution is scheduled for Nov. 18.

Jones has gained a lot of support over the past few years, especially from several high-profile celebrities, including Kim Kardashian and Baker Mayfield.  Howell's family said before the clemency hearing that they hoped the Pardon and Parole Board would vote based on facts instead of Hollywood fiction.  His daughter spoke with KOCO 5 in October, saying a lot of misinformation had spread about Jones and the case.

Some notable dissents and a statement together with SCOTUS criminal justice cert denials

The merits cases scheduled to be argued before the Supreme Court this week on topics like abortion and gun rights are rightly getting a lot of attention.  But the week has started with this order list in which Court has 5+ pages listing cases on which certiorari has been denied.  In three cases involving criminal-law related issues, some Justices penned statements concerning these denials.  Via How Appealing, here are the basics with links:

In Simmons v. United States, No. 20-1704, Justice Sonia Sotomayor issued a statement, in which Justice Elena Kagan joined, respecting the denial of certiorari.

In Coonce v. United States, No. 19–7862, Justice Sotomayor issued a dissent, in which Justices Stephen G. Breyer and Kagan joined, from the denial of certiorari.

And in American Civil Liberties Union v. United States, No. 20–1499, Justice Neil M. Gorsuch issued a dissent, in which Justice Sotomayor joined, from the denial of certiorari.

The lengthiest and most notable of these separate opinions is in the Coonce case, where Justice Sotomayor starts her 11-page dissent this way:

Petitioner Wesley Paul Coonce, Jr., was convicted in federal court of murder. Facing the death penalty, he argued that his execution would violate the Eighth Amendment because he has an intellectual disability.  See Atkins v. Virginia, 536 U. S. 304 (2002).  The District Court denied Coonce’s Atkins claim without a hearing, the jury sentenced him to death, and the Eighth Circuit affirmed.

In denying Coonce relief without a hearing, the courts relied on the definition of intellectual disability by the American Association on Intellectual and Developmental Disabilities (AAIDD), which then required that an impairment manifest before age 18.  It is undisputed that Coonce’s impairments fully manifested at age 20.  After Coonce petitioned for certiorari, the AAIDD changed its definition to include impairments that, like Coonce’s, manifested before age 22.

The Government urges us to grant certiorari, vacate the judgment below, and remand (GVR), conceding that it is reasonably probable that the Eighth Circuit would reach a different result on reconsideration given the significant shift in the definition that formed the basis of its opinion. Instead, the Court denies certiorari.  Because Coonce is entitled to a hearing on his Atkins claim, and because our precedents counsel in favor of a GVR, I respectfully dissent.

One of many notable aspects of this case is highlighted by this observation in the dissent:

In light of the above, the material change in the AAIDD’s leading definition of intellectual disability plainly warrants a GVR.  To my knowledge, the Court has never before denied a GVR in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt.

I believe the defendant in this case will still be able to bring a 2255 motion, so the Justices voting to deny cert may be content to have these "execution competency" issues addressed in that setting. But Justice Sotomayor closes her dissent explaining why that seems to her insufficient:

I can only hope that the lower courts on collateral review will give Coonce the consideration that the Constitution demands. But this Court, too, has an obligation to protect our Constitution’s mandates. It falls short of fulfilling that obligation today. The Court should have allowed the Eighth Circuit to reconsider Coonce’s compelling claim of intellectual disability, as both he and the Government requested. I respectfully dissent.

Will "outcry" over ugly details of latest Oklahoma execution impact its plans to have six more in coming months?

The question in the title of this post is prompted by the first word of the headline, and then the last sentence of the body, of this new Guardian piece: "Outcry after Oklahoma prisoner vomits and convulses during execution."  Here are the basics:

Oklahoma is coming under sharp criticism after witnesses to the state’s first judicial killing for six years described gruesome scenes of the dying prisoner convulsing and vomiting as he was administered the lethal injections.

John Grant, 60, was pronounced dead at 4.21pm on Thursday at McAlester state penitentiary after he was injected with a triple cocktail of midazolam, vecuronium bromide and potassium chloride. Later, the department of corrections said the killing had gone “in accordance with protocols and without complication”.

But eyewitness accounts from reporters at McAlester’s supposedly state-of-the-art death chamber gave a very different account.  Dan Snyder, an anchor at the Oklahoma TV channel Fox 25, said that events went drastically off course the instant the first drug, the sedative midazolam, was injected into the prisoner.  “Almost immediately after the drug was administered, Grant began convulsing, so much so that his entire upper back repeatedly lifted off the gurney,” Snyder reported. “As the convulsions continued, Grant then began to vomit.  Multiple times over the course of the next few minutes medical staff entered the death chamber to wipe away and remove vomit from the still-breathing Grant.”

It took 15 minutes for Grant to be declared unconscious by medical staff, after which the vecuronium bromide, which paralyses the body, and potassium chloride, which stops the heart, were given. On Twitter, Snyder gave his response to the state’s official claim that all had gone according to plan. “As a witness to the execution who was in the room, I’ll say this: repeated convulsions and extensive vomiting for nearly 15 minutes would not seem to be ‘without complication’.”

Accounts of the botched execution of Grant, who was being put to death for the murder in 1998 of a prison cafeteria worker while he was already serving a sentence for armed robberies, will come as a deep embarrassment for Oklahoma. No judicial killings have taken place in the state since 2015 after a spate of botched procedures caused widespread alarm and forced the authorities to review their use of lethal injection drugs.

In 2018, officials in the state went as far as to announce they would abandon lethal injections entirely, due to the protocol’s lack of transparency and to the inhumane executions that had taken place. But in August the state reversed that decision, saying it would resume executions without giving an explanation for the U-turn or revealing critical details about how it intended to carry out the killings.

The state’s six-year hiatus was prompted in part by the execution in 2014 of Clayton Lockett, who writhed and groaned on the gurney for 43 minutes before he was declared dead after the intravenous line through which the lethal drugs were delivered was inserted improperly. The gruesome descriptions of his death by eyewitnesses in the Guardian and elsewhere caused nationwide revulsion. The following year the state used the wrong drug to kill Charles Warner. In the wake of these botched procedures a bipartisan commission reviewed the state’s death penalty system and issued a highly critical report that called for the moratorium on capital punishment to be extended....

Grant’s execution was allowed to proceed on Thursday after the US supreme court voted five to three, with the three liberal justices dissenting, to allow the judicial killing to go ahead. It is unclear whether the descriptions of his death will affect future planned executions in the state.

Oklahoma has an aggressive calendar of executions scheduled, with six set to take place by the end of March.

I put the word "outcry" in quotes because, so far, I have mostly seen opponents of the death penalty comment and assail the latest ugly Oklahoma execution.  If only the "usual subjects" are complaining about the execution, I doubt that will slow the state's current plan to execute another half-dozen people in the coming month. But it also seems possible, especially if more evidence of problems with the execution process emerges, that some death penalty supporters in Oklahoma or elsewhere will express concern and be in a position to slow future trips to the death chamber.

Prior recent related posts:

• Might Oklahoma really try to move forward with seven executions over the next six months? 
• Oklahoma top court sets executions dates for seven condemned men over the next six months 
• By 5-3 order, SCOTUS vacates stays of Oklahoma executions entered by Tenth Circuit ... and one execution carried out 

UPDATE: This local article suggests that Oklahoma officials are not troubled by the execution of John Grant. Here is how it stars:

Oklahoma Department of Corrections Director Scott Crow said Friday the agency has no plans to change its execution protocol after a witness said John Marion Grant had about two dozen full body convulsions and vomited during his lethal injection on Thursday.  “Some of the information is either embellished or is not exactly on point,” the DOC director said during a virtual press conference to “clarify” issues.

Crow, who witnessed the execution, said he saw Grant dry heave fewer than 10 times, not convulse. He said Grant did vomit.  “As he started that process, I conferred with the physician we had on site monitoring the process and he advised me that regurgitation is not a completely uncommon instance or occurrence with someone that is undergoing sedation,” Crow said.

By 5-3 order, SCOTUS vacates stays of Oklahoma executions entered by Tenth Circuit ... and one execution carried out

As set forth in this short order, the US Supreme Court this afternoon has vacated stays of execution for two death row defendants, one of whom is scheduled to be executed today.  Justices Breyer, Sotomayor, and Kagan indicated they would deny Oklahoma's application to vacate the stays that had been entered by the Tenth Circuit yesterday. Justice Gorsuch took no part in matter, presumably because the case came from his old circuit.  This Hill article from yesterday provides the basics on the litigation:

The U.S. Court of Appeals for the Tenth Circuit granted a temporary motion for stay of execution for two Oklahoma death row inmates on Wednesday, just a day before one of the inmates was scheduled to die by lethal injection.

The appeals court stayed the executions of Julius Jones and John Grant on the basis that they met two criteria required for an execution to be stayed. Prisoners must show that the execution method chosen by the state — in this case a three-drug lethal injection — presents “a substantial risk of severe pain" and they must also show that the risk of severe pain is substantial when compared to other available alternatives.

Jones and Grant were part of a federal lawsuit seeking to challenge Oklahoma's three-drug lethal injection. However, Judge Stephen Friot denied a motion for a preliminary injunction that they and three other inmates sought, clearing the way for their executions in the next six months....

The appeals court wrote that though Jones and Grant did not choose an alternative method of execution, it does not mean they did not identify alternatives to lethal injection. The court also wrote that there was no law that requires a prisoner to choose their own method of execution.  The court wrote that the if the inmates are executed they "risk being unable to present what may be a viable Eighth Amendment claim." 

UPDATE: As reported in this AP piece, "Oklahoma ended a six-year moratorium on executions Thursday, administering the death penalty on a man who convulsed and vomited before dying, his sentence for the 1998 slaying of a prison cafeteria worker." Here is more:

John Marion Grant, 60, who was strapped to a gurney inside the execution chamber, began convulsing and vomiting after the first drug, the sedative midazolam, was administered. Several minutes later, two members of the execution team wiped the vomit from his face and neck.

Before the curtain was raised to allow witnesses to see into the execution chamber, Grant could be heard yelling, “Let’s go! Let’s go! Let’s go!” He delivered a stream of profanities before the lethal injection started. He was declared unconscious about 15 minutes after the first of three drugs was administered and declared dead about six minutes after that, at 4:21 p.m.

Grant was the first inmate to be executed since a series of flawed lethal injections in 2014 and 2015. He was serving a 130-year prison sentence for several armed robberies when witnesses say he dragged prison cafeteria worker Gay Carter into a mop closet and stabbed her 16 times with a homemade shank. He was sentenced to die in 1999.