Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

Recent prior related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few of many prior related posts:

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

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

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

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

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

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

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

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

Prior recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal government completes its sixth execution in 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal government completes its fifth execution of 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few of many recent prior related posts:

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

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

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

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

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

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

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

A few of many recent prior related posts:

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

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

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

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

The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades

The UCLA Covid-19 Behind Bars Data Project has been doing a terrific job keeping an updated count, via this spreadsheet, of confirmed COVID deaths of persons serving time in state and federal facilities.  As of the morning of Sunday, August 23, this UCLA accounting had tabulated 858 "Confirmed Deaths (Residents)." 

This considerable number is sad and disconcerting on its own terms, but it is even more remarkable given that it amounts to more prisoner deaths than has been produced by carrying out formal death sentences in the United States for the entire period from 2001 to 2020.  According to DPIC data, there were a total of 839 executions from the start of 2001 through today.

Of course, comparing capital punishment and COVID incarceration carnage is problematic in many ways.  All persons executed in the US in recent times have been convicted of the most aggravated forms of murder.  The majority of prisoners to die of COVID were not responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few prior posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  Another such offender died just last week according to this BOP press release: Luis A. Velez contracted COVID in FCI Coleman this summer and died on August 18; he was only 58-year-old and had been in federal prison for five years (of a 13-year sentence) after his conviction of possession with intent to distribute meth.

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The UCLA spreadsheet currently reports "only" 72 "Confirmed Deaths (Staff).  I am pleasantly surprised that this number is not bigger, but I will be ever troubled by the thought it could have been much lower along with the prisoner death number if more aggressive depopulation efforts were taken to more the most vulnerable and least risky offenders out of the super-spreader environment that prisons represent.

A few of many prior related posts:

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

AG Barr says, unsurprisingly, that feds will appeal reversal of Boston Marathon bomber's death sentence

As reported in this new AP piece, headlined "Barr: Feds to appeal ruling, seek death for Boston bomber," the US Attorney General has told the press that the Justice Department will seek to get the Boston Marathon bomber, Dzhokhar Tsarnaev, back on federal death row. Here are the details:

The Justice Department will seek to reinstate a death penalty for Dzhokhar Tsarnaev, the man who was convicted of carrying out the 2013 Boston Marathon bombing, Attorney General William Barr said Thursday.

In an interview with The Associated Press, Barr said the Justice Department would appeal the court’s ruling last month that tossed Tsarnaev’s death sentence and ordered a trial to determine whether he should be executed for the attack that killed three people and wounded more than 260 others.  Barr said the Justice Department would take the matter to the U.S. Supreme Court. “We will do whatever’s necessary,” Barr said.  “We will take it up to the Supreme Court and we will continue to pursue the death penalty.”...

A three-judge panel of the 1st U.S. Circuit court found in July that the judge who oversaw the 2015 trial did not adequately question potential jurors about what they had read or heard about the highly publicized case....

Tsarnaev, now 27, was convicted of all 30 charges against him, including conspiracy and use of a weapon of mass destruction and the killing of an MIT police officer during the Tsarnaev brothers’ getaway attempt.  The appeals court upheld all but a few of his convictions.

An attorney for Tsarnaev, David Patton, declined to comment Thursday.  Patton said after the 1st Circuit’s decision that “it is now up to the government to determine whether to put the victims and Boston through a second trial, or to allow closure to this terrible tragedy by permitting a sentence of life without the possibility of release.”...

Describing media attention in the case as “unrivaled in American legal history,” the appeals court said U.S. District Judge George O’Toole fell short in running a jury selection process “sufficient to identify prejudice.”  The 1st Circuit also found that O’Toole erred in refusing to let the defense tell jurors about evidence tying Tamerlan Tsarnaev to the killings of three people in the Boston suburb of Waltham in 2011....

President Donald Trump tweeted after the decision that the federal government “must again seek the Death Penalty in a do-over of that chapter of the original trial.”  The ruling came as the U.S. government recently resumed federal executions following a 17-year pause.

Prior recent related posts:

• First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev
• Unsurprisingly, victims of Boston Marathon bomber differ on seeking a new death sentence for Dzhokhar Tsarnaev after reversal on appeal  

Unsurprisingly, victims of Boston Marathon bomber differ on seeking a new death sentence for Dzhokhar Tsarnaev after reversal on appeal

Later this month, I will have the pleased of starting a new semester teaching my sentencing law and policy class.  I often ask my students about on-going real cases, and this year I will press student to consider whether they would want the US Attorney for Massachusetts to pursue capital resentencing in the Boston Marathon bombing case, United States v. Tsarnaev, following the First Circuit’s recent death sentence reversal. Helpfully, the Boston Globe has these two new pieces focused on this topic:

• "What do Boston Marathon bombing survivors want federal prosecutors to do next?"

• “‘We just don’t want to hear from him ever again’: Dzhokhar Tsarnaev’s death sentence was vacated July 31; Hear what Boston Marathon bombing survivors and victims’ family members had to say in the wake of that court decision."

Here are excerpts from the first piece linked above:

The overturning of Tsarnaev’s death sentence has sent tremors of anxiety across the community of survivors and relatives of those killed in the attack, many of whom are still recovering from their physical and emotional wounds.... In a statement, Andrew Lelling, US attorney for Massachusetts, promised to consider the views of survivors and victims’ families before deciding whether to seek a new trial....

“Let him serve his life in prison, and let us live our lives in peace,” said Lynn Julian Crisci, who suffered a brain injury, hearing loss, and neurological disorders as a result of the first bomb. Crisci, 43, used to support the death penalty, until having to live through what feels like an endless appeals process.  Now she hopes prosecutors will not seek another penalty trial....

Of 18 victims who responded to the Globe about what prosecutors should do, a majority said they would prefer to avoid another trial and to let Tsarnaev spend the rest of his days at the US Penitentiary Administrative Maximum Facility in Colorado, the nation’s highest-security prison.

“I would prefer to let it go and let him rot in jail,” said Beth Bourgault, 65, who lives in Lynn. Bourgault and her husband were standing a few feet from Krystle Campbell when the first of two bombs exploded on Boylston Street.  Shrapnel severed muscles and nerves in one of her legs. She also suffered a ruptured eardrum.  Her husband, Michael, suffered burns and ear injuries as well.  She was troubled when Tsarnaev was originally sentenced to death and hopes prosecutors do not pursue a second trial.  “My feeling is he was hoping for death and that he got what he wanted,” she said. “I’d prefer he spend his days thinking about what he did.”

Other victims, though, were enraged by the court’s ruling and were willing to endure another trial to see Tsarnaev sentenced to death.  “If they don’t go through with the death penalty in this case, what kind of precedent is there?  What’s the point of the death penalty?” said Liz Norden, whose two adult sons lost their right legs in the bombing.  “This is personal to me.” Norden, 57, who lives in Melrose, vowed to attend a new trial.  “I want to see it through the end,” she said. “I want justice.”...

On Thursday, the US attorney’s office in Massachusetts, which prosecuted Tsarnaev in 2015, held a conference call with victims to discuss the appeals court decision and how they wished to proceed.  Discerning a consensus might be difficult.

Helen Zhao, who lost her niece Lingzi Lu, a 23-year-old Boston University graduate student from China, to the second bomb, supports the death penalty for Tsarnaev.  “He has harmed a lot of people and changed a lot of people’s lives,” she said.  “He’s a terrorist.” Lu’s parents, who live in China, were “shocked” and “speechless” by the ruling, she said.  “They were disappointed in the American legal system,” said Zhao, 49, who lives in Rhode Island.

Marc Fucarile, who lost his right leg in the bombing, worried that a life sentence could mean that Tsarnaev might one day be able to regain his freedom.  “As long as he’s breathing, that’s a possibility,” he said.  “They’re giving [Tsarnaev] a victory.” Fucarile, 41, who lives in Reading, testified during the penalty phase at Tsarnaev’s trial and said he would attend a new trial.  “I want to see it happen,” he said.

But Jenny Chung Greenfield, who was hit by shrapnel in her chest from one of the bombs, prefers that prosecutors put an end to what could be decades worth of appeals, keeping Tsarnaev’s name in the public eye.  She didn’t attend the first trial and doubts she’d go to a new one.  “I just think about what does closure mean, and closure is such a personal thing to people, and the way that folks find closure is different,” said Chung Greenfield, 42, who lives in Cambridge.

"Denialism and the Death Penalty"

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

The persistence of capital punishment as a constitutional form of punishment in the United States reflects deep denialism about the practice and the role of the courts in regulating it.  Denialism allows judges to embrace empirically contested narratives about the death penalty within judicial decisions, to sanction execution methods that shield and distort the pain associated with state killing, and to ignore the documented influence of race on the death penalty’s administration.  This Article draws upon the concept of denialism from the transitional justice context, a theory that explicates denial in responses to mass human rights violations and collective violence.  It describes mechanisms of denial in judicial regulation of capital punishment and argues that conditions will not be ripe for judicial abolition of the death penalty until this denialism is better understood and confronted.  I identify potential entry points for exposing and overcoming denialism in Eighth Amendment analysis.

Republican Georgia legislator looking to use fiscal argument to bolster death penalty abolition

In this post around the start of the pandemic, I wondered aloud "Might COVID-19 ultimately bring an end to the death penalty in the United States?".  One point I made in that post was that, amidst economic difficulties, the death penalty might seem an even more problematic use of limited government time and resources.  As I put it in that post: "I think there will be very strong arguments that this punishment is a kind of 'legal luxury' that we really cannot and ought not invest resources in while we try to rebuild after COVID-19."  

I returned to that post this morning upon seeing this new local press piece from Georgia headlined "Georgia GOP lawmaker makes budget argument to abolish death penalty."  Here are excerpts:

A Georgia Republican says he thinks the state House of Representatives is just a dozen votes shy of advancing a bill that would abolish the death penalty. Rep. Brett Harrell of Snellville said Thursday that he thinks highlighting the cost of capital punishment may help win over the support needed, at least in the one chamber.  Harrell, who chairs the influential House Ways and Means Committee, said he intends to push for the funding needed to pay for an analysis of how much Georgia spends to execute people.

“I think this conservative concerns about the death penalty focus is important and to focus on those fiscal costs will be important to us to gain those last few votes necessary to move the issue forward in Georgia,” he said.

The Gwinnett County lawmaker took part in a virtual discussion Thursday that was organized by Conservatives Concerned about the Death Penalty, a national group that argues capital punishment is inconsistent with conservative principles.  He appeared along with two Republicans from Ohio and Wyoming. Hannah Cox, the group’s senior national manager, called the death penalty a “failed big government program that fails to measure up to our values of limiting government, adhering to fiscal responsibility and protecting the sanctity of human life.”  She said most of the costs stem from the intensive trials required for a capital murder case – and not, as most assume, the lengthy appellate process.

She said the squeeze on state budgets due to the COVID-19 pandemic has brought renewed scrutiny to the cost.  Georgia just recently cut 10% from its budget, partly because of declining revenues due to the viral outbreak.

Harrell sponsored a bipartisan bill last year that would have ended the death penalty in Georgia, requiring instead life in prison without parole for those sitting on death row.  The bill never cleared a committee.  Georgia is among the 25 states that have the death penalty.

Now, he’s sharpening his fiscal line of attack, calling the death penalty an “incredibly expensive proposition.” He pointed to an example in the 1990s that left local officials jailed for a day in Lincoln County when they refused to foot the bill for a second capital murder trial after the courts overturned a death sentence. At the time, the case had already cost the rural county about $100,000; the county’s entire budget was $2.2 million.

“Evidence suggests – study after study – that it is not an actual deterrent to crime and we have alternatives, such as life without parole,” Harrell said. “As someone who is fiscally conservative and prefers a small government consistent with efficient implementation of government, the death penalty fails on all those measures.”

He also noted that Georgia has exonerated six people since the death penalty was reinstated in 1976. “Someone who is also a social conservative and someone who is pro-life should also see the death penalty as very problematic in that the likelihood is very great that innocent have been executed as well,” Harrell said.

Because many of my criticisms of many aspects of the criminal justice system are situated in the concern that it does not involve "efficient implementation of government," I am always drawn to these kinds of arguments.  And, as mentioned before, I think the misused resources arguments against the death penalty are especially strong during a time of national crisis when monies would seem better spent seeking to help those in need rather than in trying to secure and preserve a death sentence that likely never will be carried out.

"Is Death Different to Federal Judges?"

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

Legal commentators have long believed that federal judges treat capital appeals more favorably than noncapital appeals.  However, due to the bifurcated nature of capital trials and the complexity of the ensuing appeals, no empirical research to date has proven that the guilt-phase claims of capital defendants are more likely to succeed on federal habeas review than the claims of other defendants. 

This Note addresses that gap in the literature.  The Author analyzed 1,368 votes cast by federal appellate judges between 2013 and 2017 in murder cases heard on habeas review.  In each of those cases, the defendant was under a sentence of either death or life in prison. Exploiting this unique dataset, this Note finds that federal appellate judges are significantly more likely to grant guilt-phase relief to capital defendants than they are to similarly situated noncapital defendants.  It then rules out alternative explanations for this finding of a “sentencing effect,” such as differential attorney investment or dissimilarity between capital and noncapital defendants.  After establishing that federal appellate judges do in fact behave differently in capital cases, the Note considers the normative implications of this finding.  It ultimately concludes that the behavior of federal judges on habeas review is consistent with a generally shared principle of capital jurisprudence: preventing the execution of innocents.

Study details how Georgia execution rate is "substantially greater" for those convicted of killing white victims than for those convicted of killing black victims

This New York Times article, headlined "A Vast Racial Gap in Death Penalty Cases, New Study Finds," highlights new research on the intersection of race and the death penalty.  Here are excerpts from the press piece with a few of the original links to the original research:

Black lives do not matter nearly as much as white ones when it comes to the death penalty, a new study has found.  Building on data at the heart of a landmark 1987 Supreme Court decision, the study concluded that defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims.

There is little chance that the new findings would alter the current Supreme Court’s support for the death penalty. Its conservative majority has expressed impatience with efforts to block executions, and last month it issued a pair of 5-to-4 rulings in the middle of the night that allowed federal executions to resume after a 17-year hiatus.

But the court came within one vote of addressing racial bias in the administration of the death penalty in the 1987 decision, McCleskey v. Kemp. By a 5-to-4 vote, the court ruled that even solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution....

The McCleskey decision considered a study conducted by David C. Baldus, a law professor who died in 2011.  It looked at death sentences rather than executions, and it made two basic points.  The first was that the race of the defendant does not predict the likelihood of a death sentence.  The second was that the race of the victim does.  Killers of white people were more than four times as likely to be sentenced to death as killers of Black people, Professor Baldus found.

The new study, published in The Harvard Civil Rights-Civil Liberties Law Review, examined not only death sentences but also whether defendants sentenced to death were eventually executed. “The problematic sentencing disparity discovered by Baldus is exacerbated at the execution stage,” wrote the study’s authors, Scott Phillips and Justin Marceau of the University of Denver. Professor Baldus’s study examined more than 2,000 murders in Georgia from 1973 to 1979, controlling for some 230 variables.

Though some have argued that Professor Baldus did not consider every possible variable, few question his bottom-line conclusion, and other studies have confirmed it. In 1990, the General Accounting Office, now called the Government Accountability Office, reviewed 28 studies and determined that 23 of them found that the race of the victim influenced “the likelihood of being charged with capital murder or receiving a death sentence.” “This finding was remarkably consistent across data sets, states, data collection methods and analytic techniques,” the report said. A 2014 update came to a similar conclusion.

One factor Professor Baldus could not analyze, given the decades that often pass between sentencings and executions, was whether the race of the victim correlated to the likelihood of the defendant being put to death. The new study, the product of exhaustive research, supplied the missing information. It found that 22 of the 972 defendants convicted of killing a white victim were executed, as compared with two of the 1,503 defendants convicted of killing a Black victim.

The new study also confirmed just how rare executions are. Of the 127 men sentenced to death in the Baldus study, 95 left death row thanks to judicial action or executive clemency; five died of natural causes; one was executed in another state; one escaped (and was soon beaten to death in a bar fight); and one remains on death row.

A more general and less granular 2017 study compared two sets of nationwide data: homicides from 1975 to 2005 and executions from 1976 to 2015. Its conclusions were similarly striking. About half of the victims were white, that study found, but three-quarters of defendants put to death had killed a white person. About 46 percent of the victims were Black, but only 15 percent of defendants who were executed had killed a Black person.

Eric M. Freedman, a law professor at Hofstra, said courts and lawmakers had failed to confront the question of racial bias in the administration of capital punishment. “The continuing adherence of the Supreme Court to McCleskey is a continuing statement that Black lives do not matter,” he said. “The continuing failure of Congress and the state legislatures to remedy the situation is a continuing admission that the states are unable to run racially unbiased death penalty systems.”

I always find in-depth exploration of the Baldus study and McClesky so interesting and important, in part because David Baldus discovered that even in Georgia in the 1970s, it appears that the race of the defendant had relatively little or no impact on who was ultimately sentenced to death.  That strikes me as itself a remarkable and encouraging finding, even though he reached the corresponding and discouraging finding that the race of the victim did have a huge impact on who was ultimately sentenced to death.  But, as Prof Randall Kennedy astutely explored in this terrific article published right after the McClesky decision, one logical response to these kinds of race-of-the-victim disparity studies is to call for far more executions of persons who kill black victims to signal in this context that black lives matter as much as white ones.

According to my quick searching using the DPIC database, it appears that only 3 of 25 persons executed in the United States in 2018 had black victims, whereas in 2019 there were 6 of 22 persons executed in the US who had black victims.  Should we be "celebrating" that black lives mattered more than twice as much in the operation of the US machinery of death in 2019 than in 2018?  Circa 2020 when the feds are now poised to be the most active of executioners, should we all be urging Attorney General Barr, as he continues adding names to the list of condemned to now be marched into the federal death chamber, to be working harder to pick from federal death row those killers with black victims?

My point here is just to recall in this context Prof Kennedy's important insight that the most ready response to these kinds of race-of-the-victim disparities may be to encourage more (capital) punishment, especially if we end up talking about these disparities in terms of certain victims not getting equal justice.   I would also add that I wish there was a lot more of this kind of race-of-the-victim sentencing disparity conducted concerning non-capital crimes.  I suspect and fear that there may be even more pernicious individual and community harms resulting from persistently unequal sentencing for those who commit sexual or property offenses with black victims.  

US Department of Justice sets two execution dates for late September

As I have mentioned before, in this recent post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My central point in that post was that, after the completion of three federal executions earlier this month thanks to SCOTUS lifting lower court stays, there is every reason to believe that AG Barr will be able to complete however many executions he decides to set in the near future.

Thereafter, as reported in this post, DOJ set the execution of Lezmond Mitchell for August 26, 2020.  And late Friday, as detailed in this DOJ press release, AG Barr has decided that he wants to move forward with at least two more executions in 2020.  This release includes these particulars:

Attorney General William P. Barr ... directed the Federal Bureau of Prisons to schedule the executions of two federal death-row inmates who were each convicted of murder.

• William Emmett LeCroy raped and murdered Joann Lee Tiesler, a 30-year-old nurse, in 2001.  LeCroy had previously served 10 years in federal and state prison for, among other crimes, aggravated assault, burglary, child molestation, and statutory rape.  After his release to supervised probation, LeCroy began planning to flee the country.  In furtherance of that plan, LeCroy broke into Tiesler’s home in Gilmer County, Georgia.  Once she returned home, LeCroy attacked her, bound her hands behind her back, strangled her with an electrical cord, and raped her.  Then he slashed her throat with a knife and stabbed her in the back five times.  LeCroy then stole Tiesler’s vehicle and drove to the Canadian border, where he was arrested....  LeCroy’s execution is scheduled for Sept. 22, 2020.
• Christopher Andre Vialva murdered youth ministers Todd and Stacie Bagley in 1999.  While stopping to use a payphone in Killeen, Texas, Todd Bagley agreed to give a ride to Vialva and two of his accomplices.  In the victims’ car, Vialva pulled out a gun, forced the Bagleys into the trunk, and drove the vehicle for several hours, stopping at ATMs to withdraw money from the couple’s bank account and trying to pawn Stacie Bagley’s wedding ring.  While locked in the trunk, the couple spoke with their abductors about God and pleaded for their lives.  Vialva eventually parked at a remote site on the Fort Hood, Texas, military reservation, where an accomplice doused the car with lighter fluid as the couple sang and prayed.  Vialva then shot Todd Bagley in the head, killing him instantly, and shot Stacie Bagley in the face, knocking her unconscious and leaving her to die of smoke inhalation after an accomplice set the car on fire.... Vialva’s execution is scheduled for Sept. 24, 2020.

A few of many recent prior related posts:

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

First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Roughly five years after a jury handed down a death sentence to the Boston Marathon bomber Dzhokhar Tsarnaev back in May 2015, today a First Circuit panel reversed the sentence while affirming his convictions.  This local NPR piece provides the basics and some context:

A federal appeals court has overturned the death sentence of admitted Boston Marathon bomber Dzhokhar Tsarnaev, saying the trial judge didn't do enough to ensure an unbiased jury.

The First Circuit Court of Appeals Friday ordered a new penalty phase of the trial, where a new set of jurors would decide whether to sentence Tsarnaev to life or death.  "A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished," Judge O. Rogeriee Thompson wrote in her 182-page opinion.

The federal appeals court said that Judge George O'Toole didn't do enough to make sure jurors were not tainted by pretrial publicity.... "But as to 9 of the 12 seated jurors, the judge fell short on this front," Thompson wrote. "The judge qualified jurors who had already formed an opinion that Dzhokhar was guilty — and he did so in large part because they answered 'yes' to the question whether they could decide this high-profile case based on the evidence."

But by not having the jurors identify exactly what they already knew about the case, the judge couldn’t determine whether they were actually fit to serve. The First Circuit Court of appeals issued its decision Friday, after hearing arguments in the case in December 2019.

Tsarnaev and his older brother Tamerlan killed three and injured more than 260 people near the finish line of the marathon in 2013, then murdered a police officer several days later. Tamerlan was killed during the manhunt for the brothers. In 2015, a jury convicted Dzhokhar Tsarnaev of all 30 counts against him, and then handed down six death sentences.

Liz Norden, whose two sons J.P. and Paul each lost their right leg in the bombing, supported the death penalty for Tsarnaev. In an interview with WBUR Friday, she said the appeals court decision made her “sick to her stomach.” She said she’s sad at the prospect of a new penalty phase of the trial, but having sat through the first trial, is willing to do it again....

Bombing survivor Michelle L’Heureux said she was "sad and frustrated" by the decision. "We had closure. And now that’s gone," she said. "This is going to take a toll on so many of the survivors and the families of those who never made it home. I, fortunately, through my own recovery, have gained strength and have found ways to cope with the trauma of what I and so many suffered on that fateful day in April 2013. This is a step back for many. And that is a disgrace."

The family of Martin Richard, the youngest victim of the bombing at 8 years old, declined to comment. But they pointed to a letter they wrote in 2015, just after Tsarnaev was convicted but before he was sentenced. "To end the anguish, drop the death penalty," they wrote.

Instead of another sentencing phase, prosecutors and defense attorneys could agree to life in prison for Tsarnaev, avoiding another high-profile, weeks-long session in front of a new jury. Tsarnaev's attorneys admitted his guilt at the start of the trial in 2015, and sought a plea deal before going to trial....

Among the factors at play in what happens next is a new U.S. Attorney, Andrew Lelling, who replaced Carmen Ortiz, the U.S. Attorney who oversaw the Tsarnaev trial. Lelling on Friday said his office was reviewing the decision. Tsarnaev's federal public defenders said in a statement they were grateful for the court's straightforward and fair decision....

Tsarnaev is now 27 and remains at the federal supermax prison in Florence, Colorado. Thompson noted twice in her decision that the court's ruling does not mean Tsarnaev will ever be released from prison. "Make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution," she wrote. With another trial, however, he will be back in a Massachusetts courtroom.

The full opinion in this case is available at this link, and I welcome help from readers to identify the good, the bad and the ugly of this notable and very lengthy ruling.  I am especially interested in speculation about whether the feds will seek review with the full First Circuit or SCOTUS.  If they do, it could be years before we even know if there will be a need for a retrial.

US Department of Justice sets another execution date for last week of August

In this recent post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of three federal executions earlier this month thanks to SCOTUS lifting lower court stays, it would now seem that AG Barr is likely to be able to complete how ever many executions he decides to set.

Yesterday, via this press release, we learned that AG Barr wants to see at least one more execution in 2020.  This release, titled  "Execution Rescheduled for Federal Inmate Convicted of Brutally Murdering a Grandmother and her Nine-Year-Old Granddaughter" states:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to reschedule the execution of Lezmond Mitchell, a federal death-row inmate who was convicted more than 17 years ago of the brutal murders of a grandmother and her nine-year-old granddaughter.  The execution, initially scheduled for last December, is now scheduled to occur on August 26, 2020, at the U.S. Penitentiary in Terre Haute, Indiana.

In October 2001, Mitchell murdered Alyce Slim, a 63-year-old grandmother, and her nine-year-old granddaughter as part of a carjacking in Arizona.  After getting a ride from Slim in her pickup truck, Mitchell and an accomplice stabbed her 33 times and threw her body into the backseat beside her granddaughter.  Mitchell then drove the truck 30-40 miles into the mountains, ordered the girl “to lay down and die,” slit her throat twice, and crushed her head with rocks. Mitchell and his accomplice proceeded to sever the heads and hands of the victims’ bodies and burn their clothes. Mitchell later confessed to the murders.  In May 2003, a jury in the U.S. District Court for the District of Arizona found him guilty of numerous federal crimes — including first-degree murder, felony murder, and carjacking resulting in death — and he was sentenced to death.  His convictions and sentence were affirmed on appeal, and his claims for collateral relief were denied by every court that considered them.

Mitchell’s execution was initially scheduled for December 2019, but the U.S. Court of Appeals for the Ninth Circuit entered a stay of execution while it resolved an additional appeal by Mitchell.  The court of appeals unanimously rejected Mitchell’s claim in April 2020 and denied his request for full-court rehearing earlier this month. When the Ninth Circuit stay formally concludes, no legal impediments will bar the execution, and it can occur without further delay.

This Arizona Republic article provides more details on Mitchell's crime and notes that he is the only Native American on federal death row.

Recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• With executions looming, lots of news and notes about the federal death penalty 
• DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week
• How many federal death row prisoners does Attorney General William Barr want to see executed in 2020? 

"Death Row Narratives: A Qualitative Analysis of Mental Health Issues Found in Death Row Inmate Blog Entries"

The title of this post is the title of this new article now on SSRN authored by Robert Johnson and Jacqueline Lantsman.  Here is its abstract:

Death row inmate narratives, culled from online blogs, are used to explore the social determinants of mental health in the context of the stresses and deprivations of living on death row.  Legal and correctional procedures that affect death row inmates are conceptualized as social determinants of mental health.  These procedures include the granting or denying of stays of execution, conditions of solitary confinement during death row and particularly the death watch, and impending dates of execution.  Death row narratives offer a nuanced account of the many ways condemned prisoners must contend with their powerlessness as an essential element of life under sentence of death.

Deputy AG defends federal executions that "operated entirely within the law"

Deputy Attorney General Jeffrey Rosen took to the pages of the New York Times to publish this piece defending the Justice Department's successful effort to move forward with three federal executions earlier this month.  Here are excerpts:

The death penalty is a difficult issue for many Americans on moral, religious and policy grounds.  But as a legal issue, it is straightforward.  The United States Constitution expressly contemplates “capital” crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790.  The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof.

The recent executions reflect that consensus, as the Justice Department has an obligation to implement the law.  The decision to seek the death penalty against Mr. Lee was made by Attorney General Janet Reno (who said she personally opposed the death penalty but was bound by the law) and reaffirmed by then-Deputy Attorney General Eric Holder.  Mr. Purkey was prosecuted during the George W. Bush administration, and his conviction and sentence were vigorously defended throughout the Obama administration. The former judge who imposed the death sentence on Mr. Honken, Mark Bennett, said that while he generally opposed the death penalty, he would not lose any sleep over Mr. Honken’s execution.

In a New York Times op-ed published on July 17, two of Mr. Lee’s lawyers criticized the execution of their client, which they contend was carried out in a “shameful rush.”  That objection overlooks that Mr. Lee was sentenced more than 20 years ago, and his appeals and other permissible challenges failed, up to and including the day of his execution.  Mr. Lee’s lawyers seem to endorse a system of endless delays that prevent a death sentence from ever becoming real.  But his execution date was announced almost a year ago, and was initially set for last December. It was delayed when his lawyers obtained six more months of review by unsuccessfully challenging the procedures used to carry out his lethal injection....

[I]f the United States is going to allow capital punishment, a white-supremacist triple murderer would seem the textbook example of a justified case.  And if death sentences are going to be imposed, they cannot just be hypothetical; they eventually have to be carried out, or the punishment will lose its deterrent and retributive effects.

Rather than forthrightly opposing the death penalty and attempting to change the law through democratic means, however, Mr. Lee’s lawyers and others have chosen the legal and public-relations equivalent of guerrilla war.  They sought to obstruct by any means the administration of sentences that Congress permitted, juries supported and the Supreme Court approved.  And when those tactics failed, they accused the Justice Department of “a grave threat to the rule of law,” even though it operated entirely within the law enacted by Congress and approved by the Supreme Court.  The American people can decide for themselves which aspects of that process should be considered “shameful.”

A few of many recent prior related posts:

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

How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?

The question in the title of this post has been in my head in the wake of last week's three federal executions and the clear signal sent by five members of the Supreme Court that they will not allow lower courts to get in the way of the Attorney General's execution plans.  As highlighted in posts last week here and here, the Supreme Court by 5-4 votes vacated a series of lower court stays and injunctions to enable the Justice Department to complete the scheduled executions of Daniel Lewis Lee and Wesley Ira Purkey.  By the end of the week, the pro-execution momentum was so strong that the third person executed, Dustin Lee Honken, apparently did not even pursue any final legal claims up to the Supreme Court.

Recall that it was only a month ago that AG Barr ordered the scheduling of these execution dates for last week (as well as one more set for August 28 for Keith Dwayne Nelson).  This reality suggests to me that AG Barr could, at just about any time for just about any reason, order the scheduling of one or many executions and have them carried our within a month's time.  There are 59 condemned persons on federal death row (full list here via DPIC), and I suspect at least a couple dozen of these death row defendants have exhausted the standard appellate and post-conviction remedies so that no legal impediments would currently prevent their executions.  Consequently, it would seem their fates now lie squarely and only in the hands of AG Barr and will turn on how he now decides to exercise his discretion in the setting of execution dates.

In DOJ statements concerning the setting of executions dates (here and here), AG Barr has repeatedly stated that "we owe it to the victims and their families to carry forward the sentence imposed by our justice system."  If AG Barr really believes this, will he be actively trying to set more execution dates (perhaps many more) in the weeks and months ahead?  Notably, former Vice President Joe Biden is campaigning for Prez on a promise to "Eliminate the death penalty": "Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example."  If AG Barr really believes that justice calls for executing those now currently on federal death row, should he be seeking to complete as many executions as possible in 2020 just in case a new administration might not want to carry out these sentences in 2021? 

Recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• With executions looming, lots of news and notes about the federal death penalty 
• DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week

"American Roulette: The Social Logic of Death Penalty Sentencing Trials"

The title of this post is the title of this recently published book authored by Sarah Beth Kaufman which now seem especially timely in light of the federal government's return to operating its machinery of death.  Here is the book description on the website of the publisher, University of California Press:

As the death penalty clings to life in many states and dies off in others, this first-of-its-kind ethnography takes readers inside capital trials across the United States.  Sarah Beth Kaufman draws on years of ethnographic and documentary research, including hundreds of hours of courtroom observation in seven states, interviews with participants, and analyses of newspaper coverage to reveal how the American justice system decides who deserves the most extreme punishment.  The “super due process” accorded capital sentencing by the United States Supreme Court is the system’s best attempt at individuated sentencing.  Resources not seen in most other parts of the criminal justice system, such as jurors and psychological experts, are required in capital trials, yet even these cannot create the conditions of morality or justice.  Kaufman demonstrates that capital trials ultimately depend on performance and politics, resulting in the enactment of deep biases and utter capriciousness.  American Roulette contends that the liberal, democratic ideals of criminal punishment cannot be enacted in the current criminal justice system, even under the most controlled circumstances.

The 15-page introduction to the text is available here, and here is an excerpt:

It would be sensible to assume that those who face capital punishment have committed the most atrocious murders and that their executions might serve as the strongest deterrent to others.  But these are not the criteria that determine who is “death-worthy” in the United States; ... Zacarias Moussaoui, who conspired to plan the 9/11 attacks, and Gary Ridgway, who was convicted of killing forty-nine women, for example, were both sentenced to life imprisonment.  Corinio Pruitt and Corey Wimbley each committed single robbery-murders and were sentenced to death by execution.  In the twenty-first century United States, between 14,000 and 17,000 homicides are committed each year, yet fewer than a hundred result in a sentence of death.  Those so chosen, according to prosecutors, judges, and legislators, are meant to be the “worst of the worst.”  During the past two decades, death sentencing has steadily decreased from its peak of 315 cases in 1996 to fewer than 50 in 2018....  This is a meaningful trend, but the capital punishment system continues to provide fodder for politicians touting “tough on crime” positions, feeding the myth that the capital punishment system identifies and punishes those most evil in American society.  Whether for or against the death penalty, few people are satisfied with the current system....

I came to think of the trials I witnessed as games of Russian roulette, unnecessary sport where someone would inevitably die, and that I had no power to stop.  Criminal defendants arrive at capital trials through a series of structuring logics ordained by racial classification and state power.  In part I, I take readers through the first major structuring logic: the construction of capital homicide.  From a vast backdrop of millions of human deaths a year, courts, legislatures, police forces, and prosecutors define some deaths as homicide — the result of malicious human intent — before settling on those worthy of being considered capital.  What I refer to as the “narrowing structure” of the capital punishment field is not unproblematic.  The cultural and legal norms that determine who eventually is tried by a capital jury follow confusing and often contradictory logics....  Importantly, the stages of capital narrowing are unknown to most of the parties involved.  Though I worked in capital sentencing for years, I had little idea about the mechanisms determining who was tried capitally.  Capital jurors, I will argue, are likewise and necessarily uninformed.  When they agree to participate in the capital sentencing process, they are assured that they are the last in a series of people who systematically ensure that those tried for capital murder are the worst society has to offer.

Feds, revving up machinery of death, complete third execution of week

As reported in this Fox News piece, a "drug kingpin from Iowa was executed on Friday afternoon, after he was convicted of murdering two young women and three adults, marking the third time this week that a federal inmate has been put to death after a 17-year capital punishment hiatus." Here is more:

Department of Justice (DOJ) spokeswoman Kerri Kupec issued the following statement after the execution was carried out. “Today, Dustin Lee Honken was executed at USP Terre Haute in accordance with the death sentence imposed by a federal district court in 2004. Honken was pronounced dead at 4:36 p.m. EDT by the Vigo County Coroner," she wrote.

"In 1993, Honken, a meth kingpin, kidnapped, fatally shot, and buried Lori Duncan, a single, working mother, Duncan’s two young daughters — 10-year-old Kandi and 6-year-old Amber — and Greg Nicholson, a government informant who testified against Honken on federal drug trafficking charges. Honken also murdered Terry DeGeus, who Honken thought might also testify against him, by beating him with a bat and shooting him. On October 14, 2004, a jury in the U.S. District Court for the Northern District of Iowa found Honken guilty of numerous federal offenses, including five counts of continuing criminal enterprise murder, and he was sentenced to death."...

Honken had also befriended Daniel Lewis Lee, 47, who was the first federal inmate to die this week, hours after the Supreme Court greenlit the first federal execution to take place since 2003. Lee was convicted of multiple offenses, including three counts of murder in aid of racketeering in the 1996 slayings of William Frederick Mueller, his wife Nancy Ann Mueller and his 8-year-old stepdaughter, Sarah Elizabeth Powell, in Arkansas.

Wesley Ira Purkey was the second man to be put to death two days later, after being convicted in the 1998 kidnapping and killing of 16-year-old Jennifer Long, whose body was dismembered, burned and dumped in a septic pond. That same year, Purkey was also convicted in a state court in Kansas after using a claw hammer to kill an 80-year-old woman who had polio.

After Honken was convicted in 2004, the jury recommended a death sentence. U.S. District Judge Mark Bennett -- who claimed to mostly oppose the death penalty -- said, “I am not going to lose any sleep if he is executed,” The Associated Press reported.

Recent prior related posts:

• With executions looming, lots of news and notes about the federal death penalty 
• DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 

Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection

As reported here earlier this week, the federal government completed the execution of Daniel Lewis Lee, which had been scheduled for Monday, around 8am on Tuesday morning after a divided  Supreme Court around 2am vacated lower court ruling that were blocking the execution.  It was déjà vu all over again today:  sometime not long after 2am this morning, the US Supreme Court issued this order vacating the injunction, with four Justices in dissent and Justices Breyer and Sotomayor writing up the basis for their disagreement.  This new AP article reports on the execution and some of the legal wrangling that preceded it:

The United States on Thursday carried out its second federal execution this week, killing by lethal injection a Kansas man whose lawyers contended he had dementia and was unfit to be executed.

Wesley Ira Purkey was put to death at the Federal Correctional Complex in Terre Haute, Indiana. Purkey was convicted of kidnapping and killing a 16-year-old girl, Jennifer Long, before dismembering, burning and dumping her body in a septic pond. He also was convicted in a state court in Kansas after using a claw hammer to kill an 80-year-old woman who had polio....

As the lethal chemical was injected, Purkey took several deep breaths and blinked repeatedly, laying his head back down on the gurney. His time of death was 8:19 a.m. EDT. His spiritual adviser was in the room, wearing a face mask and a surgical mask and appeared to be praying, his gloved hands held together at the palms.

The Supreme Court cleared the way for the execution to take place just hours before, ruling in a 5-4 decision. The four liberal justices dissented, like they did for the first case earlier this week. Justice Sonia Sotomayor wrote that “proceeding with Purkey’s execution now, despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.” She was joined by Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

It was the federal government’s second execution after a 17-year hiatus. Another man, Daniel Lewis Lee, was put to death Tuesday after his eleventh hour legal bids failed. Both executions were delayed into the day after they were scheduled as legal wrangling continued late into the night and into the next morning....

Purkey’s lawyers had argued his condition had deteriorated so severely that he didn’t understand why he was being executed. They said he was repeatedly sexually assaulted as a child and had been diagnosed with schizophrenia, bipolar disorder and other mental health conditions....

The Supreme Court also lifted a hold placed on other executions set for Friday and next month. Dustin Honken, a drug kingpin from Iowa convicted of killing five people in a scheme to silence former dealers, was scheduled for execution Friday.

We may see this pattern play out one more time this week, as I suspect that Honken still has some legal claims to press to try to block his execution tomorrow and that the Supreme Court will eventually turn away those claims so that his execution goes forward. DPIC has this webpage trying to track all the legal developments in all these cases, though it looks like they all are going to end the same way.

Some prior recent related posts:

• With executions looming, lots of news and notes about the federal death penalty 
• DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency

UPDATE: Over at SCOTUSblog here, Amy Howe has an extended post with more details on the litigation and rulings leading up to Purkey's execution this morning under the headline "Justices allow second federal execution to proceed (updated)."

DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency

As detailed in this new AP piece, this morning a DC District Judge "halted the execution of a man said to be suffering from dementia, who had been set to die by lethal injection in the federal government’s second execution after a 17-year hiatus." Here is more:

Wesley Ira Purkey, convicted of a gruesome 1998 kidnapping and killing, was scheduled for execution Wednesday at the U.S. Penitentiary in Terre Haute, Indiana, where Daniel Lewis Lee was put to death Tuesday after his eleventh-hour legal bids failed.

U.S. District Judge Tanya Chutkan in Washington, D.C., imposed two injunctions on Wednesday prohibiting the federal Bureau of Prisons from moving forward with Purkey’s execution. The Justice Department immediately appealed in both cases. A separate temporary stay was already in place from the 7th U.S. Circuit Court of Appeals.

The early morning legal wrangling suggests a volley of litigation will continue in the hours ahead of Purkey’s scheduled execution, similar to what happened when the government executed Lee, following a ruling from the Supreme Court. Lee, convicted of killing an Arkansas family in a 1990s plot to build a whites-only nation, was the first of four condemned men scheduled to die in July and August despite the coronavirus pandemic raging inside and outside prisons.

Purkey, 68, of Lansing, Kansas, would be the second, but his lawyers were still expected to press for a ruling from the Supreme Court on his competency. “This competency issue is a very strong issue on paper,” said Robert Dunham, executive director of the Death Penalty Information Center. “The Supreme Court has halted executions on this issue in the past. At a minimum, the question of whether Purkey dies is going to go down to the last minute.”

Chutkan didn’t rule on whether Purkey is competent but said the court needs to evaluate the claim. She said that while the government may disagree with Purkey’s lawyers about his competency, there’s no question he’d suffer “irreparable harm” if he’s put to death before his claims can be evaluated.

Lee’s execution went forward a day late. It was scheduled for Monday afternoon, but the Supreme Court only gave the green light in a narrow 5-4 ruling early Tuesday.

The issue of Purkey’s mental health arose in the runup to his 2003 trial and when, after the verdict, jurors had to decide whether he should be put to death in the killing of 16-year-old Jennifer Long in Kansas City, Missouri. Prosecutors said he raped and stabbed her, dismembered her with a chainsaw, burned her and dumped her ashes 200 miles (320 kilometers) away in a septic pond in Kansas. Purkey was separately convicted and sentenced to life in the beating death of 80-year-old Mary Ruth Bales, of Kansas City, Kansas.

But the legal questions of whether he was mentally fit to stand trial or to be sentenced to die are different from the question of whether he’s mentally fit enough now to be put to death. Purkey’s lawyers argue he clearly isn’t, saying in recent filings he suffers from advancing Alzheimer’s disease. “He has long accepted responsibility for the crime that put him on death row,” one of this lawyers, Rebecca Woodman, said. “But as his dementia has progressed, he no longer has a rational understanding of why the government plans to execute him.”

Purkey believes his planned execution is part of a conspiracy involving his attorneys, Woodman said. In other filings, they describe delusions that people were spraying poison into his room and that drug dealers implanted a device in his chest meant to kill him.

While various legal issues in Purkey’s case have been hashed, rehashed and settled by courts over nearly two decades, the issue of mental fitness for execution can only be addressed once a date is set, according to Dunham, who teaches law school courses on capital punishment. A date was set only last year. “Competency is something that is always in flux,” so judges can only assess it in the weeks or days before a firm execution date, he said.

In a landmark 1986 decision, the Supreme Court ruled the Constitution prohibits executing someone who lacks a reasonable understanding of why he’s being executed. It involved the case of Alvin Ford, who was convicted of murder but whose mental health deteriorated behind bars to the point, according to his lawyer, he believed he was pope.

Purkey’s mental issues go beyond Alzheimer’s, his lawyers have said. They say he was subject to sexual and mental abuse as a child and, at 14, was diagnosed with schizophrenia, bipolar disorder, major depression and psychosis. Last week, three mental health organizations urged U.S. Attorney William Barr to stop Purkey’s execution and commute his sentence to life in prison without possibility of parole. The National Alliance on Mental Illness, Mental Health America and the Treatment Advocacy Center said executing mentally ailing people like Purkey “constitutes cruel and unusual punishment and does not comport with ‘evolving standards of decency.’”

The mother of the slain teenager, Glenda Lamont, told the Kansas City Star last year she planned to attend Purkey’s execution. “I don’t want to say that I’m happy,” Lamont said. “At the same time, he is a crazy mad man that doesn’t deserve, in my opinion, to be breathing anymore.”

US District Judge Chutkan’s 14-page ruling granting a preliminary injunction to  halt the execution can be accessed here.  I was able to accurately guess at this time two days ago that Judge Chutkan's order blocking Daniel Lewis Lee's execution would get vacated on appeal.  But the nature of Purkey's claim make (as well as other litigation he has afoot) leads me to think it somewhat more likely that Purkey's scheduled execution will not go forward today.  But as I said before and will surely say again, one really never knows just what will happen when it comes to last-minute capital litigation.

SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed

As noted in this post yesterday, a DC District Court in the morning had entered an order blocking yesterday scheduled federal execution as well as the others planned for this week. That ruling stayed in place through a DC Circuit appeal. But at around 2am this morning, the US Supreme Court decided in this per curiam opinion to "vacate the District Court’s preliminary injunction so that the plaintiffs’ executions may proceed as planned." This AP article provides context and more details:

The Trump administration was moving ahead early Tuesday with the execution of the first federal prison inmate in 17 years after a divided Supreme Court reversed lower courts and ruled federal executions could proceed.

Daniel Lewis Lee had been scheduled to receive a lethal dose of the powerful sedative pentobarbital at 4 p.m. EDT Monday.  But a court order issued Monday morning by U.S. District Judge Tanya Chutkan prevented Lee’s execution.  A federal appeals court in Washington refused the administration’s plea to step in, leaving the hold in place, before the Supreme Court acted by a 5-4 vote.  Still, Lee’s lawyers insisted the execution could not go forward after midnight under federal regulations.  With conservatives in the majority, the court said in an unsigned opinion that the prisoners’ “executions may proceed as planned.” The four liberal justices dissented.

Lee’s execution was scheduled for about 4 a.m. EDT Tuesday, according to court papers. There was another delay when the government asked for an emergency ruling related to an old stay that had been issued in the case, but that wasn’t expected to derail the execution. The Bureau of Prisons had continued with preparations even as lower courts paused the proceedings....

Lee was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell. “The government has been trying to plow forward with these executions despite many unanswered questions about the legality of its new execution protocol,” said Shawn Nolan, one of the attorneys for the men facing federal execution.

The decision to move forward during a global health pandemic that has killed more than 135,000 people in the United States and is ravaging prisons nationwide, drew scrutiny from civil rights groups as well as family of Lee’s victims.

Some members of the victims’ family argued they would be put at high risk for the coronavirus if they had to travel to attend, and sought to delay the execution until it was safer to travel. Those claims were at first granted but also eventually overturned by the Supreme Court. [NOTE: It was the Seventh Circuit that overturned these claims, but SCOTUS upheld that decision.]

Critics argue that the government is creating an unnecessary and manufactured urgency for political gain. The developments are also likely to add a new front to the national conversation about criminal justice reform in the lead-up to the 2020 elections.

Two more executions are scheduled this week, though one, Wesley Ira Purkey, was on hold in a separate legal claim. Dustin Lee Honken’s execution was scheduled for on Friday. A fourth man, Keith Dwayne Nelson, is scheduled to be executed in August.

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier. In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume.

The Supreme Court's per curiam opinion runs three pages, and separate dissents by Justice Breyer and Justice Sotomayor are of similar lengthy and hit their usual notes of complaint about the death penalty. And Justice Breyer's dissent seemed resigned to a particular outcome, as its first sentence states plainly: "Today, for the first time in 17 years, the Federal Government will execute an inmate, Daniel Lewis Lee."

Notably, though the AP report suggested that the Lee execution was still to go forward in the early hours of this morning, as of this writing (just after 8 am on July 14) there is no report that the execution has been completed.

Prior recent related posts:

• With executions looming, lots of news and notes about the federal death penalty 
• Seventh Circuit panel vacates stay to put federal execution back on schedule for July 13
• DC District Judge issues new stay, based on Eighth Amemdment claims, to block this week's scheduled federal executions

UPDATE: I suppose I should have waited a few minutes to complete this post, as this Fox News piece now has this updated headline: "Daniel Lewis Lee executed for torturing, killing Arkansas family in 1996, first federal execution 17 years." Here is the start of the piece:

A white supremacist who tortured and killed an Arkansas family-- including an 8-year-old girl-- was executed early Tuesday morning in Indiana. Daniel Lewis Lee, 47, was injected with a lethal dose of pentobarbital at 8:07 a.m., just hours after the Supreme Court greenlighted the first federal execution to take place since 2003.

DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions

As detailed in this new AP piece, a "district judge on Monday ordered a new delay in federal executions, hours before the first lethal injection was scheduled to be carried out at a federal prison in Indiana. The Trump administration immediately appealed to a higher court, asking that the executions move forward." Here is more:

U.S. District Judge Tanya Chutkan said there are still legal issues to resolve and that “the public is not served by short-circuiting legitimate judicial process.” The executions, pushed by the administration, would be the first carried out at the federal level since 2003. Chutkan said the inmates have presented evidence showing that the government’s plan to use only pentobarbital to carry out the executions “poses an unconstitutionally significant risk of serious pain.”

Chutkan said the inmates produced evidence that, in other executions, prisoners who are given pentobarbital suffered ”flash pulmonary edema,” which she said interferes with breathing and produces sensations of drowning and strangulation. The inmates have identified alternatives, including the use of an opioid or anti-anxiety drug at the start of the procedure or a different method altogether, a firing squad, Chutkan said.

The Justice Department immediately appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The new hold on executions came a day after a federal appeals court lifted a hold on the execution of Daniel Lewis Lee, of Yukon, Oklahoma, which is scheduled for 4 p.m. EDT on Monday at the federal prison in Terre Haute, Indiana. He was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell....

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Barr said he believes the Bureau of Prisons could “carry out these executions without being at risk.” The agency has put a number of additional measures in place, including temperature checks and requiring witnesses to wear masks. On Sunday, the Justice Department disclosed that a staff member involved in preparing for the execution had tested positive for the coronavirus, but said he had not been in the execution chamber and had not come into contact with anyone on the specialized team sent to the prison to handle the execution.

The victim’s family hopes there won’t be an execution, ever. They’ve asked the Justice Department and President Donald Trump not to move forward with the execution and have long asked that he be given a life sentence instead.

The three men scheduled to be executed this week had been scheduled to be put to death when Barr announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. A fourth man is scheduled to be put to death in August. The Justice Department had scheduled five executions set to begin in December, but some of the inmates challenged the new procedures in court.

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume. He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.

US District Judge Chutkan’s 22-page ruling granting this stay can be accessed here. I would be inclined to guess that this stay will be vacated on appeal, but one never knows when it comes to last-minute capital litigation.

Seventh Circuit panel vacates stay to put federal execution back on schedule for July 13

As reported in this USA Today piece, a Seventh Circuit panel this evening "ruled that the first federal execution in 17 years should go forward Monday, despite concerns raised by the victims' family members that the resurgent coronavirus risked the health of those who planned to witness Daniel Lewis Lee's death by lethal injection."  Here is more:

The court found that the family's argument "lacks any arguable legal basis and is therefore frivolous."

U.S. District Judge Jane Magnus-Stinson on Friday sided with family members who asserted that the pandemic posed an unreasonable health risk to them as witnesses to execution in Terre Haute, Indiana. “The federal government has put this family in the untenable position of choosing between their right to witness Danny Lee’s execution and their own health and safety," the attorney for the family said Sunday.

The family had planned to attend Lee's execution, even though they are opposed to Lee's death sentence for the murders of William Mueller, his wife, Nancy, and her daughter, 8-year-old Sarah Powell. Earlene Branch Peterson, 81, the young victim's grandmother, and other family members have argued that Lee's co-defendant was the unquestioned ringleader in the 1996 robbery-murder yet was sentenced to life in prison.

The Arkansas judge who presided at trial and the lead prosecutor in the case also have expressed their opposition to Lee's death sentence.

"Because the government has scheduled the execution in the midst of a raging pandemic, these (family members) would have to put their lives at risk to travel cross-country at this time," the family's attorney said. "They will now appeal the Seventh Circuit Court of Appeals’ decision to the U.S. Supreme Court in an effort to seek reversal. My clients hope the Supreme Court and the federal government will respect their right to be present at the execution and delay it until travel is safe enough to make that possible.”

The full panel opinion in Peterson v. Barr, No. 20-2252 (7th Cir. July 12, 2020) (available here), runs ten pages and is unanimous.  When I saw that a stay had been entered late Friday by the district court, I was a bit surprised that it focused on the Federal Death Penalty Act and that no mention was made of the federal Crime Victims' Rights Act. The Seventh Circuit panel was plainly unimpressed with arguments based on the FDPA, and now it might be too late for any arguments based in the CVRA. 

I believe various other claims by defendant Lee have been rejected by lower courts, and I am sure they are all going to get to SCOTUS is short order.  But I will be surprised if a majority of the Justices are going to disrupts the feds execution plans.

Prior recent related post:

• With executions looming, lots of news and notes about the federal death penalty 

With executions looming, lots of news and notes about the federal death penalty

Last month, as noted here, Attorney General William Barr directed the federal Bureau of Prisons to schedule the executions of four federal death-row inmates for this summer.  As of this writing, according to this DPIC page, the federal executions scheduled for Monday, July 13 (of Daniel Lewis Lee) and Friday, July 17 (of Dustin Lee Honken) are going forward.  Unsurprisingly, the prospect of the first federal executions in nearly two decades has led to lots of folks paying a lot more attention to the federal death penalty,  Here are just some of the press pieces catching my eye recently:

From Bloomberg Law, "Vast Majority on Federal Death Row Have Significant Impairments"

From The Crime Report, "Victim Relatives, Priest Seek to Delay Federal Executions"

From The Hill, "EU condemns U.S. for resuming federal executions"

From The Hill, "Executing four white men won't erase death penalty racism"

From the National Catholic Reporter, "Cardinal Tobin asks Trump to grant clemency to federal death-row inmate"

From Reuters, "Special Report: How the Trump administration secured a secret supply of execution drugs"

From USA Today, "Re-opening federal death chamber: Victim opposition, pandemic threaten first execution in 17 years"

Texas completes second US execution in COVID era of a defendant who committed murder at age 18

As reported in this local article, "Texas executed Billy Joe Wardlow on Wednesday night for a 1993 East Texas robbery and murder. It was the state's first execution since the coronavirus swept through the state."  Here is more:

In late appeals, Wardlow's lawyers argued that his death should be stopped because of the dangers presented by the rising pandemic and his young age at the the time of the crime. Neuroscientists and a group of Texas lawmakers also raised concerns with sentencing people who had committed crimes under 21 to death because of brain immaturity.  All of Wardlow's appeals were denied by the U.S. Supreme Court just after 6 p.m., the scheduled time of execution.

After 25 years on death row, Wardlow, aided by neuroscientists, asked the U.S. Supreme Court to rule that at 18, he was too young to face Texas’ death penalty. Nearly 60 Texas lawmakers also informed the Texas Board of Pardons and Paroles, which could recommend a delay to the execution, that they plan to take up the issue of age and the death penalty in the 2021 Legislature.  But on Monday, the board voted against halting the execution until then....

Since 2005, the Supreme Court has held that death sentences are unconstitutional for those 17 or younger at the time of the crime because of their vulnerability, comparative lack of control and still-undefined identity.  Some state and lower federal courts have questioned in recent years whether the upper limit of 18 is too young as new science emerges that shows the brains of people ages 18 to 20 are “functionally indistinguishable” from those of 17-year-olds in terms of moral culpability, according to Wardlow’s brief.

In a plea to stop his execution and invalidate his death sentence, Wardlow asked the high court to rule that the death penalty is unconstitutional for those under 21 — but just in Texas. That’s because a Texas death sentence requires a jury to unanimously agree that a person convicted of capital murder would likely be a future danger to society — a decision Wardlow’s attorney and a group of brain researchers said is impossible to make for an 18-year-old....

Before Wednesday, Texas had not held an execution since the pandemic took hold of the state in March — a long stretch for the state that carries out the most executions by far. The Court of Criminal Appeals halted four scheduled executions from March to May "in light of the current health crisis and the enormous resources needed to address that emergency."...

Texas executions are held at the Huntsville Unit in Huntsville, a prison that on Wednesday reported active infections among inmates and staff in a city that has seen a high surge of cases, largely due to the fact that it has seven prisons and many prison employees. Wardlow’s attorneys argued that holding an execution was still too dangerous, potentially exposing to the virus employees who have to attend the execution, witnesses and the community.

Wardlow was the third person to be executed in Texas this year and the second in the country since the coronavirus swept the nation.

Death Penalty Information Center releases "Mid-Year Review" detailing "Record-Low Death Penalty Use in First Half of 2020"

I just saw that the Death Penalty Information Center published here just before the holiday weekend a short report titled "DPIC MID-YEAR REVIEW: Pandemic and Continuing Historic Decline Produce Record-Low Death Penalty Use in First Half of 2020."  Here are some highlights:

Introduction

The combination of the effects of the coronavirus pandemic and the continuing broad national decline in the use of capital punishment produced historically low numbers of new death sentences and executions in the first half of 2020.

Even before the pandemic, the U.S. was poised for its sixth consecutive year with 50 or fewer new death sentences and 30 or fewer executions.  At the midpoint of 2020, there had been 13 new death sentences, imposed in seven states, and six executions carried out by five historically high-execution states. Florida (4), California (3), and Texas had imposed multiple new death sentences, but only Texas (with 2) had carried out more than one execution....

First-Half 2020 Death Sentences

2016 through 2019 produced four of the five lowest death-sentencing years in the U.S. since the Supreme Court struck down existing death-penalty statutes in Furman v. Georgia in 1972.  With new death sentences already near historic lows and most capital trials and sentencings now suspended or delayed, 2020 is expected to produce the fewest death sentences of any year in the modern history of the U.S. death penalty....

Only two death sentences have been imposed since the pandemic began shutting down courts in mid-March.  Neither of those sentences — a trial before a three-judge panel in Ohio and a California trial court’s acceptance of a jury verdict issued in January — involved new jury action, nor did the last sentences imposed prior to the pandemic.

The last death sentences imposed before the widespread court closures were handed down by a Florida trial judge on March 13, who sentenced Jesse Bell and Barry Noetzel to death after they pled guilty and were permitted to waive their rights to counsel and a jury sentencing.  The next new death sentence came on May 18, when an Ohio three-judge panel sentenced Joel Drain to death. Drain had waived his right to a jury trial and sentence, presented no guilt defense and refused to present mitigating evidence in the penalty-phase of his trial.  The 66 days between those two death sentences was the longest the United States had gone without a new death sentence since 1973....

First-Half 2020 Executions

Midway through 2020, it appears that U.S. states are likely to carry out fewer executions than in any year since 1991, when there were 14 executions.  Of the 54 executions dates set for 2020, six executions have been carried out, with nine scheduled executions still pending.  The few jurisdictions that are attempting to carry out executions are outliers in both their criminal justice and public health policies, prioritizing immediately executing prisoners over public health and safety concerns and fair judicial process.  Eight executions have been stayed or rescheduled as a result of the COVID-19 pandemic.

I am always grateful for how DPIC assembles and reports essential capital punishment data, but I find it notable that this report does not discuss  that the federal government may be poised to resume executions in the second half of 2020 thanks to key decisions by the DC Circuit and SCOTUS in the first half of 2020.  Though I doubt that the resumption of federal executions will dramatically impact the declining fate of the death penalty throughout the US, I do think the pending federal executions could prove to be one of the biggest death penalty stories of 2020 (and could even become a presidential campaign issue in the coming months).  It seems worth a mention.

The new death penalty: COVID now a leading modern killer of California inmates on death row

As reported in this local article, headlined "Fifth San Quentin Death Row Inmate Dies During Prison COVID-19 Outbreak," the global pandemic is hitting California's death row hard these days. Here are the details:

While California has not executed a death row inmate since 2006, an out-of-control COVID-19 outbreak at San Quentin State Prison may have contributed to the death of a fifth condemned inmate on Saturday.

To date, more than 1,300 prisoners and 120 staff members have tested positive for COVID-19 at the state prison in Marin County. Among those who have fallen victims to the deadly illness have been San Quentin’s aging population on death row.

On Saturday, Dewayne Michael Carey, 59, died at an outside hospital from what appear to be complications related to COVID-19. An exact cause of death has not yet been determined. Carey was committed to CDCR on Dec. 16, 1996 as a condemned inmate from Los Angeles County for first-degree, special-circumstances murder. He was convicted of killing Ernestine Campbell in her Harbor City home. Her hands were tied to a staircase handrail and she had been stabbed to death....

On Friday, the California Department of Corrections and Rehabilitation identified two inmates who died while being treated for COVID-19 infections as Scott Thomas Erskine, 57, and Manuel Machado Alvarez, 59. Both died while being treated at San Francisco Bay Area hospitals. Erskine had been on death row since 2004 for the murder of two young boys in San Diego, while Machado had been on death row since 1989 for a string of crimes in Sacramento including rape and murder.

There have been two other deaths of condemned inmates deaths amid an exploding number of coronavirus cases at the prison. Richard Stitely, 71, was found unresponsive in his cell last week on June 29 and was confirmed Monday to have tested positive for COVID-19. He was sentenced for the 1990 rape and murder of a 47-year-old woman in Los Angeles County.

Joseph S. Cordova, 75, was found dead in his cell on July 1. He had been sentenced to death for the rape and murder of an eight-year-old girl in San Pablo....

“The prison was built in 1852. It’s the oldest prison in the state and it’s got old grill cells, they’re not closed doors,” said Assemblyman Marc Levine. Levine says the style of the prison cells allowed the disease to spread like wildfire. He has been a strong critic of the botched handling of the pandemic....

The CDCR said there are currently 722 people on California’s death row. While California doesn’t currently have a way to carry out capital punishment, inmates still continue to be sentenced to death. Last year, Gov. Gavin Newsom declared a moratorium on it shortly after taking office and the death chamber at San Quentin was dismantled. The state has executed only 13 murderers since 1978, the last in 2006.

As this article highlights, nobody has been executed in California in nearly 15 years. And, as this Wikipedia page details, only five condemned California inmates have been executed by the state over the last two decades. As I have noted in prior posts (some linked below), COVID has been killing many more total prisoners in the US than has capital punishment. And now in California, COVID is even killing more death row prisoners that the state is likely to execute anytime soon, perhaps ever.

Prior related posts:

• The new death penalty: COVID has now killed more US prisoners in weeks than the US death penalty has in over a decade 
• The new death penalty: COVID has now killed more than 500 US prisoners and prison staff according to UCLA Law data 

Spotlighting our unique times as feds seek to resume execution this month

The New York Times has this article detailing that the first planned executions in nearly two decades are coming at quite a time. The piece is fully headlined "Federal Executions to Resume Amid a Pandemic and Protests: The administration is pressing ahead with the first federal execution in 17 years as demonstrators seek changes to the criminal justice system and lawyers have trouble visiting death-row clients."  Here are excerpts (with one line emphasized for commentary):

Daniel Lewis Lee is scheduled to be executed in less than two weeks, but he has been unable to see his lawyers for three months because of the coronavirus pandemic.

Mr. Lee, sentenced to death for his involvement in the 1996 murder of a married couple and their 8-year-old daughter, has been limited to phone calls, which one of his lawyers, Ruth Friedman, said she feared would jeopardize her client’s confidentiality.  And amid a global pandemic that has put travel on hold, her team has been unable to discuss pressing issues with Mr. Lee, conduct investigations, or interview witnesses in person.  “I can’t do my job right. Nobody can,” Ms. Friedman said from her apartment 600 miles away, in Washington, D.C., where she is working to commute Mr. Lee’s sentence to life in prison.

If she is unsuccessful, Mr. Lee, 47, will be the first federal death row inmate to be executed in 17 years.  Last year, Attorney General William P. Barr announced that the Justice Department would resume executions of federal inmates sentenced to death.  Two weeks ago, Mr. Barr scheduled the first four executions for this summer, all of men convicted of murdering children, and to be carried out at the federal penitentiary in Terre Haute, Ind.  On Monday, the Supreme Court cleared the way for the federal executions to proceed, rejecting arguments against the use of a single drug to carry out the sentence by lethal injection.

As the pandemic worsened, many states, including Texas and Tennessee, postponed scheduled executions of prisoners sentenced under state law. Since the pandemic began, there has been only one execution at a state prison, in Bonne Terre, Mo. The state capital trial in Florida for Nikolas Cruz, the gunman who killed 17 at Marjory Stoneman Douglas High School in 2018, was delayed indefinitely. Courthouses closed or moved to remote operations to accommodate social distancing....

In announcing the schedule for this summer’s federal executions, Mr. Barr said the death penalty was the will of the American people as expressed through Congress and presidents of both parties, and that the four men scheduled to die “have received full and fair proceedings under our Constitution and laws.”

The summer’s scheduled executions mesh with President Trump’s increasing election year efforts to cast himself as a “law and order” leader even as his administration faces mounting criticism for its response to protests over systemic racism in the policing system and a deadly pandemic.

Mr. Lee, who is scheduled to be put to death on July 13, was a white supremacist who has since disavowed his ties to that movement. The Trump campaign has seized on the political ramifications of Mr. Lee’s planned execution, criticizing the president’s presumptive Democratic opponent, former Vice President Joseph R. Biden Jr., for reversing his earlier support for the death penalty “even for white supremacist murderers!”

Though Mr. Biden now opposes capital punishment, he played a central role as a senator in the passage of the 1994 crime bill that expanded the use of the federal death penalty.  Mr. Trump has repeatedly attacked Mr. Biden for his record on criminal justice issues.

Mr. Biden and Mr. Trump are far from the first presidential candidates to spar over the death penalty as a political tactic. In 1992, then-Gov. Bill Clinton denounced President George Bush for his inaction on crime.  To affirm his support for the death penalty, he flew home to Arkansas in the midst of campaigning to personally see to the execution of a man who had been convicted of murdering a police officer.

But today’s candidates are vying for the White House amid nationwide protests over racism in the criminal justice system. Black people make up 42 percent of those on death row, both among federal inmates and over all, compared to 13 percent of the general population.

Though the four inmates scheduled to be executed this summer are white, critics of the death penalty warned that resumption of federal executions would only exacerbate the policy’s discrimination against people of color. “It would be nice if they used those resources to address the widespread problem of police violence against Black people,” said Samuel Spital, director of litigation at the N.A.A.C.P. Legal Defense & Educational Fund. Mr. Spital also questioned why the Justice Department did not use those resources allocated to resume federal executions to protect prisons from the coronavirus.

Imposing the death penalty amid the pandemic holds risks for those carrying out the execution: Doing so may require dozens of individuals, including corrections officers, victims and journalists, to come in close contact. The Bureau of Prisons directed that face masks would be required for all individuals throughout the entire procedure, with violators asked to leave the premises. Social distancing will be practiced “to the extent practical,” but the bureau conceded that limited capacity of the media witness room might preclude their ability to maintain a six-foot distance between observers....

Several family members of Mr. Lee’s victims, his trial's lead prosecutor, and the trial judge have all publicly opposed Mr. Lee’s execution. His co-defendant, described as “the ringleader” by the judge, was given a life sentence without parole.

In a statement, Mr. Barr maintained that the decision to reinstate federal capital punishment was owed “to the victims of these horrific crimes, and to the families left behind.” But Monica Veillette, who lost her aunt and cousin to Mr. Lee’s crimes, does not believe that this execution is for her family. She has asthma, and both her grandmother and parents are older. If they travel to Indiana for the execution from Washington State and Arkansas, each of them could be put at risk of contracting the virus. “If they owe us anything, it’s to keep us safe now by not pushing this execution through while people are still scrambling to access disinfectant spray and proper masks,” she said. “Haven’t enough people died?”

I have emphasized the fact that all of the defendants selected for execution dates by AG Barr are white because I suspect they were chosen to be the first ones to be executed, at least in part, because of their race. If I am right in this suspicion, I think AG Barr acted unconstitutionally. I am not sure if these defendants are pursuing an equal protection claim on this ground, but I sure think they should.

Is it a death penalty success or failure when worst-of-the-worst plead guilty to avoid capital trial?

The question in the title of this post is prompted by this AP story out of California headlined "Accused ‘Golden State Killer’ admits murders, will avoid death penalty."  Here are the basics:

A former police officer who terrorized California as a serial burglar and rapist and went on to kill more than a dozen people while evading capture for decades pleaded guilty Monday to murders attributed to a criminal dubbed the Golden State Killer.

Joseph James DeAngelo Jr. had remained almost silent in court since his 2018 arrest until he uttered the word “guilty” in a hushed and raspy voice multiple times in a plea agreement that will spare him the death penalty for a life sentence with no chance of parole.

DeAngelo, 74, has never publicly acknowledged the killings, but offered up a confession of sorts after his arrest that cryptically referred to an inner personality named “Jerry” that had apparently forced him to commit the wave of crimes that ended abruptly in 1986. “I did all that,” DeAngelo said to himself while alone in a police interrogation room after his arrest in April 2018, Sacramento County prosecutor Thien Ho said....

DeAngelo, seated in a wheelchair on a makeshift stage in a university ballroom that could accommodate hundreds of observers a safe distance apart during the coronavirus pandemic, acknowledged he would plead guilty to 13 counts of murder and dozens of rapes that are too old to prosecute. “The scope of Joseph DeAngelo’s crimes is simply staggering,” Ho said. ”Each time he escaped, slipping away silently into the night.”...

DeAngelo, a Vietnam veteran and a grandfather, had never been on the radar of investigators who spent years trying to track down the culprit. It wasn’t until after the crimes ended that investigators connected a series of assaults in central and Northern California to slayings in Southern California and settled on the umbrella Golden State Killer nickname for the mysterious assailant.

DeAngelo was caught after police used DNA from crime scenes to find a distant relative through a popular genealogy website database and then built a family tree that eventually led them to him. They then tailed DeAngelo and were able to secretly collect DNA from his car door and a discarded tissue to get an arrest warrant....

He tied up husbands and boyfriends and told them he’d kill them if they made a sound while he assaulted the women. Eventually he slipped off into the dark on foot or by bicycle and even managed to evade police who at times believed they came close to catching him. DeAngelo knew the territory well. He had started on the police force in the San Joaquin Valley farm town of Exeter in 1973, where he is believed to have committed his first burglaries and first killing....

Victims’ family members were anxious about what to expect before the court hearing began. “I’ve been on pins and needles because I just don’t like that our lives are tied to him, again,” said Jennifer Carole, the daughter of Lyman Smith, a lawyer who was slain in 1980 at age 43 in Ventura County. His wife, 33-year-old Charlene Smith, was also raped and killed.

A guilty plea and life sentence avoids a trial or even the planned weeks-long preliminary hearing. The victims expect to confront him at his sentencing in August, where it’s expected to take several days to tell DeAngelo and Sacramento County Superior Court Judge Michael Bowman what they have suffered. Gay and Bob Hardwick were among the survivors looking forward to DeAngelo admitting to their 1978 assault.

The death penalty was never realistic anyway, Gay Hardwick said, given DeAngelo’s age and Gov. Gavin Newsom’s moratorium on executions. “He certainly does deserve to die, in my view, so I am seeing that he is trading the death penalty for death in prison,” she said. “It will be good to put the thing to rest. I think he will never serve the sentence that we have served — we’ve served the sentence for 42 years.”

A person who murdered more than a dozen and raped many more would certainly seem to qualify as one of the "worst-of-the-worst" offenders that are often said to be those for whom the death penalty is reserved. But DeAngelo is not getting the ultimately penalty of death, so this case is arguably a story of death penalty failure.  And yet, without the death penalty as a (remote) possibility, DeAngelo would have arguably had no reason to plead guilty and spare victims the pain of a trial and other court proceedings. And so maybe this case is still a story of death penalty success.

SCOTUS denies, by 7-2 vote, cert petition from federal death row defendants challenging federal execution protocol

As reported in this AP article, the "Supreme Court on Monday refused to block the execution of four federal prison inmates who are scheduled to be put to death in July and August."  Here is more:

The justices rejected an appeal from four inmates who were convicted of killing children.  Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that they would have blocked the executions from going forward.

The court's action leaves no obstacles standing in the way of the executions, the first of which is scheduled for July 13. The inmates are separately asking a federal judge in Washington to impose a new delay on their executions over other legal issues that have yet to be resolved.

The activity at the high court came after Attorney General William Barr directed the federal Bureau of Prisons to schedule the executions. Three of the men had been scheduled to be put to death when Barr first announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain....

The federal government’s initial effort was put on hold by a trial judge after the inmates challenged the new execution procedures, and the federal appeals court in Washington and the Supreme Court both declined to step in late last year. But in April, the appeals court threw out the judge’s order. The federal prison in Indiana where the executions would take place, USP Terre Haute, has struggled to combat the coronavirus pandemic behind bars. One inmate there has died from COVID-19.

The inmates scheduled for execution are: Danny Lee, who was convicted in Arkansas of killing a family of three, including an 8-year-old; Wesley Ira Purkey, of Kansas, who raped and murdered a 16-year-old girl and killed an 80-year-old woman; Dustin Lee Honken, who killed five people in Iowa, including two children; and Keith Dwayne Nelson, who kidnapped a 10-year-old girl who was rollerblading in front of her Kansas home and raped her in a forest behind a church before strangling the young girl with a wire.

Three of the executions — for Lee, Purkley and Honken — are scheduled days apart beginning July 13. Nelson’s execution is scheduled for Aug. 28. The Justice Department said additional executions will be set at a later date. Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

The Supreme Court's decision here does not guarantee that federal executions will go forward in two weeks, but it does guarantee there will be lots and lots of litigation in those two weeks as defense attorneys press other legal claims and federal prosecutors respond. The fact that the cert vote here was 7-2 could be viewed in various ways as a forecast of how the Justices might approach other issues surely to be brought before them by these defendants with pending execution dates. But I have come to assume that there are now five pretty solid SCOTUS votes to allow capital punishment administration to move forward, so there would seem to be a pretty solid chance the federal government will be getting back to executions shortly.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?
• DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 
• SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions
• Dispute over legality of new federal execution protocol up for argument in DC Circuit 
• So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions
• Split DC Circuit panel (after taking twice as long as Justice Alito urged) vacates preliminary injunction blocking resumption of federal executions 
• Justice Department announces the scheduling of four new federal execution dates

Sixth Circuit panel rejects Romell Broom's constitutional arguments that Ohio cannot try again to execute him after botched first attempt

I somehow missed that last week a Sixth Circuit panel handed down a notable unanimous ruling on a novel (and disconcerting) issues of capital punishment administration . Even long-time readers may have forgotten about the case of Romell Broon, but the start of the Sixth Circuit ruling in Broom v. Shoop, No. 19-3356 (6th Cir. June 23, 2020) (available here), provides the still-remarkable essentials:

In an infamous September 2009 incident, the state of Ohio tried to execute death-row inmate Rommel Broom, and failed.  More specifically, the state tried to execute Broom by way of lethal injection, but was forced to abandon the effort when the execution team concluded — two hours into the process — that it could not maintain a viable IV connection to Broom’s veins.  The state then returned Broom to his cell, to await a second execution attempt on another day.  That second execution attempt has not yet happened, however, because the parties have spent the last eleven years litigating whether the U.S. Constitution bars Ohio from ever trying to execute Broom again — Broom relies on both the Eighth Amendment’s prohibition on “cruel and unusual” punishment and the Fifth Amendment’s prohibition on “double jeopardy.”  The state courts, including the Ohio Supreme Court, have rejected Broom’s contentions on the merits, as did the district court below on habeas review.  Broom’s case now comes before us.

We in no way condone Ohio’s treatment of Broom; that it took two hours of stabbing and prodding for the state to realize that it could not maintain a viable IV connection to Broom’s veins is disturbing, to say the least.  But because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) permits us to reverse state court merits decisions in only a narrow set of circumstances, and because the Ohio Supreme Court’s decision rejecting Broom’s constitutional claims on the merits does not fall within that set of circumstances here, we AFFIRM the district court’s judgment denying Broom habeas relief.

Ohio has not executed anyone in two years due in part to litigation and uncertainty over execution protocols, and Broom recently had his 2020 execution date pushed back to March 2022.  I could discuss at great length not only why this case is so jurisprudentially interesting, but I continue to fear that SCOTUS will not be inclined to take up this case.  And for those interested in more coverage of all the facts and law, here are posts on the case going back more than a decade now:

• Ohio struggling, legally and practically, with effort to execute offender (Sept 2009)
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions (Sept 2009)
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again? (Sept 2009)
• Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details) (Sept 2009)
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months (Sept 2009)
• Ohio finally gets its execution protocol in order (and praised) (Nov 2012)
• "Does failed execution attempt mean Ohio prisoner can avoid death penalty?" (June 2015)
• Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt (March 2016)
• "How many times should a state be able to try to execute someone without running afoul of the Constitution?" (March 2016)
• Should and will SCOTUS take up Romell Broom's constitutional claim that Ohio cannot try again to execute him after botched first attempt? (Nov 2016)
• With only two dissenters, SCOTUS refuses to hear Ohio death row defendant's arguments against a second execution attempt (Dec 2016)
• Ohio legislators predict more talk, but no likely action, on state's dormant death penalty (Feb 2020)

SCOTUS stays Texas execution based seemingly on clergy claim

As reported in this AP article, the "Supreme Court granted a reprieve Tuesday to a Texas inmate scheduled to die for fatally stabbing an 85-year-old woman more than two decades ago, continuing a more than four-month delay of executions in the nation’s busiest death penalty state during the coronavirus pandemic." Here are the details:

The justices blocked Ruben Gutierrez’s execution about an hour before he could have been executed. Gutierrez’s attorneys had argued his religious rights are being violated because the prison system won’t allow a chaplain to accompany him in the death chamber.

The Texas prison system last year banned clergy from the death chamber following a Supreme Court ruling that halted the execution of another inmate, Patrick Murphy, who had requested a Buddhist adviser be allowed in the chamber. In response to the ruling in Murphy’s case, the Texas prison system changed its policy, only allowing prison security staff into the execution chamber.

“As a devout Catholic, Mr. Gutierrez’s faith requires the assistance of clergy to help him pass from life into afterlife. The Texas Department of Criminal Justice changed its policy for its own convenience, but spiritual comfort at the time of death is not a convenience; it’s a protected legal right,” Shawn Nolan, one of Mr. Gutierrez’s attorneys, said after the stay was granted.

The Supreme Court said it granted the stay pending a ruling by the high court on Gutierrez’s petition on the issue of whether to allow a spiritual adviser to accompany him in the death chamber. A decision on the petition was expected at a later date....

If Gutierrez’s execution had been carried out, he would have been the first inmate in Texas to receive a lethal injection since Feb. 6 and the second U.S. inmate to be put to death since states began to reopen after the pandemic shut down much of the U.S. After the country began to reopen, Missouri resumed executions on May 19.

Six executions scheduled in Texas for earlier this year were postponed by an appeals court or judges because of the outbreak. A seventh was delayed over claims of intellectual disability. Gutierrez’s attorneys had also sought a coronavirus-related delay but were turned down Friday by the Texas Court of Criminal Appeals....

The Texas Catholic Conference of Bishops filed a brief with the high court in support of Gutierrez. “To deny a prisoner facing imminent execution access to spiritual and religious guidance and accompaniment is cruel and inhuman,” said Bishop Daniel Flores of Brownsville....

Gutierrez would have been the third inmate put to death this year in Texas and the seventh in the U.S.

The Supreme Court's stay order is available at this link, and here is its text in full:

The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically.  In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.  The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.

Justice Department announces the scheduling of four new federal execution dates

As detailed in this DOJ press release, titled "Executions Scheduled for Four Federal Inmates Convicted of Murdering Children," new federal executions dates have been set for four murderers.  Here are the details:

Attorney General William P. Barr today directed the Federal Bureau of Prisons (BOP) to schedule the executions of four federal death-row inmates who were convicted of murdering children in violation of federal law and who, in two cases, raped the children they murdered. 

In July 2019, Attorney General Barr directed the BOP to revise the Federal Execution Protocol to provide for the use of a single-drug, pentobarbital — similar to protocols used in hundreds of state executions and repeatedly upheld by federal courts, including the Supreme Court, as consistent with the Eighth Amendment.  A district court’s preliminary injunction prevented BOP from carrying out executions under the revised protocol, but the U.S. Court of Appeals for the D.C. Circuit vacated that injunction — clearing the way for the federal government to resume capital punishment after a nearly two-decade hiatus....

In accordance with 28 C.F.R. Part 26, the BOP has scheduled executions for the following death-sentenced inmates:

• Daniel Lewis Lee, a member of a white supremacist group, murdered a family of three, including an eight-year-old girl.  After robbing and shooting the victims with a stun gun, Lee covered their heads with plastic bags, sealed the bags with duct tape, weighed down each victim with rocks, and threw the family of three into the Illinois bayou.  On May 4, 1999, a jury in the U.S. District Court for the Eastern District of Arkansas found Lee guilty of numerous offenses, including three counts of murder in aid of racketeering, and he was sentenced to death.  Lee’s execution is scheduled to occur on July 13, 2020.
• Wesley Ira Purkey violently raped and murdered a 16-year-old girl, and then dismembered, burned, and dumped the young girl’s body in a septic pond. He also was convicted in state court for using a claw hammer to bludgeon to death an 80-year-old woman who suffered from polio and walked with a cane.  On November 5, 2003, a jury in the U.S. District Court for the Western District of Missouri found Purkey guilty of kidnapping a child resulting in the child’s death, and he was sentenced to death.  Purkey’s execution is scheduled to occur on July 15, 2020.
• Dustin Lee Honken shot and killed five people — two men who planned to testify against him, and a single, working mother and her ten-year-old and six-year-old daughters. On October 14, 2004, a jury in the U.S. District Court for the Northern District of Iowa found Honken guilty of numerous offenses, including five counts of murder during the course of a continuing criminal enterprise, and he was sentenced to death.  Honken’s execution is scheduled to occur on July 17, 2020.
• Keith Dwayne Nelson kidnapped a 10-year-old girl rollerblading in front of her home, and in a forest behind a church, raped her and strangled her to death with a wire. On October 25, 2001, Nelson pled guilty in the U.S. District Court for the Western District of Missouri to the kidnapping and unlawful interstate transportation of a child for the purpose of sexual abuse which resulted in death, and he was sentenced to death.  Nelson’s execution is scheduled to occur on August 28, 2020.

Each of these inmates has exhausted appellate and post-conviction remedies, and no legal impediments prevent their executions, which will take place at U.S. Penitentiary Terre Haute, Indiana.  Additional executions will be scheduled at a later date.

Notably, defendants Lee, Purkey and Honken were on the list of the initial five persons slated to be executed back in July 2019 (details here).  I assume that partially explains why their execution dates are all set for the same week a month from now while the new addition, Nelson, gets an extra month before his execution date.

Of course, there is on-going litigation before the Supreme Court about the lawfulness of the DOJ's execution method (basics here).  I figure that part of the point of these new execution dates is to ensure this litigation moves forward expeditiously.  I speculated in this post that the SCOTUS litigation could delay federal executions until 2022, but the Barr Justice Department is clearly eager for a quicker timeline. 

Prior related posts:

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

By a vote of 6-3, SCOTUS finds deficient performance in Texas capital case and remands on prejudice issue

A dozen years ago, I wrote a full law review article to express my grumpiness about the felt reality that the Supreme Court often seems to care a whole lot more about cases involving persons sentenced to death than about just about any other criminal defendants.  That article is on my mind this morning upon seeing the 19-page per curiam decision that Supreme Court released in Andrus v. Texas, No. 18–9674 (S. Ct. June 15, 2020) (available here). 

The defendant in this case, Terence Andrus, killed two people in an attempted carjacking and was sentenced to death after his defense counsel plainly did a very lousy job developing mitigation on his behalf.  Here is the heart of the per curiam opinion's accounting of its ruling and rationale:

The Texas Court of Criminal Appeals rejected the trial court’s recommendation to grant habeas relief. In an unpublished per curiam order, the Court of Criminal Appeals concluded without elaboration that Andrus had “fail[ed] to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel’s deficient performance.” App. to Pet. for Cert. 7–8.  A concurring opinion reasoned that, even if counsel had provided deficient performance under Strickland, Andrus could not show that counsel’s deficient performance prejudiced him. Andrus petitioned for a writ of certiorari.  We grant the  petition, vacate the judgment of the Texas Court of Criminal Appeals, and remand for further proceedings not inconsistent with this opinion. The evidence makes clear that Andrus’ counsel provided constitutionally deficient performance under Strickland. But we remand so that the Court of Criminal Appeals may address the prejudice prong of Strickland in the first instance....

Here, the habeas record reveals that Andrus’ counsel fell short of his obligation in multiple ways: First, counsel performed almost no mitigation investigation, overlooking vast
tranches of mitigating evidence. Second, due to counsel’s failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering
the State’s aggravation case. Third, counsel failed adequately to investigate the State’s aggravating evidence, thereby forgoing critical opportunities to rebut the case in
aggravation. Taken together, those deficiencies effected an unconstitutional abnegation of prevailing professional norms.

I am always pleased to see the Supreme Court call out, and find constitutionally inadequate, any sort of lousy defense work (though I sure would like to see this done a lot more in NON-capital cases).  And I suppose I should also be pleased that Andrus will be a "good" SCOTUS precedent for inadequate defense Strickland claims in the future.  But Justice Alito's seven-page dissent (which was jointed by Justices Thomas and Gorsuch) has me convinced that this was ultimately a "bad" case because the defendant seems sure to lose on the prejudice issue upon remand to the Texas state courts. Here is how Justice Alito's dissent concludes:

In sum, the CCA assessed the issue of prejudice in light of more than the potentially mitigating evidence that the Court marshals for Andrus.  The CCA had before it strong aggravating evidence that Andrus wantonly killed two innocent victims and shot a third; that he committed other violent crimes; that he has a violent, dangerous, and unstable character; and that he is a threat to those he encounters.

The CCA has already held once that Andrus failed to establish prejudice.  I see no good reason why it should be required to revisit the issue.

"Should death-penalty juries learn about death penalty costs?"

The title of this post is the headline of this new AP article.  Here are excerpts: 

Debate over Utah’s death penalty is intensifying in 2nd District Court as attorneys prepare for the trial of an Ogden couple accused of starving and fatally abusing their 3-year-old daughter.  Prosecutors said earlier they will seek the death penalty against Miller Costello, 28, and Brenda Emile, 25, if they are convicted of aggravated murder in the July 6, 2017, death of Angelina Costello.

Over the past year, defense attorneys have filed several motions challenging the death penalty, including those asking that jurors be questioned about blood atonement and the comparative costs of execution versus life in prison.  They also have asked Judge Michael DiReda to strike the death penalty as “cruel and unusual punishment by practice and the consensus of the Utah citizenry” and because they contend the sentencing portion of the law unfairly shifts the burden of proof to defendants....

In a May 14 filing, county attorneys ... urged DiReda to reject the defense’s request to allow defense lawyers to quiz prospective jurors about death penalty costs.  “Questions of deterrence or cost in carrying out a capital sentence are for the Legislature, not for the jury considering a particular case,” the prosecution said.

Admitting evidence on death penalty costs “is akin to admitting evidence of the process of the death penalty, which has already been rejected by the Utah Supreme Court,” prosecutors said.  They added, “inviting the jury to determine whether the cost of the death penalty is worth it for a person that may be convicted of starving and physically abusing a three-year-old girl to death is very dangerous ground for the defendant.”

The defense had argued in its Jan. 21 filing that there’s ample evidence that imposing the death penalty far exceeds the cost of imposing a life sentence.  The Utah Commission on Criminal and Juvenile Justice published a study in 2018 determining that the average cost of an execution was at least $237,900 more than a decision of life in prison.  A more limited 2012 Utah study said the difference was as much as $1.6 million per case.

The defense noted that in the 2009-15 case of Weber County double-murder convict Jeremy Valdes, two dozen or more potential jurors said in their questionnaire that they would choose the death penalty over life in prison because they thought it would cost less to execute the defendant.

“Of course, that is not true,” the defense motion said.  “It is incumbent upon the court to ensure that the citizens who comprise the jury pool are well-informed. And those who would otherwise make good jurors should be educated as to the cost imposing the death penalty so they can be properly rehabilitated.”

I tend to be very supportive of sentencing decision-makers, whether judge or jurors, having as much relevant and accurate information as possible when making sentencing decisions. Especially if there is reason to fear that misinformation about costs may shape the work of capital sentencing jurors, I would strongly urge allowing then to have accurate information on this topic.