Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

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

Georgia completes execution after federal courts turn back final appeals

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

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

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

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

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

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

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

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

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

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

Two upcoming executions with still lots of questions swirling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lots of capital headlines from the Lone Star State

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

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

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

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

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

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

 

South Dakota completes execution after delays awaiting final SCOTUS appeals

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

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

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

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

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

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

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

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

"The Decline of the Judicial Override"

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

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

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

Rounding up some death penalty news and notes

In order to cover a number of notable death penalty stories of late, I will resort here to a round up of headlines and links.  As always, I welcome reader feedback on whether some of these pieces (or others in this arena) merit additional attention:

From the AP, "Georgia Supreme Court temporarily halts man’s execution"

From the AP, "2 more Ohio executions delayed amid lack of lethal drugs"

From The Appeal, "Using Nitrogen Gas For Executions Is Untested And Poorly Understood. Three States Plan To Do It Anyway."

From The Conversation, "The death penalty is getting more and more expensive. Is it worth it?"

From the Death Penalty Information Center, "More Than 250 Conservative Leaders Join Call to End Death Penalty"

From the New York Times, "Before First Federal Execution in Years, Family of Victims Dissents"

UPDATE: A few more:

From The Crime Report, "Feds ‘Out of Touch’ on Death Penalty, says Conservative Leader"

From Mother Jones, "Trump Loves the Death Penalty. These Conservatives Don’t."

From NET, "No Scheduled Executions, But Courts Busy With Nebraska Death Penalty Issues"

Despite Sixth Circuit approval of existing execution protocol, Ohio Gov Mike DeWine signals his plans to delay another scheduled execution

Despite having many execution dates scheduled, Ohio has not completed an execution in more than a year because of concerning about lethal injection problem that prompted outgoing Gov John Kasich and new Gov Mike DeWine to keep pushing back executions dates. But after a Sixth Circuit ruling blessed the state's reliance on the drug midazolam in its execution protocol (details here), I had thought the Buckeye state might seek to restart its machinery of death. But this new local article, headlined "Gov. Mike DeWine says Ohio’s next scheduled execution will ‘probably’ be delayed," suggests the state will not likely go forward with an execution planned for December. Here are the details:

Gov. Mike DeWine indicated Friday that he will delay yet another upcoming Ohio execution, citing — as he has with past postponements — problems with finding lethal-injection drugs.  DeWine told reporters Friday that it’s “highly unlikely” that the execution of murderer James Galen Hanna will proceed as planned on Dec. 11. “That’s probably not going to happen,” the Greene County Republican said.

DeWine noted the state’s ongoing issues with finding a pharmaceutical company willing to sell drugs for use in executions. The governor repeated his concern that if companies find that Ohio used its drugs to put people to death, they will refuse to sell any of its drugs (not just the ones used in executions) to the state.  That would endanger the ability of thousands of Ohioans — such as Medicaid recipients, state troopers, and prison inmates — to get drugs through state programs. “We are in a very difficult situation,” DeWine said Friday.

The governor didn’t say how long he might delay the execution date for Hanna, a Warren County resident who fatally stabbed a cellmate with a paintbrush handle in 1997.  If Hanna’s execution date is pushed back, the next death-row inmate set to die is Kareem M. Jackson on Jan. 16, 2020.  Jackson was initially scheduled to be put to death in July, but earlier this year DeWine moved back the execution dates for Jackson and two other condemned inmates.

Late last month, the governor moved back the execution date of murderer Cleveland Jackson from Nov. 13 to Jan. 13, 2021 after the Ohio Supreme Court’s disciplinary arm filed a complaint alleging that his lawyers abandoned him.

Since taking office in January, DeWine has moved back a number of scheduled executions amid a years-long struggle by Ohio officials to find new lethal-injection drugs as European pharmaceutical companies have cut off further sales of previously used drugs on moral and legal grounds.

After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol — and suppliers willing to sell the state the drugs.

Since the moratorium was lifted in 2017, Ohio has executed three people using the current three-drug cocktail — all without complications or unexpected problems with the drugs. (The execution of a fourth condemned inmate, Alva Campbell, was postponed after several unsuccessful attempts to insert an IV. Campbell died in his cell a few months later).

However, last January, federal magistrate Judge Michael Merz ruled that the three drugs Ohio has used since last year for executions — midazolam (as a sedative), a paralytic drug, and potassium chloride (to stop the heart) — likely violate the U.S. Constitution’s Eighth Amendment guarantee against “cruel and unusual punishment.”  While an appeals court later overruled Merz’s conclusion, the ruling led DeWine to order state prisons officials to look at other lethal-injection drugs.  The governor has even suggested that state lawmakers consider abandoning the lethal-injection process altogether and pick another method of execution.

This story has me thinking of the old phrase "Where there's a will, there's a way." In this context, though, the parallel force seems to be in play. I sense many Ohio official really do not have much of a will to move forward with executions, and thus it seems they keep struggling to find a way to do so.

A few (of many) prior recent related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• Ohio Governor officially postpones three more scheduled executions 
• Reviewing Ohio's (now-suspended) execution realities
• Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death
• Struggling with an execution protocol, Ohio Gov DeWine delays execution scheduled for Sept 2019 to May 2020 
• After Sixth Circuit panel approves (resoundingly) Ohio's execution protocol, will state now seek to restart its machinery of death? 

"Beyond Compare? A Codefendant's Prison Sentence As a Mitigating Factor in Death Penalty Cases"

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

This Article addresses whether the U.S. Constitution requires courts to permit capital defendants to submit, during sentencing, the mitigating factor that a codefendant for the same murder was sentenced to prison instead of to death.  The U.S. Supreme Court has repeatedly stressed the importance of mitigating factors in capital cases.  For the most part, litigation since the reintroduction of capital punishment in the 1970s has clarified what circumstances are to be weighed as mitigating.  But the Court has not addressed the current divide among lower courts regarding whether the Eighth Amendment requires courts to allow juries to consider a codefendant’s sentence as mitigating evidence.

This Article begins with the Supreme Court decisions regarding mitigating factors and proportionality, noting how the Court has stressed the importance of fairness in death penalty cases.  This Article additionally examines how courts are currently split on the issue of whether a codefendant’s prison sentence should be weighed as a mitigating factor.  Several state courts have treated this factor as mitigating while others have not.  Although some U.S. courts of appeals have upheld lower court decisions rejecting this mitigating factor, most of those appellate court decisions were applying a deferential habeas corpus standard of review to uphold the lower court decision.  Thus, the issue itself remains unresolved. This Article concludes by explaining why logic and Supreme Court precedent dictate that courts should allow capital defendants to present this mitigating factor to juries.  Jurors should be able to weigh the evidence and use it to make a decision when they are choosing between a sentence of death and a sentence of life in prison.

Series of state court stays slows down Texas machinery of death

Texas has completed seven executions in 2019 through the end of September, and it had four more executions scheduled for October. But, as of late last week, state courts in Texas have halted the executions of three of the condemned prisoners who were facing October execution dates. Here are links to press reports on these three stays:

From the Texas Tribune, "Texas court halts the execution of Stephen Barbee to consider U.S. Supreme Court precedent: The Texas Court of Criminal Appeals issued a stay in Barbee's case. He was scheduled to be executed Oct. 2."

From the Texas Tribune, "Judge halts execution for man convicted of killing two Henderson County deputies: Randall Mays was scheduled to be executed Oct. 16, but the judge removed the death warrant amid questions that Mays may not be mentally competent to be put to death."

From the Dallas Morning News, "Texas Seven's Randy Halprin has execution stayed after attorneys allege judge was anti-Semite: Halprin, one of seven men who escaped from the John B. Connally Unit on Dec. 13, 2000, was scheduled to die Thursday for his role in the slaying of Irving police officer Aubrey Hawkins." 

Because Texas has five more executions already scheduled for the rest of 2019, the state is still likely on pace for another double-digit execution year. But it now seems likely that the state will have fewer executions than the 13 it had last year, and it is now possible that the US as a whole will end up with fewer total executions in 2019 than occurred in 2018.

"Infrequency as Constitutional Infirmity"

The title of this post is the title of this paper which was recently posted to SSRN and authored by Sam Kamin.  From its abstract:

In this Article, I argue that the infrequency with which the death penalty is currently being imposed in this country is one of the principal reasons that courts should intervene to prevent it.  Infrequency is the fatal flaw in the contemporary imposition of the death penalty for at least three reasons.  First, and most obviously, it demonstrates that the penalty has been rejected by contemporary society, and that as a result, its imposition is a cruel and unusual punishment under the Eighth Amendment.  Second, a punishment imposed so infrequently-and wantonly-can serve no valid penological interest.  The argument that the death penalty is necessary to deter crime, incapacitate offenders, or offer retribution to victims and society more generally is undercut by the fact that the percentage of all killers who receive the penalty is vanishingly small.  And finally, the infrequency with which the death penalty is currently imposed demonstrates that the fundamental problem identified by the Supreme Court in Furman v. Georgia in 1972 has not yet been solved.  Then as now, there is no principled way of distinguishing the very few cases in which the death penalty is imposed from the much larger pool of those eligible to receive the law's ultimate penalty.

"The Eighth Amendment Power to Discriminate"

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

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences.  While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing.  The expansive discretion that the requirement confers on overwhelmingly white juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.

While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion.  This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it.  It proposes that states employ specific jury instructions that (1) require jurors to consider certain types of evidence as legally mitigating, (2) address the historically racist application of the death penalty, and (3) permit unfettered discretion solely in the direction of leniency.  Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing.

Missouri Gov denies clemency request to Russell Bucklew hours before his potentially "gruesome" execution... which went forward seemingly without difficulty

As reported in this CNN article, headlined "A man set to be executed tonight could suffer a 'gruesome' death because of his rare disease, activists say," the last person in Missouri who could have readily stopped a high-profile execution has decided to allow it to go forward tonight.  Here are the details:

Missouri's governor has refused to stop what activists say would be "one of the most gruesome" executions in US history.

Russell Bucklew, 51, is scheduled to die by lethal injection at 6 p.m. (7 p.m. ET) Tuesday. He was convicted of first-degree murder, kidnapping and first-degree burglary in 1997.

Gov. Mike Parson turned down a clemency request, said his press office, without providing additional detail.

Bucklew suffers from a rare blood vessel disorder called cavernous hemangioma.  The disease can cause tumors in the head and regular bleeding from the mouth, nose, eyes and ears.  An execution by lethal injection could cause prolonged suffocation and excruciating pain, Bucklew's attorneys have said.  Bucklew argued the state should consider death by lethal gas as an alternative.

In April, the Supreme Court ruled against Bucklew in a 5-4 decision, which means plans for the lethal injection can proceed.  Justice Neil Gorsuch said the Eighth Amendment "does not demand the avoidance of all risk of pain" in carrying out executions....

But the American Civil Liberties Union said executing Bucklew would violate the Constitution's prohibition against cruel and unusual punishment.  "What makes (Bucklew's) execution different is that he has a medical condition that would make it one of the most gruesome in U.S. history," the ACLU wrote.  It said Bucklew's tumors "will likely rupture during the lethal injection process, causing him to hemorrhage, choke, and suffocate in his own blood."...

Bucklew was convicted of fatally shooting his ex-girlfriend's presumed new boyfriend, Michael Sanders, and firing at Sanders' son before kidnapping Stephanie Ray Pruitt.  After raping his ex-girlfriend, court documents state, Bucklew was involved in a gunfight in which he and a Missouri state trooper were injured.

UPDATE: This AP article reports that the execution of Russell Bucklew went forward in the state of Missouri this evening and seemingly was not gruesome at all:

A Missouri man was executed Tuesday for killing a man during a violent 1996 crime spree, despite concerns the inmate's rare medical condition would cause a gruesome lethal injection. Russell Bucklew was executed at the state prison in Bonne Terre. It was Missouri's first execution since January 2017....

Bucklew looked around and twitched his feet beneath the sheet as he lay on the gurney just before the lethal injection. He suddenly took a deep breath and all movement stopped. He showed no outward signs of distress.

Cheryl Pilate, one of Bucklew's attorney's, said several steps were taken to try to ensure that he didn't suffer, including sedating him prior to the execution and elevating the gurney to help prevent him from choking. "We believe the significant efforts that went into making this a less horrible process were beneficial," Pilate said.

Noticing Justice Sotomayor's persistent voice as SCOTUS turns away capital cases

Adam Liptak has this new New York Times piece headlined "In Death Penalty Cases, Sotomayor Is Alone in ‘Bearing Witness’." Here are brief excerpts:

The terse Supreme Court rulings arrived in the evening, in time to allow an execution later that night.  There were three rulings in the last month or so, at 5:52 p.m., at 7:01 p.m. and at 10:13 p.m. They were bland and formulaic, saying only that the court had denied an “application for stay of execution of sentence of death.”  The inmates who had filed the applications were put to death within hours.

In all three cases, only one member of the court bothered to write an opinion, to give a hint about what was at stake.  That was Justice Sonia Sotomayor, who maintains a sort of vigil in the capital cases other justices treat as routine.  She described shortcomings in the trials the inmates had received and oddities in the laws the courts below had applied....

There is a precedent for Justice Sotomayor’s attention to capital cases, said Jordan M. Steiker, a law professor at the University of Texas....  “Justice Sotomayor is carrying forward the tradition of Justices Brennan and Marshall,” Professor Steiker said, referring to Justices William J. Brennan Jr. and Thurgood Marshall, who came to adopt a practice of dissenting in every death penalty case....

Justice Sotomayor’s sustained attention to the capital justice system, Professor Steiker said, was part of an effort to speak to many audiences. “She recognizes the institutional limits of the court in correcting every injustice or every misreading of federal law, yet she wants to communicate the wrongness of those injustices and misreadings despite the court’s inability to intervene,” Professor Steiker said. “Justice Sotomayor is speaking to institutional actors — judges, prosecutors, defense lawyers — to make clear that the court, or least some portion of it, is keenly aware of problems that it is not presently able to correct.

Pennsylvania Supreme Court opts to dodge broadside challenge to state's death penalty

As noted in this post from July, Philly DA Larry Krasner filed a notable state court brief urging the Pennsylvania Supreme Court to declare state's death penalty unconstitutional.  But, as set forth in this brief order released on Friday, the Pennsylvania Supreme Court decided to "decline[] to exercise its extraordinary King’s Bench jurisdiction," and so the applications were "DENIED on this basis." This local article provides some more context and reactions:

The Pennsylvania Supreme Court on Thursday rejected a petition by two death row inmates to find the state’s death penalty unconstitutional, a request that some advocates had hoped would lead to a historic ruling.  In its one-page order, the court left the door open for individual review of death penalty cases. “Discrete review of properly presented claims will proceed in the individual cases, subject to the jurisdictional limits of the post-conviction courts,” its ruling said.

The Supreme Court case centered on a petition filed by federal defenders in August 2018 on behalf of two inmates, Jermont Cox of Philadelphia and Kevin Marinelli of Northumberland County, but had the potential to affect the approximately 130 others on death row.

Shawn Nolan, chief of the capital habeas unit at the Federal Community Defender Office in Philadelphia, which represents Cox and Marinelli, said in a statement Friday: “We are disappointed that the Pennsylvania Supreme Court declined to hear this important case at this time.  As noted by the order of the court, we will continue to litigate the unconstitutionality of Pennsylvania’s capital punishment system in individual cases.  There is overwhelming evidence that Pennsylvania’s death penalty system is broken — unfair, inaccurate, and unlawful under the constitution of the commonwealth.”...

On Sept. 11, the seven justices heard the appeal arguments in the cases of Cox and Marinelli.  During that hearing, Tim Kane, an assistant federal defender, argued that the death-penalty system is unreliable and thus violates the state constitution’s ban on cruel punishment.

The Philadelphia District Attorney’s Office, which represents the state in Cox’s appeal, also contended that the death penalty, as applied, has been unreliable and is thus unconstitutional.  Paul George, assistant supervisor of the Philadelphia district attorney’s law division, referred to a recent study by his office that found that 112 of 155 death penalty sentences — or 72% — from 40 years through 2017 were overturned.  Most were overturned because the defendants had ineffective counsel, he said.

George, like Philadelphia District Attorney Larry Krasner, is a former criminal defense attorney who has opposed the death penalty.  Krasner, who took office in January 2018, had campaigned on “never” seeking the death penalty. In practice, the District Attorney’s Office under Krasner has agreed or signaled a willingness to vacate the death penalty for more than one-third of the 45 inmates from Philadelphia on death row in May, an Inquirer analysis showed.  Under Krasner and George’s leadership, the office has not asked for the death penalty in any cases that have come up for resentencing....

The Pennsylvania Attorney General’s Office, which represents the state in Marinelli’s case, has taken a different stance from the District Attorney’s Office. Ronald Eisenberg, senior appellate counsel in the Attorney General’s Office, argued before the justices that there was no immediate need for the high court to take up its so-called King’s Bench power to review the matter, and suggested that other avenues exist to address issues regarding lawyers determined to be ineffective in capital cases....

The Pennsylvania District Attorneys Association issued a statement Friday afternoon supporting the order. “The extraordinary relief sought by petitioners was the wrong mechanism for this type of challenge, and it was properly denied,” the statement said. “The appeals process in Pennsylvania exists to ensure this rare punishment is applied properly — and that process will continue to be utilized by individuals sentenced to death.  While no prosecutor takes joy in seeking the death penalty, we believe today’s ruling is the right result for the citizens of this commonwealth.”

In the state legislature, Sen. Sharif Street and Rep. Chris Rabb, both Philadelphia Democrats, are among lawmakers who in April announced a plan to introduce legislation to end the state’s death penalty, saying it is unsuccessful as a crime deterrent, costly, and flawed. Sen. Katie Muth, a Democrat who represents parts of Montgomery, Chester, and Berks Counties, is a prime joint sponsor of the proposed Senate bill. Her legislative director, Sonia Kikeri, said Friday that Muth hopes to introduce the bill in the fall session.

Republican Rep. Francis X. Ryan of Lebanon County, who considers himself one of the most conservative members in the state House, is a prime joint sponsor of Rabb’s bipartisan effort. “I do think it needs to be abolished,” Ryan said Friday. Rabb said in a separate interview that they would plan to introduce their bill “when we have a few more co-sponsors on both sides of the aisle.... We have our work cut out for us if we want to introduce it by the end of this year.” He said they would have until November 2020 to introduce a bill in the current legislative session.

Cox was convicted of three separate drug-related murders in Philadelphia in 1992 and ordered to die for one of them. Marinelli was sentenced to death for a 1994 killing in Northumberland County.  Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978.  The last person executed by the state was the Philadelphia basement torture killer Gary Heidnik, in 1999.

Gov. Tom Wolf in 2015 imposed a moratorium on the death penalty in Pennsylvania.

Prior related posts:

• Philly DA argues, based on study of local capital cases, that "death penalty, as it has been applied, violates the Pennsylvania Constitution" 

Texas completes its seventh execution of 2019 with killing of triple killer

As reported in this local article, a "Texas death row inmate with claims that he was intellectually disabled was executed Wednesday at the Huntsville 'Walls' Unit for stabbing his two stepsons during an attack more than 12 years ago in their North Texas home that also killed his wife." Here is more:

Robert Sparks, 45, was apologetic to his family for the September 2007 slayings of 9-year-old Harold Sublet and 10-year-old Raekwon Agnew in their Dallas home.

“I am sorry for the hard times and what hurts me is that I hurt y’all,” Sparks said in his last statement.  He was declared dead at 6:39 p.m., approximately 23 minutes after the lethal process began.

Prosecutors say Sparks' attack began when he stabbed his wife, 30-year-old Chare Agnew, 18 times as she lay in her bed.  Sparks then went into the boys' bedroom and separately took them into the kitchen, where he stabbed them. Raekwon was stabbed at least 45 times.  Authorities say Sparks then raped his 12- and 14-year-old stepdaughters.

His attorneys fought his appeal until the final minute, arguing that the jury specifically relied upon “the false testimony of prosecution expert A.P. Merillat when sentencing him to death.  The appeal also claimed that the courtroom bailiff wore a syringe tie on the date of jury deliberations, “creating an unacceptable risk of impermissible factors coming into play at trial.”

Notably, as revealed in this SCOTUS order, Justice Sotomayor thought this claim about a syringe tie justified stopping his execution.  Here is her dissent from the Supreme Court's denial of a stay for Sparks:

The allegations presented in this petition are disturbing.  On the day the jury began punishment deliberations in petitioner Robert Sparks’ capital murder trial, one of the bailiffs on duty in the courtroom wore a black tie embroidered with a white syringe — a tie that he admitted he wore to express his support for the death penalty.

That an officer of the court conducted himself in such a manner is deeply troubling.  Undoubtedly, such “distinctive, identifiable attire may affect a juror’s judgment.” Estelle v. Williams, 425 U.S. 501, 504–505 (1976).  The state habeas court, however, conducted an evidentiary hearing but did not find sufficient evidence to conclude that the jury saw the tie. I therefore do not disagree with the denial of certiorari.  I nevertheless hope that presiding judges aware of this kind of behavior would see fit to intervene in future cases by completely removing the offending item or court officer from the jury’s presence.  Only this will ensure the “very dignity and decorum of judicial proceedings” they are entrusted to uphold. Illinois v. Allen, 397 U.S. 337, 344 (1970).  The stakes — life in this case, liberty in many others—are too high to allow anything less.

"Execution of Youth under Age 21 on the Date of Offense: Ending with a Bang or a Whimper?"

The title of this post is the title of this new article authored by Hollis Whitson and Eric Samler now available via SSRN. Here is its abstract:

Consistent with the scientific evidence that proves that adolescent brain development continues well into the third decade of life, the Supreme Court may be foreshadowing the day when an actual or de facto categorical ban will bar the death penalty for offenders who were under the age of 21 years old on the date of the offense.  For almost two decades, death sentences and executions of such persons have been in steep decline — in absolute numbers and in geographical concentration. Over the same period, the minority percentage of those impacted has increased.  The authors joins the American Bar Association and other voices that have called for a categorical ban on execution of persons who were under the age of 21 years old at the date of offense.

Tennessee AG seeking to make his state even more like Texas with respect to capital punishment

This new AP article, headlined "Tennessee Seeks Execution Dates for 9 Death Row Inmates," explains why the Volunteer State is on a path to become the new Texas in the arena of capital punishment thanks in part to efforts by the state's Attorney General.  Here are the basics:

Tennessee's attorney general has asked the state Supreme Court to set execution dates for nine death row prisoners, bucking a national movement away from capital punishment. Attorney General Herbert Slatery quietly filed the request on Friday with no explanation, and the state Supreme Court later posted it on its website on Tuesday.

"The Tennessee Constitution guarantees victims of crime the right to a 'prompt and final conclusion of the case after the conviction of sentence,'" Slatery said in a statement Tuesday in response to a request for comment from The Associated Press.

Slatery's motion came the same day he publicly announced he would challenge a Nashville Criminal Court's decision to commute the death sentence of black inmate Abu-Ali Abdur'Rahman's to life in prison after concerns were raised that racism tainted the jury selection pool.  Slatery argued in his appeal that the court's order "circumvented established legal procedures."

Assistant Federal Public Defender Kelley Henry said she was surprised by the request when she received it in the mail on Monday. Seven of the nine men included in Slatery's motion are represented by the public defender's office.  "Each case is unique and represents a number of fundamental constitutional problems including innocence, racism, and severe mental illness," Henry wrote in a statement on Tuesday. "We will oppose the appointed attorney general's request."

In Tennessee, the attorney general can request execution dates once juries have delivered death sentences and inmates have exhausted their three-tier appeals process in state courts and the U.S. Supreme Court.  The state Supreme Court then schedules the executions. It has not yet scheduled the nine Slatery requested but has scheduled two others for the coming months.

Tennessee has executed five people since it resumed executions about a year ago. The state was second only to Texas in the number of executions it carried out in 2018, the fourth consecutive year in which there have been fewer than 30 executions nationwide. Tennessee executed three people last year; Texas put to death 13....

In Tennessee, executions are carried out through lethal injection unless the drugs are unavailable, in which case the electric chair is used. Additionally, death row inmates who were convicted of crimes before January 1999 can choose the electric chair or lethal injection.  Tennessee put 56-year-old Stephen West to death by electric chair last month. West was convicted of the 1986 kidnappings and stabbing deaths of a mother and her 15-year-old daughter. He also was convicted of raping the teen.

Kentucky Supreme Court hears arguments to preclude death penalty for defendants under age 21

As reported in this local article, the Kentucky Supreme Court heard a notable death penalty case yesterday.  Here are the details:

Kentucky could become the first death penalty state to put additional age restrictions on capital punishment.  Currently, 18 is the legal age allowed in the United States.  However, the Supreme Court of Kentucky could ban the death penalty for defendants who committed a crime between the ages of 18 and 21.

On Thursday, the Court heard the arguments surrounding two high profile murders out of Lexington.

In the first case, Efrain Diaz Jr. and Justin Smith are charged with the death of UK student Jonathan Krueger. Police say Krueger and a friend were walking home on East Maxwell St. in 2015 when Diaz, Smith, and Roman Gonzalez approached them.  Police say the three were armed and one of them shot and killed Krueger.  Gonzalez was 17-years-old at the time, so the death penalty cannot be applied to him. However, Diaz was 20-years-old at the time and Smith was 18.

In the second case, Travis Bredhold is accused of allegedly robbing and killing gas station attendant Mukeshbhai Patel in 2013.  Bredhold was 18-years-old at the time.

If things stand as they currently do, Bredhold, Diaz, and Smith will not face the death penalty. In Fayette County Circuit Court, Judge Ernesto Scorsone ruled the death penalty is unconstitutional for people in that age range because new science shows their brains are still developing and they lack the maturity to assess risks and control their impulses.

The defendants' lawyer, who wants the Supreme Court of Kentucky to uphold Scorsone's ruling, used the science argument in court today.  "In 2005, we thought the problem with juvenile misbehavior was simply that the brakes were defective," said defense lawyer Timothy Arnold.  "Now, we know they have their foot on the gas and they are flooring it between the ages of 18 and 20."

The Attorney General's Office argued against that, hoping to convince the Court to overturn the Scorsone's ruling. "Judge Ernesto Scorsone of the Fayette Circuit Court abused his power when he decided that 18 to 20 year olds were exempt from the death penalty," said assistant state attorney general Matthew Krygiel.

The Attorney General's Office argued that the Supreme Court of the United States set the age for capital punishment at 18 and that should be followed.  Krygiel reiterated that 18 is the legal age of an adult in the United States. "Being 18 years old, you can enlist in the Army," said Krygiel. "They give you an assault rifle and send you halfway across the world, and after some basic training on the rules of engagement, you're going to decide whether or not to pull a trigger and shoot somebody."

However, the defense lawyer believes the Kentucky Supreme Court has the power to revisit the age limit. Arnold argued that given the new science available, 18 to 21 year olds should not have capital punishment as a penalty option. "To be clear, nobody's proposing throwing a parade for anybody," said Arnold.  "What we are saying is simply that they're not eligible for the death penalty.  They'll still be eligible for life without parole or any other penalty that would be applicable to somebody who committed a serious crime. The death penalty is reserved for the worst of the worst, and science shows that they're not that."

Prior related post:

• Kentucky judge rules death penalty unconstitutional for all offenders under 21 years old

"Tinkering With the Machinery of Death: Lessons From a Failure of Judicial Activism"

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

The Supreme Court’s jurisprudence on capital sentencing is a mess.  That may be the only proposition that draws a consensus in this sharply divisive area.  Critics and supporters of capital punishment agree that the system created by the Court fails to achieve its goals, although for different reasons.  The entire body of case law is an exercise in judicial activism.  That is, it consists of the decisions by the Supreme Court creating rules that shifting majorities believed were good policy at the time, unsupported by any demonstrable connection to the original understanding of the Eighth Amendment. 

I contend that the worst aspect of this body of case law — both in constitutional illegitimacy and in harmful effects — is the rule of Lockett v. Ohio that the defendant must be allowed to introduce and have considered virtually unlimited evidence in mitigation. The Court’s inability to agree with itself from one year to the next on what this rule means has caused many wrongful reversals of well-deserved sentences.  The unlimited potential it creates for attacking the competence of defense counsel continues to cause massive delay and expense, and all for evidence of limited probative value.  This is a massive failure of judicial activism. I propose that the Court prune back the rule to only the circumstances of the crime, youth, and lack of a criminal record and return the question of the admissibility of all other mitigation to the people and the democratic process.

Federal officials reportedly considered using fentanyl for executions when restating machinery of death

As reported in this post from July, federal officials have scheduled as series of executions starting in December of this year and have announced the creation of a new "Federal Execution Protocol Addendum, which ... replaces the three-drug procedure previously used in federal executions with a single drug — pentobarbital."  But according to this new Reuters report, another notable drug was considered by federal officials as they worked to restart the federal machinery of death:

The U.S. Department of Justice examined using fentanyl in lethal injections as it prepared last year to resume executing condemned prisoners, a then untested use of the powerful, addictive opioid that has helped fuel a national crisis of overdose deaths.

The department revealed it had contemplated using the drug in a court filing last month, which has not been previously reported. In the end, it decided against adopting the drug for executions.  Attorney General William Barr announced in July his department instead would use pentobarbital, a barbiturate, when it resumes federal executions later this year, ending a de facto moratorium on the punishment put in place by the administration of U.S. President Barack Obama.

But the special consideration given to the possibilities of fentanyl, even as federal agents were focused on seizing illegal imports of the synthetic opioid, show how much has changed since the federal government last carried out an execution nearly 20 years ago.  Many pharmaceutical companies have since put tight controls on their distribution channels to stop their drugs being used in executions.

As old supply chains vanished, many states, and the federal government in turn, have been forced to tinker with their lethal recipes.  They have experimented with different drugs, in some cases leading to grisly “botched” executions in which the condemned prisoners have visibly suffered prolonged, excruciating deaths, viewed by some as a breach of the constitutional ban on “cruel and unusual” punishments.

In 2017, Nebraska and Nevada announced they would use fentanyl, which is 100 times more powerful than morphine, in new multi-drug execution protocols.

By 2018, the U.S. Justice Department was also examining the “use of fentanyl as part of a lethal injection protocol,” according to a three-page internal memorandum from March 2018 by the director of the department’s Bureau of Prisons.

The Justice Department revealed the memo’s existence in an August court filing after a federal judge ordered it to produce a complete “administrative record” showing how it arrived at the new pentobarbital execution protocol announced in July.

The full contents of the memo are not public. It is not known why the department decided to examine fentanyl, what supply channels were considered or why it ultimately rejected fentanyl as a protocol.  The government’s court filing shows the only other named drug examined as the subject of a department memo was pentobarbital, the drug it now says it wants to use in December and January to kill five of the 61 prisoners awaiting execution on federal death row....

Doctors can prescribe fentanyl for treating severe pain.  In recent years, illegal fentanyl has become a common additive in bootleg pain pills and other street drugs, contributing to the tens of thousands of opioid overdose deaths in the country each year.  Even tiny quantities can slow or stop a person’s breathing.

Earlier this year, an Ohio lawmaker proposed using some of the illegal fentanyl seized from drug traffickers to execute condemned inmates....

In August 2018, Carey Dean Moore became the first person in the United States to be executed using a protocol that included fentanyl.  Nebraska prison officials injected him with fentanyl and three other drugs. Moore took 23 minutes to die. Witnesses said that before succumbing, Moore breathed heavily and coughed and that his face turned red, then purple.

Prior recent 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 

After Sixth Circuit panel approves (resoundingly) Ohio's execution protocol, will state now seek to restart its machinery of death?

As reported in this post from February, Ohio Gov Mike DeWine put a long list of scheduled executions on hold after a lower court had ruled that "it is certain or very likely" that the state's reliance on the drug midazolam in its eceuction protocol "cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride."  Ironically, the Ohio death row defendant, Warren Keith Henness, appealed the district court's decision because it ultimately denied his request for a stay of execution. 

That appeal has not been resolved by  a Sixth Circuit panel in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), and the panel opinion seem almost to be urging Ohio to get it machinery of death up and running again.  Here are extended excepts providing context for, and content from, this short ruling:

In Glossip, the Supreme Court held that, to demonstrate a likelihood of success on the merits of an Eighth Amendment challenge to a state’s method of execution, the plaintiff must: (1) show that the intended method of execution is “sure or very likely to cause serious illness and needless suffering,” and (2) “identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Id. at 2737 (citations, brackets, internal quotations, and original emphasis omitted).

Applying this framework, the district court found that Henness met his burden on Glossip’s first prong but failed to propose a viable alternative method of execution as required by the second. We review each prong separately....

We disagree [with the district court's conclusion on the first Glossip prong].  As an initial matter, neither pulmonary edema nor the symptoms associated with it qualify as the type of serious pain prohibited by the Eighth Amendment.  Consider: midazolam may cause Henness to suffocate.  But the Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by “superadd[ing]” feelings of “terror, pain, or disgrace.”  Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (citations and internal quotation marks omitted). Consistent with this understanding, the Supreme Court recently reasoned that the fact that an inmate sentenced to death by hanging might slowly suffocate to death is not constitutionally problematic.  Id.  Because suffocation does not qualify as “severe pain and needless suffering,” it follows that Ohio’s use of midazolam — which could cause pulmonary edema, i.e., suffocation — is not constitutionally inappropriate.  The district court therefore clearly erred in concluding to the contrary.

Further, the district court erred in finding that Henness met his burden of proving that midazolam is incapable of suppressing his consciousness enough to prevent him from experiencing — at a constitutionally problematic level — the pain caused by the combination of the paralytic agent and potassium chloride.  Indeed, though we have concluded that the combination of those two substances “would cause severe pain to a person who is fully conscious,” we have also recognized that midazolam is capable of altering an inmate’s ability to subjectively experience pain.  See Fears, 860 F.3d at 886, 888 (noting that “experts . . . agree[] that midazolam is sometimes used alone for intubation”). That said, the relevant inquiry is whether an inmate injected with 500 milligrams of midazolam would subjectively experience unconstitutionally severe pain — an inquiry that Henness has failed to prove should be answered in his favor.  To be sure, the bulk of Henness’s evidence focuses on the fact that midazolam is incapable of rendering an inmate insensate to pain.  But “the Eighth Amendment does not guarantee a prisoner a painless death,” so it is immaterial whether the inmate will experience some pain — as noted, the question is whether the level of pain the inmate subjectively experiences is constitutionally excessive.  See Bucklew, 139 S. Ct. at 1124.  And the fact that midazolam may not prevent an inmate from experiencing pain is irrelevant to whether the pain the inmate might experience is unconstitutional. Without evidence showing that a person deeply sedated by a 500 milligram dose of midazolam is still “sure or very likely” to experience an unconstitutionally high level of pain, Henness has not met his burden on this prong, and the district court clearly erred in concluding otherwise....

But even if we were to agree with Henness that Ohio’s method of execution is very likely to cause either of the types of severe pain identified by Henness and the district court, we would still find that Henness has failed to carry his burden under Glossip’s second prong.  This is because Henness’s proposed alternative method — death by secobarbital — is not a viable alternative.  As an initial matter, the record demonstrates that death by secobarbital is not “feasible” because secobarbital can, in some instances, take days to cause death and Henness has failed to propose any procedures detailing how an execution team might deal with such a prolonged execution.  Setting that deficiency aside, Henness’s proposal still fails.  As the Supreme Court recently explained, a state may decline to utilize an alternative method of execution — even if it is otherwise feasible and capable of being readily implemented — so long as the state has a legitimate reason for doing so, and “choosing not to be the first [state] to experiment with a new method of execution is a legitimate reason to reject it.” Bucklew, 139 S. Ct. at 1128-30 (internal quotation marks omitted).  It follows that, because no other state uses secobarbital to carry out an execution, Ohio may decline to implement it.

As a final point, we note that Henness’s last-minute motion to dismiss on mootness and ripeness grounds is without merit. Contrary to his contentions, Ohio has said that it intends to resume executions with this protocol if we approve. See, e.g., Andrew J. Tobias, Gov. Mike DeWine Freezes All Ohio Executions While New Method Developed, Cleveland.com (February 19, 2019), https://perma.cc/2HUL-HBUG (last accessed August 9, 2019). Thus, his challenge is not moot.  And his challenge is ripe — notwithstanding the fact that his execution has been delayed.

In other words, it seems that the Sixth Circuit panel here clearly credits the death row defendant's contention that Ohio's use of midazolam in its lethal injection protocol "may cause Henness to suffocate" and seems to credit the claim that he "will experience some pain."  But, according to the panel, it is fully constitution circa 2019 for the state to opt to "slowly suffocate to death" a condemned defendant as long as that defendant is not "sure or very likely to experience an unconstitutionally high level of pain."  

I am certain that the defendant here will now appeal this matter to the en banc Sixth Circuit and also the Supreme Court, but I will be surprised if this appeal gets heard in full again.  (I will predict here that at least a few Sixth Circuit judges will dissent if and when the full circuit does not take up the case.)  Consequently, I think the fate of Warren Keith Henness and a long list of condemned with execution dates in Ohio now turns on what whether and when Governor DeWine is prepared to order the state's machinery of death to become operational again.

A few (of many) prior recent related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• Ohio Governor officially postpones three more scheduled executions 
• Reviewing Ohio's (now-suspended) execution realities
• Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death
• Struggling with an execution protocol, Ohio Gov DeWine delays execution scheduled for Sept 2019 to May 2020 

Texas completes execution of murderer less than a decade after deadly crime spree

Texas is in the midst of what might be called an execution surge: last night the state completed its third execution in the last month and it has nine more execution scheduled before the end of this year.  This local piece reports on the latest execution, and here are the basics:

On Tuesday, Texas executed Mark Soliz for the 2010 home robbery and shooting death of a North Texas woman.... Soliz, 37, was convicted and sentenced to death in 2012 for the murder of Nancy Weatherly, 61, and the robbery of her Johnson County home, according to court records.  Prosecutors said the murder was part of an eight-day crime spree during which Soliz and another man, Jose Ramos, robbed random people at gunpoint, and Soliz killed another man.

Soliz and his lawyers had long argued that his life should be spared because he had fetal alcohol spectrum disorder, which they claimed is the “functional equivalent” of an intellectual disability, a condition the U.S. Supreme Court has ruled disqualifies individuals from execution.  Both state and federal courts rejected the claim during Soliz’s relatively short seven years on death row.

Shortly after 6 p.m. Tuesday, Soliz was taken into the execution chamber in Huntsville and placed on a gurney.  Soliz was apologetic in his final words, addressing Weatherly's family members. "I wanted to apologize for the grief and the pain that I caused y’all," Soliz said. "I’ve been considering changing my life.  It took me 27 years to do so.  Man, I want to apologize, I don’t know if me passing will bring y’all comfort for the pain and suffering I caused y’all. I am at peace."

He was then injected with a lethal dose of pentobarbital, the only drug used in Texas executions.  He was pronounced dead at 6:32 p.m.

In June 2010, prosecutors said, Soliz and Ramos terrorized residents in the Fort Worth area for eight days before they were arrested on suspicion of one of several crimes, including multiple robberies, carjackings and shootings, another of which was fatal. When police interrogated Ramos about one stolen car, he began talking about another crime — in which he said the two men forced their way into Weatherly’s house in Godley at gunpoint, and Soliz shot her in the back of the head as they robbed her home....

At his trial and in his appeals to state and federal courts, Soliz repeatedly raised the claim that he should not have been executed because of his disorder.  Several defense experts testified before the jury that he was diagnosed with partial fetal alcohol syndrome, which his lawyers claim caused mental impairments like lack of impulse control, serious adaptive learning deficits and hyper-suggestibility.  But the testimony did not keep the jury from handing down a death sentence, and appellate courts did not interfere, partially because the claim was raised at trial and failed....

Texas’ six executions so far this year make up more than a third of the 15 that have taken place in the country.  Of the 17 executions still scheduled in the country through December — including three federal cases — nine are set to take place in the Texas death chamber in Huntsville, according to the Death Penalty Information Center.  Last year, Texas executed 13 men.

Texas completes its fifth execution of 2019 with lethal injection of double murderer

As reported in this local article, headlined "Texas executes Billy Crutsinger in Fort Worth slayings of two elderly women," the long-standing leader in US executions completed another one this evening.  Here are the details:

In 2003, an 89-year-old woman and her 71-year-old daughter were stabbed to death in their Fort Worth home.  On Wednesday, Texas executed Billy Crutsinger for the crime.

Crutsinger was sentenced to death for the home robbery and slayings of Pearl Magouirk and her daughter, Patricia Syren.  The two women were found two days after their murders, and police tracked Crutsinger to a Galveston bar using Syren’s credit card, according to court records.

In Tarrant County, Assistant Criminal District Attorney and lead prosecutor Michele Hartmann said Tuesday the loss of the mother and daughter “is still felt deeply by their family and the Fort Worth community.”

After his last appeals were denied by the U.S. Supreme Court just minutes before his execution was scheduled to begin at 6 p.m., Crutsinger, 64, was strapped to a gurney in the death chamber in Huntsville. No relatives of the women were present to witness the execution, according to a prison spokesman.  Crutsinger had three friends in the viewing room, who, in his final words, he thanked for coming and supporting other death row inmates. Into the microphone hanging above his head, he said the system "is not completely right," but he was at peace and was going to be with Jesus and his family....

Crutsinger was then injected with a lethal dose of pentobarbital at 6:27 p.m., and pronounced dead 13 minutes later, according to the prison department. He was the fifth person executed in Texas this year and the 14th in the country....

During his nearly 16 years on death row, Crutsinger appealed his sentence arguing against the legal validity of his confession and DNA sample. But more recently, he pointed to his lawyers’ failings.

Crutsinger argued that his trial lawyer failed to adequately investigate mitigating factors that could have swayed the jury to hand down a sentence of life in prison instead of execution. Specifically, he claimed the attorney overlooked evidence of mental impairment caused by alcohol addiction, head trauma, depression and low intelligence, according to a recent federal district court ruling....

There are 10 other Texas executions scheduled through December.

Talk of draft legislation to expedite death penalty as part of package response to mass shootings

As reported in this new Fox News piece, headlined "White House, DOJ working to expedite death penalty for mass shooters," it appears next week we will see the Trump Administration advance a proposal to expedite executions for mass murderers. Here are the basics:

The White House said Monday it has drafted legislation with the Justice Department that would expedite the death penalty for people found guilty of committing mass shootings, following Saturday's attack in West Texas that left seven dead, according to a pool report.

Vice President Mike Pence's chief of staff, Marc Short, told reporters aboard Air Force Two that the initiative was part of a larger White House gun control package that will be sent to Congress after lawmakers return from their August recess on Sept. 9. Attorney General Bill Barr is involved in active discussions with the vice president's office, Short said, as the plane made its way to Ireland.

The issue could be contentious among Democrats seeking to unseat President Trump in 2020. Former Texas Rep. Beto O'Rourke has sought to revive his struggling candidacy by calling for a mandatory buyback of what he called "assault weapons" -- but he also has insisted, in a recent policy shift, that capital punishment is categorically wrong.

Still, there has been little hesitation from the Trump administration on the issue. In August, Trump said he was “directing the Department of Justice to propose legislation ensuring that those who commit hate crimes and mass murders face the death penalty," adding that he wanted "capital punishment be delivered quickly, decisively, and without years of needless delay.”

Earlier this summer, Barr said the federal government will resume capital punishment and will move forward with plans to execute five inmates on death row for the first time in more than 15 years....

In a letter last month to President Trump, House Speaker Nancy Pelosi, D-Calif., specifically pushed for the House-passed Bipartisan Background Checks Act and the Enhanced Background Checks Act. Some of the House-sponsored legislation would extend the time period for the FBI to conduct background checks on firearm purchases from three days to 10 days and establish new background-check procedures for private gun transfers.

Many Republicans said they hoped to take action to curb gun violence. House Minority Leader Kevin McCarthy, R-Calif., said his party has been interested in “common sense solutions to prevent this from happening in the future while at the same time protecting due process for anyone who is a law-abiding citizen.”...

For his part, Senate Majority Leader Mitch McConnell, R-Ky., has said that so-called "red flag" warning legislation, as well as expanded background checks, would be "front and center" on the Senate floor when Congress comes back in session.

However, red flag laws might be unconstitutional, some conservatives have said, and states and local governments increasingly have sparred over the issue. More than a dozen states have enacted red flag laws. In March, Colorado's attorney general testified that county sheriffs vowing not to enforce the state's anti-gun "red flag" bill should "resign."

Red flag laws generally require friends or family to establish by a "preponderance of the evidence" -- a relatively lax legal standard essentially meaning that something is "more likely than not" -- that a person "poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing or receiving a firearm."

Given the strict constitutional regulation of the death penalty and the practical challenges posed by big capital cases, I doubt any proposed legislation would or could significantly fast-track capital prosecutions and executions. Consider, for example, the big federal capital prosecutions emerging form the Boston Marathon bombing and the Charleston Church shooting. It took nearly two years to secure death sentences for Dzhokhar Tsarnaev and Dylann Roof, and even longer for the (still-pending) direct appeals to take place.  Even if some form of legislation could somehow cut the procedural timelines for these cases, it still seems likely that the better part of a decade or more will always transpire between any mass murder and any ultimate federal execution of its perpetrator.

For these reasons, I am hopeful (but not optimistic) that Democratic leaders will not let general opposition to the death penalty get in the way of building a legislative package of common-sense gun control reforms.  Reasonable gun control efforts might possibly have some impact on the still-extraordinary level gun violence in the US, whereas any legislation looking to speed up capital cases for mass murderers likely will have, at most, a slight impact on a very small handful of cases.

Another indication from Oklahoma of how jurors are keeping the death penalty mostly dormant

With more than 100 executions in the modern capital era, Oklahoma used to be one of the most active death penalty states.  But this new local article, headlined "Jury deadlock latest example of death penalty's decline," highlights how the state has functionally (though not formally) turned away from capital punishments.  Here is an excerpt:

Deputy David Wade died in service to you," District Attorney Laura Austin Thomas told jurors Thursday in asking for the death penalty for his murderer, Nathan LeForce. "Let the punishment fit the crime."

The deputy had been making sure an evicted couple was moving out of a rural residence near Mulhall on April 18, 2017, when LeForce — who was visiting there — pulled out a gun from a piece of furniture and began firing.  The first shot hit the deputy in the vest, spinning him around and knocking him to the ground.  LeForce moved closer, shooting the deputy in the arm, armpit, back and, finally, the mouth, according to evidence presented at the trial.  LeForce fled in the deputy's patrol truck.

Calling the shooting cold-blooded, wicked and vile, the district attorney asked jurors if it did not merit the death penalty than what does. To choose another punishment, she said, would not honor or value the deputy's service.

Jurors, though, struggled with the decision.  After four hours, the foreman told District Judge Phillip Corley they were split 10-2. The judge instructed them to deliberate further.  He told jurors he would decide the sentence if they couldn't agree but explained his options could not include death. About 90 minutes later, jurors reported they were at an impasse, 11-1.  The judge thanked them and discharged them from duty.

The deadlock is the latest example of the death penalty's decline.  Death sentences have become increasingly rare in Oklahoma and nationwide as opposition to the punishment grows.  In May, New Hampshire became the 21st state to abolish the death penalty. Last week, the Ohio House speaker told reporters he's become "less and less supportive" of the death penalty....

Nationwide, a death sentence was imposed only 42 times last year, according to the Death Penalty Information Center.

In Oklahoma, only one death sentence was imposed last year and only one has been imposed so far this year. Executions remain on hold in the state while officials develop a protocol to use nitrogen gas.  The last lethal injection in Oklahoma murderer was on Jan. 15, 2015.

The deadlock Thursday night angered relatives of the victim and upset the sheriff and the almost two dozen deputies in the courtroom. It frustrated prosecutors, who believe the majority of jurors favored death.

Feds officially commit to seeking death penalty for Pittsburgh synagogue mass murderer

As reported in this local article, the "Justice Department said Monday that it will seek the death penalty for Robert Bowers, accused of killing 11 at Tree of Life synagogue in Squirrel Hill and wounding six others last year in the worst attack on Jews in U.S. history." Here is more:

The move was expected. Within days of the Oct. 27 massacre, the U.S. attorney's office said it had started the approval process for seeking death for Mr. Bowers in consultation with DOJ's capital crimes unit and the U.S. attorney general, Jeff Sessions at the time.

In a court filing Monday, prosecutors said Mr. Bowers qualifies for the death penalty because he allegedly targeted vulnerable people out of religious hatred, killed multiple victims and tried to kill others, chose the site to make an impact and showed no remorse, among other factors.

The decision to seek death comes despite a request by two of the Jewish congregations targeted in the shootings to spare Mr. Bowers' life.  In a recent letter to Attorney General William Barr, the groups cited religious and personal objections to capital punishment.  They also expressed concern about a trial and penalty phase that would require testimony from survivors, exposing them to further trauma.

Stephen Cohen, co-president of New Light Congregation, who had written to Attorney General Barr urging he accept a guilty plea with a guaranteed life sentence, said it was “absolutely the wrong decision” to seek the death penalty.  A trial will not bring closure to victims, he said. They will have to testify in court and sit there while “this heinous person tries to prove he didn’t do something he obviously did,” Mr. Cohen said. There’s no guarantee of a conviction, he said, and even if there is a finding of guilt, “people stay on death row for years and years.”...

Death penalty cases are rare in the federal system and executions almost never occur. Only three people have been put to death federally since the death penalty was reinstated in 1988....  Mr. Bowers is only the fourth person to face death in the history of the Western District of Pennsylvania, which comprises 25 counties.  None was executed.

"Whom the State Kills"

The title of this post is the title of this notable new empirical paper authored by Scott Phillips and Justin Marceau now available via SSRN. Here is its abstract:

Through original quantitative research we show that persons convicted of killing a white victim and sentenced to death are more likely to be executed than persons convicted and sentenced to death for killing a black victim.  Previous research documents numerous forms of arbitrariness and racial disparity in the administration of the modern death penalty, but focuses exclusively on the charging and sentencing patterns of prosecutors and juries.  Previous research also reveals that implicit bias operates within the institutions tasked with seeking and obtaining sentences of death.  Our original research shows that the problem of disparate racial outcomes is actually exacerbated through the work of our most trusted check on the death penalty, appellate courts.

Building on David Baldus’s storied dataset from Georgia, we demonstrate that the racial disparities he discovered in the penultimate stage of the case — death sentences — were amplified in the ultimate stage of the case — executions.  Combining both phases reveals a stunning pattern: the execution rate is roughly 17 times greater in white victim cases than black victim cases.  Although Baldus could not have known how the cases would unfold post-sentencing, our findings indicate that the racial disparities described in McCleskey v Kemp (1987) underestimated the extent of the death penalty’s arbitrariness problem.

Florida completes execution of serial killer, the "I-95 killer."

As reported in this AP piece, "Gary Ray Bowles, a serial killer who preyed on older gay men during an eight-month spree that left six dead, was executed by lethal injection Thursday at Florida State Prison."  Here is more:

Bowles received the death penalty for the November 1994 murder of Walter Hinton in Jacksonville Beach. Hinton was Bowles' sixth and final known victim in a series of killings in an eight-month span in 1994 that terrorized the Interstate 95 corridor and won him the nickname "I-95 killer."

It began in Daytona Beach with the murder of John Hardy Roberts.  In between, there were victims in Rockville, Maryland; Savannah, Georgia; Atlanta; and Nassau County, Florida.  In each case, Bowles had a signature: He stuffed the victims' throats with objects — towels, rags, toilet paper, dirt, leaves and even a sex toy....

It wasn't hard for Daytona Beach police to figure out who killed Roberts, the first victim in March 1994: Bowles left a probation document at the scene and also was caught on an ATM camera trying to withdraw money from Roberts' account. What proved more difficult was capturing him, something they were unable to do until after five other men in three states had been slain.

Bowles, 57, was raised in West Virginia, where he experienced drugs and violence at a young age.  His father was a coal miner who died of black lung before he was born. His mother remarried multiple times, and his first two stepfathers were abusive, according to court records.  His mother and brother testified that Bowles began drinking, smoking marijuana and huffing glue when he was 11 years old.  When he was 13, he fought back against his second stepfather, smashing a rock in his head and nearly killing him, according to court records.  That's when Bowles left home.  Investigators say Bowles survived by letting gay men perform sex acts on him for money....

He also had a history of violence against women. He was convicted of beating and raping his girlfriend while living in Tampa in 1982 and sentenced to eight years in prison.  The victim had severe injuries, including tears on her vagina and anus.  

Sixth Circuit judge in separate opinion makes case for Eighth Amendment precluding execution of persons under 21 at time of murder

A helpful reader made sure I saw the notable concurring opinion of Sixth Circuit Justice Stranch at the end of a panel opinion rejecting a capital defendant's habeas appeal in Pike v. Gross, No. 16-5854 (6th Cir. Aug. 22, 2019) (available here). Here are the first and last paragraph of Judge Stranch's opinion, which highlight who readers might want to check out what appears in between:

I join the opinion in this case but write separately because it presents an issue with which our society must be concerned — whether 18-year-olds should be sentenced to death. Had she been 17 rather than 18 at the time of her crime, like her codefendant Tadaryl Shipp, Christa Pike would not be eligible for the death penalty....

For these reasons, I believe that society’s evolving standards of decency likely do not permit the execution of individuals who were under 21 at the time of their offense.  But, because we review this case under the strictures of AEDPA, we may grant Pike relief only if the state court’s adjudication of her case was either (1) contrary to or unreasonably applied Supreme Court precedent, or (2) “resulted in a decision that was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).  And the Supreme Court has not extended Roper to 18-year-olds.  I therefore reluctantly concur because I agree that the state court’s decision denying Pike’s postconviction petition did not unreasonably apply Strickland’s prejudice prong.

Texas completes its fourth execution of year, this time of a defendant who persistently proclaimed his innocence

As reported in this local article, headlined "‘Lord forgive ’em’: Larry Swearingen executed despite claims of innocence," the state of Texas carried out an execution this evening. Here are some of the details:

For two decades, Larry Ray Swearingen told anyone who would listen that he did not kill Melissa Trotter. He knew her, he said — but wasn’t the one who raped and strangled the 19-year-old college student before dumping her body among the trees of the Sam Houston National Forest.

But on Wednesday night, the courts all turned down his final claims and the 48-year-old Montgomery County man met his end on the gurney in Huntsville. He took his final breath at 6:47 p.m., becoming the fourth man executed this year in the Lone Star State. “Lord forgive ’em,” he said. “They don’t know what they’re doing.”

Eyes closed, he began narrating his own death: “I can hear it going through the vein — I can taste it,” he said, before describing a burning in his right arm. “I don’t feel anything in the left,” he added. At 6:35, he began snoring. Twelve minutes later, he died.

In the past, he’d always managed to eke out last-minute stays before each of his last five scheduled death dates - and for months he was skeptical that the Aug. 21 execution could really come to pass. “I don’t believe you’re going to kill me,” he told the Houston Chronicle in May, likening the case against him to a house of cards. “I believe I will pull that one single card and it’s gonna come tumbling down.”

But just before 6 p.m., the U.S. Supreme Court denied his final appeal and Swearingen’s hope for reprieve faded. The condemned man’s lawyers repeatedly decried the case as a wrongful conviction built on “junk science” and circumstantial evidence that they say left behind unanswered questions about everything from the expert testimony to cellphone forensics. “They may put Larry Swearingen under,” said Houston-based attorney James Rytting said before the execution. “But his case is not going to die.”

Still, Montgomery County prosecutors were confident in their conviction and the “mountain” of evidence against him - as was Sandy Trotter, the slain teen’s mother. For her, there was never a doubt who did it. “There are no winners in this,” she said Tuesday. “We’ll never have Melissa back.”...

In December of 1998, Melissa Trotter was a student at Montgomery College, where she hoped to hone her foreign language skills and eventually pursue a career in business. Before that she’d taught at vacation Bible school and grown into a “typical 19-year-old,” according to her mother.

She met Swearingen, eight years her senior, around town — “here and there,” by his account. They struck up a casual relationship. “The evidence really did establish the friendship,” Swearingen said, “and then they turned it into murder to support their conviction.”

The two were spotted together in the college library on Dec. 8, 1998 - the day the teen disappeared. A biology teacher saw Trotter leaving campus with a man, but Swearingen has maintained it wasn’t him. And, though forensic evidence later showed the teen had been in his car, Swearingen said it wasn’t necessarily that day.

During trial, the former electrician’s wife testified that she came home that evening to find their trailer a mess. In the middle of it all were Trotter’s lighter and a pack of her brand of cigarettes. The unexpected disarray could have been the sign of a struggle, but Swearingen chalked it up to a break-in, and later filed a police report saying his home had been burgled while he was gone.

But aside from the cigarettes and the chaos, authorities eventually found half a pair of pantyhose, which state experts later said matched the hosiery wrapped around Trotter’s neck. Hunters only found her decomposing body in the woods weeks later, but by that time authorities in Galveston had already arrested Swearingen for outstanding traffic tickets.

In the summer of 2000, he was sentenced to death. Following his conviction, Swearingen’s legal team strove to dismantle the case against him, which was always circumstantial: There was never any biological evidence tying Swearingen to the slaying.

Could execution troubles help spell the end of Ohio's use of the death penalty?

The question in the title of this post is prompted by this new local Ohio article headlined "House speaker’s support of death penalty is being tested."  Here are excerpts:

Amid Ohio’s difficulty in securing a legal means of execution, House Speaker Larry Householder says he is becoming “less and less supportive” of the death penalty.  The Republican from Glenford addressed the topic on Tuesday morning following a Statehouse press conference when asked if he continues to back capital punishment for some convicted killers.

“I think I am probably like most Ohioans, there was a time that I was extremely supportive of the death penalty,” Householder said in a video of his remarks posted on Twitter by the Statehouse News Bureau. 

“But, as time has gone on, I have become less and less supportive because of the cost, for one,” the speaker said.  “It is extremely expensive to put someone to death in lieu of keeping them in life in prison.  And, also, it’s becoming more and more difficult to do an execution ... we’ve gone from electrocution to lethal injection, now there are issues being raised about lethal injection.  It’s just become more and more difficult to do and it’s more and more expensive,” Householder said.

With a federal judge signaling Ohio’s current lethal injection protocol constitutes cruel and unusual punishment, Republican Gov. Mike DeWine’s administration has been unable to secure different drugs.  Pharmaceutical companies have threatened to cut off their sales of drugs to the state for Medicaid patients, state prisoners and others if their drugs are used in an execution, DeWine said.

DeWine has met with Householder and Senate President Larry Obhof, R-Medina, to discuss the death-penalty stalemate and explore whether the state should adopt an alternate means of execution.  The governor had said he is uncertain whether legislation will emerge this fall when legislators return to adopt another execution method, such as lethal gas.

DeWine has twice delayed the execution of convicted Columbus killer Warren Henness. Ohio’s next two executions are scheduled for Nov. 13 and Dec. 11.  Following only one execution over roughly the past two years, Ohio has killed 56 men since executions resumed in 1999. Death Row currently houses 137 men and one woman.

I have long believed that most support for the death penalty is fairly shallow and that most politicians are inclined to take their lead on this issue from public sentiments. In recent years, public support for the death penalty seems to be growing ever weaker; add administrative headaches and lots of litigation concerning execution methods, and these kinds of comments from state leaders become less surprising.

That all said, I would still be surprised to see serious legislative discussion of death penalty abolition in this (still red) state anytime soon. But maybe these comments will have a snowball effect.

A few (of many) prior recent related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• Ohio Governor officially postpones three more scheduled executions 
• Reviewing Ohio's (now-suspended) execution realities
• Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death
• Ohio Gov DeWine now reportedly prepared to move forward with executions he delayed ... even without new lethal-injection protocol
• Amidst persistent difficulties with lethal injection drugs, Ohio legislator to propose use of fentanyl taken from drug busts for executions 

Tennessee completes execution of Stephen West using electric chair

Following the denial of his last legal appeals by the US Supreme Court, Stephen West was executed tonight by the state of Tennessee.  This local article provides these details:

Tennessee executed death row inmate Stephen Michael West Thursday night, marking the third time the state has used the electric chair in less than a year.  He was pronounced dead at 7:27 p.m. CDT, according to the Tennessee Department of Correction.  He was 56.

West was sentenced to death for the 1986 stabbing deaths of Wanda Romines, 51, and her 15-year-old daughter, Sheila Romines, in their East Tennessee home.  He also was convicted of raping Sheila.  Experts said the women had been tortured in front of one another before they died.

West was the 137th person put to death in Tennessee since 1916, and the fifth inmate executed since August 2018.

West's legal team had pleaded to spare his life in the weeks before the execution.  They said his co-defendant Ronnie Martin had committed the murders while West stood by, hobbled by a history of childhood abuse and untreated mental illnesses.  Martin was 17 when the murders took place.  He remains in an East Tennessee prison and will be eligible for parole in 2030. Because he was a minor at the time of the crime, Martin was not eligible for the death penalty.

In a clemency application sent to Gov. Bill Lee, West's lawyers said he had reformed himself after receiving mental health treatment in prison.  They stressed his Christian faith and his work with other inmates behind bars.  Days before the execution, Lee said he would not intervene.  Within hours, West asked to die by electrocution instead of lethal injection, the state's default execution method.

He was the third inmate to make that choice since Tennessee resumed executions a year ago.  Each inmate who chose the electric chair had participated in lawsuits challenging Tennessee's lethal injection protocol.

Amidst persistent difficulties with lethal injection drugs, Ohio legislator to propose use of fentanyl taken from drug busts for executions

As reported in this local article, one "Ohio lawmaker has an innovative solution to the state's problem securing execution drugs: use fentanyl seized by police instead." Here is more:

Rep. Scott Wiggam, R-Wooster, is working on legislation to allow Ohio prison officials to obtain fentanyl from drug busts. That option is far more humane than the electric chair or firing squad – options that states are considering as pharmaceutical companies cut off access to execution drugs.

"This is a much less violent way than the electric chair and the latest lethal injection (Dennis McGuire's 2014 death) that took 26 minutes," Wiggam told The Enquirer. "This is a much more humane way."

Fentanyl is a powerful opioid involved in 3,431 overdose deaths in 2017, according to Ohio Department of Health records. Ohio Highway Patrol seized more than 108 pounds of fentanyl in 2018, according to state records. Wiggam sent out an email requesting support for the proposal from fellow lawmakers, the Columbus Dispatch first reported.

Gov. Mike DeWine has stalled the state's executions while Ohio's prison system seeks an alternative way to execute Death Row inmates. A federal magistrate compared the effects of one of the drugs used, midazolam, to waterboarding....

The state's last execution was Robert Van Hook on July 18, 2018. Van Hook was convicted of killing and disemboweling neighbor David Self in February 1985. Ohio has scheduled 22 executions through 2022. The next execution is set for Nov. 13. Cleveland Jackson was convicted of killing 17-year-old Leneshia Williams and 3-year-old Jayla Grant in Lima in 2002.

Wiggam said he wanted to focus the discussion about Ohio's death penalty around ways to carry out executions currently required by state law rather than abandoning the process because it was too difficult to find drugs. "This is certainly a workaround," he said. "This is something that we know can bring deaths quickly to individuals."

Senate President Larry Obhof has said he's happy to explore other options. "We are all concerned that if you're going to have capital punishment, you should have a process in place that courts are willing to accept and meets constitutional muster," he told The Enquirer earlier this year.

No other state has proposed using seized fentanyl to Wiggam's knowledge. Nebraska was the first state to use fentanyl as part of an execution in August 2018. The drug was obtained by a license pharmacy in the United States, according to a NPR report.

A few (of many) prior recent related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• Ohio Governor officially postpones three more scheduled executions 
• Reviewing Ohio's (now-suspended) execution realities
• Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death
• Ohio Gov DeWine now reportedly prepared to move forward with executions he delayed ... even without new lethal-injection protocol

"The Twenty-First Century Death Penalty and Paths Forward"

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

Today, states are moving closer to another moment of critical decision-making in charting the course of the death penalty in the United States.  Unlike the sudden and dramatic immediacy of Furman, however, this moment is arriving through a slower and quieter progression, or perhaps more accurately a deceleration.  While not abolished, in many states application of the death penalty is grinding or has ground to a halt.  If the status quo holds, the vast majority of defendants who are sentenced to death by the states will instead live out their natural lives in prison for decades dying of old age in prison while still waiting on death row with a variety of challenges still pending in the courts.

This reality presents an opportunity, or perhaps more accurately a responsibility, for renewed reflection by state legislators.  There at least three clearly discernable paths forward that states could follow.  One is to continue the present course with states maintaining the status quo which leads to some persons who are sentenced to death being executed often after decades on death row while most death-row inmates die from natural causes in prison.  Two, states can abandon the death penalty in favor of the maximum sentence being life without the possibility of parole.  Three, states can streamline the process for addressing legal challenges after a defendant has been convicted and sentenced to death to prevent decades of delay before executions are carried out.

In seeking to derive a better understanding of the current realities of actual application of death penalties and to explore the potential paths forward for the states, this article begins in Section I by addressing delayed application of the death penalty in death penalty states.  Section II next explores the transformation that has occurred in the interval between sentencing and execution from colonial America to the present.  In doing so, Section II addresses the reasons for the significant elongation of the interval between sentencing and execution that has occurred over the last four decades. Section III examines some of the deleterious consequences that arise from these delays for those sentenced to death, the families of victims, and the states themselves.  Section IV begins to delineate that paths that are available to the states in moving forward, considering some of the pitfalls and possibilities.

Reviewing recent state capital contractions as feds seek to restart executions

US Attorney General William Barr's announcement of a change in the federal execution protocol and scheduling of five federal executions (basics here) could give the impression that the death penalty is resurgent in the United States.  But this recent article from The Appeal Political Report provides a useful review and reminder that the death penalty continued to be contracting in the states.  The article is headlined "With New Law, Oregon Joins Wave of States Restricting or Halting the Death Penalty," and here are excerpts:

Movement is building against the death penalty at the state level, even as the Trump Administration calls for expanding its use and prepares to restart federal executions.

Oregon became the latest state to act against it last week when Governor Kate Brown signed Senate Bill 1013, which considerably narrows the range of capital offenses.

The reform does not abolish the death penalty, which is inscribed in the state Constitution and so can only be eliminated by referendum.  But the legislature circumvented that requirement by redefining “aggravated murder” (the only category eligible for the death penalty in Oregon) and removing most circumstances that currently warrant the “aggravated” moniker.

“The concept of this bill is to close the front door to the death penalty,” said Lynn Strand, the chairperson of Oregonians for Alternatives to the Death Penalty (OADP). Strand expects the law to be “quite effective” at stopping new death sentences and she called it “a giant step.”

“But it does not address what you do with the back door,” she added.  Indeed SB 1013 is not retroactive. It leaves 30 people on death row, largely for crimes that are not capital offenses under the new law, according to Jeffrey Ellis, an attorney with the Oregon Capital Resource Counsel....

The governor has the authority to commute existing death sentences. In explaining her support for SB 1013, Brown called the death penalty “immoral” and “dysfunctional.”  These are adjectives that apply to past sentences as much as to new ones. But she has yet to publicly signal whether she is considering commutations. Her office did not answer a request for comment....

Oregon does have a moratorium on executions. It was imposed by John Kitzhaber, Brown’s predecessor.  Brown has maintained it in place since taking office in 2015. The moratorium is important, but it is insufficient to end the death penalty’s moral and financial costs, and to remove its threat from a prosecutor’s arsenal of tools.  It could also be lifted by a future governor. “The moratorium stops executions,” Robert Dunham, executive director of the Death Penalty Information Center, told the Sacramanto Bee about California’s in July. “It doesn’t stop the machinery of death from moving forward.”

Oregon law specified 19 circumstances that label a murder “aggravated.” SB 1013 shrinks that list to the murder of a child under 14, a murder committed by someone who is already in prison, a terrorist act that kills more than two people, and the murder of law enforcement officers. In addition, jurors will no longer be asked to judge a person’s “future dangerousness” when weighing a death sentence.

These changes are leading prosecutors to drop their plan to seek the death penalty in a criminal case underway in Malheur County. Some prosecutors, such as District Attorney Patty Perlow of populous Lane County (home of Eugene), fought the bill....

Oregon is the fifth state to restrict, halt, or abolish capital punishment over the last 10 months.  In October, Washington State’s Supreme Court abolished it and also commuted the sentences of all eight people on death row.  Then, California Governor Gavin Newsom imposed a moratorium on executions in March; the New Hampshire legislature abolished the death penalty in May; and the New Mexico Supreme Court commuted the sentences of the only two people on death row there in June, a decade after the state abolished the death penalty for new crimes.

New Mexico’s decision leaves New Hampshire as the only state to abolish the death penalty but still have someone on death row.  Death penalty opponents are now actively planning their next moves in Colorado, Pennsylvania, and Wyoming.  At the county level, people have successfully run for prosecutor on a promise to not seek the death penalty, and capital punishment looms large in other local elections this fall.

Expressing concern about potential capital distraction from bipartisan criminal justice reform momentum

Laura Arnold has this notable new commentary at Law360 under the headline "Death Penalty Return May Undermine Criminal Justice Reform."  Here are excerpts:

Reasonable minds vociferously differ on, and will continue to debate, the morality of the death penalty. At this critical juncture and moment of opportunity for criminal justice, we must resist the urge to allow this debate to derail large-scale reform.

From a public policy, public safety and cost perspective, the federal death penalty pales in comparison to larger-scale reforms that we could enact today — areas where the White House could add to its bipartisan accomplishments.

There are roughly 171,000 convicted inmates in federal facilities and yet [AG Barr's restarting of executions] decision wastes precious political capital and national attention on a mere 62. Even if we end executions, those 62 will likely never set foot outside a prison for the rest of their lives. Their hearts will continue to beat, but their exile from the living world is immutable.

Meanwhile, there is much greater value in getting the system right for those among the 171,000 federal inmates and nearly 2 million in state and local facilities who have a chance of getting out. Those are the people helped by the First Step Act, and that is where we should continue to focus our efforts....

The death penalty raises a confluence of serious concerns that aren’t easily solved, ranging from constitutional questions to sheer public expense. No wonder that jurisdictions from coast to coast have stopped pursuing capital punishment. The number of death sentences declined by 50% between 2009 and 2015. In fact, only 16 counties out of 3,143 imposed five or more death sentences between 2010 and 2015.

Many advocates want to lower that number to zero. It’s a debate worth having, both at the federal level and in every state. Jurisdictions should, and will, make their own determinations, as they do on numerous issues of policy relevance.

But now is not the time to stoke this fight. We should focus all our bipartisan efforts on positively affecting the more than 2 million lives currently under incarceration nationwide, and on systemic improvements that will result in fewer people facing incarceration in the first place.

The Trump administration has demonstrated a passion for this mission, and a keen skill at building momentum amid an otherwise chaotic political atmosphere. Let’s not lose that momentum by derailing the conversation.

I very much like the message and spirit of this commentary, and long-time readers know I have long discussed in various settings the various problems I see from advocates and others giving so much attention to capital cases. (Some examples of my writings in this vein include A Capital Waste of Time? Examining the Supreme Court’s “Culture of Death,” 34 OHIO N.U. L. REV. 861 (2008) (available here) and Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. (2008) (available here).)

But, at the same time, I am not sure AG Barr's decision to try to kick-start the death penalty necessarily will or should have to negatively impact other bipartisan criminal justice reform efforts.  Though this may be wishful thinking, one might hope that the recent death penalty move by the Trump Administration may help mollify the "tough-and-tougher" crowd (likely Senators Cotton and Kennedy and certain pundits) who always pose challenges for further federal reforms.  

In months ahead, robust engagement with the federal death penalty will be taking place in federal courts, and I think it somewhat unpredictable whether and how this litigation will impact broader criminal justice reform politics.  But this commentary rightly flags an issue worth watching in the months and years ahead.

Ohio Gov DeWine now reportedly prepared to move forward with executions he delayed ... even without new lethal-injection protocol

As reported here six months ago, the Governor of Ohio has imposed something of a de facto moratorium on executions in the state not long after taking office because of concerns over the state's (historically troubled) lethal injection protocol.  But this new local article, headlined "DeWine now OK with ‘pouring fire in vein’ executions," reports on new developments suggesting new executions might go forward with an old execution protocol. Here are the details:

Despite saying in February that “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment,” Gov. Mike DeWine will consider using that same method in an upcoming execution, his spokesman said Tuesday.  The state’s lawyers have argued before a federal appeals court that Ohio’s current three-drug mixture can be used despite the lower court ruling likening it to waterboarding and pouring fire in the prisoner’s veins.

The governor earlier this year delayed four executions and ordered corrections officials to come up with a new death penalty protocol after a federal judge sitting in Dayton raised serious questions about the existing one.  Tuesday’s news comes after U.S. Magistrate Judge Michael Merz took the unusual step last week of ordering lawyers for the state to show DeWine a brief they filed in a death-penalty appeal. The brief appeared to be at odds with DeWine’s public position on Ohio’s controversial death-penalty protocol, Merz said in the order.

Merz is presiding in a lawsuit over whether Ohio’s death-penalty protocol violates constitutional protections against cruel and unusual punishment. He ruled in January that experts had convinced him that Ohio’s condemned were likely to experience severe pain using the protocol.  However, Merz did not stop the execution of Warren Keith Henness because, the judge ruled, Henness didn’t propose a viable alternative method of execution as required by a 2015 U.S. Supreme Court decision.

In response to Merz’s ruling, DeWine in January delayed Henness’s execution, saying the state would devise a new protocol.  Then in March, he delayed three more.  But now Henness’s new execution date is just six weeks away and the governor’s spokesman couldn’t say Monday how close the Ohio Department of Rehabilitation and Correction is to coming up with a new protocol.

A puzzled Judge Merz last week noted that in their appellate briefings the state’s lawyers voiced strong support for the death protocol that Merz — and presumably DeWine — found so problematic.  The state has “vigorously defended the existing protocol and criticized (Merz) for suggesting a stay of this litigation until the governor’s directions (to develop a new one) are carried out, as if it were (Merz’s) personal agenda rather than that of the governor,” Merz wrote, justifying his order that state lawyers show DeWine the appellate brief. “The court merely wishes to ensure that the governor has had an opportunity to see for himself whether he perceives this inconsistency.”...

But lawyers for Ohio said even if the condemned could feel pain after being injected with Midazolam, it still would not amount to constitutionally prohibited cruel and unusual punishment. “If hanging does not produce an unacceptable degree of pain even though it usually results in suffocation, then it follows that Midazolam does not cause ‘severe pain and needless suffering’ even if it is ‘certain or very likely to cause’ suffocation,” they wrote in their brief to the 6th U.S. Circuit Court of Appeals in Cincinnati.

They were quoting from Justice Neil Gorsuch’s opinion in Bucklew v. Precythe, the U.S. Supreme Court’s most recent ruling regarding the death penalty. In discussing hanging, Gorsuch was arguing that at the time the Eighth Amendment was adopted, people didn’t see hanging as intentionally cruel, unlike practices such as disemboweling or burning the condemned while they were still conscious....

Press secretary Dan Tierney said there’s nothing unusual about DeWine delaying executions over concerns about Ohio’s death penalty at the same time the state’s lawyers are in court defending it. “Their job is to defend the laws as valid and constitutional until they’re proven otherwise,” Tierney said. Tierney and the state’s lawyers are holding out the possibility that Henness might be executed using Ohio’s existing three-drug protocol — an issue that Tierney said has “not been fully litigated.”

Asked whether DeWine might restart executions using the current protocol if the state’s lawyers prevail in that litigation, Tierney said in an email, “Understand that these are hypothetical scenarios, but if the court overturns the factual record in the lower court, or the factual record otherwise changes through the legal proceedings, the governor will certainly review that new evidence regarding the protocol and take it under consideration.”

Henness and his lawyers might find that litigation difficult.  The Supreme Court — particularly it’s conservative majority — has since 2008 shown itself to be increasingly skeptical of prisoners’ claims that various methods of lethal injection amount to cruel and unusual punishment.  They’ve voiced suspicions that what prisoners and anti-death-penalty advocates really are aiming for is a backdoor abolition of execution.

A few (of many) prior recent related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• Ohio Governor officially postpones three more scheduled executions 
• Reviewing Ohio's (now-suspended) execution realities
• Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death

UPDATE: This new local article, headlined "Ohio can’t get drugs for a new execution method, DeWine admits," highlights how drug acquisition issues continue to cause problems for the Buckeye state's effort to get its machinery of death operational:

Ohio Gov. Mike DeWine said Wednesday that state prison officials are finding it impossible to find any company to supply drugs an execution alternative to one that essentially has been declared cruel and unusual. He said he would talk to Statehouse leaders about legislation allowing a different execution method.  Some Ohio death row inmates have been asking to be executed by firing squad, while two Tennessee inmates last year opted to be executed in the electric chair. Ohio’s “Old Sparky” has been in storage for years.

DeWine delayed four executions early this year after a federal judge in Dayton said Ohio’s current intravenous protocol came perilously close to violating constitutional protections against cruel and unusual punishment. One was rescheduled for Sept. 12, but DeWine on Wednesday said that was under review....

Ohio had been buying the drugs through its Department of Mental Health and Addiction Services and then driving them down to the death house at the Southern Ohio Correctional Facility without telling drug makers what the substances would be used for.  However, DeWine said the drug makers have told the state that if they suspect that any of their products would be used in executions, they would stop selling to the state altogether, potentially depriving tens of thousands of Ohioans of important medicine. “We are in a very difficult situation,” DeWine said.

Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death

Unsurprisingly, Attorney General William Barr announcement of a change in the federal execution protocol and scheduling of five federal executions (basics here) has prompted lost of reactions from the commentariat.  Here is just a sampling of some notable reactions and discussions I have seen: 

From The Atlantic, "Barr Doesn't See What's Wrong With the Death Penalty"

From Fox News, "Robert Blecker: AG Barr is right to resume death penalty for vicious killers"

From Fox News, "Hannah Cox: AG Barr is wrong to resume executions -- Death penalty goes against conservative principles"

From The Hill, "The death penalty is racially biased, fiscally irresponsible and very inaccurate"

From The Intercept, "With Federal Executions Looming, the Democrats' Death Penalty Legacy Is Coming Back to Haunt Us"

From New York magazine, "The Death Penalty Is Already a Farce. William Barr’s Plan Might Make It Torturous."

From Slate, "Trump’s Death Penalty Obsession Won’t Stem the Tide Against Executions"

From Spectator USA, "The death penalty is red tape threaded into a noose: On conservative grounds it is no longer defensible"

From Time, "Why the Justice Department's Plan to Use a Single Drug for Lethal Injections Is Controversial"

From The Washington Examiner, "Former death penalty proponent Biden flip-flops as federal cases advance"

 

Prior recent 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

Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death

As noted in this prior post, AG William Barr has engineered a new federal execution protocol and the scheduling of executions for five federal death-row inmates in December 2019 and January 2020. Perhaps the only thing this moves mean for certain is litigation over whether the new protocol is sound and whether these executions will go forward. Here are links and excerpts from a couple articles previewing the litigation to come:

From BuzzFeed News, "The Trump Administration Is Bringing Back Federal Executions. It Will Immediately End Up In Court."  Excerpt:

Megan McCracken, a lawyer involved in the case and an expert on lethal injections, told BuzzFeed News that the litigation focuses on whether a particular execution protocol is constitutional under the Eighth Amendment’s prohibition against “cruel and unusual punishment” and also whether the process is otherwise lawful.  The lawsuit could examine, for instance, whether the Trump administration followed the proper procedures in adopting the new policy.  The administration did not go through the public rule-making process that agencies normally use in adopting regulations, which includes publishing details in advance and giving the public a chance to weigh in, before making its announcement Thursday.

“The devil is really in the details, and so all of the unknowns at this point are going to be the relevant issues for whether or not this protocol is constitutional, is lawful,” McCracken told BuzzFeed News.  “That is why the litigation that’s been on hold in federal court since 2011 ... will now need to proceed and give the court opportunity to review the procedure, the drugs, the execution teams, how they plan to administer it.”

A senior Justice Department official said that former attorney general Jeff Sessions directed the Federal Bureau of Prisons to explore options for resuming federal executions when he took office. The bureau recently concluded its review and submitted the proposal to Barr, who approved it, the official said.  The department’s press release said the new protocol was similar to single-drug procedures used in Georgia, Missouri, and Texas....

The prisoners involved in the pending litigation already had execution dates scheduled, which were put on hold.  The five men now scheduled for lethal injections aren’t parties to the case — defendants without execution dates hadn’t sought to join the case while it was delayed — but the Justice Department’s notice to the court Thursday means it expects the judge to review the new protocol.

From The Hill, "Opponents vow to challenge Justice decision on death penalty." Excerpt:

Human rights and anti-death penalty groups are vowing to challenge the Justice Department’s decision to resume the federal death penalty after a 15-year hiatus.... The groups predicted the decision would set off new lawsuits opposing the Trump administration, particularly given a decades-long move against capital punishment that has seen a number of states suspend the practice....

A number of groups, including the ACLU, have indicated that they plan to challenge the new policy, whether in court or through other means. “Under no circumstances should the Justice Department be allowed to rush through executions. The federal death penalty is defined by the same problems of racial bias, geographic disparities, prosecutorial misconduct, and junk science that have led to the decline in support for capital punishment nationwide,” Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said in a statement....

Legal battles will likely center on how the policy is being implemented: Barr indicated in Thursday’s announcement that the protocol has already been formally adopted. But experts say that such a policy should have to go through a comment and notice period as required by the Administrative Procedure Act, and that sets it up to be challenged in court....

At least one of the planned executions is already being challenged by the death-row inmate it involves: Attorneys for Daniel Lewis Lee, whose execution is planned for Dec. 9 of this year, are speaking out against the move, saying that his conviction was secured despite the “demonstrated unreliability of the evidence.”

Lee’s attorney Morris Moon raised concerns about the DNA and other evidence used in the case, arguing that it “exemplifies many of the serious flaws in the federal death penalty system.” “Given the problems that undermine the fairness and reliability of Danny Lee’s conviction and death sentence, the Government should not move forward with his execution,” Moon said.

A lawyer for another one of the men, Purkey, also said Thursday that he shouldn’t be executed, claiming that “substandard representation permeated Mr. Purkey’s trial with errors and meant that his jury never had a full picture of his deep and sincere remorse or the personal circumstances that led to these tragic events.“

“The DOJ seeks to execute Mr. Purkey now, despite the myriad legal violations in his case and despite his advancing age and declining health,” attorney Rebecca Woodman said in a statement of her 67-year-old client. “The timing of this decision raises serious questions about the application of capital punishment under this administration."

As suggested by the title of this post, the really big question is whether this capital litigation will move swiftly or slowly. Obviously, the defendants now scheduled to be executed in less than six months would like this litigation to drag on for years. I assume the feds are eager and prepared to move this litigation along swiftly, but just how swiftly? Any ruling adverse to these defendants is sure to be appealed to a federal circuit court and to the Supreme Court. Is DOJ prepared to ask all these courts for expedited briefing schedules in order to try to preserve these scheduled execution dates?

Not mentioned in these pieces, but of great interest to me conceptually, is whether and how these defendants can constitutionally contest how AG Barr decided to put them in the front of the execution queue.  Notably, more than a dozen persons on federal death row were sentenced to death before Danny Lee was condemned in 2002, and more than a few were condemned more than half a decade before Lee.  Just why was he selected to be the first to be executed?  In addition, though less than half of federal death row is white (details here from DEPC), Danny Lee and two other of the condemned given the first execution dates are white. Did AG Barr think it might be politically useful to have more white defendants at the start of the execution queue, and if so wouldn't such thinking raise equal protection concerns?  (Because 8 of the 10 defendants sent to federal death row in the 1990s were black, including all three condemned way back in 1993, I think there is a circumstantial basis to believe that AG Barr may not have set executions dates chronologically because of concern that only black defendants would be scheduled to die first.  But is it constitutionally permissible for him to give race consideration this way?)

"Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"

The title of this post is the title of this quite notable and possibly quite consequential news release from the Department of Justice this morning.  Here is the main text:

Attorney General William P. Barr has directed the Federal Bureau of Prisons (BOP) to adopt a proposed Addendum to the Federal Execution Protocol—clearing the way for the federal government to resume capital punishment after a nearly two decade lapse, and bringing justice to victims of the most horrific crimes. The Attorney General has further directed the Acting Director of the BOP, Hugh Hurwitz, to schedule the executions of five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society—children and the elderly.

“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President,” Attorney General Barr said. “Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The Federal Execution Protocol Addendum, which closely mirrors protocols utilized by several states, including currently Georgia, Missouri, and Texas, replaces the three-drug procedure previously used in federal executions with a single drug—pentobarbital. Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment.

Upon the Attorney General’s direction, Acting Director Hurwitz adopted the Addendum to the Federal Execution Protocol and, in accordance with 28 C.F.R. Part 26, scheduled executions for the following individuals:

• 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 Dec. 9, 2019.

• Lezmond Mitchell stabbed to death a 63-year-old grandmother and forced her nine-year-old granddaughter to sit beside her lifeless body for a 30 to 40-mile drive. Mitchell then slit the girl’s throat twice, crushed her head with 20-pound rocks, and severed and buried both victims’ heads and hands. On May 8, 2003, a jury in the U.S. District Court for the District of Arizona found Mitchell guilty of numerous offenses, including first degree murder, felony murder, and carjacking resulting in murder, and he was sentenced to death. Mitchell’s execution is scheduled to occur on Dec. 11, 2019.

• 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 Nov. 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 Dec. 13, 2019.

• Alfred Bourgeois physically and emotionally tortured, sexually molested, and then beat to death his two-and-a-half-year-old daughter. On March 16, 2004, a jury in the U.S. District Court for the Southern District of Texas found Bourgeois guilty of multiple offenses, including murder, and he was sentenced to death. Bourgeois’ execution is scheduled to occur on Jan. 13, 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 Oct. 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 Jan. 15, 2020.

Each of these inmates has exhausted their appellate and post-conviction remedies, and currently 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.

As with so much Trump Administration activity, this news and activity is sure to generate litigation and lots of commentary. I expect I will myself have much to say in coming posts.

"Capital Punishment, 2017: Selected Findings"

The title of this post is the title of this just released report from the Bureau of Justice Statistics.  Though BJS is often the provided of the best available, 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 includes "statistics on the number of prisoners executed each year from 1977 through 2017, the number and race of prisoners under sentence of death at year-end 2017 by state, and the average elapsed time from sentence to execution by year from 1977 through 2017."  And the short document sets out on its initial page these "highlights":

• At year-end 2017, a total of 32 states and the Federal Bureau of Prisons (BOP) held 2,703 prisoners under sentence of death, which was 94 (3%) less than at year-end 2016.

• In 2017, the number of prisoners held under sentence of death declined for the 17th consecutive year.

• Eighteen states held fewer prisoners under sentence of death at year-end 2017 than at year-end 2016, 3 states and the BOP held more prisoners, and 11 states held the same number.

• Three states accounted for 59% of the national decline in prisoners under sentence of death in 2017: Florida (down 33 prisoners), Delaware (down 12), and Texas (down 10).

• Thirty-four states and the federal government authorized the death penalty at year-end 2017; two of these states (New York and Wyoming) had no prisoners under sentence of death during the year.

• Prisoners executed in 2017 had been under sentence of death for an average of 20 years and 3 months, which was an increase of 3 years and 3 months from 2016 and an increase of 7 years and 6 months from 2007.

• Of the 23 prisoners executed in 2017, a total of 16 (more than two-thirds) had been sentenced in 1999.

Litigation over capital trials during Gov moratorium heads to California Supreme Court

In prior posts linked below, I covered on this blog the decision by California Gov Gavin Newsom to declare a moratorium on executions in his state and the echoes of that decision.  This new Los Angeles Times article reports on the latest echo under the headline "Death penalty trials have continued despite Newsom’s moratorium. The California Supreme Court could stop them."  Here are excerpts:

The attorneys were about two weeks into choosing a jury in an upcoming triple-murder trial when they had to toss out the work they’d done and send the potential jurors home.

The California Supreme Court essentially froze the death penalty trial of Jade Douglas Harris, which was set to start this month, as it decides whether it will consider an argument by his defense attorney that he can’t get a fair trial in light of Gov. Gavin Newsom’s moratorium on executions in the state.

The court has until Aug. 30 to decide whether to take up a matter that could result in essentially blocking death penalty trials in California while the moratorium is in effect during Newsom’s term.

Public defenders representing Harris, who is accused in a shooting rampage that left three people dead and two others wounded, argue that jurors must believe that when they hand down a death sentence, it will be carried out....

The attorneys say a fair decision is impossible given that Newsom granted a reprieve to the more than 700 prisoners on death row and had the state’s execution chamber dismantled — with much fanfare in front of cameras.

“It’s just really impossible for a jury to go into a jury room and say, ‘We’re going to ignore that,’” said Robert Sanger, a defense attorney who first made this argument on behalf of a defendant in an unrelated capital case in Los Angeles County.... “The jury making that order has to really believe it, because if they don’t, they could be cavalier about it and just say: ‘Well, let’s send a message.… We know [the death sentence] is never going to happen, but let’s do it anyway,’” Sanger said.

Laurie Levenson, a professor at Loyola Law School, said there’s a real risk to the accused if that is the mindset of jurors. “The question is likely to be: Is there any kind of instruction or precautionary steps that a trial judge can take to prevent that from occurring?” she said. It’s hard to predict what the court will decide, Levenson said, but its stay in the Harris case signals that the state’s highest justices are taking his petition seriously. “It’s not a frivolous issue,” she said.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he was disappointed the court was seriously considering what he called a “meritless argument.”

“Newsom’s moratorium only lasts for the duration of his term as governor. Nobody sentenced today would be executed within the next seven years anyway,” said Scheidegger, whose organization backed a measure to speed up executions in California. “And everybody pretty much knows that.”

Prosecutors in Johnson’s case said in court papers that any of his concerns can be handled through appropriate jury instructions and during voir dire, when jurors are questioned before the trial to determine their fitness. They argued that concerns about fairness can also be assessed on appeal....

A Los Angeles County district attorney’s office spokeswoman said in a statement that the law hasn’t changed, and until it does, prosecutors will “continue to fairly evaluate all special circumstance cases and seek death against the worst of the worst offenders, including child murderers and serial killers.”...

The American Civil Liberties Union recently published a report that said all of the 22 people sentenced to death in L.A. County since Dist. Atty. Jackie Lacey took office in December 2012 are people of color. This week, a group of more than 75 law professors and scholars called on Lacey to stop seeking death penalty sentences.

Prior related posts:

• New California Gov to order moratorium on executions in his state 
• California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions
• California DAs assail Gov Newsom's execution moratorium 
• Noting how California's prosecutors keep pursuing death sentences despite execution moratorium, and what more Gov Newsom has in mind

Philly DA argues, based on study of local capital cases, that "death penalty, as it has been applied, violates the Pennsylvania Constitution"

As reported in this local article, headlined "DA Krasner wants Pa. Supreme Court to strike down state’s death penalty and declare it unconstitutional," a notable local prosecutor has filed a notable state court brief that surely could have national consequences.  Here are the basics:

In a response to a death penalty case that could have far-reaching ramifications, the Philadelphia District Attorney’s Office is asking the Pennsylvania Supreme Court to strike down the state’s death penalty and declare it unconstitutional.  “Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments,” District Attorney Larry Krasner’s office wrote in a motion filed with the court Monday night....

The DA’s Office was responding to a petition filed by federal public defenders representing Philadelphia death-row inmate Jermont Cox, convicted of three separate drug-related murders in 1992 and ordered to die for one of them.  The defense attorneys, who also represent a Northumberland County inmate, Kevin Marinelli, sentenced to death for a 1994 killing, have asked the high court to end capital punishment, arguing that the death penalty violates the state Constitution’s ban on cruel punishment.

Krasner’s office agrees with that assessment.  The office’s position does not come as a surprise — Krasner had campaigned against the death penalty while running for district attorney in 2017, saying he would “never seek the death penalty” — but Monday night’s motion in the Cox case is the first time Krasner has articulated it to the state’s highest court....

The justices’ eventual decision on Cox and Marinelli could affect not just future death-penalty cases, but also the approximately 130 other inmates awaiting execution, potentially forcing the courts to resentence them.  After a June 2018 bipartisan legislative Joint State Government Commission report found troubling deficiencies in the state’s death-penalty system, Philadelphia-based federal defenders in August filed separate petitions for Cox and Marinelli, asking the state high court to find the death penalty unconstitutional.

The defense attorneys asked the high court to invoke its King’s Bench authority, which gives the court the power to consider any case without waiting for lower courts’ rulings when it sees the need to address an issue of immediate public importance.  The court consolidated the two cases in December.  In its February joint petition for Cox and Marinelli, the federal defenders asked the high court to “strike down the Commonwealth’s capital punishment system as a prohibited cruel punishment” and heavily relied on the joint commission’s report in finding problems with the death penalty....

The DA’s Office response to the defense petition was initially expected in March.  City prosecutors three times requested a deadline extension.  The high court then set a July 15 deadline. The court has set a Sept. 11 hearing date for oral arguments on the petition from Cox and Marinelli....  

Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978.  The last person executed was Gary Heidnik of Philadelphia in 1999.

The full brief from DA Larry Krasner's office is available at this link, and it is a must-read in part because it makes much of the office's own study of Philadelphia capital cases. Here are a few paragraphs from the the brief's introduction:

To assess whether Pennsylvania’s capital sentencing regime ensures the heightened reliability in capital cases required by our Constitution, there is no better place to start than Philadelphia — the jurisdiction that has sought and secured more death sentences than any other county in the state.  In order to formulate its position in this case, the Philadelphia District Attorney’s Office (DAO) studied the 155 cases where a Philadelphia defendant received a death sentence between 1978 and December 31, 2017.

As will be detailed below, the DAO study revealed troubling information regarding the validity of the trials and the quality of representation received by capitally charged Philadelphia defendants — particularly those indigent defendants who were represented by under-compensated, inadequately-supported court-appointed trial counsel (as distinguished from attorneys with the Defender Association of Philadelphia).  Our study also revealed equally troubling data regarding the race of the Philadelphia defendants currently on death row; nearly all of them are black.  Most of these individuals were also represented by court-appointed counsel, often by one of the very attorneys whom a reviewing court has deemed ineffective in at least one other capital case....

Where nearly three out of every four death sentences have been overturned— after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires. Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the “worst of the worst.” Rather, what our study shows is that, as applied, Pennsylvania’s capital punishment regime may very well reserve death sentences for those who receive the “worst” (i.e., the most poorly funded and inadequately supported) representation....

As this Court observed in Zettlemoyer, our 1978 statute attempted to establish a reliable, non-arbitrary system of capital punishment. Decades of data from Philadelphia demonstrates that, in its application, the system has operated in such a way that it cannot survive our Constitution’s ban on cruel punishment. Accordingly, the DAO respectfully requests this Court to exercise its King’s Bench or extraordinary jurisdiction and hold that the death penalty, as it has been applied, violates the Pennsylvania Constitution.

Some additional good discussion of this brief and its context can be found in discussions at The Appeal and Reason.

Capital punishment news and notes from the new Death Penalty Information Center website

The extraordinarily valuable Death Penalty Information Center last month updated the look of its website, which seems worth mentioning because this announcement includes information about new materials and additions at the site:

The Death Penalty Information Center has modernized and expanded its award-winning website.  On June 14, 2019, DPIC launched its redesigned website, culminating a two-year project that involved the transfer and reorganization of information on the Center’s more than 7,000 webpages.  Among the most notable additions of the new website are 20 interactive Tableau graphics, including States With and Without the Death Penalty, Prisoners on Death Row, and a number of graphics on executions, exonerations, and grants of clemency.  The graphics will allow users to filter information in a variety of new ways, including narrowing by year or range of years, geography, race, sex, and, for some graphics, race of victim. 

Thankfully, the site still includes on his homepage its coverage of news, developments and resources, and here are links to a few recent items therefrom:

• Spring 2019 ​“Death Row USA” Documents Further Shrinking of U.S. Death-Row Population

• Florida Capital Sentencing Juries Return Four Life Verdicts in Two Weeks

• Books: Lethal State — A History of the Death Penalty in North Carolina

• Texas Sets Execution Date For Jewish Prisoner Who Alleges Judge Was Racist and Anti-Semitic

ABA releases "The State of Criminal Justice 2019" (with capital punishment chapter online)

The American Bar Association's Criminal Justice Section produces a terrific annual review of criminal justice developments, and the latest version is now available here under the title "The State of Criminal Justice 2019."  Here is how the text is described:

This publication examines and reports on the major issues, trends and significant changes in the criminal justice system. The 2019 volume contains chapters focusing on specific aspects of the criminal justice field, with summaries of all of the adopted official ABA policies passed in 2018-2019 that address criminal justice issues.

Authors from across the criminal justice field provide essays on topics ranging from white collar crime to international law to juvenile justice. The State of Criminal Justice is an annual publication that examines and reports on the major issues, trends and significant changes in the criminal justice system during a given year. As one of the cornerstones of the Criminal Justice Section's work, this publication serves as an invaluable resource for policy-makers, academics, and students of the criminal justice system alike.

In addition, the Capital Punishment chapter from this collection is available at this link, and it starts with this interesting data on capital sentences imposed in 2018:

The number of death penalties imposed in the United States in 2018 was an estimated 42.  The number of death sentences imposed between 2015 and 2018 was half the number imposed in the preceding four years. 

To put this in context, death sentences, after peaking at 315 in 1996, declined over time to 114 in 2010, and then dropped considerably in 2011 to 85, and were 82 in 2012 and 83 in 2013, before a large drop to 73 in 2014, and a bigger drop to 49 in 2015, and then fell to 31 in 2016, before rising to 2017’s 39 and 2018’s 42.

For the first year since the death penalty resumed after Furman v. Georgia, there was not in 2018 a single county in the entire United States in which more than two death sentences were imposed.  Some states that used to be among the annual leaders in imposing death sentences have now gone years without any new death sentences.

One notable state in this regard, Georgia, as of March 2019 has gone five full years without a new death penalty.  In explaining why, Bill Rankin of the Atlanta Journal Constitution pointed to the facts that life without parole (“LWOP”) can now be imposed in Georgia without the prosecutor’s having sought capital punishment and is now recognized by jurors to really mean a life sentence with no chance of parole; that the quality of trial-level defense lawyers’ performance has greatly increased; and that it is now far more difficult to get juries to vote for death sentences -- even when the crimes are especially aggravated.

State judge finds Kentucky still failing to implement properly death penalty exemption for defendants with intellectually disability

A helpful reader sent me this news story from Kentucky headlined "Kentucky judge declares state's death penalty protocol unconstitutional."  Here are the basics:

A Kentucky judge has struck down the state's death penalty protocol as unconstitutional because it does not explicitly prohibit the execution of prisoners with intellectual disabilities.

Ruling on a motion brought by a dozen inmates on death row, Franklin Circuit Judge Phillip Shepherd ruled Tuesday that the regulation is invalid because it doesn't automatically suspend an execution when the state corrections department’s internal review shows a condemned person has an intellectual disability.

Granting a motion filed by the Department of Public Advocacy, Shepherd said the state's rules are flawed because they would allow a prisoner with intellectual disabilities to be executed if he or she declines further appeals.  The U.S. Supreme Court “categorically prohibits the execution of intellectually disabled persons,” Shepherd noted.

Assistant Public Advocate David Barron said all executions in Kentucky already had been stayed because of questions about the state's means of lethal injection, as well as other issues. Tuesday's ruling continues that stay, he said.

Barron called the opinion "a sound ruling that recognizes what we have been arguing for years."  He said the corrections department has “doggedly persisted” in refusing to recognize the U.S. Supreme Court’s ruling 17 years ago by taking “reasonable steps to ensure that an intellectually disabled person is not executed.”

The Kentucky attorney general’s office, which defended the regulations, is reviewing the ruling, spokesman Kenneth Mansfield said.

Based on statutory proportionality review, split New Mexico Supreme Court dismiss death sentences for two murderers left on state's death row a decade after legislative abolition

As well reported in this Courthouse News Service piece, headlined "New Mexico Supreme Court Vacates Two Remaining Death Sentences," the final anti-death penalty shoe finally dropped in New Mexico a full decade after the state's legislature repealed its death penalty.  Here ere are the basics:

A divided New Mexico Supreme Court Friday set aside the death sentences of the last two men awaiting execution in the state, ruling that the penalties were disproportionate in comparison to sentences in similar murder cases.  The death penalty was abolished in New Mexico in 2009, but the death sentences of Timothy Allen and Robert Fry remained in place, because they were convicted and sentenced years before the change.

Allen and Fry were sentenced under a New Mexico law that requires the state’s highest court to review “comparative proportionality” in capital punishment cases.  State lawmakers adopted the 1976 law to ensure that the death penalty was not being imposed in ways that would violate inmates’ constitutional protections against cruel and unusual punishment.

Writing for the majority Friday, New Mexico Supreme Court Justice Barbara J. Vigil said justices found “no meaningful distinction” between the circumstances of Allen and Fry’s cases and those of similar murder cases.  “The absence of such a distinction renders the ultimate penalty of death contrary to the people’s mandate that the sentence be proportionate to the penalties imposed in similar cases,” Vigil said in the 147-page opinion.

Retired Justices Edward L. Chávez and Charles W. Daniels joined the majority decision, which did not address concerns over potential violations to Allen and Fry’s constitutional rights. Daniels wrote in a concurring opinion that “equally culpable” defendants in murder cases escaped the death penalty, adding that New Mexico has not imposed the death penalty in a “proportionate” way.  “A killer’s crimes reflect who he is,” Daniels said.  “What we do to the killer reflects who we are.”

Chief Justice Judith K. Nakamura wrote in the dissenting opinion that the majority misinterpreted the law.  “The Majority misstates the governing law and has done what our Legislature would not: repeal the death penalty in its entirety for all defendants in New Mexico,” said Nakamura, who was joined in dissent by retired Justice Petra Jimenez Maes.  “They perceive in the language authority to conclude that, because so few offenders in New Mexico have ever been sentenced to die, no offenders shall ever again be sentenced to die in New Mexico.”

The full 147-page ruling is available at this link, and here is how the Court's opinion gets started:

In this case we revisit our statutory responsibility to ensure that the death penalty is reserved for the most heinous crimes.  Since 1979, the New Mexico Legislature has directed this Court to ensure that “the death penalty shall not be imposed if . . . the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.” NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).

In 2009, the Legislature abolished the death penalty as a sentencing option for murders committed after July 1, 2009.  Today, Petitioners Robert Fry and Timothy Allen, who committed their crimes before 2009, are the last inmates who remain on death row in New Mexico.  Fry and Allen filed Petitions for Writs of Habeas Corpus seeking to dismiss their death sentences in light of the prospective-only application of the repeal.

In this consolidated appeal of the district court’s denial of Petitioners’ motions to dismiss their death sentences, we hold that Petitioners’ death sentences are disproportionate and violate Section 31-20A-4(C)(4).  Guided by our recognition that our Legislature intended for comparative proportionality review to protect against the arbitrary imposition of the death penalty, we conclude that there is no meaningful basisfor distinguishing Fry and Allen from the many similar casesin which the death penalty was not imposed.  Because Petitioners’ death sentences are statutorily disproportionate to the penalties imposed in similar cases, we remand each case to the district court to impose a sentence of life imprisonment.

Though taking longer in New Mexico than elsewhere, this ruling continues the well-established trend of state courts finding one way or another to give retroactive effect to the statutory repeal of the death penalty even when a legislature has sought to explicitly provide for the carrying out of prior lawful death sentence.

"Somewhere Between Death Row and Death Watch: How Courts Have Precluded Capital Defendants From Raising Execution-Related Claims"

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

Most discussion on capital punishment focus on the merits of the death penalty generally.  While those arguments are surely important, for as long as capital punishment remains in the United States, safeguarding defendants’ rights throughout the capital sentencing process — including through execution — is crucial.  As part of that effort, this Article identifies a portion of the often-overlooked capital appellate process that effectively divests defendants of significant claims.

This issue is illustrated by the U.S. Supreme Court’s recent decisions in Bucklew v. Precythe and Dunn v. Price, which provided insight in a lot of contexts.  Contributing to the conversation on the Court’s recent decisions, this Article explains how Bucklew and Dunn provided insight into not-so-obvious aspects of capital punishment with which defendants often struggle.  Specifically, Bucklew and Dunn illustrate the procedural predicament defendants face in raising execution- and warrant-related claims.  On one hand, courts determine that execution-related claims are not ripe, or premature, when raised before a defendant is under an active death warrant.  On the other, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts determine the claims are brought too late, suspecting a game of delay.  Thus, as this Article explains, the proper time for defendants to raise execution-related claims is caught somewhere between death row and death watch, and courts have essentially precluded defendants from properly raising and being heard on these issues.

Addressing this concern, this Article canvasses potential solutions.  Ultimately, this Article concludes that the best solution is for states to enact and courts to enforce uniform warrant procedures, an example of which is outlined here.