Sentencing Law and Policy

Oklahoma Gov grants 60-day execution stay for Richard Glossip while courts consider innocence claim

As reported in this AP piece, "Oklahoma Gov. Kevin Stitt granted death row inmate Richard Glossip a 60-day stay of execution on Tuesday while a state appeals court considers his claim of innocence."  Here is more:

Stitt signed an executive order delaying Glossip’s execution for the 1997 killing of Glossip’s boss, motel owner Barry Van Treese, that was scheduled for Sept. 22. “This stay is granted to allow time for the Oklahoma Court of Criminal Appeals to address a pending legal proceeding,” the order states.

A Stitt spokeswoman declined to comment on the governor’s decision, which also means that a clemency hearing before the Oklahoma Pardon and Parole Board that was scheduled for next week will be delayed.

Glossip asked the Oklahoma Court of Criminal Appeals for a new evidentiary hearing following the release of an independent investigation by Houston law firm Reed Smith that raised new questions about his guilt. The firm’s report did not find any definitive proof of Glossip’s innocence, but raised concerns about lost or destroyed evidence and a detective asking leading questions to Glossip’s co-defendant, Justin Sneed, to implicate Glossip in the slaying. Sneed admitted killing Van Treese but said he did so at Glossip’s direction. Sneed was sentenced to life in prison and was a key witness against Glossip....

Glossip, now 59, has long maintained his innocence. He has been scheduled to be executed three separate times, only to be spared shortly before the sentence was set to be carried out. He was just hours from being executed in September 2015 when prison officials realized they had received the wrong lethal drug, a mix-up that helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

Disconcerting reports about what transpired during recent Alabama execution

A press report on the July 28 execution of Joe Nathan James in Alabama, reprinted in this post, noted that the "execution began a few minutes after 9 p.m. CDT following a nearly three-hourts have started to fill in some ugly details of what transpired during this delay.  For example:

From The Atlantic, "Dead to Rights: What did the state of Alabama do to Joe Nathan James in the three hours before his execution?":

James, it appeared, had suffered a long death. The state seems to have attempted to insert IV catheters into each of his hands just above the knuckles, resulting in broad smears of violet bruising.  Then it looked as though the execution team had tried again, forcing needles into each of his wrists, with the same bleeding beneath the skin and the same indigo mottling around the puncture wounds.  On the inside of James’s left arm, another puncture site, another pool of deep bruising, and then, a scant distance above, a strange, jagged incision, at James’s inner elbow.  The laceration met another cut at an obtuse angle.  That longer, narrower slice was part of a parallel pair, which matched a fainter, shallower set of parallel cuts.  Underneath the mutilated portion of James’s arm was what appeared to be yet another puncture — a noticeable crimson pinprick in the center of a radiating blue-green bruise. Other, less clear marks littered his arm as well.

From AL.com, "Joe Nathan James ‘suffered a long death’ in botched Alabama execution, magazine alleges":

Alabama prison officials spent hours searching for a vein that could be used to deliver lethal drugs in the execution of Joe Nathan James on July 28, according to a recent article in the Atlantic.  Staff punctured his hands, wrists and elbows several times before finally cutting open his arm to expose a vein, according to reporting by Elizabeth Bruenig.

Bruenig attended an independent autopsy performed several days after James’ death and funded by the human rights group Reprieve U.S. “James, it appeared, had suffered a long death,” she wrote.

From The Guardian, "Alabama subjected prisoner to ‘three hours of pain’ during execution – report":

Alabama’s execution of Joe Nathan James Jr last month may have taken longer than any other lethal injection in recorded American history, and no death penalty ever administered in the US may have taken quite as long, according to an analysis by a human rights organization.

An examination by Reprieve US of James’s execution estimates that it took Alabama officials between three and three and a half hours to carry out the lethal injection, a duration that the organization argues violates constitutional protections against inhumane punishments.

Dozens of Oklahoma lawmakers call for new hearing before next month's scheduled execution of Richard Glossip

As reported in this Guardian piece, a "letter signed by 61 Oklahoma lawmakers — most of them pro-death penalty Republicans — has been sent to the state’s attorney general calling for a new hearing in the case of Richard Glossip, a death row inmate scheduled to be executed next month."  Here is more:

Forty-four Republican and 17 Democratic legislators, amounting to more than a third of the state assembly, have written to John O’Connor pleading for the new hearing.  The outpouring of concern is an indication of the intense unease surrounding the Glossip case, and the mounting fear that Oklahoma is preparing to kill an innocent man.

Glossip, 59, is due to be killed on 22 September as part of a sudden speeding up of capital punishment activity in Oklahoma.  He was sentenced to death for the 1997 murder of Barry Van Treese, the owner of a Best Budget motel in Oklahoma City, where Glossip was manager.

Justin Sneed, the motel’s maintenance worker, admitted that he had beaten Van Treese to death with a baseball bat. But Sneed later turned state’s witness on Glossip, accusing the manager of having ordered the murder.  As a result, Sneed, the killer, avoided the death penalty and was given a life sentence.  Glossip was put on death row almost entirely on the basis of Sneed’s testimony against him, with no other forensic or corroborating evidence.

In their letter, the 61 legislators ask the attorney general to call for a hearing to consider new evidence that has been uncovered in the case.  Last year a global law firm, Reed Smith, was asked by state lawmakers to carry out an independent investigation.  Their 343-page report found that the state had intentionally destroyed key evidence before the trial.  The review concluded that “no reasonable juror hearing the complete record would have convicted Richard Glossip of first-degree murder”.

Glossip’s scheduled execution forms part of an extraordinary glut of death warrants that have been issued by Oklahoma in recent weeks. In July, the state received court permission to go ahead with 25 executions at a rate of almost one a month between now and December 2024....

The first scheduled execution of the 25 is that of James Coddington, 50, on 25 August.  Coddington’s fate is now in the hands of Kevin Stitt, Oklahoma’s Republican governor, after the state’s parole board recommended that he commute the prisoner’s sentence to life without parole.  The clemency petition pointed out that Coddington had been impaired by alcohol and drug abuse starting when he was a baby.  It said he had shown full remorse for having murdered Albert Hale, a friend who had refused to lend him $50 to buy cocaine.

"'The World of Illusion Is at My Door': Why Panetti v. Quarterman Is a Legal Mirage"

The title of this post is the title of this new paper authored by Michael Perlin, Talia Roitberg Harmon and Haleigh Kubiniec now available via SSRN. Here is its abstract:

Some fifteen years ago, in Panetti v. Quarterman, 551 U.S. 930, 956 (2007), the Supreme Court ruled that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.”  In a recent paper, two of the authors (MLP & TRH) analyzed the way the Fifth Circuit had construed that case, and concluded that that court “has basically ignored Panetti’s holdings in all its decisions.” See “Insanity is Smashing up Against My Soul”: The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman, 60 U. LOUISVILLE L. REV. 557, 578 (2022).  In this article, we expand that inquiry to consider how all federal circuits have interpreted Panetti, and we find that Panetti has never -- with the exception of one case, later vacated -- been a remedy upon which defendants with serious mental illness facing the death penalty could rely.

We analyze all the circuit-level Panetti decisions, and consider the case law through a therapeutic jurisprudence (TJ) filter, concluding that this body of cases violates all TJ precepts, and offer a series of recommendations -- as to issues related to adequacy of counsel, the need for databases of experts competent to testify in such matters, the need for other scholars to study the cases we discuss here, and to seek to breathe new life into arguments made some years ago barring the death penalty in all cases of defendants with serious mental illness -- to, we hope, ameliorate this situation in the future.

Oklahoma board recommends clemency for first of many scheduled to be executed in coming months

As noted in this post last month, Oklahoma has scheduled 25 executions over the next few years after the ending a moratorium on lethal injections.  The first of these executions is scheduled for later this month.  But, as this new local article reports, the Oklahoma Pardon and Parole Board voted Wednesday to spare the life of the condemned scheduled to be execution on August 25.  Here are the details:

James Coddington addressed the board himself and expressed remorse for killing his friend, 73-year-old Albert Hale, at Hale’s Choctaw residence in 1997 after Hale refused to give Coddington money for drugs.  “The person that he welcomed into his home was not me, it was a shell of me.  It was a drug addict that didn’t deserve his friendship,” said Coddington.

Hale’s family spoke about their loss to the board.  Son Mitch Hale said he’s forgiven Coddington but the murder devastated the family.  “Not only did he brutally kill a kind, gentle, elderly man, he also killed our family.  When he took my father’s life, he completely destroyed the gathering place and tradition of five generations,” said Hale.

Board member Edward Konieczny, appointed by Gov. Kevin Stitt in Jan., joined Richard Smothermon and Larry Morris in voting for clemency.  Cathy Stocker and Scott Williams voted to deny clemency.

Konieczny cited exceptional childhood abuse, as well as Coddington’s age of 24 years at the time of the murder as concerns. “I certainly want to hear from my colleagues.  We’ve had a number of trainings and conversations around the maturation of a person’s brain and also the impact of abusive environments.  In this particular case, it’s not just somebody suggesting that.  We have documentation of what could be considered extraordinary drug and alcohol and physical and emotional abuse.  I would just appreciate hearing from some of my other colleagues,” said Konieczny....

Smothermon, who has thus far voted to deny clemency to every death row inmate, said how people endure abuse in similar situations matters to him. “Given that environment, what is the resulting actions of other people or children that were in that environment and how did they turn out?”...

Cathy Stocker, appointed by Stitt in Mar., said Coddington’s background was already considered in court and so she voted to deny clemency. Before voting no, Scott Williams acknowledged that Coddington, who earned his GED in prison in 2002, had changed for the better.  “Just from what we’ve seen, I’d say there’s definitely been some change there and he’s had an exemplary record for a number of years.  At the same time, that doesn’t take away from all of the facts and everything we have to consider today,” said Williams....

The board’s clemency suggestion will go to Stitt to decide.  Coddington is still scheduled for execution Aug. 25.

Prior recent related posts:

• Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol 
• Oklahoma Attorney General requests execution schedule for 25 death row inmates 
• Will Oklahoma carry out over two dozen executions over the next couple years?

"McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride"

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

Writing for the Supreme Court in McCleskey v. Kemp, Justice Lewis F. Powell, Jr. authored a maximalist decision that transcended capital practice and effectively barred constitutional claims of systemic inequality.  Powell would ultimately come to regret the ruling, announcing in retirement that the death penalty should be abolished entirely.  Powell struggled, then, with an apparent tension between moral conviction and purported legal command — a tension that Robert Cover called a “moral-formal dilemma.”  Cover used this concept to evaluate the decision-making processes of antebellum abolitionist judges asked to apply the fugitive slave acts.  These judges knew better but repeatedly refused to do better, resorting instead to a set of methodological crutches to make immoral outcomes appear legally inevitable.  And, in McCleskey, Powell relied upon some of the same crutches.

In other ways, however, Powell’s opinion does not fit neatly within the Cover mold.  Cover rooted the cowardice of his antislavery judges in the “thoroughgoing positivism” of the era.  But Powell was not a positivist.  Indeed, he was not even a death-penalty abolitionist — at least not in the way we would normally understand that term.  What, then, accounted for Powell pursuing such a remarkably similar — and similarly shoddy — moral, prudential, and jurisprudential course?  In this essay, I dissect McCleskey v. Kemp.  I argue that amoral positivism cannot explain the opinion.  To understand Powell’s motivation, we must dig deeply into his biography.  There we discover his abiding principled commitment to a particular brand of anti-positive hubris.  Powell was a proud institutionalist — a moral orientation that constituted an implicit bias, which prevented him from considering adequately the moral interests of systemic outsiders.  I conclude the essay with a sketch of the kind of judge who could better confront the quandary of whether to apply immoral law.  Perhaps surprisingly, this judge is a type of positivist — a skeptical positivist.

Alabama completes execution despite opposition from victim's family

As reported in this AP piece, an "Alabama inmate convicted of killing his former girlfriend decades ago was executed Thursday night despite pleas from the victim’s family to spare his life." Here is more:

Joe Nathan James Jr. received a lethal injection at a south Alabama prison after the U.S. Supreme Court denied his request for a stay.

James was convicted and sentenced to death in the 1994 shooting death of Faith Hall, 26, in Birmingham. Hall’s daughters have said they would rather James serve life in prison, but Alabama Gov. Kay Ivey said Wednesday that she planned to let the execution proceed.

Prosecutors said James briefly dated Hall and he became obsessed after she rejected him, stalking and harassing her for months before killing her. On Aug. 15, 1994, after Hall had been out shopping with a friend, James forced his way inside the friend’s apartment, pulled a gun from his waistband and shot Hall three times, according to court documents...

The execution began a few minutes after 9 p.m. CDT following a nearly three-hour delay that the state did not immediately explain. James did not open his eyes or any show visible movements before the execution began. He did not move or speak when the warden asked if he had any final words. His breathing slowed until it was not visible and he was pronounced dead at 9:27 p.m.

Hall’s two daughters, who were 3 and 6 when their mother was killed, had said recently that they would rather James serve life in prison. The family members not attend the execution. “Today is a tragic day for our family. We are having to relive the hurt that this caused us many years ago,” the statement issued through state Rep. Juandalynn Givan’s office read. Givan was a friend of Hall’s.

“We hoped the state wouldn’t take a life simply because a life was taken and we have forgiven Mr. Joe Nathan James Jr. for his atrocities toward our family. ... We pray that God allows us to find healing after today and that one day our criminal justice system will listen to the cries of families like ours even if it goes against what the state wishes,” the family’s statement read.

Alabama Gov. Kay Ivey said she would not intervene. In a statement Thursday night, Ivey said she deeply considers the feelings of the victim’s family and loved ones, but “must always fulfill our responsibility to the law, to public safety and to justice.”... She said the execution sends an,” unmistakable message was sent that Alabama stands with victims of domestic violence.”

Prior related post:

• Victim's family opposing death sentence as Alabama prepares for execution next week 

Victim's family opposing death sentence as Alabama prepares for execution next week

I have long hoped (but have never been confident) that the application of the death penalty can bring some measure of catharsis and closure to family members and other victims of a murder.  For example, as recently mentioned in this post, it seems many victims of the Parkland school shooter are quite eager to see the capital sentencing process move forward.  But, as this local article from Alabama reveals, in some cases the death penalty advances against the wishes of a murder victim’s family.  Here are the details:

Toni and Terryln Hall were just three and six years old when their mother, Faith Hall, was shot to death by Joe Nathan James, Jr., in August 1994. James, who’d dated Hall, was eventually convicted of her murder and sentenced to death.

Now, nearly three decades later, the State of Alabama has scheduled the execution of Joe Nathan James, Jr. for July 28.  But Toni and Terryln Hall, as well as Faith’s brother Helvetius, said they’re opposed to James being put to death. The planned execution has unnecessarily reopened old wounds, the family said, and won’t bring them closure.  James’ death is yet another trauma for all involved, and Gov. Kay Ivey should halt the execution, they said.  Forgiveness should prevail, the family argued, not vengeance....

Each member of the Hall family said their feelings towards James have evolved over time.  Helvetius said that if he’d seen Joe Nathan James the night he murdered Faith Hall, he may have killed him.  “But God was in me,” he said. “And I thank him for it.”

Toni and Terryln both said that for a while, they hated Joe Nathan James.  Toni said that what happened to her mother has impacted her life in ways seen and unseen. James’ actions have had “trickle-down effects,” she said, effects that she’s still trying to cope with today.  She’s more guarded when it comes to intimate relationships.  She’s careful about whom she lets around her children, ages two and four. “It made me hate him,” Toni said.

“For years, I hated him, too,” Terryln added. “But as I got older and started living my life and raising my own kids, I had to find it in my heart to forgive this man.”  And she did forgive him. So did Toni and Helvetius. “I forgive him,” Terryln said. “But I’ll never forget what he did to us.” Toni echoed her sister. “I couldn’t walk around with hate in my heart,” she said.

In the days leading up to Joe Nathan James’ scheduled execution, the Hall family said they feel as though an old wound has been ripped open.  “It’s really bothering me,” Toni said. “To know that someone is going to lose their life.”

The Halls said they are opposed to Alabama executing Joe Nathan James for the murder of Faith Hall.  Toni said she’s even expressed to prosecutors in the case that the family does not want the death penalty carried out against James. “We shouldn’t be playing God,” Toni said. “An eye for an eye has never been a good outlook for life.”

“At the end of the day,” Terryln said, “I feel like no human has to power to kill anyone whether they’re right or wrong.” She said it took her time to come to that conclusion, but she believes it’s the right one.  “I had to look within myself,” she said. “Who am I to judge?”

The Halls said they believe that Faith would not have wanted James executed. “She would’ve forgiven him,” Helvetius said.

The Halls said they plan to travel to Holman Correctional Facility on the evening of the scheduled execution to witness James’ last words.  They said they hope James apologizes for his actions, but that they’ll exit the witness room before the execution takes place either way. “It ain’t going to make no closure for us,” Helvetius said of the execution.

The family said they want Joe Nathan James to know that they do not hate him. If she had the opportunity to speak with James, Toni Hall said she’d make that point clear: “I don’t want you to feel like children grew up hating you,” she said. “And I wish this wasn’t happening to you now.”...

The Halls said that they believe Alabama Gov. Kay Ivey should step in and commute James’ death sentence to life in prison.  They believe their views should hold weight in deciding whether to execute James, although they admit they feel powerless in the situation. “I don’t want it to go forward,” Terryln said. “We’re not God. The Governor is not God.”

James’ blood will not be on their hands, the family said, but on the hands of the state, the governor, and lawmakers who enacted the death penalty. Still, James’ execution will be another trauma for a family that’s already lost so much, they said. “I’ll see him at nighttime when I sleep,” Helvetius said of James. “I don’t need that.”

What is the price (for victims and taxpayers) of a four-month(!) capital trial for Parkland mass murderer Nikolas Cruz?

The question in the title of this post is my (crass?) reaction to the news that the penalty-only capital trial of Nikolas Cruz is scheduled to formally get started this week.  This AP piece, headlined "Life or death for Parkland shooter?  Trial will take months," provides lots of background.  Here are some excerpts:

Four years, five months and four days after Nikolas Cruz murdered 17 at Parkland’s Marjory Stoneman Douglas High School, his trial for the deadliest U.S. mass shooting to reach a jury begins Monday with opening statements.  Delayed by the COVID-19 pandemic and legal wrangling, the penalty-only trial is expected to last four months with the seven-man, five-woman jury being exposed to horrific evidence throughout.  The jurors will then decide whether Cruz, 23, is sentenced to death or life without the possibility of parole.

“Finally,” said Lori Alhadeff, who wants Cruz executed for murdering her 14-year-old daughter Alyssa. “I hope for swift action to hold him responsible.”  All victim parents and family members who have spoken publicly have said directly or indirectly they want Cruz sentenced to death.

The former Stoneman Douglas student pleaded guilty in October to the Feb. 14, 2018, massacre and is only challenging his sentence. Nine other U.S. gunmen who fatally shot at least 17 people died during or immediately after their attacks by suicide or police gunfire.  Cruz was captured after he fled the school.  The suspect in the 2019 killing of 23 at an El Paso, Texas, Walmart is awaiting trial.

Lead prosecutor Mike Satz will give his side’s presentation.... Craig Trocino, a University of Miami law professor, said Satz will likely emphasize the shooting’s brutality and the story of each victim lost. The prosecution’s theme throughout the trial will be, “If any case deserves a death sentence, this is it,” he said....

Trocino said ... Cruz’s attorneys will likely want to plant the seed in jurors’ minds that he is a young adult with lifelong emotional and psychological problems. The goal would be to temper the jurors’ emotions as the prosecution presents grisly videos and photos of the shootings and their aftermath, the painful testimony of the surviving wounded and tearful statements from victims’ family members....

Satz’s team will be required to prove beyond a reasonable doubt that Cruz committed at least one aggravating circumstance specified under Florida law, but that should not be an issue.  Those include murders that were especially heinous or cruel; committed in a cold, calculated and premeditated manner; or committed during an act that created a great risk of death to many persons. Cruz’s team can raise several mitigating factors that are also in the law.  Before the shooting, Cruz had no criminal history.  The attorneys can argue he was under extreme mental or emotional disturbance, and his capacity to appreciate his conduct’s criminality or conform it to the law was substantially impaired....

For each death sentence, the jury must be unanimous or the sentence for that victim is life.  The jurors are told that to vote for death, the prosecution’s aggravating circumstances for that victim must, in their judgement, “outweigh” the defense’s mitigators.  A juror can also vote for life out of mercy for Cruz.  During jury selection, the panelists said under oath that they are capable of voting for either sentence.

It is possible Cruz could get death for some victims and life for others, particularly since he walked back to some wounded victims and killed them with a second volley. That might swing any hesitant jurors on those counts. “The prosecution only needs for the jury to come back (for death) on one,” Trocino said.

There is always much to say about the unique dynamics of capital trials, but I must flag here the remarkable contrast between capital and non-capital sentencing procedures.  Though guilt is not disputed in any way with respect to Nikolas Cruz's 17 murders, he can receive a death sentence only if all 12 jurors unanimously decide he should be executed for his crimes.  Contrast that jury-centric process to the non-capital case flagged in this recent post involving a federal defendant who was acquitted of a murder by 12 jurors and yet still had a lone judge sentence him based on the judge's view that he did the killing.  Cruz's case is but one of many examples of the very worst of murderers getting the very best legal protections because we require "super due process" for the imposition of the death penalty even when there is no shred of doubt about guilt.

Notably, in this post 3.5 years ago on the one-year anniversary of the Parkland shooting, I expressed my hope that "someone is keeping track of what this prosecution is costing the taxpayers of the state of Florida."   As I sometimes mention in this space, I view the extraordinary expense of many capital cases (with their super due process) to be a notable argument against the death penalty since it rarely seems the penalty's (debatable) benefits measure up to its (considerable) economic costs.  I can only imagine the taxpayer resources involved in a trial for which jury selection took three months and which is already forecast to last nearly the rest of this year.  Parkland victims are sure also to pay an emotional price as they endure an agonizing trial experience sure to be heavily covered by local and national media.

That said, the AP article asserts that all "victim parents and family members who have spoken publicly have said directly or indirectly they want Cruz sentenced to death."  I sincerely hope all these victims get some measure of satisfaction or catharsis from this particular capital trial.  Sadly, it seems awfully unlikely that this trial will lead to, in the words of one victim, "swift action to hold him responsible."  With nearly 5 years needed to even get to a trial verdict, there are surely years (if not decades) of appeals to follow if Cruz is sentenced to death.  

Some prior related posts:

• Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz
• In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida
• "Nikolas Cruz’s birth mom had a violent, criminal past. Could it help keep him off Death Row?" 
• A year after tragedy, taking stock of the agony (and wondering about the costs) already surrounding the capital prosecution of Parkland shooter Nikolas Cruz
• Father of Parkland school shooting victim urges state prosecutors to abandon capital prosecution of shooter
• Will guilty pleas and apology reduce odds that Nikolas Cruz is sentenced to death for Parkland school mass murder? 

Amnesty International releases "The Power of Example: Whither the Biden Death Penalty Promise?"

Via this Death Penalty Information Center posting, I just saw that a few weeks ago Amnesty International issued this big new report, titled The Power of Example: Whither the Biden Death Penalty Promise?," which advocates for Prez Biden to fulfil his campaign pledge to work to "eliminate the death penalty."   Here are a few passages from the start of this 100+ page report:

Amnesty International opposes the death penalty in all cases without exception regardless of the nature or circumstances of the crime; questions of guilt, innocence, or other aspects of the case; or the method used by the state to carry out the execution....

Amnesty International submits that the 50th anniversary of Furman is an opportune moment for the US administration and members of Congress to be reminded that the world is waiting for the USA to do what almost 100 countries have achieved during this past half century — total abolition of the death penalty.  Abolition of the federal death penalty would be consistent with US obligations under international human rights law.  It would bolster the position of those states in the USA that have already got rid of the death penalty or are moving towards doing so.  It would set a positive example to individual state governments that continue to use this cruel, unnecessary, and flawed policy, as well as to the diminishing list of retentionist countries....

This report, then, stems from Amnesty International's concern that the clock is running on the Biden pledge with little to show for it.  It is not a study of the federal death penalty as such or an examination of the cases of the more than 40 individuals currently on federal death row, or of those federal defendants facing death penalty trials.  The report revisits the six-month federal execution spree in a bid to jog the collective governmental memory of that shameful episode and to reboot the political commitment to abolition.  It also seeks to remind the US authorities of their general and specific obligations under international human rights law in relation to the death penalty, including as provided in the International Covenant on Civil and Political Rights (ICCPR).

Furman at 50: some recent notable coverage

As noted in this recent post, the US Supreme Court's remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972), is now a half century and I have not decided to create a series of "Furman at 50" posts.  Unsurprisingly, I am not the only one to note the Furman milestone, and here is a round-up of some recent coverage and commentary I have seen from various sources:

From the Dalton Daily Citizen, "50 years after SCOTUS ruled death penalty cruel and unusual, race factors heavily in executions"

From the Death Penalty Information Center, "DPIC Analysis Finds Prosecutorial Misconduct Implicated in More than 550 Death Penalty Reversals or Exonerations"

From The Marshall Project, "The Supreme Court Let The Death Penalty Flourish.  Now Americans are Ending It Themselves."

From Slate, "Fifty Years Ago, the Supreme Court Tried to Reduce Racial Bias in the Death Penalty. Did It Work?"

From UPI, "50 years after Furman ruling, death penalty may come down to states, experts say"

From The Washington Post, "Death penalty’s 50-year rise and fall since Supreme Court struck it down"

Related prior posts:

• Furman at 50: so much and so little
• Furman at 50: DPIC provides a census of nearly 10,000 death sentences

Condemned Texas inmate seeks execution delay in order to donate kidney

I have blogged in the past about a few persons on death row in various states who have sought delays in their execution in order to donate an organ (examples here and here).  This new press article discusses another example now from Texas:

A Texas man on death row is seeking a delay in his upcoming execution so that he can donate one of his kidneys.  Ramiro Gonzales, 39, is scheduled to die by lethal injection on July 13 for his role in a 2001 murder, according to the Associated Press.  On Wednesday, Gonzales’ attorneys made several requests to delay his execution, including one that relies on Gonzales’ stated desire to donate a kidney.

Attorneys Thea Posel and Raoul Schonemann specifically asked Governor Greg Abbott for a 30-day reprieve so that Gonzales could be considered for the organ donation, which could potentially be used to help “someone who is in urgent need of a kidney transplant.”

The lawyers noted that Gonzales was evaluated by the University of Texas Medical Branch’s transplant team in Galveston, Texas, who reportedly determined that Gonzales was an “excellent candidate” for donation due in part to a rare blood type.  “Virtually, all that remains is the surgery to remove Ramiro’s kidney,” attorneys wrote in their request to Abbott.  “UTMB has confirmed that the procedure could be completed within a month.”

Posel and Shonemann submitted a separate request for a 180-day reprieve to the Texas Board of Pardons and Paroles for the same reason.  “For the past year and a half, our client Ramiro Gonzales has actively sought to become an organ donor prior to his scheduled execution,” Posel and Schonemann said in a statement e-mailed to Oxygen.com.  “In keeping with his deeply held religious convictions, Ramiro seeks to atone for the life he has taken by sustaining life for another person in need.”

Speaking with the Associated Press, Texas Department of Criminal Justice spokesperson Amanda Hernandez said that Gonzales had unsuccessfully made requests to donate his kidney earlier this year. Although a specific reason for the denial wasn’t provided, Posel and Schonemann said the earlier decision was related to the date of Gonzales’ execution.

Though the Texas Department of Criminal Justice does allow some inmates to donate organs and tissues, per the Associated Press, it does not allow prisoners on death row close to their execution date to making living organ donations, according to the Texas Tribune — and medical ethicists and organ donation organizations have previously refused such donations in any case. (Posthumous organ donations by those executed are also not allowed, as NBC News noted, because the contents of a lethal injection and waiting until a condemned prisoner's heart stops could harm the organs intended for transplant, even if they could be ethically collected from the point of execution.)...

In their bid to Gov. Abbott, Posel and Schonemann — who both work with the University of Texas’s Capital Punishment Clinic at the School of Law in Austin — included a letter from Maryland-based cantor and chaplain Michael Zoosman, who regularly corresponds with Gonzales. “There has been no doubt in my mind that Ramiro’s desire to be an altruistic kidney donor is not motivated by a last-minute attempt to stop or delay his execution,” said Zoosman. “I will go to my grave believing in my heart that this is something that Ramiro wants to do to help make his soul right with God.”

In their statement to Oxygen.com, Posel and Schonemann said their client was moved to donate one of his kidneys when learning that one of Zoosman’s congregants was in need of the organ. “He knows that doing this will not stop his execution,” they said. “But as he told the Cantor, he hopes to give life before his own life is taken.

Ultimately, Posel and Schonemann said Gonzales was not a match to the congregant but claims his donation could help somebody else. “The State, however, has thus far not consented to this request,” said Posel and Schonemann in their statement. “Approximately 13 people die each day waiting for a kidney transplant, and wait times for those with rare blood types can be as long as a decade. We have been inundated with emails and phone calls by people across the country who are in urgent need of a kidney transplant.”

The two lawyers also issued other requests that, if approved, would also affect Gonzales’ scheduled execution, according to the Associated Press. The first was to commute their client’s death sentence for a lesser penalty. The second was to put the brakes on the execution if Gonzales couldn’t have his spiritual advisor lay hands on him at the time of his death.

In March, the Supreme Court ruled in favor of Texas death row inmate John Henry Ramirez, whose request that his spiritual advisor perform a "laying of the hands" in the chamber during his execution had initially been denied by the state. Gonzales' request for the same thing will be subject to a two-day federal trial which is expected to begin on Tuesday.

Gonzales confessed to the rape and murder of missing 18-year-old Bridget Townsend, who had disappeared in 2001, while he was serving two life sentences for the abduction and rape of a woman in Bandera County in 2002, according to the Palestine Herald-Press.... The Texas Board of Pardons and Paroles has until July 11 to vote on Gonzales’ request. Governor Greg Abbott has yet to respond.

I find it quite interesting, but not all that surprising, to hear Gonzales’ lawyers stress "his deeply held religious convictions" in making their case for an organ donation.  As mentioned in the article, the Supreme Court's recent Ramirez ruling provided an example of the Supreme Court accommodating a religious-based request from those about to be executed.  I doubt organ donation would be viewed in quite the same way that "laying of the hands" has been by the courts, but for now this issue is before the Texas Gov and the Texas Board of Pardons and Paroles.

Does commitment to equal justice mean AG Garland must or must not seek the death penalty for racist Buffalo mass murderer?

The question in the title of this post is prompted by this new Washington Post article, headlined "Garland weighs racial equity as he considers death penalty in Buffalo."  Here are excerpts from a long article:

The Biden administration’s pledge to pursue racial equity in the criminal justice system is facing a crucial test: whether federal prosecutors will seek the death penalty for the self-avowed white supremacist charged with slaughtering 10 Black people in a Buffalo grocery store in May.

Some survivors and family members of those killed told Attorney General Merrick Garland during a private meeting in June that they are supportive of bringing a capital case against the 18-year-old suspect, Payton Gendron, according to people involved in the discussion.  Their stance conflicts with the long-standing position of civil rights advocates, who have generally opposed the death penalty out of concerns it is unjust and disproportionately used against racial minorities....

Garland, under pressure from civil rights groups, issued a moratorium last summer on federal executions, after the administration of President Donald Trump carried out 13 in the final six months of his presidency.  As heinous as the Buffalo killings were, Black civil rights leaders say, seeking to execute the gunman would represent a setback in their efforts to abolish capital punishment.  “The reality for us is that the system is too often infused with racial bias. That doesn’t change because someone who is White, and who perpetrated violence against Black people, is put to death,” said Maya Wiley, president of the Leadership Conference on Civil and Human Rights.

President Biden opposed the death penalty during his 2020 campaign, but he has not pushed forcefully for a blanket federal ban on executions since taking office.  His administration is under pressure to do more to confront rising white supremacy, a spike in hate crimes and a wave of gun violence.  While Garland’s moratorium does not ban prosecutors from seeking the death penalty, the Justice Department has not filed a notice to seek capital punishment under his leadership, officials said....

Federal prosecutors have charged Gendron with 26 hate crime counts.  But it is an additional gun-related charge that carries the potential penalty of death. He also faces state-level first-degree murder and hate crimes charges in New York, which does not allow state-sponsored executions....

Making matters more complex, some of the attorneys representing the families are advocates who vocally oppose the death penalty, including Ben Crump, a prominent civil rights attorney, and Terrence M. Connors, a Buffalo trial lawyer. So do some of Garland’s top deputies, including Associate Attorney General Vanita Gupta, who joined him in Buffalo....

Garland gained national acclaim in the 1990s for helping lead the Justice Department’s successful capital conviction of Oklahoma City bomber Timothy McVeigh, who was put to death in 2001.  During his confirmation hearing last year, Garland said he stands by the outcome of that case but has since developed reservations over the death penalty.

At the hearing, Sen. Tom Cotton (R-Ark.) cited the case of Dylann Roof — a White man sentenced to death for fatally shooting nine Black parishioners at a church in Charleston, S.C., in 2015 — and asked whether Garland would pursue capital punishment in a similar case. Garland responded that it would depend on the Biden administration’s policy.

The Justice Department has continued to back Roof’s death sentence, which was upheld by a federal appellate court last summer.  The department also is seeking the death penalty for Robert Bowers, a White man accused of killing 11 people and wounding six in an antisemitic attack at the Tree of Life synagogue in Pittsburgh in 2018....

In opposing the death penalty, some opponents cite cases in which convicts on death row are exonerated in light of new evidence. But legal experts said the Buffalo case appears to lacks ambiguity: The suspected gunman allegedly wrote a 180-page screed denouncing Black people, shared plans for the attack on social media and live-streamed some of the shooting.

“Congress passed the law allowing the federal death penalty for the most heinous of crimes. If the Buffalo massacre doesn’t qualify, then it’s hard to see what would,” Cotton said in a statement. “Merrick Garland and President Biden ought to put aside their personal feelings, enforce the law, and focus on securing justice for the victims of this horrific crime.”

Garland has not been completely clear about his intent in pausing executions, said Nathan S. Williams, a former assistant U.S. attorney who helped prosecute Roof.  Though Garland cited technical issues concerning lethal injection in his memo announcing the moratorium, he also referenced fundamental unease about the death penalty’s “disparate impact on people of color.”  Garland’s moratorium “does not resolve what was posited in that memo: ‘Is the death penalty fundamentally unfair in its application?’ If you believe that, you would not pursue it” in Gendron’s case, Williams said.

Especially because the facts in Gendron's case are relatively similar to those that led to Roof being sent to federal death row, I can see a basis to say a commitment to equal justice demands pursuing the death penalty for Gendron. But, if one sincerely believes the entire system is fundamentally inequitable, I can also see a basis for saying a commitment to equal justice demands never seeking the death penalty. It will be interesting to see what AG Garland decides.

Prior related post:

• Will feds consider a capital prosecution of the racist Buffalo mass murderer? 

Will Oklahoma carry out over two dozen executions over the next couple years?

The question in the title of this post is prompted by this new Washington Post article headlined "Oklahoma plans to execute an inmate nearly every month until 2025." Here are some of the details:

Oklahoma plans to execute 25 prisoners in the next 29 months after ending a moratorium spurred by botched lethal injections and legal battles over how it kills death row inmates.

The Oklahoma Court of Criminal Appeals on Friday set the execution dates for six prisoners in response to a request by Oklahoma Attorney General John O’Connor (R) in mid-June. The court later added dates for an additional 19 prisoners for a total representing more than half of the state’s 44-person death row population.

After a federal judge in Oklahoma ruled in early June that the state’s three-drug lethal-injection protocol was constitutional, O’Connor made his request, saying in filings that the prisoners had exhausted their criminal appeals. O’Connor argued for imminent execution dates as a matter of justice for the family members of those who were killed. In a statement, O’Connor noted that the earliest kill by a prisoner on Oklahoma’s death row was committed in 1993.

The first execution is scheduled for Aug. 25, with subsequent executions scheduled for about once every four weeks through 2024. In Oklahoma, prisoners are automatically granted a clemency hearing within 21 days of their scheduled execution, at which point the state’s pardon and parole board can recommend the governor grant a prisoner a reprieve from death row.

The scheduled flurry of executions is expected to draw Oklahoma back into familiar territory: the center of the nation’s death penalty debate....

Several of the Oklahoma prisoners scheduled for execution have strong innocence claims, histories of intellectual disability that should disqualify them for the death penalty or whose cases have claims of racial bias, their lawyers say.

Among them is Richard Glossip, whose 2015 case against the state’s lethal injection protocol went before the U.S. Supreme Court, which ruled in the state’s favor. His assertion of innocence has not only made him one of the more high-profile death row cases in the United States but has also won him support from Republican lawmakers in the state who object to his execution, scheduled for September.

Prior recent related posts:

• Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol 
• Oklahoma Attorney General requests execution schedule for 25 death row inmates 

Furman at 50: DPIC provides a census of nearly 10,000 death sentences

As noted in this recent post, the US Supreme Court's remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972), is now a half-century old, which provides me with an excuse to do a series of "Furman at 50" posts.  Helpfully, I am not the only one celebrating this milestone, and the Death Penalty Information Center has created a remarkable "Death Penalty Census."  As described here, this "census is the most comprehensive database of death sentences ever assembled, containing more than 9,700 death sentences." Here is more:

In the census, DPIC has attempted to identify every death sentence handed down in the U.S. from the day Furman was decided through January 1, 2021 and track the status of each sentence. The data provide powerful evidence that the nation’s use of capital punishment continues to be arbitrary, discriminatory, and rife with error....

The database contains the name, race, and gender of each defendant sentenced to death; the state and county (or federal district or military branch) of prosecution; the year of sentencing; the outcome of the particular sentence; and the final outcome or current status of the case.

Here are just a few of many "key findings" from DPIC’s analysis of more than 9,700 death sentences that were sent to me via email:

• Fewer than 1 in 6 death sentences result in an execution.
• A death sentence is 3 times more likely to be reversed as a result of a court decision than it is to result in an execution.
• At least 189 people who were wrongfully convicted and sentenced to death have been exonerated since 1973. That is one person exonerated for every 8.2 people who are executed. (189 exonerations/1547 executions based on data updated through June 29, 2022.)
• More than 530 capital convictions and/or death sentences have been overturned because of, or resulted in exonerations involving, prosecutorial misconduct. That is nearly 5.5% of all death sentences imposed in the U.S. in the past 50 years.
• Fewer than 2.4% of all counties in the U.S. (just 75 counties) account for half of all death sentences imposed in state courts in the past 50 years.
• It is 5.9 times more likely that an execution carried out in the U.S. over the past 50 years involved one or more white victims (1207 cases) than that it involved only Black victims (206 cases). 78.1% of executions in the U.S. in the past 50 years were in cases involving white victims. 13.3% were in cases with only Black victims. 6.5% were in cases with only Latinx victims.
• Defendants of color constitute 52.8% of those sentenced to death over the past 50 years. Yet they make up 64.2% of death-row exonerees and 83.1% of all death-row prisoners later found to be ineligible for the death penalty because of intellectual disability.
• Death sentences have declined in the United States by approximately 90% after peaking at more than 300 per year for three consecutive years in the mid 1990s, including a 70% decline over the decade preceding the pandemic. There have been fewer than 50 new death sentences imposed each year since 2015.
• Executions have declined in the United States by approximately 75% after peaking at 98 in 1999, to an average of 23.6 in the five years before the pandemic. There have been fewer than 30 executions in the U.S. every year since 2015.

Related prior post:

• Furman at 50: so much and so little

Furman at 50: so much and so little

On this date exactly 50 years ago, the US Supreme Court handed down its remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972). All nine Justices wrote separate opinions in Furman, resulting in one of the longest decision in the Court's history.  But the actual opinion of the Court is a so short that I can be reprinted it in full here: 

PER CURIAM.

Petitioner in No. 69—5003 was convicted of murder in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26—1005 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 253, 167 S.E.2d 628 (1969).  Petitioner in No. 69—5030 was convicted of rape in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26—1302 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 790, 171 S.E.2d 501 (1969). Petitioner in No. 69—5031 was convicted of rape in Texas and was sentenced to death pursuant to Vernon's Tex. Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App.1969).  Certiorari was granted limited to the following question: 'Does the imposition and carrying out of the death penalty in (these cases) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?' 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 863 (1971).  The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.  The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. So ordered.

Judgment in each case reversed in part and cases remanded.

Mr. Justice DOUGLAS, Mr. Justice BRENNAN, Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice MARSHALL have filed separate opinions in support of the judgments.  THE CHIEF JUSTICE, Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST have filed separate dissenting opinions.

There are so many interesting elements to the Court's work in Furman, and so much to what has transpired in the subsequent half century, I cannot do this topic any kind of justice in just a few blog posts. But, with summer just getting started, perhaps I will do a series of posts (and welcome guest posters) through the summer months on Furman at 50.  As the title of this post suggests, one theme I always develop when I teach Furman is that the ruling and its aftermath can be viewed as having achieved so much or as having achieved so little.  I am not sure which framing may be central in future posts, but I suppose time will tell how the half-century spirit of Furman might move me.

Ohio Gov extends state's unofficial moratorium on executions

Not all that long ago, Ohio was one of the busiest states not named Texas when it came to carrying out executions.  Specifically, between 2002 and 2013, the Buckeye State carried out 50 executions.  Ohio was also innovative in this era, pioneering in 2009 a new one-drug execution protocol that had not previously been used in the state.  But, due in part to some execution problems and in part to some effective litigation, times have really chanced.  Only four executions have been carried out in Ohio over the last eight years, and an unofficial moratorium now looks poised to extend at least into 2023.  This new AP article, headlined "Ohio Governor Postpones Last Scheduled 2022 Execution," explains:

Ohio Gov. Mike DeWine has postponed the last execution that was scheduled for this year, pushing the October date for Quisi Bryan, convicted of killing a Cleveland police officer, to early in 2026.

The move once again called into question the functionality of capital punishment in the state.  With an unofficial moratorium in place, a veteran defense attorney recently argued there's no point in holding a death penalty trial for his client, accused in the 2016 massacre of a southern Ohio family.  “Why should we have to go through a death penalty trial when Ohio doesn’t have the death penalty?” attorney John Parker said June 21 at a hearing for George Wagner IV, charged in the killing of eight members of the Rhoden family....

DeWine's decision Friday to postpose Bryan's execution was one of several reprieves the governor has issued in recent years as the state struggles to find an adequate supply of drugs for lethal injection.

DeWine, a Republican, has attributed the need for the reprieves to the state’s ongoing inability to obtain drugs from pharmaceutical companies.  DeWine has said he is concerned that drug companies — which oppose the use of their drugs in executions — could pull pharmaceuticals from state hospitals to punish Ohio if it did secure their drugs and use them for lethal injection.

Currently, 11 men are scheduled for execution next year. But it's likely that, should DeWine be reelected, those would also be postponed....  The state’s last execution was July 18, 2018, when Ohio put to death Robert Van Hook for killing a man he met in a bar in Cincinnati in 1985.

By 5-4 vote, SCOTUS reaffirms all method of execution challenges can proceed as § 1983 actions

In an important ruling for capital case litigation, the Supreme Court this morning held in Nance v. Ward, No. 21-439 (S. Ct. June 23, 2022) (available here), that all method of execution claims can be brought via § 1983.  Justice Kagan wrote the opinion for the Court, which starts this way:

In several recent decisions, this Court has set out rules for challenging a State’s proposed method of execution under the Eighth Amendment.  To prevail on such a claim, a prisoner must identify a readily available alternative method of execution that would significantly reduce the risk of severe pain.  In doing so, the prisoner is not confined to proposing a method authorized by the executing State’s law; he may instead ask for a method used in other States. See Bucklew v. Precythe, 587 U. S. ___, ___ (2019) (slip op., at 19).

This case concerns the procedural vehicle appropriate for a prisoner’s method-of-execution claim.  We have held that such a claim can go forward under 42 U.S.C. §1983, rather than in habeas, when the alternative method proposed is already authorized under state law.  See Nelson v. Campbell, 541 U.S. 637, 644–647 (2004).  Here, the prisoner has identified an alternative method that is not so authorized.  The question presented is whether § 1983 is still a proper vehicle.  We hold that it is.

Justice Barrett authored the dissent in this case, and she is joined by Justices Thomas, Alito and Gorsuch. Here is how her opinion starts:

An inmate must bring a method-of-execution challenge in a federal habeas application, rather than under 42 U.S.C. § 1983, if “a grant of relief to the inmate would necessarily bar the execution.” Hill v. McDonough, 547 U. S. 573, 583 (2006).  Under this criterion, Michael Nance must proceed in habeas because a judgment in his favor would “necessarily bar” the State from executing him. Ibid.  Nance asked the District Court to “enjoin the Defendants from proceeding with [his] execution . . . by a lethal injection,” claiming that the use of such method would violate the Eighth Amendment as applied to him. App. to Pet. for Cert. 103a– 104a.  But lethal injection is the only method of execution authorized under Georgia law.  See Ga. Code Ann. §17–1038(a) (2020). Thus, if Nance is successful, the defendants in this case — the commissioner of the Georgia Department of Corrections and the warden — will be powerless to carry out his sentence.  That makes habeas the right vehicle for Nance’s Eighth Amendment challenge.

Supreme Court grants cert on a quasi-criminal case (while two justices dissent from denial of cert in Ohio capital case reversal)

The Supreme Court started what could be a historic week with this (relatively uneventful) order list.   The Court granted cert in two cases, one of which is somewhat like a criminal case.  Specifically, the issue in Bittner v. US, No. 21-1195, is described by SCOTUSblog this way:  "Whether a 'violation' under the Bank Secrecy Act is the failure to file an annual Report of Foreign Bank and Financial Accounts (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported."

More likely of interest to criminal justice and sentencing fans is the denial of cert in Shoop v. Cassano, No. 21-679, a capital case from the Buckeye State.  Justice Thomas, joined by Justice Alito, penned a 12-page dissent from the denial of cert that starts and ends this way:

In 1997, respondent August Cassano was serving a life sentence in Ohio for aggravated murder.  The prison assigned Cassano a new cellmate, Walter Hardy . A few days later, Cassano murdered Hardy by stabbing him 75 times with a prison shank.  An Ohio jury convicted Cassano of capital murder, and the trial court sentenced him to death.  Yet, more than 20 years later, the Sixth Circuit granted Cassano habeas relief because it thought that the state trial court had ignored Cassano when he purportedly invoked his right to represent himself at trial.  In doing so, the Sixth Circuit failed to treat the state-court adjudication of Cassano’s self-representation claim with the deference demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

To correct this manifest error, I would grant Ohio’s petition and summarily reverse the Sixth Circuit.  Therefore, I respectfully dissent from denial of certiorari....

The Court of Appeals should have faithfully applied AEDPA deference and denied the writ.  Its failure to do so “illustrate[d] a lack of deference to the state court’s determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning of and function of habeas corpus in the federal system.” Harrington, 562 U.S., at 104.  Because I would grant the State of Ohio’s petition and summarily reverse, I respectfully dissent from denial of certiorari.

Justice Sotomayor pens lengthy dissent from denial of cert in Texas capital case that has previously led to SCOTUS per curiam reversal

Almost exactly two years ago, the Supreme Court issued a per curiam decision in Andrus v. Texas (discussed here) in which the Court felt compelled to find that "Andrus’ counsel provided constitutionally deficient performance under Strickland," but then remanded so Texas courts could "address the prejudice prong of Strickland in the first instance."  This case resulted in another notable opinion today, making this otherwise new SCOTUS short order list much longer.  Specifically, Justice Sotomayor authored a 25-page dissent from denial of certiorari, which was joined by Justices Breyer and Kagan.  Here is how it starts:

A state habeas court recommended vacating petitioner Terence Andrus’ death sentence after an 8-day hearing that uncovered a plethora of mitigating evidence that trial counsel had failed to investigate or present.  The court held that Andrus had received ineffective assistance of counsel at the punishment phase of his trial. See Strickland v. Washington, 466 U.S. 668 (1984).  The Court of Criminal Appeals of Texas reversed; this Court summarily vacated and remanded. See Andrus v. Texas, 590 U.S. ___ (2020) (per curiam).

This Court held that counsel had rendered constitutionally deficient performance.  That conclusion was based on an “apparent ‘tidal wave’” of “compelling” and “powerful mitigating evidence” in the habeas record, none of which counsel presented to the jury. Id., at ___, ___, ___ (slip op., at 9, 11, 18).  The Court also found counsel ineffective for several specific failures to investigate and rebut the State’s case in aggravation. Id., at ___–___ (slip op., at 13–16).  The Court remanded to allow the Texas court to evaluate in the first instance whether, in light of the Court’s holding as to deficient performance, Andrus had shown prejudice under Strickland.

On remand, the Court of Criminal Appeals, in a divided 5-to-4 decision, failed to follow this Court’s ruling.  Instead of properly weighing the habeas evidence as a whole, the Texas court concluded that Andrus failed to establish prejudice (and therefore denied habeas relief) based on its disagreement with, and rejection of, the determinations underlying this Court’s holding that Andrus’ counsel had rendered deficient performance.  As a result, the dissenting judges below explained, the Texas court’s opinion was irreconcilable with this Court’s prior decision and barred by vertical stare decisis and the law of the case.

I agree with the dissenting judges below. Andrus’ case cries out for intervention, and it is particularly vital that this Court act when necessary to protect against defiance of its precedents.  The Court, however, denies certiorari. I would summarily reverse, and I respectfully dissent from the Court’s failure to do so.

Oklahoma Attorney General requests execution schedule for 25 death row inmates

Oklahoma, as detailed in this official accounting, has 42 men and one woman on their death row.  And, as reported in this CNN article, the state's Attorney General has now asked for execution dates for more than half of them.  The headline of the CNN piece is "Oklahoma AG requests execution schedule be set for 25 inmates following ruling on lethal injection protocol," and here are excerpts:

Four days after a federal court ruled against death row inmates arguing Oklahoma's lethal injection protocol is cruel and unusual, the state's attorney general asked for more than two dozen executions to be scheduled.

Executions in Oklahoma are scheduled by the state Court of Criminal Appeals.  The motion from Attorney General John O'Connor requests executions take place every four weeks, starting no earlier than late August in order to give the Department of Corrections time to prepare.

Federal judge Stephen P. Friot ruled Monday in a long-running case the state's lethal execution drug combination does not violate the Eighth Amendment guarantee against cruel and unusual punishment.  Attorney Jennifer Moreno told CNN on Tuesday the plaintiffs are considering an appeal, saying the state's protocol "creates an unacceptable risk that prisoners will experience severe pain and suffering."

The attorney general is asking for 25 prisoners to be scheduled for execution.  One prisoner, Wade Greely Lay, is scheduled to have a jury trial next May to determine whether he is competent to be executed, and O'Connor says his execution date should be delayed until after the trial is concluded.

If the Oklahoma Court of Criminal Appeals schedules execution dates along the lines requested by the state AG, there could be executions scheduled in the Sooner State every single month from August 2022 through August 2024. 

Prior recent related post:

• Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol 

Arizona completes its second execution in 2022 for crime committed 35 years prior

As reported in this local article, the "state of Arizona executed Frank Atwood by lethal injection Wednesday at the state prison in Florence. Atwood, 66, was sentenced in 1987 for the kidnapping and murder of an 8-year-old girl in Pima County, Vicki Lynne Hoskinson."  Here is more:

Atwood was the the second man put to death by the state after the botched 2014 execution of Joseph Wood led to court action that resulted in a seven-year moratorium.  “Today marks final justice for our daughter Vicki Lynne.  Our family has waited 37 years, eight months and 22 days for this day to come,” Debbie Carlson, Vicki Lynne's mother, said while choking back tears during the media briefing following the execution. “Vicki was a vibrant little girl with an infectious laugh and a smile that would melt your heart."

Atwood was sedated at 10:10 a.m. and was pronounced dead at 10:16 a.m., media witnesses said....  Approximately 40 people were present during Atwood’s execution — among them Carlson and Rachel Atwood, Frank Atwood’s wife.  According to media witness Bud Foster, Atwood's priest was in the execution room with him — a first for the state. He added that this execution was "probably the most peaceful" he has witnessed.

Clarence Dixon was executed on May 11 for the 1978 murder of Deana Bowdoin, a 21-year-old senior at Arizona State University.

On Wednesday morning, the United States Supreme Court denied Atwood’s request for a stay of execution.  Attorneys for Atwood filed numerous legal challenges alleging both choices for the method of execution — lethal injection or the gas chamber — were unconstitutional, and would cause Atwood an excruciating amount of pain.

Atwood is in a wheelchair and suffered from a spinal condition, and his attorneys said restraining him to a gurney would exacerbate the condition and result in unbearable pain. The state responded to those concerns by agreeing to provide a device that would brace Atwood while on the gurney.

While Atwood proposed the use of nitrogen gas as his preferred method of execution, the courts ruled the Arizona Department of Correction's protocols using cyanide were acceptable, and said Atwood did not have that choice.

Atwood was successful in getting the department to change its policy regarding the presence of spiritual advisers. Atwood converted to become Greek Orthodox while in prison. His spiritual adviser, Father Paisios, told the Arizona Board of Executive Clemency in May that he was certain Atwood had experienced a "complete transformation of life,” and such a conversion cannot be feigned.  Paisios said the authenticity of Atwood's faith was to a degree that he had not seen among hundreds of others who had come to him. He said Atwood “unfailingly followed my instructions" and kept to a daily routine of prayer.

Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol

As reported in this AP article, a "federal judge in Oklahoma on Monday ruled the state’s three-drug lethal injection method is constitutional, paving the way for the state to request execution dates for more than two dozen death row inmates who were plaintiffs in the case."  Here is more from the press report:

Judge Stephen Friot’s ruling followed a six-day federal trial earlier this year in which attorneys for 28 death row inmates argued the first of the three drugs, the sedative midazolam, is not adequate to render an inmate unable to feel pain and creates a risk of severe pain and suffering that violates the U.S. Constitution’s Eighth Amendment prohibiting cruel and unusual punishment.

“The prerequisites of a successful lethal injection challenge under the Eighth Amendment have been made clear by the Supreme Court,” Friot wrote, citing three earlier rulings on the death penalty. He continued: “The plaintiff inmates have fallen well short of clearing the bar set by the Supreme Court.”

Jennifer Moreno, one of the attorneys for the death row inmates, said they are still assessing their options for an appeal to the 10th U.S. Circuit Court of Appeals in Denver. “The district court’s decision ignores the overwhelming evidence presented at trial that Oklahoma’s execution protocol, both as written and as implemented, creates an unacceptable risk that prisoners will experience severe pain and suffering,” Moreno said in a statement.

Oklahoma Attorney General John O’Connor said in a statement that the state effectively proved that both the lethal injection drugs and the state’s execution protocols are constitutional. “The Court’s ruling is definitive: The plaintiffs in this case ‘have fallen well short’ of making their case, and midazolam, as the State has repeatedly shown, ‘can be relied upon … to render the inmate insensate to pain,’” O’Connor said. “My team is reviewing the U.S. District Court’s order further and will make a decision regarding when to request execution dates from the Oklahoma Court of Criminal Appeals.”...

The state has carried out four lethal injections since October that Oklahoma’s former Solicitor General Mithun Mansinghani said during closing arguments “are definitive proof that the protocol works as intended.” Oklahoma resumed lethal injections in October with the execution of John Grant, who convulsed on the gurney and vomited before being declared dead. Since then, three more executions were carried out without noticeable complications.

The 45-page ruling of the federal district court is available at this link.  This ruling serves as yet another example of the extra difficulties that death row prisoners have in prevailing on execution protocol challenges since the Supreme Court's April 2019 ruling in Bucklew v. Precythe,139 S. Ct. 1112 (2019).  And yet, no doubt in part because of the COVID pandemic, there have still been fewer annual average state executions in the three years since Bucklew than in any other period in the last forty years.

"A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment"

Though we are still a full month away from the exact date marking the 50th anniversary of the Supreme Court's landmark Eighth Amendment ruling in Furman v. Georgia, this new article on SSRN (which shares the title of this post) seem like a fitting way to start reflecting on capital punishment.  The article is authored by Mugambi Jouet, and here is its abstract:

Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application.  This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual.

Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court.  The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment.  This is truer of the Furman decision itself than of the way the case was litigated.  Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity.  Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath.  Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman.

Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus.  “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs.  The architect of this strategy was Anthony Amsterdam, a famed litigator.  Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims.  This shift has obscured how a lost chapter in death penalty history unfolded.

These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows.  On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations. 

Justice Breyer pens solo cert denial statement to again express concern with long death row stays

At the end of this short new SCOTUS order list, which is otherwise uneventful, Justice Stephen Breyer has a four-paragraph statement respecting the denial of certiorari in Smith v. Shinn.  In the statement, Justice Breyer continues his (generally solo) lament of long stays on death row.  Here are excerpts:

Joe Clarence Smith was first sentenced to death in 1977, more than 44 years ago....  In 2007, 30 years after Smith was first sentenced to death, he petitioned this Court to review the constitutionality of his death sentence.  He argued that it would be cruel and unusual to execute him after such a lengthy delay.  The Court denied certiorari, and I dissented because I believed that Smith could “reasonably claim that his execution at this late date would be ‘unusual’ . . . particularly when much of the delay at issue seems due to constitutionally defective sentencing proceedings.” Smith v. Arizona, 552 U.S. 985, 986 (2007)....

Smith’s case is now before us for the third time. By now, more than 44 years have passed since his first death sentence. Pet. for Cert. 2.  And he “has spent almost all of [that] time” in solitary confinement, “alone in a cell that . . . measures 86.4 square feet, or roughly the size of a compact parking space.” Id., at 3–4 (footnote omitted).  Smith tells us that only four other prisoners in all of the United States have been on death row longer than he has. Id., at 4–5, and n. 2.

We have said that the uncertainty of waiting in prison under threat of execution for just four weeks is “one of the most horrible feelings to which [a person] can be subjected.” In re Medley, 134 U.S. 160, 172 (1890).  On top of that, “[y]ears on end of near-total isolation exact a terrible price.” Davis v. Ayala, 576 U.S. 257, 289 (2015) (Kennedy, J., concurring). Smith has been subjected to those conditions, not for four weeks, but for four decades.  While I recognize, as I did in 2017, that procedural obstacles make it difficult for us to grant certiorari here, I continue to believe that the excessive length of time that Smith and others have spent on death row awaiting execution raises serious doubts about the constitutionality of the death penalty as it is currently administered.

Will feds consider a capital prosecution of the racist Buffalo mass murderer?

A little less than seven years ago, I asked in this post whether the state of South Carolina or the feds (or both) would capitally prosecute racist mass murderer Dylann Storm Roof after he slaughtered nine people at a historic black church in Charleston.  The feds decided to take the lead pursuing and securing a federal death sentence for Roof, which he is currently appealing to the Supreme Court.

Sadly, this past weekend saw another horrific racist mass murder in Buffalo.  But this time, because New York does not have the death penalty, only the feds are in a position to pursue a capital prosecution.  This local article, headlined "Many paths possible in prosecution of man accused of slaying 10 at Tops," provides this account of the legal lay of the land:

The Erie County District Attorney's Office and federal prosecutors each will have the chance to prosecute the man accused of slaying 10 people and wounding three others in Saturday's hate-inspired attack in a predominantly Black neighborhood in Buffalo.

But there is no definitive answer yet on precisely what that process will look like. Payton S. Gendron, 18, already faces a state charge of first-degree murder for the massacre at the Tops Markets on Jefferson Avenue. Federal authorities have said they are investigating the mass killing "both as a hate crime and racially motivated violent extremism."

While New York State has no death penalty, the federal government does. A decision by federal prosecutors on whether to seek the death penalty is likely months away, according to veteran area defense attorneys.

Gendron can simultaneously face charges in both state and federal court, or one case can proceed before the other. Being charged in both state and federal courts would not violate the constitutional prohibition on "double jeopardy" because both levels of authority have jurisdiction at the same time, said Thomas J. Eoannou, a defense attorney who is not involved in representing Gendron. "The legal process will be very involved," Eoannou said, even though the evidence "appears, at this point, to be overwhelming."

If convicted of first-degree murder in state court, the maximum sentence Gendron faces is life in prison with no possibility of parole.... Gendron currently faces a murder count that encompasses all 10 victims who were killed, and county prosecutors are still evaluating potential options for what he may be charged with, the district attorney said....

It will be "fairly easy" for federal prosecutors to charge Gendron with a hate crime, based on the contents of his racist diatribe and what was written on the gun he used, defense attorney Paul J. Cambria Jr. said....

Some attorneys, including Eoannou and Joseph J. Terranova, said they expect the federal prosecution to happen first. A recent case similar to what happened here, Eoannou said, is that of Dylann Roof, who killed nine people at an historically Black church in Charleston, S.C., in 2015. Roof was first prosecuted federally and received the death penalty. Then he pleaded guilty in state court.

The decision on whether to seek the death penalty would come from U.S. Department of Justice officials in Washington, D.C., and a federal jury's decision to impose the death penalty would have to be unanimous, Eoannou said.

Spotlighting ever longer stays on death row before executions

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

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

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

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

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

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

Arizona completes execution for murder committed 44 years ago

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Science: "Medical groups and drug companies push back"

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"The Return of the Firing Squad?"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And here is how the dissent begins:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few of many prior related posts:

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

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

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

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

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

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

"Dead Right: A Cautionary Capital Punishment Tale"

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

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

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

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

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

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

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