Sentencing Law and Policy

Alabama Attorney General says "there is no moratorium" on executions in the state ... while executions are suspended

Dictionary.com defines a moratorium as "a suspension of activity," and two weeks ago the Governor of Alabama, as noted here, seemed to call for a suspension of executions after the state exeperienced two botched execution efforts.  But, as reported in this new local article, the Attorney General of Alabama is eager to make the case that the suspension of executions in the state is not a moratorium:

Alabama Attorney General Steve Marshall said Monday afternoon that “there is no moratorium” on executions in Alabama, but he will still allow for an efficient review of the state’s execution process. “I stand before you today to be very clear: Insofar as I and my office are concerned, there is no moratorium, nor will there be, on capital punishment in Alabama,” Marshall said.

Gov. Kay Ivey in late November called for the suspension of executions in Alabama for a “top-to-bottom review” after prison staff failed to complete a second straight execution. Marshall indicated that he won’t request any new execution dates before Ivey’s office carries out its review, so long as it doesn’t cause an “unreasonable” delay.

“What I want to make sure is … that we’ve given [Ivey] an opportunity to do this review, … to make sure that I hear from her that there is confidence that we have the ability to execute,” Marshall said. “…I’m also sitting here telling you that we’re not going to stand very long in a delay.” Ivey's spokesperson, Gina Maiola, said “discussions have already begun” regarding the review of the Alabama Department of Corrections' execution process. Marshall added that he has not spoken with Ivey directly, but that he is “looking forward to [their] conversation.”

There are no pending execution dates before the Alabama Supreme Court and no scheduled executions in Alabama, Marshall said. Marshall’s office solely has power to request an execution date from the Alabama Supreme Court.

On Nov. 17, officials called off the execution of Kenneth Eugene Smith as staff was unable to set the necessary IV lines for the lethal injection. Alan Miller’s execution was similarly called off just two months before because of issues finding a vein. Marshall blamed the failure to carry out the executions on Smith and Miller for filing federal court challenges to their death sentences that were not resolved until as late as 10 p.m. of the day of their scheduled executions....

Alabama has since reached an agreement to not attempt a second lethal injection on Miller, but it may use nitrogen gas to execute him in the future. The state still does not have a protocol in place for the untried method that was approved in 2018, but Marshall said the state is in the “final stages” of developing it.

A few prior related posts:

• Alabama unable to complete execution becuase of lethal injection difficulties
• After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state 

Elaboration of dissent from SCOTUS denial of stay before Missouri execution

I flagged in this post the notable pre-execution litigation in Missouri before the execution of Kevin Johnson on Tuesday evening.  A helpful colleague made sure I did not miss this four-page opinion, released yesterday and authored by Justic Jackson and joined by Justice Sotomayor, dissenting from the Supreme Court's denial of the application for a stay.  Here is how it begins and a key paragraph within:

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty.  Now, one day later, I write to explain my vote to grant his stay request.  For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay.  I also believe that the equities weighed in Johnson’s favor....

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures.  But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion.  In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.03 motion amounted to a Fourteenth Amendment violation.

Prior related posts:

• Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques" 
• Missouri completes execution after SCOTUS rejects final stay appeal 

Missouri completes execution after SCOTUS rejects final stay appeal

As reported in this NBC News piece, a "Missouri inmate convicted of ambushing and killing a St. Louis-area police officer he blamed for the death of his younger brother was executed Tuesday, officials said." Here is more:

Kevin Johnson, 37, was put to death by lethal injection at the state prison in Bonne Terre. The execution began at 7:29 p.m., and Johnson was pronounced dead at 7:40 p.m., said Karen Pojmann, a spokesperson for the Missouri Department of Corrections....

Johnson had admitted to shooting and killing Kirkwood Police Sgt. William McEntee in 2005. Johnson was 19 at the time.

Edward Keenan, a court-appointed special prosecutor, had sought to vacate his death sentence. Keenan argued in an appeal to the Missouri Supreme Court that Johnson's trial was "infected" with racist prosecution techniques and that racial discrimination played a part in his receiving the death penalty. One of Johnson’s attorneys, Shawn Nolan, said, “Make no mistake about it, Missouri capitally prosecuted, sentenced to death, and killed Kevin because he is Black.”

Johnson was executed after the U.S. Supreme Court denied a request for a stay Tuesday evening. Justices Sonia Sotomayor and Ketanji Brown Jackson would have granted it, court records show....

Mary McEntee, the slain officer’s widow, said Tuesday that her husband was executed on July 5, 2005, when he was “ambushed and shot five times in his police car.” He was then shot twice more, she said. “During this process, many have forgot Bill was the victim,” Mary McEntee said Tuesday night. “We miss Bill every day of our lives.”...

On July 5, 2005, police were searching for Johnson, who was on probation for assaulting his girlfriend. Police believed he had violated probation. McEntee was among the officers sent to Johnson's home. Johnson's 12-year-old brother, who had a congenital heart defect, ran next door to his grandmother's house, where he suffered a seizure. He died at the hospital. Johnson testified at trial that McEntee kept his mother from entering the house to aid his brother. According to Johnson, that same evening he encountered McEntee when he returned to his neighborhood for an unrelated call about a fireworks disturbance. Johnson shot McEntee several times and fled, according to prosecutors. He turned himself in three days later....

Johnson's daughter, Khorry Ramey, 19, had sought to witness the execution, but a state law prohibits anyone younger than 21 from observing the process. The American Civil Liberties Union filed a lawsuit last week asking a federal court to allow her to attend her father's execution, but a judge ruled Friday that a state law barring her from being present because of her age was constitutional....

McEntee had three children, ages 7, 10 and 13, when he was killed, his widow said Tuesday night after the execution. “They didn’t have a chance to say goodbye,” Mary McEntee said. “It took 17 years of grieving and pushing forward to get to this point today. This is something I hope no other family has to go through.”

This SCOTUSblog post,  titled "Court green-lights execution of Missouri man who presented evidence of racist prosecutor," discusses a bit more fully the issues that were brought to and rejected by SCOTUS prior to the execution.  And this execution marked the fifth execution carried out by state officials in the United States in November.  According to Death Penalty Information Center data, this is the most executions carried out by state official in one month in the US since January 2015.

Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques"

As detailed in this local article, the Missouri Supreme Court "held an expedited hearing Monday to hear oral arguments for two motions to stay [Kevin] Johnson’s execution, in order to hold a hearing on alleged constitutional violations in his original trial." This last minute litigation, before an execution scheudled for Tuesday afternoon, is especially interesting because of who is seeking a stay and on what grounds:

One of the motions came from Edward Keenan, who is the special prosecutor the St. Louis County Circuit Court appointed in October to review Johnson’s conviction. “All parties can agree that the timing here is less than ideal, but we’re at where we’re at,” Keenan told the Supreme Court judges Monday....

During the hearing, Keenan said he found evidence of unconstitutional racial discrimination behind then-St. Louis County Prosecuting Attorney Robert McCulloch’s prosecution in Johnson’s 2007 trial, after reviewing more than 30,000 pages and contacting witnesses.

State law is “crystal clear,” Keenan argued, that he must be allowed to present this evidence before a judge at a hearing.  A state law enacted last year gave prosecutors the authority to file motions to set aside convictions in cases where a person may be innocent or may have been erroneously convicted.  Once the motions are filed, judges are required by law to hold hearings to review the evidence. 

On Nov. 15, Keenan filed a motion to set aside Johnson’s judgment and hold a new trial.  Within 12 hours, St. Louis County Presiding Judge Mary Elizabeth Ott, who had appointed Keenan to review the case, denied the motion without holding a hearing. With only six working days before Johnson’s execution, Ott said the motion put the court in “untenable position.”  State law requires a hearing, Ott wrote in a Nov. 19 order, but the court “is also aware of the requirement that sufficient time for all parties to prepare and present evidence at such hearing is essential to its proper function.”

Both Keenan and Johnson’s attorneys then filed motions to stay the execution, in order to allow the St. Louis County Court time to hold an evidentiary hearing.  “The special prosecutor represents the state,” said Joseph Luby, Johnson’s attorney, at the Monday hearing.  “And at the very least, the special prosecutor’s acknowledgement of racial bias needs to be fully aired at an evidentiary hearing, and that cannot happen if the state is allowed to kill Mr. Johnson tomorrow.”  A hearing will also allow Keenan to depose McCulloch, who has not cooperated with Keenan’s investigation, Luby said.

The attorney general’s office argued Monday the Missouri Supreme Court should continue with Johnson’s scheduled execution.  “It’s a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and a fair jury determined he deserved death penalty,” said Andrew Crane, who represented the attorney general’s office.  “And the rest of what we’re talking about is just the special prosecutor’s complaints about the way Bob McCulloch charged cases.”

When Johnson was 19, he was charged with first degree murder for the killing of Sgt. William McEntee of the Kirkwood Police Department on July 5, 2005.  The first trial ended when the jury deadlocked 10-2 in favor of a conviction on the lesser offense of second degree murder.  However, a second jury convicted Johnson of first degree murder and sentenced him to death in 2007.  Johnson admitted to killing McEntee, who Johnson believed had been involved in the death of his then 12-year-old brother.

Johnson has been denied relief at every available avenue, including previous proceedings before the Missouri Supreme Court.  Crane argued the new state law was not intended to allow a circuit court judge to overturn claims of racial bias that the state’s highest court had already ruled on.  However, Keenan said there have been U.S. Supreme Court rulings since the state court reviewed Johnson’s claims that may change the outcome – including a 2019 ruling that a prosecutor’s behavior in other cases “both may and must be considered.”

On Dec. 1, 2021, Johnson asked St. Louis County Prosecuting Attorney Wesley Bell’s Conviction and Incident Review Unit, which reviews potential wrongful convictions cases, to look into possible discrimination in his case.  Johnson’s former defender is now part of Bell’s conviction review unit, creating a conflict of interest, so they asked the court to appoint a special prosecutor.

Of the five police-officer killings McCulloch prosecuted during his tenure, Kennan found that McCulloch pursued the death penalty against four Black defendants but not against the one white defendant, Trenton Forster.  Keenan also discovered an “incriminating memorandum” from the trial team’s materials, showing the prosecutors strategized in advance of the trial on ways to get Black jurors stricken by the trial judge.

Crane said Monday that the memo “tells us nothing” about what was going on in McCulloch’s mind and doesn’t change anything about Johnson’s previous appellate claims.  Crane also argued the state law doesn’t require Johnson to get a hearing before he dies.

Chris Geidner at Law Dork has effective coverage of this notable case under the headline "Missouri wants to kill Kevin Johnson regardless of pending claims that racism underlies his death sentence." Here is how this piece gets started:

Missouri wants to kill Kevin Johnson on Tuesday.

Under a state law that went into effect last year aimed at providing a means to address past flawed prosecutions and convictions, however, a special prosecutor has found “that racist prosecution techniques infected Mr. Johnson’s conviction and death sentence.” Among other concerns, the special prosecutor found that race motivated the original prosecutor’s decision to seek the death penalty in Johnson’s case.

Nonetheless, Missouri Assistant Attorney General Andrew Crane, representing the state AG’s Office at the Missouri Supreme Court on Monday, argued that the special prosecutor’s claims couldn’t succeed under state and federal precedent and/or were irrelevant. Regardless, Crane said, the state shouldn’t have to wait on those claims to be resolved before they kill Johnson.

“The fact of the matter is that cases can be pending while an execution proceeds,” Crane told the court on Monday.

UPDATE: Late Monday night, the Missouri Supreme Court issued this per curiam opinion that begins this way:

Kevin Johnson was found guilty of first-degree murder and sentenced to death. His execution is scheduled for November 29, 2022.  This matter comes before the Court on two motions – one by Johnson and one by the Special Prosecutor – to stay Johnson’s execution.  Neither Johnson nor the Special Prosecutor claims Johnson is actually innocent. Instead, Johnson relies on the claims of “constitutional error” asserted by the Special Prosecutor in his motion to vacate Johnson’s conviction under section 547.031.  This Court has heard and rejected those claims before, however, and nothing asserted by the Special Prosecutor materially alters those claims or establishes any likelihood he would succeed on them if that case were to be remanded for a hearing as he claims it should be.  Accordingly, both motions to stay Johnson’s execution are overruled.

Two of the seven Justices on the Missouri Supreme Court dissented, via a lengthy opinion authored by Justice Breckenridge that started this way:

I respectfully dissent from the principal opinion that declines to exercise the Court’s equitable power to stay Kevin Johnson’s execution to allow, as provided for in section 547.031,1 adjudication of the motion filed by the special prosecutor of St. Louis County seeking to vacate Mr. Johnson’s conviction for the racially biased decision-making of the trial prosecuting attorney.  A stay is warranted under the standard the United States Supreme Court employs, and granting a stay of execution is the only way to afford to the special prosecutor and Mr. Johnson the mandatory process section 547.031 requires in these circumstances.  The proper application of legal principles to the circumstances presented by the special prosecutor’s motion to stay Mr. Johnson’s execution should lead to the issuance of a stay of execution.

After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state

As reported in this local article, "Alabama Gov. Kay Ivey has ordered a halt to executions in the state after two failed attempts at lethal injections, calling for a 'top-to-bottom' review of the process."  Here is more:

The announcement came in the form of a press release sent Monday morning. According to the press release, the governor asked Alabama Attorney General Steve Marshall to withdraw the state’s two pending motions in the Alabama Supreme Court to set executions for Alan Eugene Miller and James Edward Barber.

“Working in conjunction with Alabama Department of Corrections Commissioner John Hamm, Governor Ivey is asking that the Department of Corrections undertake a top-to-bottom review of the state’s execution process, and how to ensure the state can successfully deliver justice going forward,” the press release stated.

Ivey also asked the Alabama AG’s office to not seek additional execution dates for any other Alabama Death Row inmates until the review is complete. No timeline was provided. A spokesperson for the Alabama AG’s office said Marshall will ”have more to say on this at a later date.”

Miller was set to be executed on Sept. 22, but survived after prison workers couldn’t find a vein to start the intravenous line needed for the three-drug lethal injection cocktail before the death warrant expired at midnight. Kenneth Eugene Smith, who was set to die Nov. 17, experienced a similar situation and also survived after officials couldn’t start an IV.

A federal judge has ordered the ADOC must preserve evidence from both failed execution attempts.

“For the sake of the victims and their families, we’ve got to get this right. I don’t buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here,” Ivey said in the statement. “I will commit all necessary support and resources to the Department to ensure those guilty of perpetrating the most heinous crimes in our society receive their just punishment. I simply cannot, in good conscience, bring another victim’s family to Holman looking for justice and closure, until I am confident that we can carry out the legal sentence.”

Hamm also made a statement, which was sent alongside the governor’s. “I agree with Governor Ivey that we have to get this right for the victims’ sake. Everything is on the table – from our legal strategy in dealing with last minute appeals, to how we train and prepare, to the order and timing of events on execution day, to the personnel and equipment involved. The Alabama Department of Corrections is fully committed to this effort and confident that we can get this done right.”...

The Southern Poverty Law Center, Alabama Arise, and Project Hope to Abolish the Death Penalty sent a joint statement applauding the decision. After the July execution of Joe Nathan James Jr., the groups launched a campaign called “Pull Back the Curtains” to call for transparency in the execution process.

“The ‘Pull Back The Curtains’ campaign references the fact that corrections workers are starting the execution process without public scrutiny. Every government program, especially executions, should be transparent from the start,” the groups said in a statement. “We are relieved that there will be a review, and dismayed that our state won’t simply throw out this archaic and unnecessary punishment. Among other things, at a minimum this review should assess the toll taken on corrections workers & establish PTSD support for tortured prisoners and corrections officers alike.”

Nebraska Supreme Court upholds constitutionality of judges imposing death sentences after jury fact-finding

I just recently saw an interesting and lengthy new ruling from the Nebraska Supreme Court rejecting an array of procedural challenges to the state's capital sentencing scheme. Here is how the unanimous 60+ page opinon in State v. Trail, 312 Neb. 843 (Neb. Nov. 10, 2022) (available here), gets started:

The defendant was convicted by a jury of murder in the first degree and criminal conspiracy to commit first degree murder.  He was also convicted, pursuant to a plea, of improper disposal of human skeletal remains.  A three-judge panel sentenced the defendant to death.  The defendant asserts on appeal that the three-judge panel erred in determining the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Alternatively, he argues Nebraska’s death penalty scheme is unconstitutional because it allows a panel of judges rather than a jury to make findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it creates a conviction-prone jury.  Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy and murder charges, the court’s release of the victim’s mother from sequestration after she testified, the denial of his motion for a mistrial after a verbal outburst and act of self-harm in front of the jury, and the denial of a motion for a new trial after evidence was submitted allegedly demonstrating the selfharm would not have occurred but for the alleged misconduct of jail staff.  We affirm.

Here are a few passages from near the end of this Trail opinion summarizing its constitutional conclusions:

In several cases, we have rejected the argument that because the right to a jury determination is limited to guilt or innocence of the crimes charged and the determination of the aggravating circumstances, Nebraska’s sentencing scheme is unconstitutional under the 6th and 14th Amendments to the U.S. Constitution and article I, §§ 3 and 6, of the Nebraska Constitution.  In State v. Gales, we explained that Apprendi and Ring do not stand for the proposition that a jury, rather than a judge or judges, must make the sentencing determinations listed under § 29-2522.  Rather, Apprendi and Ring affected only the narrow issue of whether there is a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital sentence is based....  By leaving to the three-judge panel the ultimate lifeor-death decision upon making the selection decisions of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or article I, § 6, of the Nebraska Constitution.....

In State v. Mata, we rejected the defendant’s argument that a system wherein a three-judge panel weighs the aggravating and mitigating circumstances without guidance from the jury is arbitrary and capricious under the 8th and 14th Amendments.  In State v. Hessler,  we rejected the defendant’s argument under the Eighth Amendment that a sentencing panel is not in as good of a position as the jury to assign a weight to the aggravating circumstances, to weigh aggravating circumstances against mitigating circumstances, or to determine the sentence. While Trail’s 8th Amendment arguments are somewhat different from those addressed in Mata and Hessler, he presents no reason to depart from our holdings in those cases that Nebraska’s statutory scheme, delegating to the three-judge panel determinations of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, does not violate the 8th and 14th Amendments to the U.S. Constitution or article I, § 9, of the Nebraska Constitution.

Alabama unable to complete execution becuase of lethal injection difficulties

As reported in this AP piece, "Alabama’s execution of a man convicted in the 1988 murder-for-hire slaying of a preacher’s wife was called off Thursday just before the midnight deadline because state officials couldn’t find a suitable vein to inject the lethal drugs."  Here is more:

Alabama Department of Corrections Commissioner John Hamm said prison staff tried for about an hour to get the two required intravenous lines connected to Kenneth Eugene Smith, 57. Hamm said they established one line but were unsuccessful with a second line after trying several locations on Smith’s body. Officials then tried a central line, which involves a catheter placed into a large vein.

“We were not able to have time to complete that, so we called off the execution,” Hamm said.

It is the second execution since September the state has canceled because of difficulties with establishing an IV line with a deadline looming.

The U.S. Supreme Court cleared the way for Smith’s execution when at about 10:20 p.m. it lifted a stay issued earlier in the evening by the 11th U.S Circuit Court of Appeals. But the state decided about an hour later that the lethal injection would not happen that evening.

The postponement came after Smith’s final appeals focused on problems with intravenous lines at Alabama’s last two scheduled lethal injections. Because the death warrant expired at midnight, the state must go back to court to seek a new execution date. Smith was returned to his regular cell on death row, a prison spokesperson said.

Oklahoma completes execution for man who killed three-year-old child nearly 30 years ago

As reported in this AP article, "Oklahoma executed a man Thursday for the torture slaying of his girlfriend’s 3-year-old son in 1993."  Here is more:

Richard Stephen Fairchild, who turned 63 on Thursday, began receiving the first of a lethal three-drug combination at 10:10 a.m. at the Oklahoma State Penitentiary in McAlester. He was declared dead at 10:24 a.m.

Fairchild, an ex-Marine, was convicted of killing Adam Broomhall after the child wet the bed. Prosecutors say Fairchild held both sides of Adam’s body against a scorching furnace, then threw him into a table. The child never regained consciousness and died later that day.

Strapped to a gurney inside the death chamber, Fairchild thanked his attorneys and prison staff and apologized to Broomhall's family. “Today's a day for Adam, justice for Adam," Fairchild said....

Michael Hurst, the slain child's uncle, said the boy would have been 34. “Our long journey for justice has finally arrived," Hurst said, adding that he was surprised to hear Fairchild express remorse for killing his nephew. “He hadn't said that in 30 years.”

Prosecutors from the Oklahoma attorney general's office had described the boy's killing as torture when they wrote to the state's Pardon and Parole Board, which voted 4-1 last month against recommending clemency for Fairchild.

Fairchild's execution was the seventh since Oklahoma resumed carrying out the death penalty in October 2021 and one of four scheduled nationwide over a two-day stretch. It was the 16th execution in the U.S. this year, including one in Texas and one in Arizona on Wednesday, up from last year’s three-decade low of 11. An execution was also scheduled for later Thursday in Alabama. Oklahoma's attorney general this summer asked the state's top criminal appeals court to set more than two dozen execution dates.

Texas stuggles a bit as it completes its fifth and final execution in 2022

As reported in this local article, headlined "Texas’ execution of Stephen Barbee was prolonged while officials searched for a vein," an execution in Texas tonight was a bit more of a struggle than usual. Here are the details:

Texas’ execution of Stephen Barbee Wednesday evening was prolonged while prison officials searched for a vein in the disabled man’s body, according to a prison spokesperson.

Barbee, convicted in the 2005 murders of his pregnant ex-girlfriend and her child, had severe joint deterioration which prohibited him from straightening his arms or laying them flat, according to court records. His attorney had recently tried to halt his execution because he feared the process with Barbee’s disability would result in “torture.”

But courts rejected the appeals, noting that prison officials had vowed to make special adjustments to the death chamber’s gurney to accommodate Barbee. Still, it took much more time to carry out the execution than is typical in Texas. Reporters walked into the prison around 6 p.m., signaling the execution was about to begin. But for an hour and 40 minutes, no one came back out, causing anti-death-penalty protesters outside to grow worried that something had gone wrong. It is uncommon for executions to last more than an hour. “Due to his inability to extend his arms, it took longer to ensure he had functional IV lines,” prison spokesperson Amanda Hernandez said in an email Wednesday night.

Barbee was pronounced dead at 7:35 p.m., nearly an hour and a half after he was strapped into the death chamber’s gurney, according to the prison’s execution record. Within minutes of being strapped on the gurney, an IV was inserted into his right hand, at 6:14 p.m., but it took another 35 minutes for an additional line to begin flowing in the left side of his neck. All the while, his friends watched through a glass pane adjacent to the chamber, according to a prison witness list. So did the friends of the murder victims — Lisa Underwood and her 7-year-old son Jayden — as well as Underwood’s mother....

Hours before the prisoner’s scheduled death, Barbee’s execution was paused as courts battled once again over the state’s handling of the prisoner’s religious rights in the death chamber. Federal courts this month went back and forth over Texas’ execution policy and the findings of multiple U.S. Supreme Court rulings largely requiring the state to allow prisoners’ religious advisers to audibly pray and touch them in their final moments. On Tuesday, a district judge essentially halted Barbee’s pending execution, stating Texas’ prison system can only kill the death row prisoner after creating and adopting a new execution policy that clearly lays out his final religious rights. But after the federal appellate court and the U.S. Supreme Court both ruled in favor of the state early Wednesday afternoon, Barbee’s execution was put back on track.

Arizona completes execution of man convited of committing a double murder 42 years ago

As report in this AP piece, an "Arizona man convicted of murdering two people in 1980 was put to death Wednesday in the state's third execution since officials started carrying out the death penalty in May after a nearly eight-year hiatus." Here is more:

Murray Hooper, 76, died by lethal injection at the state prison in Florence for his murder convictions in the killings of William "Pat" Redmond and his mother-in-law, Helen Phelps, at Redmond's home in Phoenix.  Redmond's wife, Marilyn, also was shot in the head during the attack but survived and testified against Hooper at his trial....

Hooper was executed within a couple hours of the U.S. Supreme Court rejecting his last-minute appeal.  Hooper's lawyers had asked the Supreme Court to review his claim that that authorities had until recently withheld that Marilyn Redmond had failed to identify him in a photo lineup.  The high court made no comment in the rejection. His appeal was brought to the high court after the Arizona Supreme Court ruled to allow Hooper's execution to proceed in October.

Authorities say the killings were carried out at the behest of a man who wanted to take over Redmond's printing business. Hooper has maintained that he is innocent for four decades and suggested he was framed for the crimes.  Kelly Culshaw, an assistant federal public defender representing Hooper, said in a statement last month that he was sentenced and convicted "based on corrupt police practices and unreliable witness testimony."...

The courts rebuffed attempts by Hooper's lawyers to postpone the execution and order fingerprint and DNA testing on evidence from the killings. But his lawyers said Hooper is innocent, that no physical evidence ties him to the killings and that testing could lead to identifying those responsible.  They say Hooper was convicted before computerized fingerprint systems and DNA testing were available in criminal cases....

Authorities say Hooper and two other men forced their way into the Redmond home on Dec. 31, 1980.  The three victims were bound, gagged, robbed and shot in the head.  Two other men, William Bracy and Edward McCall, were convicted in the killings but died before their death sentences could be carried out....

Arizona did not carry out the death penalty for nearly eight years after criticism that a 2014 execution was botched and because it encountered difficulty obtaining lethal injection drugs.  No other executions are currently scheduled in the state.  Arizona now has 110 people on death row, 22 of whom have exhausted their appeals, according to the state attorney general's office.

Latest Gallup polling highlights "Steady 55% of Americans Support Death Penalty for Murderers"

The quoted portion of the title of this post is the title of this recent Gallup report on its latest polling on opinions regarding the death penalty.  Here are excerpts:

The majority of Americans, 55%, are in favor of the death penalty for convicted murderers in the U.S. While this marks the sixth consecutive year that support for capital punishment is between 54% and 56%, it is below the 60% to 80% readings recorded in the four prior decades between 1976 and 2016.

When Gallup initiated this measure in 1936, 59% of U.S. adults favored the death penalty for convicted murderers -- and majorities have supported it since then, with the exception of several readings taken between 1957 and March 1972, including the record-low 42% in 1966.

After the U.S. Supreme Court ruled the death penalty unconstitutional in June 1972, majorities continued to back it. When it was reinstated in 1976, public support for it grew until it peaked at 80% in 1994. At least 60% of U.S. adults favored capital punishment until 2017, when support dipped to the lowest point since 1972, and today it remains at that level.

The latest findings are from an Oct. 3-20 Gallup poll that was conducted during the trial of the gunman who murdered 17 people at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018.  On Oct. 13, the jury in the highly publicized trial spared him the death penalty and instead sentenced him to prison for the rest of his life. The decision was met with disappointment from many of the victims' families, who thought the gunman should be put to death.

Partisans' views of the death penalty differ sharply, with majorities of Republicans (77%) and independents (54%) favoring it but a majority of Democrats opposed (63%) and 35% in favor.

Since 2000, when Gallup began tracking the measure annually in its Crime survey, Republicans' support has been the most consistent. No less than 72% of Republicans have been in favor of the death penalty, and the latest reading is not statistically different from the 2000 reading of 80%.

Over the same period, independents' support has been as high as 68% and has only once fallen below the majority level (to 49% in 2020). The current reading is down 14 percentage points compared with 2000.

Democrats' support for capital punishment has not been at the majority level since 2012 and has varied the most of the three party groups, ranging from 34% to 65% since 2000. Democrats' latest reading is essentially unchanged from last year's record low for them and is 21 points lower than the 2000 reading.

Three Justices dissent from the denial of cert in Ohio capital case reversed by Sixth Circuit

This morning's Supreme Court order list is most notable for a 14-page dissent from the denial of cert in a capital case from Ohio, Shoop v. Cunningham.  The dissent was authored by Justice Thomas and joined by Justices Alito and Gorsuch.  Here is how it gets started:

In 2002, respondent Jeronique Cunningham concluded an armed robbery of his drug dealer with a spray of bullets that killed a teenager and a toddler.  An Ohio jury convicted him of capital murder, and the trial court sentenced him to death.  Twenty years later, the Sixth Circuit ordered an evidentiary hearing to determine whether the foreperson’s presence on the jury deprived Cunningham of due process — either because the foreperson received prejudicial outside information about Cunningham or because she was biased by an undisclosed relationship with the victims’ families.  In analyzing the first claim, the Sixth Circuit once again flouted the deferential standard of review demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  In analyzing the second claim, the Sixth Circuit applied an incorrect framework to justify a fishing expedition based on allegations with no admissible factual foundation.

To correct these manifest abuses of the Sixth Circuit’s habeas jurisdiction, I would grant Ohio’s petition and summarily reverse the judgment below.  Therefore, I respectfully dissent from denial of certiorari.

Texas completes its fouth execution in 2022

As reported in this local artcle, Texas "executed Tracy Beatty on Wednesday evening for murdering his mother in East Texas in 2003."  Here are some of the backstory:

Beatty, 61, was found guilty of fatally strangling Carolyn Click at the end of a violent and tumultuous relationship. Although his attorneys acknowledge Beatty killed his mother, they contended the crime didn’t qualify for the death penalty.

Lethal drugs were injected into Beatty at 6:22 p.m. Wednesday inside the state’s Huntsville Unit, and he was declared dead 17 minutes later, according to the Texas Department of Criminal Justice....

Although Beatty gave several versions of what happened in his 62-year-old mother’s death, according to court records, he ultimately told police that he came home drunk, the pair started fighting and he choked her. He said he didn’t realize Click was dead until the next day.

But Beatty was found guilty of capital murder because prosecutors argued he killed his mother during a home burglary, entering without her consent, even though he lived with Click at the time. A neighbor testified that Click had told her the day she was last seen that she had told her son that day to move out after a fight....

Beatty had been released from prison on parole months before Click’s death. Prosecutors at trial listed a slew of his previous criminal charges, including injuring a prison guard and assaulting an 18-month-old child....

Neither the Supreme Court nor Texas Gov. Greg Abbott intervened in Beatty’s execution. It was the state’s fourth execution of the year. Seven others are scheduled in Texas through September.

New DPIC analysis finds "murder rates during the pandemic were highest in states with the death penalty"

The Death Penalty Information Center has posted this notable new review of murder data under the heading "DPIC Analysis: Pandemic Murder Rates Highest in Death Penalty States." I recoemmend the full posting, and here are excerpts (with links and the chart from the original, footnotes removed):

A DPIC analysis of 2020 U.S. homicide data has found that murder rates during the pandemic were highest in states with the death penalty and lowest in long-time abolitionist states.

DPIC reviewed the 2020 murder data compiled by the center-left think tank The Third Way for its March 2022 report, The Red State Murder Problem.  Then, taking the analysis out of the realm of politics and into the context of public policy, DPIC compared the data to states’ death-penalty status and historic usage of the death penalty.  That analysis found that pandemic murder rates generally correlated not just with the presence or absence of the death penalty in a state but with the states’ general level of death-penalty usage.

The data show that nine of the ten states with the highest pandemic murder rates — ranging from 9.9 to 20.5 murders per 10,000 residents — are death penalty states. On the other hand, eight of the eleven states with the lowest pandemic murder rates — ranging from 0.88 to 3.49 murders per 10,000 residents — had abolished the death penalty. DPIC found that the three death penalty states with the lowest pandemic murder rates — all 2.89 murders per 10,000 residents — have not carried out an execution in more than a decade, and one had a gubernatorial moratorium on executions.

Murder rates in the mostly high death-penalty usage, high pandemic-murder-rate states ranged from roughly triple to 23 times higher than in the mostly no death penalty, low pandemic-murder-rate states.

More than half of all death penalty states (14 of 27) had murder pandemic murder rates of at least 7.00 per 100,000 residents, and 30 percent (8 states) had pandemic murder rates of 10.29 per 100,000 residents or higher. By contrast, nearly two-thirds of the states that had abolished the death penalty (15 of 23) had pandemic murder rates of 5.14 or less per 100,000 residents, more than a third (8 states) had pandemic murder rates below 3.5 murders per 100,000 residents....

DPIC’s review of The Third Way pandemic murder data found that 15 of the 20 states with the highest pandemic murder rates are death penalty states, of which 12 have carried out 20 or more executions each in the past half century. Collectively, these 12 states have accounted for more than three quarters of all executions in the U.S. since the 1970s.

At the other end of the spectrum, none of the 23 states with the lowest pandemic murder rates are historically heavy users of capital punishment. Fifteen had abolished the death penalty, including nine who had not had the death penalty at any time during the 21st century.  The eight death penalty states with the lowest pandemic murder rates include two with moratoria on executions, six who have executed five or fewer people in the past half century, one that has carried out seven executions, and six who have not executed anyone in more than a decade.

Twenty U.S. states have carried out ten or more executions in the past half-century.  All of them, including three who have since abolished the death penalty, are among the 28 states with the highest pandemic murder rates.

Are there going to be five executions in four US states over the next ten days?

The question in the title of this post is prompted by my quick look this morning at the "Upcoming Executions" page over at the Death Penalty Information Center.   That page shows that Texas has two executions scheduled, and Alabama, Arizona and Oklahoma each have one execution scheduled, between November 9 and November 17.  If all five of these executions go forward, it will be the most executions completed in the US within such a short period of time in a decade.  (In 2012, between November 6 and 15, Texas completed three executions and Ohio and Oklahoma also completed one execution.)

So many executions in a short period would be a pretty dramatic break from recent norms throughout the US.  Since roughly the start of the pandemic, the US has averaged only about one execution per month as various states have continued to have various difficulties with converting death sentences into completed executions.  Even before COVID hit, the US averaged only about two executions per month when President Trump was in office and less than four executions per month during President Obama's years in the oval office. (About seven executions per month was the national average during President Clinton's second term, and around five per month was the national norm for most of President Bush's two terms).

With all the recent political discussions about crime and crime policy, I have been a bit surprised that we have not seen a significant uptick in chatter about capital punishment polcies and practices this election season.  But it does seem we may be on the verge of an uptick in the number of executions this November.

UPDATE:  I just saw this notable new Salon commentary by Austin Sarat headlined "Crime is a hot issue, but even Republicans don't talk about the death penalty: That's good news."  I recommend the full extended piece, and here are a few excerpts:

In the past, politicians at every level responded to public concerns about crime with law-and-order campaigns in which promises to bring back or enforce the death penalty featured prominently....

Throughout the late 20th and early 21st centuries, death-penalty ballot measures have been used as tools of partisan and political advantage, largely to increase turnout among a targeted portion of the electorate in order to benefit "law and order" candidates.

But not this year.

Only in Alabama will voters be asked to decide on a death-penalty ballot measure. It would "require the governor to provide notice to the attorney general and make reasonable efforts to notify a designated family member of a victim before granting a commutation (a reduced sentence such as life imprisonment) or reprieve (temporary stay of execution) of a death sentence." ...

But in campaigns up and down the ballot, even as conservative candidates have accused their opponents of being soft on crime and promised robust anti-crime measures, Republican gubernatorial candidates in Arizona, Georgia, New York and Oklahoma have said little or nothing about the death penalty....

Whatever the verdict delivered by voters this week may be, the relative invisibility of the death penalty in this year's political campaigns is a clear sign of the progress abolitionists have made in changing the national temperature on that issue.

Three notable dissents from denials of cert in criminal case on latest SCOTUS order list

The Supreme Court this morning released this 54-page(!) order list, and nearly 50 pages are comprised of dissents from the denial of cert by a handful of justices in five distinct cases. Here is a (too brief) accounting of the three criminal cases in this number:

In Anthony v. Louisiana, Justice Sotomayor dissents from the denial of certiorari, joined by Justice Jackson, and her 15-page dissent concludes this way:

Our criminal justice system holds prosecutors to a high standard. The prosecutor is “the representative not of an ordinary party to a controversy, but of a sovereignty.” Berger, 295 U. S., at 88.  From that special role, “improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Ibid....

These principles demand careful scrutiny of the rare cases in which a prosecutor takes the stand as a sworn witness in a jury trial.  Because this case presents one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct, I respectfully dissent from the Court’s refusal to issue a summary reversal.

in In Khorrami v. Arizona, Justice Gorsuch dissents from the denial of certiorari (which was not joined by Justice Kavanaugh, though he did indicate he would grant the petition).  His 10-page dissent starts and concludes this way:

The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury.  On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U.S. Constitution guarantee individuals like him a trial before 12 members of the community....

For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.  In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law.  That mistake continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable.  Today’s case presented us with an opportunity to correct the error and admit what we know the law is and has always been.  Respectfully, we should have done just that.

In Chinn v. Shoop, Justice Jackson dissents from the denial of certiorari, joined by Justice Sotomayor, and her 2-page dissent starts and concludes this way:

This is a capital case involving a violation of Brady v. Maryland, 373 U.S. 83 (1963). There is no dispute that, during the capital trial of petitioner Davel Chinn, the State suppressed exculpatory evidence indicating that the State’s key witness, Marvin Washington, had an intellectual disability that may have affected Washington’s ability to remember, perceive fact from fiction, and testify accurately....

Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, see Harrington v. Richter, 562 U.S. 86, 112 (2011), I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.

Oklahoma Gov extends execution stay for Richard Glossip as courts still consider innocence claim

As reported in this AP piece, "Oklahoma Gov. Kevin Stitt granted another temporary reprieve to death row inmate Richard Glossip, pushing his scheduled execution back until February 2023 so that an appeals court has more time to consider his claim of innocence."  Here is more:

Stitt, who is locked in a tough reelection contest, issued an executive order on Wednesday that delays Glossip’s execution, which was scheduled for Nov. 21. Stitt’s office didn’t immediately respond to a request for comment. A clemency hearing for Glossip that was scheduled before the Oklahoma Pardon and Parole Board next week also will be delayed.

Glossip received the death penalty for the 1997 murder-for-hire killing of his boss, motel owner Barry Van Treese. Prosecutors acknowledge Glossip did not kill Van Treese, but maintain that he paid the hotel maintenance man, Justin Sneed, to do it. Sneed, who received a life sentence but was spared the death penalty, was a key witness in two separate trials in which Glossip was convicted.

Attorney General John O’Connor said in a statement that he respects the governor’s decision but remains confident in Glossip’s guilt. “After 25 years, justice is still on hold for Barry Van Treese and his family,” O’Connor said. “Mr. Van Treese was in a room of the motel he owned when he was brutally murdered with a baseball bat by Justin Sneed, an individual Richard Glossip hired to work at the motel and later enlisted to commit the murder. Two different juries found Glossip guilty of murder for hire.”...

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 Sneed to implicate Glossip in the slaying....

A bipartisan group of 62 Oklahoma legislators, led by Republican state Rep. Kevin McDugle, have signed a request that a new evidentiary hearing be granted. 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.

After victims's statements, Parkland shooter formally sentenced to life without parole

As detailed in this NBC News piece, headlined "Parkland school shooter sentenced to life in prison without parole after emotional victims’ statements," a high-profile sentencing was completed today in Florida. Here are some details:

Following dramatic statements from victims and victims' families, a Florida judge formally sentenced Parkland school shooter Nikolas Cruz to life in prison without parole Wednesday for the 2018 campus massacre that killed 14 students and three staff members.

Circuit Judge Elizabeth Scherer followed the jury’s recommendation to spare the 24-year-old the death penalty, instead sentencing him to a lifetime behind bars. Last month, in a 9-3 vote, a jury leaned toward sending Cruz to death row, but Florida law dictates that anything less than a unanimous vote automatically shifts the sentence to life without parole.

Prosecutors had sought the death penalty, while the defense had asked for life in prison. The jury’s decision on Oct. 13 shook family members of victims who were visibly distraught by the verdict....

Ilan Alhadeff, father of Alyssa Alhadeff, 14, who was killed in the shooting, said Wednesday during his victim impact statement, Cruz’s inevitable life sentence brings him little satisfaction. He deserved death, Alhadeff said.

“Let me show how angry and frustrated I am with the judicial system. After 4 ½ grueling years, a failed judicial system did not hand down a death sentence to the murderer of my daughter and 16 others,” he said. “Do I see this as accountability? Absolutely not. Do we now have closure? Let me be clear, absolutely not. What I see is that the system values this animal’s life over the 17 now dead. Worse, we sent a message to the next killer out there that the death penalty would not be applied to mass killing. This is wrong and needs to be fixed immediately.”

Sam Fuentes was shot in the leg and struck in the face with shrapnel during the massacre. She said Wednesday in court she watched Cruz kill two of her friends. “You shot me in the leg. If you looked me in the face, like I’m looking at you right now, you would see the scars on it from the hot shrapnel that was lodged into it. Do you remember after you sprayed my classroom with bullets, standing in the door, peering in to see the work you’ve done? Do you remember my little battered, bloody face looking back at you? I could have sworn we locked eyes,” she said....

Cruz wore a mask for the first part of the hearing, until Jennifer Guttenberg, the mother of victim Jaime Guttenberg, admonished the shooter during her victim impact statement. “You shouldn’t be sitting there with a mask on your face. It’s disrespectful to be hiding your expressions under your mask when we as the families are sitting here talking to you,” she told him.

Linda Beigel Schulman, mother of Scott Beigel, who taught geography at the school and coached cross country, said her son saved students' lives before the gunman took his. Beigel Schulman said Wednesday that Cruz has "prison justice" ahead of him. "You will spend the rest of your miserable life having to look over your shoulder worried about every single minute of your day, of your life, and scared out of your mind, fearful for someone to take you out."

On Tuesday, other survivors of the shooting and victims’ loved ones had the chance to deliver impact statements before the sentence was formally announced. Stacey Lippel, a teacher at Parkland who was shot and survived, told Cruz: “You don’t know me but you tried to kill me.” “I will have a scar on my arm and the memory of you pointing your gun at me ingrained in my brain forever,” she said before the court, looking Cruz in the eyes.

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? 
• What is the price (for victims and taxpayers) of a four-month(!) capital trial for Parkland mass murderer Nikolas Cruz? 
• Defense beginning mitigation case in the capital trial of Parkland shooter Nikolas Cruz
• Notable developments as defense rests in capital trial of Parkland school shooter
• Jury recommends LWOP sentence for Parkland school shooter Nikolas Cruz

Just why is it "not in the public’s best interest" for the feds to refuse to transfer to Oklahoma a prisoner scheduled for execution?

I recall a notable case from just over a decade ago in which Rhode Island was refusing to turn a suspected murderer in state custody to the federal government because of concern that he would be subject to the federal death penalty (see story blogged here and here).   As noted here, the en banc First Circuit ultimately ruled that Rhode Island had to surrender custody of Pleau for trial on pending federal charges.  Pleau thereafter pleaded guilty to federal murder charges and avoided being sentenced to death, but not before engendering lots of interesting and notable discussion of federal and state criminal justice authority and power (see, e.g., this commentary explaining why "the decision about appropriate criminal sentencing, and particularly about the application of the death penalty, [should be placed] back into the hands of individual states [in order] to reverse the trend toward the federalization of criminal law").

This bit of capital history, and the question in the title of this post, all came to mind when I focused on this notable recent news piece out of Oklahoma.  The story is headlined "Federal inmate set for state execution denied transfer to Oklahoma custody," and here are excerpts:

The Oklahoma attorney general is asking the U.S. Bureau of Prisons to reconsider a decision his office says could amount to unprecedented federal interference in the state’s execution process.

Federal officials have denied the state’s request to transfer federal inmate George John Hanson, known as John Fitzgerald Hanson in his Oklahoma death-sentence case. A Tulsa County jury found Hanson guilty of murdering retired Tulsa banker Mary Bowles and Owasso trucking company owner Jerald Thurman in 1999 and sentenced him to death.

Hanson, 58, is currently housed in the U.S. Penitentiary in Pollock, Louisiana, serving a life sentence plus 107 years for a series of armed robberies he committed after the murders but was convicted of and sentenced for while the state case was ongoing. He has since exhausted his appeal opportunities in Oklahoma and is slated for execution by lethal injection on Dec. 15, pending a clemency hearing Nov. 9 where Gov. Kevin Stitt could grant him mercy.

Tulsa County District Attorney Steve Kunzweiler requested the AG’s assistance after receiving a formal notice in late September of the denial that cited a reason set forward in the U.S. Code. The DA’s Office provided the Tulsa World a copy of the letter from the Bureau of Prisons.

“(The law) authorizes the Bureau of Prisons to transfer a prisoner who is wanted by a State authority to that State authority’s custody if it is appropriate, suitable, and in the public’s best interest,” the letter reads in part. “The Designation and Sentence Computation Center … has denied the request for transfer, as it is not in the public’s best interest.”

Kunzweiler balked at the vague term and said in a news release that the decision reeked of politics. In the release last week, the DA said he was “outraged” and has demanded a greater explanation. “The crimes for which Hanson is serving time in federal custody were committed after his involvement in the murders of Mary Bowles and Jerald Thurman,” he wrote. “Of what reasonable purpose is there for him to remain in federal custody — at taxpayers’ expense — when he can and should be delivered to Oklahoma authorities for the rendition of the punishment he received here?”

Kunzweiler listed several state and federal agencies from which he has sought assistance in the matter, and a spokeswoman for Oklahoma Attorney General John O’Connor said O’Connor has reached out to a Bureau of Prisons regional director “to see if he will reconsider his refusal to transfer Hanson to Oklahoma.”

The bureau’s Office of Public Affairs declined to comment for this story, stating that “based on privacy, safety, and security reasons, we do not comment on inmate’s conditions of confinement, to include transfers or reasons for transfers.”

The Tulsa World has submitted a Freedom of Information Act request to the bureau seeking an internal document that could clarify the conditions under which the decision was made.

Like the folks at the Tulsa World, I would like to hear more from the U.S. Bureau of Prisons about just why is has decided that it is "not in the public’s best interest" to allow a state to complete a seemingly lawful capital sentence.  I am not an expert on prisoner transfer protocol, but I certainly think at least some greater transparency is wholly justified here.

UPDATE:  I failed to see that Chris Geidner has been writing about this case on his Substack, Law Dork, including a new post with the latest breaking legal developments: 

"Oklahoma wants the feds to transfer a man in federal prison to their custody so they can kill him"

"Breaking: Oklahoma sues the Biden administration in the state's quest to kill John Hanson"

Oklahoma completes execution for man who killed his infant daughter 20 years ago

As reported in this extended CNN article, "Oklahoma has executed by lethal injection Benjamin Cole, who was sentenced to death for the 2002 murder of his 9-month-old daughter Brianna Victoria Cole, over the objections of defense attorneys who argued the 57-year-old suffered from schizophrenia and was severely mentally ill."  Here are some more details:

The case highlighted a longstanding issue in the debate over capital punishment: how it should apply to those who suffer from mental illness.  Meanwhile, relatives of the slain infant on Thursday decried the two-decade span between Brianna’s death and Cole’s execution.

The execution — the second of 25 Oklahoma has scheduled through 2024 — began Thursday at 10:06 a.m. CT, Oklahoma Department of Corrections Chief of Operations Justin Farris told reporters.  Cole was pronounced unconscious at 10:11 a.m. CT and pronounced dead at 10:22 a.m. CT....

Donna Daniel, Brianna’s aunt, thanked the state for carrying out the sentence and giving justice to her late niece, whom she described as a blond-haired, blue-eyed baby.  “She died a horrific death,” Daniel told reporters, adding, “And he gets off easy and gets to get a little injection in his arm and go to sleep in his death.  He did not give Brianna the chance to ever grow up, to even have her first Christmas, to meet her family.”...

Cole’s attorney called him a “person with serious mental illness whose schizophrenia and brain damage” led to him murdering his daughter, according to a statement.  By the time of his death, Cole had “slipped into a world of delusion and darkness,” the attorney, Tom Hird said, and was “often unable to interact with my colleagues and me in any meaningful way.”...

Cole is the second death row inmate put to death in the series of more than two dozen executions the state of Oklahoma intends to carry out through 2024 — a spree critics have condemned amid the state’s history of botched lethal injections.  The procedure for Cole on Thursday was “uneventful and without any complications,” Farris told reporters....

Cole’s attorneys insisted he should not be put to death because his mental condition — magnified by his exposure as a child to drugs and alcohol, substance abuse issues and physical and sexual abuse — had deteriorated so much that he was not competent to be executed, according to a clemency petition in a failed bid for mercy.

The US Supreme Court on Wednesday denied Cole’s request for a stay of execution.  Cole’s attorneys also unsuccessfully asked a state appeals court to compel the inmate’s warden to refer his case for review to the district attorney to initiate a competency hearing.

New DPIC report: "Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty"

This coming Thursday, Oklahoma is scheduled to execute Benjamin Cole for the 2002 murder of his infant daughter (though his lawyers have sought a stay from SCOTUS based on claims of incompetency).  Remarkably, Oklahoma has another 20+ executions scheduled for the next two years, with almost one execution scheduled for every month through 2024.  These plans appear to have prompted the folks at the Death Penalty Information Center to produce this big new report titled "Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty."  Here is the text of the report's conclusion:

Oklahoma is at an inflection point in its administration of the death penalty.  The state can continue executing people affected by what many Oklahomans consider a broken system or implement reforms that have been proposed by bipartisan advocates for years.  A shift away from the death penalty may even be more aligned with Oklahomans’ views on the issue, as recent surveys have shown a decline in support for the death penalty.  In addition, more than half of Oklahomans surveyed in 2015 revealed they would support abolishing capital punishment if the state replaced the death penalty with the alternative sanction of life without parole, plus restitution.

Systemic issues in the state’s use of the death penalty affect all capital defendants. However, the impact is skewed based on the race of defendant and victim, and the effects are particularly harsh on defendants of color. People of color are more likely to be victims of police misconduct and violence; they are more likely to suffer from the effects of having all-white or nearly all-white juries; and they are at greater risk of being executed if they have intellectual disabilities.  Additionally, the higher rate of death sentencing for cases involving white victims illustrates the enhanced punishment for those accused of crimes against white people that has been evident since the heyday of lynchings. Despite documented problems with the administration of Oklahoma’s death penalty, courts are largely unwilling to rectify them, leaving few options for relief.  If Oklahoma is to establish a fair and humane system of justice, it is crucial to acknowledge and redress the lingering effects of Jim Crow and racial violence on the state’s administration of the death penalty.

Jury recommends LWOP sentence for Parkland school shooter Nikolas Cruz

As reported in this NPR piece, a state "jury has recommended that the shooter who killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla., be sentenced to life in prison."  Here is more:

Nikolas Cruz, 24, pleaded guilty last year to 17 charges of premeditated murder and 17 counts of attempted murder. The question facing jurors now was whether Cruz would spend the rest of his life in prison or be sentenced to death. Cruz carried out the massacre on Valentine's Day in 2018. He was 19 at the time, and had been expelled from the school. He entered a school building through an unlocked side door and used an AR-15-style rifle to kill 14 students and three staff members, as well as wound 17 others.

Jurors began deliberations on Wednesday. Late that day, the jury asked to see the murder weapon. On Thursday morning, the jury said it had come to a recommendation on a sentence, about 15 minutes after the jurors were able to examine the weapon, according to The Associated Press.

Prosecutors had pushed for the death sentence. In closing arguments Tuesday, lead prosecutor Mike Satz told jurors that Cruz had hunted his victims during his siege of the school, returning to some of those he'd wounded to shoot them again, and kill them....

In laying out their defense, lawyers for Cruz presented testimony from counselors and a doctor who say the defendant suffers from a fetal alcohol spectrum disorder, a condition that they argued affects his reasoning and behavior. Witnesses testified that his birth mother, Brenda Woodard, had abused alcohol and cocaine while she was pregnant with him....

Cruz's rampage is the deadliest mass shooting to go to trial in the U.S., according to The Associated Press. In other attacks in which 17 or more people were killed, the shooter was either killed by police or died by suicide. Still awaiting trial is the suspect in the 2019 shooting of 23 people at a Walmart in El Paso, Texas.

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? 
• What is the price (for victims and taxpayers) of a four-month(!) capital trial for Parkland mass murderer Nikolas Cruz? 
• Defense beginning mitigation case in the capital trial of Parkland shooter Nikolas Cruz
• Notable developments as defense rests in capital trial of Parkland school shooter 

SCOTUS seemingly split over 1983 suit timelines for high-profile Texas death row defendant claiming innocence

Rodney Reed has been on death row in Texas for over two decades based on his conviction for raping and murdering a teenager back in 1996. Reed has always maintained his innocence, but it is a procedural issue that brought his case before the Supreme Court and seemed to divide the Justices. Amy Howe's SCOTUSblog analysis of the argument, "Justices wrestle with statute of limitations in Rodney Reed’s effort to revive DNA lawsuit," provides a great review that starts this way:

The Supreme Court on Tuesday heard the case of a Texas death-row inmate seeking DNA testing for evidence that he believes will clear him. A federal appeals court threw out Rodney Reed’s federal civil rights lawsuit challenging the constitutionality of the Texas law governing DNA testing, explaining that Reed had filed his suit too late. Although several justices on Tuesday appeared ready to reject the deadline imposed by the lower court, there was no clear consensus around an alternative rule – and Reed’s lawsuit would still be too late under one of the options that the justices debated.

The full argument transcript in Reed v. Goertz is available at this link.  And here are a few press accounts of the argument:

From Law360, "Comity Takes Center Stage In High Court DNA Testing Case"

From Reuters, "U.S. Supreme Court mulls Texas death row inmate Rodney Reed's DNA testing bid"

Three Justices dissent from denial of cert in Texas capital case based on concern for ineffective counsel

The Supreme Court issued this new order list this morning.  The list includes no new grants of certiorari and lots and lots of cert denials.  One of those cert denials, in the Texas capital case of Thomas v. Lumpkin, generated this 14-page dissent by Justice Sotomayor which was joined by Justices Kagan and Jackson. Here is how this dissent gets started:

Petitioner Andre Thomas was sentenced to death for the murder of his estranged wife, their son, and her daughter from a previous relationship.  Thomas is Black, his wife was white, and their son was biracial.  Thomas was convicted and sentenced to death by an all-white jury, three of whom expressed firm opposition to interracial marriage and procreation in their written juror questionnaires.  Among other reasons, these jurors opined that such relationships were against God’s will and that people “should stay with [their] Blood Line.” App. to Pet. for Cert. 395a.  Despite their declarations of bias, Thomas’ counsel not only failed to exercise peremptory strikes on these individuals or move to strike them for cause, but failed even to question two of the three jurors about their stated bias and whether it could affect their deliberations.  Without objection from Thomas’ counsel or the State’s attorney, the three jurors were seated.  Together with nine other white jurors, they convicted and sentenced Thomas to death.

Thomas’ conviction and death sentence clearly violate the constitutional right to the effective assistance of counsel. The contrary judgment of the Fifth Circuit should be summarily reversed.

Texas executes John Henry Ramirez, months after SCOTUS win on RLUIPA execution claims

John Henry Ramirez earlier this year prevailed in the Supreme Court, by an 8-1 vote, with his claim that Texas was required by federal law to allow his long-time pastor be allowed to pray with him and lay hands on him during his execution.  (SCOTUS ruling discussed here.)  This evening, as reported in this AP article, that execution went forward:

A Texas death row inmate whose case redefined the role of spiritual advisers in death chambers nationwide was executed Wednesday, despite the efforts of a district attorney to stop his lethal injection.

John Henry Ramirez, 38, was executed at the state penitentiary in Huntsville. He was convicted of killing 46-year-old Pablo Castro in 2004, as he took out the trash while working at a convenience store in Corpus Christi.

In March, the U.S. Supreme Court sided with Ramirez, saying states must accommodate the wishes of death row inmates who want to have their faith leaders pray and touch them during their executions.

In the execution chamber, his spiritual adviser, Dana Moore, placed his right hand on the inmate’s chest, and held it there for the duration. With his back to witnesses, Moore offered a brief prayer. “Look upon John with your grace,” he prayed. “Grant him peace. Grant all of us peace.” As Moore’s prayer ended, Ramirez responded: “Amen.”

After the prayer, Ramirez addressed five of Castro’s relatives -- including four of his children -- as they watched through a window a few feet from him. “I have regret and remorse,” he said.” This is such a heinous act. I hope this finds you comfort. If this helps you, then I am glad. I hope in some shape or form this helps you find closure.”

Ramirez expressed love to his wife, son and friends, concluding with: “Just know that I fought a good fight, and I am ready to go.”

As the lethal dose of pentobarbital took effect, he took several short breaths then began snoring. Within a minute, all movement stopped. Ramirez was pronounced dead 14 minutes later, at 6:41 p.m. CDT.

Prosecutors said Ramirez robbed Castro of $1.25 then stabbed him 29 times. Castro’s killing took place during a series of robberies conducted by Ramirez and two women following a three-day drug binge. Ramirez fled to Mexico but was arrested 3½ years later....

On Monday, the Texas Board of Pardons and Paroles unanimously declined to commute Ramirez’s death sentence to a lesser penalty. According to his attorney, Ramirez had exhausted all possible appeals and no final request to halt the execution was filed with the U.S. Supreme Court.

The lead prosecutor at Ramirez’s trial in 2008, Mark Skurka, said it was unfair that Ramirez had someone praying over him as he died when Castro didn’t have the same opportunity. “It has been a long time coming, but Pablo Castro will probably finally get the justice that his family has sought for so long, despite the legal delays,” said Skurka, who later served as Nueces County district attorney before retiring....

Ramirez’s case took another turn in April when current Nueces County District Attorney Mark Gonzalez asked a judge to withdraw the death warrant and delay the execution, saying it had been requested by mistake. Gonzalez said he considers the death penalty “unethical.”

During a nearly 20-minute Facebook live video, Gonzalez said he believes the death penalty is one of the “many things wrong with our justice system.” Gonzalez said he would not seek the death penalty while he remains in office....

Also in April, four of Castro’s children filed a motion asking that Ramirez’s execution order be left in place. “I want my father to finally have his justice as well as the peace to finally move on with my life and let this nightmare be over,” Fernando Castro, one of his sons, said in the motion....

In June, a judge declined Gonzalez’ request to withdraw Wednesday’s execution date. Last month, the Texas Court of Criminal Appeals declined to even consider the request.

Ramirez was the third inmate put to death this year in Texas and the 11th in the U.S. Two more executions are scheduled this year in Texas, both in November.

Alabama botches execution by failing to be able to complete it before expiration of death warrant

In prior posts about executions that were ultimately completed, but involved some ugly particulars, I resisted using the adjective "botched" because the standard definition of that term is "unsuccessful because of being poorly done."  As I see it, an execution is fundamentally "successful" if it concludes with the termination of the life of the condemned, even if that task was completed poorly.  I stress those semantics to explain why I think what happened in Alabama last night qualifies as a "botched" execution.  This local article, headlined "Alabama halts execution of Alan Eugene Miller, citing time constraints and vein access," provides these details:

Alan Eugene Miller was set to be executed Thursday night by the state of Alabama for his August 5, 1999 shooting spree that left three men dead in Shelby County. But it was called off minutes before midnight, when the state’s death warrant was set to expire.

The execution was called off at approximately 11:30 p.m. because Miller’s veins couldn’t be accessed within execution protocol time limits, Alabama Department of Corrections Commissioner John Hamm told reporters gathered at the prison system media center. Miller, 57, was returned to his death row cell.

Hamm said the victims’ families were informed of the decision to call off the execution and that Gov. Kay Ivey was sending her thoughts and prayers to the victims’ families. “Due to the time constraints resulting in the lateness of the court proceedings, the execution was called off once it was determined the condemned’s veins could not be accessed in accordance with our protocol before the expiration of the death warrant,” Hamm said.

The U.S. Supreme Court issued a ruling just after 9 p.m., giving the state nearly three hours to conduct the execution before the death warrant expired. Hamm said the execution team did start trying to access Miller’s veins to insert the intravenous lines for the three-drug lethal injection cocktail, but he isn’t sure how long the team worked to try to access a vein. “I’m not sure... I wasn’t looking at that. We were more focused on the time that the court, the Supreme Court, sent their order. Before we start accessing veins, we have other things we have to do that take time.”

When pressed what was being done during that nearly three-hour period, Hamm would not elaborate. “Like I said, there are several things that we have to do before we even start accessing the veins. And that was taking a little bit longer than we anticipated.”

Ivey released a statement shortly after the cancellation was announced. “In Alabama, we are committed to law and order and upholding justice. Despite the circumstances that led to the cancellation of this execution, nothing will change the fact that a jury heard the evidence of this case and made a decision,” the governor said. “It does not change the fact that Mr. Miller never disputed his crimes. And it does not change the fact that three families still grieve. We all know full well that Michael Holdbrooks, Terry Lee Jarvis and Christopher Scott Yancey did not choose to die by bullets to the chest. Tonight, my prayers are with the victims’ families and loved ones as they are forced to continue reliving the pain of their loss.”

Hamm visited with the victims’ families prior to announcing the cancellation and relayed the governor’s prayers and concerns. A spokesperson said Ivey “anticipates that the execution will be reset at the earliest opportunity.”...

The failed execution comes after weeks of legal wrangling, most recently in a flurry of filings on Thursday when the Alabama Attorney General’s Office asked the U.S. Supreme Court to overturn a lower court judge’s ruling that effectively stayed the execution.

At approximately 9:08 p.m., the U.S. Supreme Court granted the state’s application to vacate the injunction, clearing the way for Alabama to execute Miller via lethal injection. Justice Sonia Sotomayor, Justice Elena Kagan, Justice Amy Coney Barrett, and Justice Ketanji Brown Jackson voted to deny the application and block the execution. No opinion was issued.

Miller’s legal battles centered around his claims that in June 2018, he completed a form distributed to death row inmates at Holman electing to die by the state’s newly approved method of execution, nitrogen hypoxia, instead of the default method of lethal injection. The AG’s Office argued there is no record of that form being submitted, and that he should be executed using lethal injection instead.

But a federal judge on Monday stated “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the (Alabama Department of Corrections),” along with “circumstantial evidence” that the ADOC lost or misplaced his form after he turned it in.

Noting that the Biden Administration in a high-profile case "has decided to continue to seek the death penalty"

Chris Geidner has this new Substack posting, titled "The Biden administration supports the death penalty," that effectively flags a notable new capital case filing by the Biden Administration's Department of Justice.  The subheadline of the piece summarizes the key points:  "Although Biden's campaign promised to 'eliminate the death penalty,' his administration told a court in a case last week that AG Merrick Garland 'has decided to continue to seek the death penalty'."  I recommend the full piece, and here are excerpts:

On Friday, Sept. 16, the US Attorney for the Southern District of New York filed a one-page notice in a pending capital case for Sayfullo Saipov, the man accused in the October 2017 terror attack along a bike path in Manhattan that killed 8 and injured many more. In its key sentence, the DOJ notice stated: “We were notified today that the Attorney General has decided to continue to seek the death penalty.”...

[I]n July 2021, Attorney General Merrick Garland announced a moratorium on executions pending a review of execution procedures — echoing a DOJ policy during then-President Barrack Obama’s administration. The administration has done little since to “eliminate the death penalty,” and Garland’s decision in Saipov’s case does the opposite....

One of the people who most closely tracks the death penalty across the country, Robert Dunham, the executive director of the Death Penalty Information Center, told Law Dork that this news shows — at the least — a disconnect between the White House and Justice Department. “The Department of Justice’s pursuit of the death penalty in this case — along with the its continued defense of the death penalty in other cases on appeal — indicates that, if the White House has a policy of working to end the federal death penalty, the Department of Justice certainly isn’t acting on it,” Dunham told Law Dork.

Garland — in cases involving Dzhokhar Tsarnaev’s 2013 Boston Marathon bombing death sentence and Dylann Roof’s death sentence for 2015 murder of nine Black people at a Charleston church — has supported previously issued death sentences in court, but Saipov’s case would be the first trial of the Biden administration where the federal government is seeking to impose a new death sentence.

To be clear, Garland did not initially make the decision to seek death in this case. That was done in the Trump administration, under then-Attorney General Jeff Sessions. But, in the aftermath of Biden’s election and Garland’s execution moratorium, there was a request from Saipov that DOJ withdraw its intent to seek the death penalty in his case.

Notable developments as defense rests in capital trial of Parkland school shooter

I have been following the capital sentencing trial of Parkland school shooter Nikolas Cruz somewhat more closely than I follow other capital trials in part because the case involves such competing extremes.  This case is the deadliest U.S. mass shooting to ever reach trial, involves no question about guilt and the 17 victims were mostly students with many as young as 14.  And yet Nikolas Cruz's defense team has presented a considerable mitigation case highlighting his damaged upbringing and considerable mental health issues.

The Cruz defense team rested its case in mitigation last week sooner than had been expected, and that led to a reaction by the presiding trial judge which has now produced a defense motion to remove the judge.   Here are some headlines and ledes from a few stories covering these latest developments:

"Parkland school shooter's defense team demands judge be removed after heated exchange"

The attorneys representing the Parkland school shooter filed a motion Friday asking for the judge overseeing his sentencing trial to be replaced.  The motion comes after the judge and the defense attorneys had an unusually heated exchange on Wednesday, in which the judge accused the attorneys of a lack of professionalism.

The motion alleges that Circuit Judge Elizabeth Scherer's conduct during the Wednesday exchange revealed "long-held" animosity toward the defense counsel that has "infected" the proceedings and will prevent their client from getting a fair trial.

"Parkland defense has convinced some that killer deserves mercy"

The sudden end of the defense case in the Parkland mass shooting trial this week drew criticism of and from the presiding judge, temporarily overshadowing the biggest question at issue — was enough evidence presented to convince a jury to spare the defendant’s life?

It’s impossible to say for sure — juries are notoriously unpredictable.  But at least one expert, and some trial observers, say they would not be surprised if the jury in the Marjory Stoneman Douglas mass shooting case were to show mercy toward confessed gunman Nikolas Cruz.

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? 
• What is the price (for victims and taxpayers) of a four-month(!) capital trial for Parkland mass murderer Nikolas Cruz? 
• Defense beginning mitigation case in the capital trial of Parkland shooter Nikolas Cruz

"Where Black Lives Matter Less: Understanding the Impact of Black Victims on Sentencing Outcomes in Texas Capital Murder Cases from 1973 to 2018"

The title of this post is the title of this recent article published in the Saint Louis University Law Journal authored by Jelani Jefferson Exum and David Niven.  Here is part of its abstract:

Scholars and advocates have long acknowledged that the death penalty is disproportionately applied to Black offenders.  It is also well known that the race of a victim is a leading factor in a capital defendant’s risk of receiving the death penalty, with those convicted of murdering whites significantly more likely to receive the death penalty than those convicted of murdering Blacks.  This Article takes an in-depth look at statistics covering the sentencing outcomes in capital murder cases in Texas from 1973 to 2018, revealing the clear evidence that race matters in the imposition of the death penalty.  However, this Article does not simply join the chorus of voices that have recognized the racial disparity in the death penalty.  Rather, the authors argue that the lesson from the Black victim effect on the death penalty decision fits into the broader, historic, and present-day context of devaluing Black lives. As the Texas example provides, the devaluing effect of Blackness is apparent.  This is not simply a failure to recognize the value of Black lives — as the Black Lives Matter movement exposes — but a reflection of the societal view that Blackness actually reduces the value and importance of all things — from property to community spaces to ultimate humanity. In life, Black people are vastly under-protected by the law, and the same is true for Black people even in a system designed to exact retribution for death.  When we accept the fact that the death penalty reveals that Black deaths do not matter, then it becomes apparent that there is not an antiracist fix for the death penalty other than its abolition.

In this Article, the authors present the most comprehensive data ever assembled on capital murder cases in Texas to affirm that the scope of the race of victim difference is jarring.  This data shows how pervasive race is in death penalty outcomes.  In every single comparison the racial disparity was statistically significant, and harsher punishment was associated with white victims than with African American victims, who clearly mattered less.  The truth, of course, is that Black victims matter as much as any, even if the legal system and society haven’t recognized their value. Within a database of thousands of cases there are thousands of tragic stories of lives upended by acts of an almost unspeakable nature.  The details differ from case to case, but across all those thousands of cases the race of victim disparity persists.  The math is straightforward.  Indeed, the odds against the patterns seen here — emerging by chance — are truly astronomical.  The race of the victim matters in the Texas criminal justice system.

As a matter of jurisprudence and policy making, however, the meaning of this data is uncertain.  When legislators debate the death penalty, racial disparities are among the most frequently cited concerns of opponents of the death penalty.  Supporters of the death penalty, however, dispute both the math and the meaning of findings of racial disparities, taking particular offense at the suggestion that race influences sentencing or influences their own views. These authors argue that abolition is the only corrective approach.  We must make the radical choice to uproot systems, like the death penalty, that allow the anti-Black biases in our national consciousness to not only thrive, but to be just.  To do otherwise is to perpetuate a system where Black lives matter less.

"'Take the Motherless Children off the Street': Fetal Alcohol Syndrome and the Criminal Justice System"

The title of this post is the title of this new article authored by Michael Perlin and Heather Cucolo now available via SSRN. Here is its abstract:

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (FASD) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty.  Nor has there been any literature about the interplay between FASD-related issues and the legal school of thought known as therapeutic jurisprudence.

In this article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system.  We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel.  Next, we will discuss how the impact of FASD on the major fundamentals of criminal law and procedure, especially as it relates to questions of culpability. Under this broad umbrella of topics, we consider questions that may arise in the criminal trial process, such as those related to competency to stand trial (and, to a limited extent, other criminal competencies), the insanity defense, sentencing, and the death penalty.  We look carefully at the way that courts all too often dismiss effectiveness-of-counsel claims in such cases, and the implications of this case law.

Finally, we investigate why it is so significant that the caselaw in this area has totally ignored the teachings of therapeutic jurisprudence, and offer some conclusions and recommendations (based on therapeutic jurisprudence principles) that, we hope, can (at least partially) ameliorate this situation.

This article strikes me as especially timely given that the capital defense of Nikolas Cruz, the Parkland school shooter, has been particularly focused on FASD.  This new article, headlined "Nikolas Cruz trial: FASD expert has ‘never seen’ pregnant woman abuse alcohol as much as shooter’s mother," provides a partial account of the evidence being developed during his on-going capital sentencing proceeding.

Is Alabama going to pioneer using nitrogen as a method of execution soon?

The question in the title of this post is prompted by this new AP article headlined "State: Alabama nearly ready with untried execution method."  Here are the details:

Alabama could be ready to use a new, untried execution method called nitrogen hypoxia to carry out a death sentence as soon as next week, a state attorney told a federal judge Monday.

James Houts, a deputy state attorney general, told U.S. District Judge R. Austin Huffaker Jr. that it is “very likely” the method could be available for the execution of Alan Eugene Miller, currently set for Sept. 22, if the judge blocks the use of lethal injection.  Houts said the protocol “is there,” but said the final decision on when to use the new method is up to Corrections Commissioner John Hamm.

Nitrogen hypoxia, which is supposed to cause death by replacing oxygen with nitrogen, has been authorized by Alabama and two other states for executions but has never used by a state.  The disclosure about the possibility of using the new method came during a court hearing on Miller’s request for a preliminary injunction to block his execution by lethal injection.  Miller maintains prison staff lost paperwork he returned in 2018 that requested nitrogen as his execution method rather than lethal injection.  The Alabama attorney general’s office argued there is no corroborating evidence that Miller returned the form.

Huffaker heard testimony and arguments during an evidentiary hearing in Montgomery federal court.  He noted the “high stakes” involved with a looming execution date, but did not immediately rule on the request to block the lethal injection.  When Alabama approved nitrogen hypoxia as an alternative execution method in 2018, state law gave inmates a brief window to designate it as their execution method.  Wearing a maroon shirt and with his hands shackled in front of him, Miller testified that he returned a state form selecting nitrogen on the same day it was distributed to inmates by a prison worker....

Miller described how he disliked needles because of painful attempts at drawing blood. He said nitrogen gas sounded like the nitrous oxide gas used at dentist offices, and that seemed better than lethal injection. “I did not want to be stabbed with a needle,” Miller said....

Alabama told a federal judge last year that it has finished construction of a “system” to put condemned inmates to death using nitrogen gas, but did not give an estimate of when it would be put to use.  Miller’s lawyer, Mara Klebaner, said the state had asked if Miller would waive his claims if nitrogen was ready, but she said they need more information about the nitrogen process. Miller’s lawyers don’t want him to be the test case for an untried execution method, she said.

Klebaner said the Alabama attorney general’s office recently withdrew an execution date request for another inmate after his lawyers provided proof that the inmate had selected nitrogen hypoxia.  She said Miller should be treated the same.

The state argued Miller was trying to delay his execution. Houts told the judge the state had gone as far as to see if Miller would agree to be fitted with a mask for use of nitrogen, but the inmate declined. Miller’s attorney said the state presented the gas mask during a deposition and that Miller was understandably upset.

Miller, a delivery truck driver, was convicted in workplace shootings that killed Lee Holdbrooks, Scott Yancy and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancy at one business and then drove to another location to shoot Jarvis, evidence showed.

Long-time readers likely know that nitrogen gas has long been discusses as a possible alternative execution method to lethal injection.  Just some of many prior posts on the topic are noted below:

• Is nitrogen gas the best modern execution alternative to lethal injection?
• Should problems with lethal injection prompt return of other execution methods?
• Effective discussion of nitrogen gas as execution method alternative
• Examining whether nitrogen gas could be a viable new method for executions 
• Making the case against nitrogen as an execution method 
• "Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"
• Might Alabama become the first state to use nitrogen gas for an execution?

South Carolina state judge declares execution by firing squad and electric chair to be unconstitutional

As reported in this AP piece, a "South Carolina judge ruled Tuesday that the state's newly created execution firing squad, as well as its use of the electric chair, are unconstitutional, siding with four death row inmates in a decision sure to be swiftly appealed as the state struggles to implement its new execution protocols." Here is more:

“In 2021, South Carolina turned back the clock and became the only state in the country in which a person may be forced into the electric chair if he refuses to elect how he will die," Judge Jocelyn Newman wrote in a case brought by the inmates against the state. "In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency.”

Last month, Newman heard arguments from lawyers for four men on the state's death row, who said that the prisoners would feel terrible pain whether their bodies were “cooking” by electricity or heart stopped by a marksman’s bullet — assuming they are on target.

Attorneys for the state countered with their own experts who said death by the yet-to-be-used firing squad or the rarely used electric chair would be instantaneous and the condemned would not feel any pain. The state Supreme Court had ordered Newman to issue her decision within 30 days, with further appeals all but certain. Officials with the state Corrections Department told The Associated Press on Tuesday that the agency was “assessing the ruling.”

From 1995 to 2011 — when the state’s last execution was performed — South Carolina carried out the death penalty with lethal injections on 36 prisoners. But, as the state’s supply of lethal injection drugs expired in 2013, an involuntary pause in executions resulted from pharmaceutical companies' refusal to sell the state more. Condemned inmates technically had the choice between injection and electrocution, meaning that opting for the former would in essence leave the state unable to carry out the sentence.

Prison officials sought help from state lawmakers, who for several years had considered adding the firing squad as an option to approved methods, but debate never advanced. Last year, Democratic Sen. Dick Harpootlian and GOP Sen. Greg Hembree, both of whom previously served as prosecutors, again argued in favor of adding the firing squad option....

The ultimately approved measure, signed into law by Republican Gov. Henry McMaster last year, made South Carolina the fourth state in the country to allow use of a firing squad, and made the state's electric chair — built in 1912 — the default method for executions, thereby giving prisoners a new choice.

During last month's trial, a Corrections Department official said he devised the firing squad protocols after consulting a prison official in Utah, location of the only three inmates to die by firing squad since 1977. Colie Rushton, the department’s security director, testified the .308 Winchester ammunition to be used is designed to fragment and split up in the heart to make death as fast as possible. Much of the rest of the trial was each side calling its own experts to detail whether inmates feel any pain before they die.

In her ruling, Newman relied on this testimony, including two physicians who said that an inmate “is likely to be conscious for a minimum of ten seconds after impact.” During that time, the judge wrote, “he will feel excruciating pain resulting from the gunshot wounds and broken bones,” sensation that “constitutes torture” as it is “exacerbated by any movement he makes, such as flinching or breathing.”

"Condemning Those with Multiple Disabilities to Die: Dual Diagnosis of Substance Abuse and Intellectual Disability in Capital Sentencing Proceedings"

The title of this post is the title of this new article authored by Aliya Sternstein and John R. Mills now available via SSRN.  Here is its abstract:

While the execution of defendants who score significantly low on intelligence tests, struggle to adapt their behavior to their environment, and experience these deficits during the developmental years is unconstitutional -- some courts have imposed or upheld death sentences because they find the defendant also has a drug addiction.

These courts misread the no longer used technical phrase “related to” in the above medical criteria for an intellectual disability (ID) diagnosis.  The criteria stated that shortfalls in adaptive behavior must be “related to” low intellectual functioning.  The long-settled medical community consensus is that there is no requirement to identify the psychological causes of these adaptive deficits.  But the misinformed courts have improperly held that related to means “caused by” instead of “co-existing with,” requiring proof of a negative: that the accused’s deficits in behavior are not caused by a substance use disorder.  This legal and medical error is common in some jurisdictions.  That is so, even in light of U.S. Supreme Court instructions to be informed by the medical consensus when assessing ID.

Although a great deal has been written about the exemption of those with ID from execution, little legal scholarship has addressed the intersection of substance abuse, Supreme Court reliance on the medical consensus in death eligibility decisions, and a misunderstanding or disregard of the consensus that addiction may and often do co-exist with ID.  Limited social skills and a self-perception of being different from others can foster loneliness and an urge to fit in that defendants with ID overcome by abusing drugs and alcohol.  The high Court has explicitly recognized the same: because people with ID often have other psychological impairments, the “existence of a personality disorder or mental-health issue, in short, is not evidence that a person does not also have intellectual disability.”

Judges and jurors perhaps deny protection to defendants with addictions and ID because of a misperception that those with substance use disorders are more blameworthy for their plight than defendants with additional psychological disorders or those with only ID.  But neither the medical consensus nor the Supreme Court has ever suggested that addiction changes the level of culpability of an offender with ID.  Quite the opposite: ID may heighten the risk of developing a substance use disorder.

This paper makes the straightforward case that a defendant, who otherwise meets the ID criteria, cannot be excluded from the constitutional prohibition on executing those with ID simply because of a dual diagnosis of substance abuse. Accordingly, courts must not require a defendant asserting ineligibility for execution to show that their deficits in adaptive behavior are “related to” an intellectual impairment and not related to substance abuse or some other psychological impairment.

Oklahoma Gov reject's state board's clemency recommendation for first of many scheduled to be executed in coming months

As reported in this CNN piece, "Oklahoma's governor has declined to grant clemency to death row inmate James Coddington, whose scheduled execution Thursday is set to be the first of 25 the state plans to carry out through 2024."  Here is more:

Coddington, 50, was sentenced to death for the 1997 murder of Albert Hale -- a man he considered his friend -- while struggling with a crack cocaine addiction. His attorneys and advocates had called for his sentence to be commuted to life in prison, pointing to his case as one of redemption.  Coddington long has expressed sincere remorse for killing Hale, they say, and has worked to transform his life while on death row.

Coddington's remorse, an "exemplary" prison record and his traumatic childhood were among the mitigating factors his supporters highlighted before the Oklahoma Board of Pardons and Parole this month recommended clemency in his case, leaving the final decision up to GOP Gov. Kevin Stitt.  "After thoroughly reviewing arguments and evidence presented by all sides of the case, Governor Kevin Stitt has denied the Pardon and Parole Board's clemency recommendation for James Allen Coddington," a brief statement from the governor's office said.

Emma Rolls, one of Coddington's attorneys, said the inmate and his legal team were "profoundly disheartened" by the governor's decision, but thanked the parole board for its "careful consideration" of Coddington's case.  Its clemency recommendation "acknowledged James's sincere remorse and meaningful transformation during his years on death row," she said. "James is loved by many people," Rolls said in a statement to CNN, "and he has touched the hearts of many. He is a good man."

Coddington, whose execution by lethal injection is scheduled for Thursday at 10 a.m. CT, will be the first of more than two dozen inmates to be put to death in a controversial series of executions Oklahoma officials plan to carry out between now and December 2024 -- at a pace of about one man a month. Opponents and experts have been critical of the plan, pointing to outstanding questions of some inmates' potential innocence or mental fitness, as well as the state's recent history of botched lethal injections....

"Oklahomans overwhelmingly voted in 2016 to preserve the death penalty as a consequence for the most heinous murders," Oklahoma Attorney General John O'Connor said in a July 1 statement as the execution dates were set. "I'm certain that justice and safety for all of us drove that vote."...

Hale's family did not support clemency -- though his son said at Coddington's clemency hearing he had forgiven the man who murdered his father. "I am here to say that I forgive James Coddington," Mitch Hale said during Coddington's clemency hearing, according to CNN affiliate KOCO. "But my forgiveness does not release him from the consequence of his actions." O'Connor was "disappointed" by the board's ruling, he said in a statement at the time.

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

Defense beginning mitigation case in the capital trial of Parkland shooter Nikolas Cruz

Apart from this post last month, I have not been following closely or blogging at all about the ongoing the state capital trial in Florida of Parkland mass murderer Nikolas Cruz.  But this AP article, headlined "Defense in school shooter’s trial set to present its case," suggests it is now a sensible time to check in.  Here are excerpts from the AP report:

The prosecution spent three weeks telling jurors how Nikolas Cruz murdered 14 students and three staff members at a Florida high school four years ago. Now his attorneys will get their chance to present why they believe he did it, hoping to get him sentenced to life without parole instead of death. Melisa McNeill, Cruz’s lead public defender, is expected to give her opening statement Monday, having deferred its presentation from the start of the trial a month ago.

She and her team will then begin laying out their 23-year-old client’s life history: his birth mother’s abuse of alcohol and cocaine during her pregnancy, leading to possible fetal alcohol syndrome; his severe mental and emotional problems; his alleged sexual abuse by a “trusted peer;” the bullying he endured; and his adoptive father’s death when he was 5 and his adoptive mother’s four months before his Feb. 14, 2018, attack at Parkland’s Marjory Stoneman Douglas High School.

McNeill’s decision to delay her opening statement appeared part of a broader strategy to not deny or lessen anything prosecutors told jurors about Cruz’s massacre — he pleaded guilty in October to 17 counts of first-degree murder. This trial is only to decide his sentence; the seven-man, five woman jury will consider whether the prosecution’s aggravating circumstances “outweigh” the defense’s mitigating factors....

This is the deadliest U.S. mass shooting to ever reach trial. Nine other gunmen who killed at least 17 people died during or immediately after their shootings, either by suicide or police gunfire. The suspect in the 2019 slaying of 23 people at a Walmart in El Paso, Texas, is awaiting trial. During the prosecution’s case, McNeill’s team never cross-examined any teacher or student who witnessed the slayings and only had brief, mild exchanges with a few other witnesses....

To get Cruz a life sentence, the defense will only have to persuade one of the 12 jurors, but they will have to do it on all 17 counts, one for each victim. It is possible, for example, a reluctant juror might be pushed to vote for death on victims who surveillance video showed Cruz shot multiple times as they lay wounded and helpless.

The defense will be trying to overcome the horrendous evidence that was laid out by the prosecution, capped by the jurors’ Aug. 4 visit to the fenced-off building that Cruz stalked for seven minutes, firing about 150 shots down halls and into classrooms. The jurors saw dried blood on floors and walls, bullet holes in doors and windows and remnants of Valentine’s Day balloons, flowers and cards.

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

Texas completes only its second execution in 2022

As reported in this AP piece, "Texas on Wednesday put to death a man who fatally stabbed a suburban Dallas real estate agent more than 16 years ago, the second execution this year in what has been the nation’s busiest death penalty state." Here is more:

Kosoul Chanthakoummane, 41, received a lethal injection at the state penitentiary in Huntsville and was pronounced dead at 6:33 p.m. He was condemned for fatally stabbing 40-year-old Sarah Walker in July 2006. She was found stabbed more than 30 times in a model home in McKinney, about 30 miles (48 km) north of Dallas....

Just before the execution took place and at Chanthakoummane’s request, a Buddhist monk placed his right hand on the inmate’s chest and read a passage from the Book of Ecclesiastes that refers to “a time for everything.” He responded: “Amen.”

Prosecutors say Chanthakoummane entered the model home and then beat Walker with a wooden plant stand and stabbed her before stealing her Rolex watch and a silver ring, which were never found. DNA evidence showed Chanthakoummane’s blood was found in various places inside the model home, including under Walker’s fingernails....

Chanthakoummane was the ninth inmate put to death this year in the U.S. While Texas has been the nation’s busiest capital punishment state, the use of the death penalty in the state has reached near historic lows. Juries have continued to issue fewer death sentences and in the last couple of years most executions have been delayed by the pandemic or by legal questions over what spiritual advisers can do in the death chamber.

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