Sentencing Law and Policy

Reviewing Ohio's (now-suspended) execution realities

The Cincinnati Enquirer has this lengthy new article headlined "As Ohio struggles to find a painless way to kill death row inmates, is this the end of death penalty?". Here are excerpts:

Jeffrey Wogenstahl was supposed to die Wednesday.... But that didn't happen.  Wogenstahl's case began in 1991 when 10-year-old Amber Garrett went missing and was found dead three days later in Indiana.  A jury found him guilty of beating and stabbing the girl to death. Wogenstahl was 31 at the time.  He's 58 now.

After 27 years of lawsuits and appeals with three cases pending at the county, state and federal level, Wogenstahl was granted an indefinite stay of execution by the Ohio Supreme Court last fall due to open questions about his case.

Since then, Ohio Gov. Mike DeWine has suspended all executions in a continuing struggle for the state to find a painless way to kill death row inmates.  With drug suppliers refusing to allow their products to be used to kill people and botched executions making headlines, Ohio's death penalty is on life support.

Wogenstahl managed to live past the day Ohio first scheduled for his death without the help of Mike DeWine, but he and the 137 other people on death row are likely wondering what the governor and legislature might do next.

DeWine recently ordered the Ohio Department of Rehabilitation and Correction to find a new method for executing death row inmates.  Until that happens, all executions are on hold.  A federal magistrate called Ohio's three-drug death penalty protocol "cruel and unusual punishment" banned by the U.S. Constitution. That carried weight with the governor. "Having that opinion in front of me, I felt that Ohio shouldn't be carrying out an execution while we know those facts," DeWine told The Enquirer.

The main problem: the first drug administered, midazolam.  Midazolam is a sedative used in some surgeries to relax the patient and block the formation of traumatic memories. It's not a painkiller, even at high doses, experts testified before the federal magistrate.

Midazolam can lead to pulmonary edema, a condition where fluid fills the lungs making it difficult to breathe. One doctor compared it to the torture technique of waterboarding. And the amount of midazolam that Ohio uses to execute prisoners would cause "severe burning sensations in the blood vessels," a doctor testified.  An autopsy showed Hamilton County Killer Robert Van Hook suffered from the condition when he was executed in July 2018.  He was the last person put to death before DeWine's suspension.

After the midazolam, Ohio then injects a paralytic and potassium chloride to stop the inmate's heart. Without an analgesic, the inmate would feel the pain of both those drugs even if he were unconscious, according to doctors' testimony. Ohio executed three death row inmates using this three-drug combo.  But the next person executed in Ohio will likely die by another method....

Ohio used a single drug, pentobarbital, until manufacturers refused to sell it to states for executions. So the state switched to an untested, two-drug combination of midazolam and hydromorphone for Dennis McGuire, who was convicted of raping and fatally stabbing a pregnant woman.  McGuire's execution in January 2014 took almost 26 minutes — the longest since Ohio reinstituted the death penalty in 1999.  He struggled, gasped for air and choked for about 10 minutes before eventually dying, according to a Columbus Dispatch witness. The fallout from McGuire's execution stalled Ohio's death penalty for three and a half years.

During that time, the state created its new three-drug protocol and changed policies to obtain the drugs....

State Public Defender Tim Young and his office are leading a lawsuit against the current lethal injection practices. One problem: Ohio keeps changing its methods. "Whenever the Department of Correction changes the protocol, you essentially reset the litigation," Young said.

Though he agrees with the governor's actions, Hamilton County Prosecutor Joe Deters said the debate over what drugs to use is just a charade to obstruct the death penalty in a state where the public supports it.  "The reality is we are killing someone.  It's not pretty.  It's ugly," he said, rattling off alternatives to lethal injection. "We've got a boatload of fentanyl sitting in (storage) right now. Bring back the firing squad. That has been ruled constitutional."

DeWine's political experiences have given him a unique perspective on capital punishment.  He sponsored legislation to reinstitute the death penalty legislation as a state lawmaker, fought against death row inmates' appeals as the state's attorney and now governs a state where the death penalty is legal....  But should Ohio continue the death penalty?  DeWine didn't take a stance when asked by The Enquirer.  "That is a discussion that certainly can take place, but I’m not going to engage in that today," he said....

Twenty states have abolished the death penalty. Some, such as Michigan, have never executed a prisoner.  Others have outlawed it in the past decade, concerned about its constitutionality, racial bias, cost or potential wrongful convictions. But Ohio is unlikely to join that list anytime soon.  The state's GOP-controlled Legislature has little appetite for limiting, much less banning, capital punishment.

In 2011, Ohio Supreme Court Chief Justice Maureen O'Connor, a Republican, led a task force of judges, prosecutors, defense attorneys and academics, who studied ways to improve the state's death penalty.  One recommendation — to ban the death penalty for individuals with a documented serious mental illness — has been proposed repeatedly by a bipartisan group of lawmakers only to die in committee. The main opponent to these limits on the death penalty: the Ohio Prosecuting Attorneys Association....

Democratic lawmakers have repeatedly introduced bills to abolish the death penalty in Ohio to no avail.  Still, Sen. Nickie Antonio, D-Lakewood, said she sees DeWine's call for a new protocol as an opportunity to move the conversation forward.  "Any time there’s difficulty in figuring out how to execute people, that’s a window to discuss whether the death penalty is even appropriate," Antonio said.

But it's possible DeWine's delay could have the opposite effect.  Lethal injection is currently the only execution method on the books in Ohio, but lawmakers could recommend an alternative, such as electrocution, firing squad, gas chamber or hanging. Senate President Larry Obhof has said he's happy to explore other options.  "We are all concerned that if you're going to have capital punishment, you should have a process in place that courts are willing to accept and meets constitutional muster," he told The Enquirer.

Spotlighting how reduced support for the death penalty is now a bipartisan reality

Alan Greenblatt has this notable lengthy new piece at Governing under the headline "Why the Death Penalty Has Lost Support From Both Parties."  I recommend the piece in full and here are excerpts:

Twenty years ago, most politicians in both parties supported the death penalty.  But today, opposition to it has become increasingly bipartisan.  Democrats have always been more wary, but now more conservatives have also become convinced that capital punishment is another failed government program.  In part, that's because the legal process for such cases is enormously expensive, even though few executions are ever carried out.

“When you look at how much money we’re spending, no one looks at that and thinks the death penalty works fine,” says Hannah Cox, national manager for Conservatives Concerned About the Death Penalty, a pro-abolition group.  “We’re seeing a real escalation as far as the number of Republican legislators who are sponsoring repeal bills.”...

Lately, the spotlight has shifted to New Hampshire, where last week the legislature sent the governor a bill to repeal the death penalty.  Both chambers passed the bill by veto-proof margins, with bipartisan support.  Once the legislature overrides GOP Gov. Chris Sununu’s expected veto, New Hampshire will be the 21st state to outlaw capital punishment.  Colorado and Nevada could be next -- both have repeal bills currently pending.

For the first time since the death penalty was put back into practice during the 1970s, a majority of Americans now live in states that have abolished the practice or imposed a moratorium on it, according to the Death Penalty Information Center, which researches the issue.  Still, support for capital punishment has not vanished.  Polls show that a majority of Americans continue to back it....

“When you talk about death penalty, a lot of people immediately want to have a criminal justice angle on it or a morality angle,” Chad McCoy, the Kentucky House Republican whip and sponsor of an abolition bill, told The Hill. “Mine is purely economics.”...

It’s not only lawmakers who have grown more skeptical about capital punishment.  Prosecutors have, too. In part due to the costs associated with capital cases, the death penalty has essentially disappeared from rural counties, says [Prof Brandon] Garrett, author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.  Fewer than 2 percent of the counties in the nation are responsible for half the death row convictions, according to the Death Penalty Information Center.

Not long ago, jurisdictions like Philadelphia County, Los Angeles County and Harris County, which includes Houston, were imposing 10 or more death sentences apiece per year.....  But there’s been a changing of the guard in many large counties over the past two or three years, including Harris and Philadelphia.  Voters are electing reform-minded prosecutors who are less likely -- or completely unwilling -- to seek execution as a punishment. 

Last year, no county in the United States imposed more than two death sentences.  During the mid-1990s, there were more than 300 death sentences imposed annually for three years running. Last year, the total was 42.  There hasn’t been more than 100 since 2010....

In 2016, the same year Trump was elected, Nebraska voters overturned a death penalty repeal that had been passed by the legislature, while California voters rejected a ballot measure to end capital punishment.  But if 2016 seemed to signal a shift back in favor of capital punishment, the momentum hasn't been sustained.  Under Trump, just three federal prisoners have been sentenced to die.  In last year’s elections, two governors who imposed moratoriums on the death penalty -- Democrats Kate Brown of Oregon and Tom Wolf of Pennsylvania -- both won reelection.  Conversely, two governors who vetoed abolition bills -- Republicans Pete Ricketts of Nebraska and Chris Sununu of New Hampshire -- also won reelection....

If crime rates increase, support for the death penalty could make a comeback. And many politicians and prosecutors want to keep execution available for punishing the “worst of the worst.”  In Florida, for example, prosecutors are seeking the death penalty for the alleged shooter in last year’s Parkland high school massacre.

Death penalty experts agree that the practice will not be completely abolished anytime in the foreseeable future.  But both the use of the death penalty and political support for it has declined markedly since the 1990s, when it was a wedge issue that moved many voters.  The list of states abolishing the death penalty continues to grow.  “I see the death penalty ending with a whimper, not a bang,” Garrett says. “It may be that the best thing is to allow states and communities to decide what’s best for them.”

This effectively review of the state of the capital mood in the United States will be interesting to revisit as we move into the 2020 election cycle. It seems quite possible that advocates and perhaps the base of the Democratic party will seek a Prez nominee who will actively embrace death penalty abolition. Prez Trump, who clearly likes to talk up his support for the death penalty, might well be eager to turn capital punishment into a wedge issue once again.

"Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement"

The title of this post is the title of this new empirical article now available via SSRN and co-authored by an especially impressive list of folks: Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David C. Baldus, George G. Woodworth and Richard Newell.  Here is its abstract:

The influence of race on the administration of capital punishment in the United States had a major role in the United States Supreme Court’s 1972 decision in Furman v. Georgia to invalidate death penalty statutes across the United States.  To avoid discriminatory and capricious application of capital punishment, the Supreme Court held that the Eighth Amendment requires legislatures to narrow the scope of capital offenses and ensure that only the most severe crimes are subjected to the ultimate punishment.  This Article demonstrates the racial and ethnic dimension of California’s failure to implement this narrowing requirement.

Our analysis uses a sample of 1,900 cases drawn from 27,453 California convictions for first-degree murder, second-degree murder, and voluntary manslaughter with offense dates between January 1978 and June 2002.  Contrary to the teachings of Furman, we found that several of California’s “special circumstances” target capital eligibility disparately based on the race or ethnicity of the defendant.  In so doing, the statute appears to codify rather than ameliorate the harmful racial stereotypes that are endemic to our criminal justice system.  The instantiation of racial and ethnic stereotypes into death-eligibility raises the specter of discriminatory intent in the design of California’s statute, with implications for constitutional regulation of capital punishment.

After veto-proof vote, New Hampshire appears poised to be first state to repeal death penalty legislatively since 2013

For a number of years not too long ago, a number of state legislatures got in the habit of repealing the (usually dormant) death penalty in their states.  Specifically, legislatures in five states over a span of six years led death penalty repeal efforts that become the law in New Jersey (2007), New Mexico (2009), Illinois (2011), Connecticut (2012), and Maryland (2013).  But thanks in part to a voter referendum rejecting a legislative repeal in Nebraska in 2016, it has been a full six years since a state legislature initiated a successful repeal of a state death penalty system.

But today, as reported in this local article, headlined "Death penalty repeal passes NH Senate with veto-proof majority," it looks like New Hampshire might soon be added to the list of states to repeal the death penalty legislatively during the modern era. Here are the details:

A bill to repeal the death penalty in New Hampshire cleared the state Senate with a veto-proof, 17-6, two-thirds margin Thursday, setting the stage for the end of capital punishment in a state that hasn’t executed anyone since 1939.  The House passed the repeal measure, HB 455, on March 3, also by a veto-proof vote of 279-88....

Gov. Chris Sununu has promised to veto the bill, but the votes in the House and Senate signal he most likely will be powerless to stop the repeal from taking effect unless two senators change their minds for the override vote.

The bill revokes the existing capital punishment statute and replaces it with a penalty of life in prison without the possibility of parole for murder of a police officer or other capital offenses.

New Hampshire currently has one person on death row — Michael Addison — who was sentenced to death for the 2006 killing of Manchester police Officer Michael Briggs. Opponents of death penalty repeal argued that Addison will never be executed if capital punishment is repealed, while supporters of the repeal said the law would not be applied retroactively.

Because I am pretty sure no state in the modern era has yet to execute a previously condemned person even after a "prospective only" repeal of the death penalty, I am also pretty sure that it could soon become very unlikely that Michael Addison will be executed for the 2006 killing of Manchester police officer.

Notable new (though incomplete) accounts of the state of death penalty politics

A couple of major news outlets had a couple of recent lengthy stories about modern death penalty politics.  Here are headlines, links, a small snippet and a follow-up comments:

From NBC News, "Death penalty repeal sweeping across states as both parties get on board":

Hannah Cox, the national manager of Conservatives Concerned About the Death Penalty, said that while the issue of repealing the death penalty was once a partisan one, that's changing.  It "was virtually unheard of in 2012 for a Republican lawmaker to sponsor repeal," Cox said.  This year, ten states have had Republican-sponsored legislation aimed at doing away with capital punishment, according to her grassroots advocacy group.  That includes Georgia, where the bipartisan House Bill 702 was introduced on March 28 backed by the Ways and Means committee chairman and boasting two other GOP co-sponsors.

From the New York Times, "Democrats Rethink the Death Penalty, and Its Politics":

In 2016, for the first time, the Democratic Party platform called for the abolition of the death penalty.  But Hillary Clinton, the party’s nominee for president, supported capital punishment. President Barack Obama never called for its end, either.  Al Gore was a supporter, and so was Bill Clinton.  Some fear it could still be a losing issue in a general election against President Trump, who has talked about expanding those eligible for execution to include convicted drug dealers and could use the issue to rally his base and portray Democrats as weak on crime.  In a Twitter post about Mr. Newsom’s moratorium, Mr. Trump wrote, “friends and families of the always forgotten VICTIMS are not thrilled, and neither am I!”

Because the story of modern capital politics is so interesting and dynamic, I cannot fault these press stories for failing to cover it fully.  These pieces, in my view, especially miss the important stories surrounding the apparent disinterest that even Republican supporters of the death penalty now have for taking steps to enhance the number and pace of executions.  As regular readers know, here in Ohio, former GOP Gov (and once and perhaps future Prez candidate) John Kasich commuted or delayed a large number of executions and his replacement, Gov. Mike DeWine, recently imposed a de facto moratorium on executions because of lethal injection concerns.  Similarly, a number of deep red states with sizable death rows, states like Mississippi, North Carolina, Oklahoma and South Carolina, have not had an execution in a number of years, and I do not recall any GOP leaders complaining (or campaigning) that this is a major problem.

Indeed, though Prez Trump was quick to criticize California Gov. Newsom's announcement of a formal execution moratorium, Prez Trump himself has seemingly done nothing over two+ years in the Oval Office to end the long-running de facto moratorium on federal executions.  Notably, California had its last execution in 2006, whereas the last federal execution took place way back  in 2003.  There are currently more than 60 people on federal death row, and some of have been there for more than 25 years.  Ultimately, it seems that Prez Trump is really like many GOP leaders these days: he is supportive of the death penalty in theory, but he is not really all that interested in doing the work needed to make the death penalty much more functional. And this political reality arguably accounts for the modern state of capital punishment more than any other factor.

Following SCOTUS ruling requiring equal access, Texas bans all religious officials from execution chamber

As reported in this local article, "Texas has banned all prison chaplains from its execution chamber, days after the U.S. Supreme Court ruled that the state was violating an inmate's rights by not allowing a Buddhist chaplain into the death chamber with him."  Here is more:

The high court last week halted the execution of Patrick Murphy, a member of the infamous "Texas Seven," because the department did not allow him to have a Buddhist chaplain in the room with him at the time of his scheduled death.  The state only allows prison employees in the death chamber, and only Christian and Muslim clerics are employed with the state. During executions, a chaplain will often stand at the feet of the prisoner and rest a hand on his leg mouthing silent prayers.

The court halted Murphy’s execution hours after it was scheduled to begin, and Justice Brett Kavanaugh issued an opinion declaring that the exclusion of a Buddhist adviser was religious discrimination.  The ruling came less than two months after the same court ruled against stopping the execution of a black prisoner in Alabama who requested a Muslim imam at his execution.  In his opinion, Kavanaugh proposed two alternatives for the Texas prison system: Don’t allow any chaplains into the execution chambers, or allow chaplains of all religions.

Texas has chosen the former option. New execution procedures signed Tuesday say that chaplains and ministers may "observe the execution only from the witness rooms." Currently, friends and family of the murder victims and prisoners, as well as media, are allowed to watch executions through a glass window in small rooms adjacent to the death chamber.

A spokesman for the Texas Department of Criminal Justice said the policy change is effective immediately. "TDCJ Chaplain(s) will continue to be available to an offender until they are transferred to the execution chamber.  The chaplain will also be present in the viewing room if requested," said the spokesman, Jeremy Desel.  Under the policy, prisoners will still be able to meet with a TDCJ chaplain or a spiritual adviser “who has the appropriate credentials” on the day of execution.

Prior related post:

• SCOTUS stays Texas execution because condemned was denied Buddhist spiritual advisor in execution chamber 

Splitting 5-4 along traditional ideological lines, SCOTUS rejects Missouri inmate's challenge to lethal injection protocol

The Supreme Court this morning handed down its opinion in an execution protocol case, Bucklew v. Precythe, No. 17-8151 (S. Ct. April 1, 2019) (available here).  The Court split 5-4 in favor of the state of Missouri, and here is how Justice Gorsuch's opinion for the Court gets started:

Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes.  He acknowledges that the U.S. Constitution permits a sentence of execution for his crimes.  He accepts, too, that the State’s lethal injection protocol is constitutional in most applications.  But because of his unusual medical condition, he contends the protocol is unconstitutional as applied to him.  Mr. Bucklew raised this claim for the first time less than two weeks before his scheduled execution.  He received a stay of execution and five years to pursue the argument, but in the end neither the district court nor the Eighth Circuit found it supported by the law or evidence. Now, Mr. Bucklew asks us to overturn those judgments.  We can discern no lawful basis for doing so.

Justice Breyer penned the lead dissent, and it gets started this way:

The Court’s decision in this case raises three questions.  The first is primarily a factual question, namely, whether Bucklew has established genuine issues of material fact concerning whether executing him by lethal injection would cause him excessive suffering.  The second is primarily a legal question, namely, whether a prisoner like Bucklew with a rare medical condition must identify an alternative method by which the State may execute him.  And the third is a more general question, namely, how to minimize delays in executing offenders who have been condemned to death.

I disagree with the majority’s answers to all three questions. Bucklew cites evidence that executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies.  That evidence establishes at this stage of the proceedings that executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering.  The majority holds that the State may execute him anyway.  In my view, that holding violates the clear command of the Eighth Amendment.

The decision includes short concurring opinions from Justices Thomas and Kavanaugh, and also a added dissenting opinion by Justice Sotomayor. I fear a busy day means I will not be able to analyze all that is being said in this case until late tonight.  But I suspect, as is always true with capital cases, lots of other folks will have lots to say about what various Justices are saying here.

Notable judicial hand-wringing from California Supreme Court justices about "expensive and dysfunctional [capital] system that does not deliver justice or closure"

A helpful colleague made sure I did not miss the notable short concurring opinion at the end of this long decision by the Supreme Court of California affirming a death sentence. The concurring opinion was authored by Justice Goodwin Liu and joined by Justice Mariano-Florentino Cuéllar. Here is how it gets started:

Today’s decision is our first to affirm a death judgment since Governor Newsom signed Executive Order N-09-19 effecting a moratorium on capital punishment in California. Neither defendant nor the Attorney General has suggested that the Executive Order raises any new issues bearing on this appeal. We thus decide this case on the claims and arguments as submitted.

And yet, as the Executive Order underscores, our decision affirming the judgment does not alter a fundamental reality: A death sentence in California has only a remote possibility of ever being carried out.  As leaders of the judiciary have long observed, the death penalty presents serious challenges for the fair and efficient administration of justice. For decades, those challenges have not been meaningfully addressed.  As a result, California’s death penalty is an expensive and dysfunctional system that does not deliver justice or closure in a timely manner, if at all.

The opinion goes on to highlight various reasons why the California death penalty system is such a mess and why the reform initiative in 2016, Proposition 66, "did not enact or put to the voters the key reforms that leading authorities consider fundamental to a workable death penalty system."  The eight-page opinion then concludes with this paragraph:

I express no view here on the morality or constitutionality of the death penalty.  Since joining this court, I have voted to affirm scores of death judgments, and I will continue to do so when the law requires.  It is impossible to review these cases without feeling tremendous compassion for the victims and their families, who have suffered unimaginable heartbreak and loss.  But the promise of justice in our death penalty system is a promise that California has been unable to keep. We are overdue for what our Chief Justice has called “a merit-based discussion on [the death penalty’s] effectiveness and costs.” (Dolan, [California Chief Justice Urges Reevaluating Death Penalty, L.A. Times (Dec. 24, 2011)].)  In the meantime, the judiciary will continue to do its duty under the law, leaving it to the voters and our elected representatives to decide whether California should double down on the current system or chart a new course.

Because Justice Liu was a law professor before he became a Justice, I fully understand his inclination to speak his mind on this issue and his decision to do so through the medium readily available to him (namely, a judicial opinion).  But, candidly, I was hoping for a little bit more of a formal legal payoff from this formal legal opinion, perhaps in the form of a call for briefing on whether Executive Order N-09-19 impacts the legal status of death penalty cases in California or whether state judges might exercise discretion not to continue adjudicating pending capital cases while the moratorium is in place.   

SCOTUS stays Texas execution because condemned was denied Buddhist spiritual advisor in execution chamber

As reported in this local article, "hours after he was to be executed for his role in a notorious 19-year-old crime, Texas death row prisoner Patrick Murphy won a rare stay from the U.S. Supreme Court based on his request to have a Buddhist spiritual adviser next to him in the death chamber."  Here is more:

The condemned man, one of the last surviving members of the so-called 'Texas 7' crew of prison escapees, lobbed a long-shot bid for reprieve earlier this week when his attorneys raised religious discrimination claims, arguing that the converted Buddhist couldn't make it to the Pure Land for rebirth without a spiritual adviser present as he prepared to die.

But the regular prison chaplain is a Christian and, in light of that, the Texas prison system's refusal to accommodate Murphy's request could be a constitutional violation. "As this Court has repeatedly held, governmental discrimination against religion — in particular, discrimination against religious persons, religious organizations, and religious speech— violates the Constitution," Justice Brett Kavanaugh wrote.

"The choice of remedy going forward is up to the State. What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room."

Two justices — Clarence Thomas and Neil Gorsuch — dissented, while Murphy's legal team celebrated the rare win.

"We are pleased the Supreme Court acknowledged both that Mr. Murphy, as a Buddhist, is entitled to be accompanied in the execution chamber during the execution by a minister of his own faith just as a Christian would be," Houston-based attorneys David Dow and Jeff Newberry said in a statement late Thursday.

But the late-breaking decision doesn't mean that Murphy can't be executed — it just means that he gets more time to argue his appeal, unless the Texas prison system instead chooses to resolve the issue by changing their protocols to allow Buddhists the same execution chamber religious rights as Christians.

Prison spokesman Jeremy Desel said the Texas Department of Criminal Justice legal team will "be reviewing the ruling" to figure out "what, if any, impact it will have."

The Supreme Court's ruling is available at this link, and here is the official statement from the Court:

The application for a stay of execution of sentence of death presented to JUSTICE ALITO and by him referred to the Court is granted.  The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.

Justice Kavanaugh decided to write a few paragraphs to explain his vote, and here is are a few sentences therefrom:

In this case, the relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room.  But inmates of other religious denominations — for example, Buddhist inmates such as Murphy — who want their religious adviser to be present can have the religious adviser present only in the viewing room and not in the execution room itself for their executions.  In my view, the Constitution prohibits such denominational discrimination.

UPDATE: A number of commentors below and elsewhere have been discussing the notable difference in outcome between this case, where a dividied SCOTUS imposed a stay after the Fifth Circuit refused a stay, and Dunn v. Ray last month, where a divided SCOTUS lifted a lower court stay to allow an execution to go forward. Ilya Somin at The Volokh Conspiracy speaks to the parallels in this post, which concludes with these observations:

In my view, ... the justices saw the extremely negative reaction against their decision in Ray, and belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the Court's reputations. Presented with a chance to "correct" their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away.

And, whatever can be said about the procedural question, it's a good thing that the justices have taken a major step towards clearing up any confusion over their stance on the substantive one. Whether in death penalty cases or elsewhere, it is indeed impermissible for the government to discriminate on the basis of religion.

After state jury recommended 419 years plus life, feds allow Charlottesville killer to plead guilty to take capital charge off table

As reported in this NBC News piece, headlined "Driver in deadly car attack at Charlottesville white nationalist rally pleads guilty to federal hate crimes," the federal government cut a plea deal to allow a hate crime killer to avoid facing the death penalty.  Here are the basics:

The man convicted of murder in the deadly car attack on counterprotesters at the 2017 white nationalist rally in Charlottesville, Virginia, pleaded guilty to federal hate crime charges Wednesday in order to dodge a possible death penalty.

James Alex Fields Jr., 21, from Maumee, Ohio, pleaded guilty to 29 of 30 charges against him.  The 30th charge, which included a possible death sentence, was dropped. He's been ordered to return to court on July 3 to be sentenced.

The single charge in Count 30 was brought under a provision of the Civil Rights Act of 1968.  It had accused Fields of racially motivated violent interference with a federally protected activity — counterprotesters using the public streets and sidewalks of Charlottesville — and carried a possible death penalty....

"The defendant in this case has pled guilty to 29 hate crimes which he committed by driving his car into a crowd of protesters," Attorney General William Barr said in a statement. "These hate crimes are also acts of domestic terrorism."

Barr cited the recent mosque massacre in New Zealand that left 50 dead in saying the nation must have zero tolerance for racial and religious bias.  “In the aftermath of the mass murder in New Zealand earlier this month, we are reminded that a diverse and pluralistic community such as ours can have zero tolerance for violence on the basis of race, religion, or association with people of other races and religions,” according to Barr....

U.S. Attorney for the Western District of Virginia Thomas Cullen said he hopes this courtroom deal will spare survivors of reliving that day.  “Although the defendant’s guilty plea cannot undo the pain, suffering, and loss that he caused, it is my hope that it will enable these victims and our community to continue the healing process," Cullen said....

Jurors in his state case found him guilty of murder and recommended he be sentenced to life in prison, plus 419 years. Sentencing in that case is scheduled for July 15.

I am always disinclined to question a plea deal without knowing all the details, especially details related to the expressed interests of the victims and the arguments that might be made by the defense.  But, in this context, I still cannot help but note that the Trump administration, though talking up the death penalty in various ways, has not yet shown all that much of a interest in aggressively pursuing capital prosecutions or actual executions.   (This AP article from back in October 2018 indicated that the first couple years of the Trump administration involved roughly the same use of the death penalty as in the early years of the Obama administration and that "both the Trump and Obama administrations pale in comparison to that of President George W. Bush and his attorney general John Ashcroft, who in 2003 alone signed off on capital prosecutions against more than three dozen defendants.")

Prior related posts:

• After Virginia jury convicts James Fields of first-degree murder for killing in Charlottesville, same jury to begin considering sentence
• "Charlottesville Jury Recommends 419 Years Plus Life For Neo-Nazi Who Killed Protester" 

California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions

This Los Angeles Times piece, headlined "Gov. Newsom may prohibit new death sentences, setting up possible conflict with Becerra," it appears that the Governor of California may not be content with just delaying all possible executions during his time in office.  Here are some details:

A week after issuing an executive order imposing a blanket moratorium on the execution of California death row inmates, Gov. Gavin Newsom said he is considering a plan to prohibit any new death sentences in local criminal cases.

Newsom’s pronouncement could create conflict with another top Democratic leader, state Atty. Gen. Xavier Becerra, who has supported capital punishment, even though the governor said he wants to work collaboratively with the attorney general.

Newsom reiterated his desire to abolish the death penalty and said he hopes to work with Becerra and others to determine whether, as governor, he can act “on behalf of the people in this state to no longer prosecute death.”

“There is a protocol of death and an administration of death in the state of California, and it consumes the court’s time, it consumes the criminal justice system, it exhausts the soul and the pocketbook,” Newsom said during a conference call with reporters from ethnic news outlets Tuesday. “I would ultimately like to shut down that system of death.”

Though it is not entirely clear how Newsom would carry out such an order, he could either have Becerra direct local district attorneys not to seek the death penalty or order Becerra to not defend appeals. Both approaches would probably face legal challenges....

Asked whether the attorney general will stop defending death sentences on appeal or direct county prosecutors to stop seeking death sentences, a Becerra spokeswoman said he is reviewing what role his office will play.  “The Department of Justice will work with Governor Newsom and his team as he implements his executive order and will continue to hold criminals accountable,” spokeswoman Bethany Lesser said.

After the Times published this story, Becerra requested an opportunity to clarify his position on the death penalty. In a telephone interview Thursday, he declined to answer if he supported or opposed capital punishment. He said only that, as attorney general, it was his duty to enforce the laws in California, the death penalty among them.  “Where I stand personally on it, I have real reservations about the death penalty. I think there is ample proof that it has not worked the way we would want when it comes to undertaking the most severe form of punishment that’s not reversible,” Becerra said....

The U.S. 9th Circuit Court of Appeals in San Francisco on Monday asked the attorney general’s Department of Justice to indicate whether the governor’s moratorium will affect a death penalty case involving Martin Kipp, who was convicted in the 1983 slaying of Antaya Yvette Howard of Huntington Beach, a former basketball star at Marina High School.  “The Office of the Attorney General is in the process of determining the full effect of the Executive Order on death penalty cases,” the state Department of Justice told the court in a letter.

Even if Becerra disagrees with Newsom, he might not have a choice if the governor decides to force the issue. Because the California Constitution gives the governor “supreme executive power” over the executive branch, Newsom could order Becerra to take action that could suspend all death penalty prosecutions across the state. “In California’s executive branch, the governor has the final word,” said David A. Carrillo, executive director of the California Constitution Center at Berkeley Law.

In 1981, the California Supreme Court ruled that the governor’s constitutional powers give him direct authority over the attorney general. “The constitutional pattern is crystal clear: if a conflict between the Governor and the Attorney General develops over the faithful execution of the laws of this state, the Governor retains the ‘supreme executive power’ to determine the public interest,” the court decision stated....

The constitution also states that the attorney general, as the state’s chief law enforcement officer, has direct supervision over every county district attorney “in all matters pertaining to the duties of their respective offices” — opening up the possibility that he could order locally elected prosecutors to cease seeking the death penalty in murder trials.

Any attempt by the attorney general to dictate how a county district attorney can handle murder prosecutions would almost assuredly be unconstitutional and challenged in court, said Assemblyman Jordan Cunningham (R-Templeton), a former deputy district attorney. District attorneys serve independent of the attorney general, he said. “There’s a lot of D.A.s who I have spoken to, who I know, who aren’t happy with the moratorium that we have now,” Cunningham said. “We don’t live in a system where one person gets elected governor and they get to do what they want by executive fiat.”

Prior related post:

• New California Gov to order moratorium on executions in his state 

"Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against Executing Juveniles From 18 to 21"

The title of this post is the title of this notable new paper authored by John Blume, Hannah Freedman, Lindsey Vann and Amelia Hritz.  Here is its abstract:

Nearly fifteen years ago, the Supreme Court held in Roper v. Simmons that the Eighth Amendment prohibits the execution of people who were under 18 at the time of their offenses. The Court justified the line it drew based on legislative enactments, jury verdicts, and neuroscience.  In the intervening years, however, much has changed in juvenile sentencing jurisprudence, the legal treatment of young people, and neuroscience.  These changes beg the question: Why 18?  Is the bright-line rule that the Court announced in Roper still constitutionally valid or do the changes since 2005 now point to a new cutoff at 21?

To answer those questions, this Article considers post-Roper developments in the relevant domains to make the case that the 18-year-old constitutional line should be extended to age 21.  It does so by applying the Supreme Court’s evolving-standards-of-decency methodology.  Specifically, the Article examines all death sentences and executions imposed in the United States post-Roper and looks at the current state of neuroscientific research that the Court found compelling when it decided Roper.

Two predominant trends emerge.  First, there is a national consensus against executing people under 21.  This consensus comports with what new developments in neuroscience have made clear: people under 21 have brains that look and behave like the brains of younger teenagers, not like adult brains.  Second, young people of color are disproportionately sentenced to die — even more so than adult capital defendants.  The role of race is amplified when the victim is white.  These trends confirm that the logic that compelled the Court to ban executions of people under 18 extends to people under 21.

Rounding-up some news and commentary as SCOTUS hears argument on latest round of capital insanity

Albert Einstein is generally credited with the aphorism that "the definition of insanity is doing the same thing over and over again, but expecting different results." That quote came to mind as I was thinking about the Supreme Court's consideration this morning of a Batson claim in Flowers v. Mississippi. Here is a brief accounting of just some of the backstory of this case (with emphasis added) from this SCOTUSblog post when cert was granted:

[T]he justices will once again review the case of Curtis Flowers, who was sentenced to death for an infamous quadruple murder at a furniture store in Winona, Mississippi.  Flowers was tried six times.  During the first four trials, prosecutor Doug Evans was twice found to have violated the constitutional ban on racial discrimination in selecting jurors: He had struck all 10 of the potential African-American jurors, while he used all of his strikes to remove African Americans from the jury pool in the third and fourth trials.  Flowers’ fifth trial deadlocked, but at his sixth trial, Evans allowed the first African-American juror to be seated but then struck the remaining five African-American jurors. 

Reviewing my blog archives, I noticed that it was nine years ago(!) that I blogged here about a local article and asked "Will sixth time be the charm in capital trial(s) of Curtis Flowers?"

Here are a few up-to-date discussions of and commentary on the case as it now comes before the US Supreme Court on the issue of whether the Mississippi Supreme Court properly applied Batson v. Kentucky in this version of the case:

• From ABC News, "After blacks kicked off juries, Mississippi death row inmate brings racial bias claim to Supreme Court"

• From The Atlantic, "A Racial Pattern So Obvious, Even the Supreme Court Might See It: Flowers v. Mississippi reveals a rickety American legal system."

• From CNN, "Mississippi death row inmate, after six trials, claims race discrimination"

• From Jurist, "The Supreme Court Must Stand for Equality in Upcoming Jury-Selection Case"

• From SCOTUSblog, "Argument preview: Justices to weigh allegations of racial discrimination in jury selection"

Rounding up some commentary on Gov Newsom's formal halting of executions in California

Given that there were no executions in California during the second term of Gov Arnold Schwarzenegger or during the two terms of Gov Jerry Brown, I was not expecting to see California's execution chamber suddenly getting a lot of use once Gavin Newsom took over.  But, as reported here, just two months into office, Gov Newsom formalize matters by ordering an "executive moratorium ... in the forms of a reprieve for all people sentenced to death in California."  Here is a smattering of commentary about this move:

• From The Atlantic, "Will the U.S. Finally End the Death Penalty?: In the past, abolition efforts faced a backlash—but Gavin Newsom’s moratorium may be different."

• "From the Mercury News, "Newsom move effectively ends death penalty in US: The closing of California’s death row, America’s largest, has more than just symbolic importance"

• From the Los Angeles Times, "Politicians don’t normally overrule voters. On the death penalty, Gavin Newsom just did"

• From The National Review, "Gavin Newsom's Death-Penalty Overreach"

• From the San Diego Union-Tribune, "How Newsom is ignoring California voters with death penalty reprieve"

• From the San Diego Union-Tribune, "How Newsom is leading California forward on the death penalty"

• From the San Francisco Forum, "Gov. Newsom’s death penalty moratorium undercuts the voters’ will"

New California Gov to order moratorium on executions in his state

As reported in this local piece, headlined "Gov. Gavin Newsom to stop death penalty in California, giving reprieves to 737 death row inmates," there is big death penalty news from the Golden State.  Here are the details:

Gov. Gavin Newsom is putting a moratorium on the death penalty in California, sparing the lives of more than 700 death-row inmates.  Newsom plans to sign an executive order Wednesday morning granting reprieves to all 737 Californians awaiting executions – a quarter of the country’s death row inmates.

His action comes three years after California voters rejected an initiative to end the death penalty, instead passing a measure to speed up executions.

Newsom says the death penalty system has discriminated against mentally ill defendants and people of color. It has not made the state safer and has wasted billions of taxpayer dollars, according to prepared remarks Newsom plans to deliver Wednesday morning when he signs the order.

“Our death penalty system has been – by any measure — a failure,” Newsom plans to say. “The intentional killing of another person is wrong. And as governor, I will not oversee the execution of any individual.”

California has not executed anyone in more than a decade because of legal challenges to the state’s execution protocol. But executions for more than 20 inmates who have exhausted their appeals could have resumed if those challenges were cleared up, and Newsom has said he worried that it could happen soon.

Newsom has been a longtime opponent of the death penalty. While campaigning for a measure to repeal the death penalty in 2016, he told The Modesto Bee editorial board he would “be accountable to the will of the voters,” if he were elected governor. “I would not get my personal opinions in the way of the public’s right to make a determination of where they want to take us” on the death penalty, he said.

The moratorium will be in place for the duration of Newsom’s time in office, the governor’s office said. After that, a future governor could decide to resume executions.

California is one of 31 states with capital punishment.  In recent years, other states have abolished the death penalty and several other governors have placed moratoriums on executions. The California Constitution gives the governor power to grant reprieves to inmates, providing he reports his reasoning to the Legislature.

But Newsom’s action will anger death penalty proponents. “The voters of the State of California support the death penalty.  That is powerfully demonstrated by their approval of Proposition 66 in 2016 to ensure the death penalty is implemented, and their rejection of measures to end the death penalty in 2016 and 2006, said Michele Hanisee, president of the Association of Deputy District Attorneys, in a statement late Tuesday.  “Governor Newsom, who supported the failed initiative to end the death penalty in 2006, is usurping the express will of California voters and substituting his personal preferences via this hasty and ill-considered moratorium on the death penalty.”

Preventing executions through a blanket action is an abuse of the governor’s power, death-penalty supporter Kent Scheidegger told The Bee in an interview earlier this month. The governor’s clemency powers are designed to correct individual cases of injustice, said Scheidegger, legal director for the Criminal Justice Legal Foundation.  “It’s not supposed to be a weapon for blocking the enforcement of the law that the people have passed just because the governor disagrees with it,” Scheidegger said.

In addition to the moratorium, Newsom’s order will also withdraw California’s legal injection protocol and close the execution chamber at San Quentin, where all death row inmates are imprisoned.  Those on death row will remain in prison under the order.

I suspect this moratorium order may be challenged in court, but I doubt there is functionally much that can be done to undo this moratorium given that there has been de facto moratorium in place for more than a decade already.

UPDATE: Over at California Correctional Crisis, Hadar Aviram has this lengthy posting about the moratorium and its implications under the title "Moratorium!!! What Does It Mean?"

ANOTHER UPDATE: This press release from Governor Newsom's office provide a link to this official executive order which orders, inter alia, the "executive moratorium ... in the forms of a reprieve for all people sentenced to death in California."  And I have now seen that Prez Trump had this tweet about this development this morning: "Defying voters, the Governor of California will halt all death penalty executions of 737 stone cold killers. Friends and families of the always forgotten VICTIMS are not thrilled, and neither am I!" 

Ohio Governor officially postpones three more scheduled executions

As reported here a few weeks ago, the new Governor of Ohio has imposed something of a de facto moratorium on executions because of concerns over the state's(historically troubled) lethal injection protocol.  This new local article, headlined "DeWine delays three more executions due to lethal drug concerns," reports on the last official manifestation of this unofficial execution moratorium:

After urging from a federal judge, Ohio Gov. Mike DeWine delayed three more executions today.

DeWine has said he doesn’t want to carry out another execution until the judge’s concerns with Ohio’s current method are addressed. He has directed the state Department of Rehabilitation and Correction (DRC) to come up with a new protocol after federal Magistrate Judge Michael Mertz said the “current three-drug protocol will certainly or very likely cause (the one being executed) severe pain and needless suffering.”

David Stebbins, assistant federal public defender who is involved in Ohio death penalty cases, called the governor’s move “a commendable first step.” But the defense lawyer noted Ohioans still have “no indication of what the new protocol will be, when it will be made public, or what kind of litigation schedule may ensue. On the current schedule, there is no guarantee that proper vetting can occur before the first execution in September.

In January, DeWine issued a reprieve of execution to Columbus killer Warren Henness, who had been scheduled to die Feb. 13.

So this morning DeWine delayed the death dates for Cleveland Jackson, who was scheduled to be executed May 29, to Nov. 13; Kareem Jackson, set for July 10, moved to Jan. 16, 2020; and Gregory Lott, slated for Aug. 14, now scheduled for March 12. This was not the first delay for Lott, a Cuyahoga County killer; he originally was scheduled for execution on Nov. 19, 2014.

DeWine’s office said the reprieves were granted “because it is highly unlikely that the state’s new execution protocol, which is still in the process of being developed by DRC, would have time to be litigated by scheduled execution dates. Governor DeWine is also mindful of the emotional trauma experienced by victims’ families, prosecutors, law enforcement, and DRC employees when an execution is prepared for and then rescheduled.”

A few (of many) prior recent related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• "Behind the Curtain: Secrecy and the Death Penalty in the United States"

Federal judge denies request by Philly DA to vacate state death sentence

As reported in this local article, headlined "Judge denies Krasner office’s request to vacate death penalty in 1984 double murder," an effort by the current Philadelphia District Attorney to undo some work by prior DAs hit a federal snag. Here are the interesting details:

A federal judge on Monday denied a request by the Philadelphia District Attorney’s Office to vacate the death penalty for a Philadelphia man convicted of the 1984 strangulation and drowning deaths of a prominent pastor’s son and daughter-in-law in their East Mount Airy home.

U.S. District Judge Mitchell Goldberg wrote that for three decades, the DA’s Office had “consistently and zealously opposed” inmate Robert Wharton’s efforts to overturn his conviction and death sentence. Early last month, the office informed the judge it would no longer fight the appeal. Max Cooper Kaufman, supervisor of the federal litigation unit under District Attorney Larry Krasner, wrote that the decision came after the office reexamined the case and communicated with the victims’ family.

In his written opinion, Goldberg described the deaths of Bradley Hart, 26, and his wife, Ferne, 31, as “particularly horrific” and noted the DA’s Office didn’t explain the reason behind what he called "this complete reversal of course.” He ordered both parties to submit briefs explaining their positions.

Krasner, a former criminal defense lawyer who took office last year, campaigned on a platform of never seeking the death penalty. His spokesperson, Ben Waxman, said by email Monday that the office had no comment on Goldberg’s ruling “except to say that we are reviewing the opinion and considering next steps in the case." The Federal Community Defender Office, which is representing Wharton, did not immediately respond to a request for comment.

Wharton’s co-defendant, Eric Mason, was sentenced to life in prison. Both men, construction workers from Germantown, were 20 at the time of the murders. Now 56, Wharton is on death row at the State Correctional Institution-Phoenix in Montgomery County.

According to evidence in the case, on the night of Jan. 30, 1984, Wharton and Mason went to the Harts’ home, tied up the couple, and separated them. Wharton choked Ferne Hart with a necktie and drowned her in a bathtub. Mason denied killing anyone, but was accused by Wharton of killing Bradley Hart by forcing his face in water and strangling him with an electrical cord....

In April 1992, the Pennsylvania Supreme Court partially granted Wharton’s appeal, ordering a new sentencing hearing. That December, a second Philadelphia jury reimposed the double-death sentence for Wharton. In December 2002, then-Gov. Mark Schweiker signed his death warrant, but the execution was stayed after Wharton appealed to federal court.

Goldberg in 2012 denied his petition, but an appellate court sent it back to the district judge on just one claim — whether his lawyer was ineffective for failing to tell the jury about Wharton’s adjustment to prison. That was the claim the District Attorney’s Office last month said it would not fight. The DA’s Office also asked the judge to grant summary relief by taking the death penalty off the table and said that if the judge did so, prosecutors wouldn’t seek a new death sentence in state court.

Krasner has received pushback by the judiciary in at least one other case in which his office tried to throw out a death sentence. In October, Pennsylvania Supreme Court Justice Christine Donohue wrote in a majority opinion that a jury had approved the death penalty for Lavar Brown, and the DA’s Office couldn’t change that result “based upon the differing views of the current office holder.”

Pennsylvania’s death penalty has been used just three times since it was reinstated by the state in 1978. Gov. Tom Wolf imposed a moratorium on its use in 2015. Wolf’s spokesperson said Monday that the governor believes the moratorium should continue in light of a June 2018 report by a bipartisan legislative task force and advisory committee, which found various problems concerning the death penalty.

Because I have not yet had time to find Judge Goldberg's opinion, I am disinclined to comment on the specifics yet. But the case presents a fascinating set of issues concerning finality, prosecutorial discretion and the interplay of federal and state authority over capital prosecutions. And, as it always the case when I learn about long-running capital cases, I cannot help but wonder what litigation over the death penalty has cost (and will continue to cost) state and federal taxpayers here.

Spotlighting the role of prosecutors as the death penalty fades away in Pennsylvania

This lengthy local article, headlined "Death penalty has fallen out of favor with Pennsylvania prosecutors," reports on the steady decline in capital prosecutions and death sentences in the Keystone state in recent decades. Here are excerpts:

Pennsylvania’s death penalty is, by all accounts, embattled.  There hasn’t been an execution in two decades, even before Gov. Tom Wolf imposed a moratorium on them in 2015. The courts have long scrutinized death sentences, throwing out scores of them at appeal.  And juries have become more hesitant to impose the state’s ultimate punishment.  A long-awaited legislative study recently called for a host of reforms.

But a surprising factor is quietly contributing to the death penalty’s decline in Pennsylvania: Prosecutors are increasingly reluctant to pursue capital murder charges, given the high financial cost and lengthy legal battles they guarantee, and the improbability the sentences will ultimately be carried out.

In 2004, 40 percent of murder convictions in Pennsylvania started as death-penalty cases, according to a review of state data by The Morning Call.  By 2017, that number had dropped more than threefold, to 12 percent of murder convictions, the lowest rate in 14 years....

The Morning Call’s figures offer a first accounting of the waning frequency with which the state’s 67 elected district attorneys pursue capital punishment, data that state government does not track.  For its analysis, the newspaper reviewed 4,184 murder convictions in Pennsylvania from 2004 to 2017, using docket sheets, appellate court records and local media accounts to determine whether they were ever listed as capital cases....

The findings showed that in 2004, there were 309 murder convictions statewide, of which 123 started as death-penalty prosecutions.  In 2017, there were 271 murder convictions, of which 33 saw the filing of capital charges.

The downward trend held generally year to year, though there were occasional bumps.  It was driven by Philadelphia, which has long dominated Pennsylvania’s death-penalty cases, but was also seen in the rest of the state, though some individual counties such as Bucks, Chester and Lancaster saw little or no change.  And the numbers should only fall further in the coming years, amid the tenure of Philadelphia District Attorney Larry Krasner, a self-described progressive who took office in 2018 vowing to never pursue the death penalty....

Death sentences are falling across the nation, said Robert Dunham, a former federal public defender in Pennsylvania who now heads the Death Penalty Information Center, a Washington, D.C., nonprofit.  “Pennsylvania reflects that pattern,” Dunham said. “What we’re seeing is that prosecutors have realized these cases are likely to not result in a death sentence.”...

Amid that, the governor’s moratorium remains in effect, with little movement in the Legislature to take up capital punishment.  Wolf tied his decision to a Senate-commissioned report on the death penalty, a long-delayed study that was released in June after seven years of preparation.  The report offered a raft of potential reforms, including calls for a state-funded capital defender’s office, and more protections to prevent the execution of the mentally ill and intellectually disabled.

Wolf will continue blocking executions until the death penalty’s problems are corrected, said J.J. Abbott, a spokesman for the governor.  “He looks forward to working with the General Assembly on their plans to address the report and its recommendations for legislative changes, all of which he believes should be debated and considered,” Abbott said in a prepared statement.

Whether there is momentum to take up the death penalty — either to repeal it or to fix it with an eye to resuming executions — remains unclear.

State Rep. Rob Kauffman, the chairman of the House Judiciary Committee, said he is open to re-examining capital punishment, considering its cost to taxpayers and the lack of executions.  But he said it just isn’t a big topic in Harrisburg.  “There’s a lot that has been talked about regarding criminal justice reform, but this is not one of those front-burner issues,” said Kauffman, R-Franklin.

In the meantime, the number of inmates on death row continues to fall, as do the number of new death sentences.  In 2018, juries added only one killer to death row in Pennsylvania.

Texas completes execution of triple killer ... and his family gets arrested

This local article, headlined "Texas death row inmate's son arrested for outburst during father's execution," reports on an execution and its remarkable aftermath. Here are details:

Billie Wayne Coble's son pounded on the execution chamber windows, cursing and shouting "no" as he watched his father die. It was just after 6:20 p.m., and the 70-year-old triple killer was about to become the oldest Texan executed in the modern era of capital punishment.

The aging Vietnam veteran who murdered his in-laws in an apparent rash of vengeance offered a only a short final statement before he was pronounced dead, according to the Texas Department of Criminal Justice. "That will be five dollars," he said. "I love you, I love you, and I love you."...

But as soon as he finished speaking, the witness room erupted into chaos.  Gordon Coble started banging on the glass, and his son Dalton joined in the furor.  Both men — along with another relative — were removed from the room before the execution ended, and the two ended the night in the Walker County Jail, facing resisting arrest charges....

It was a dramatic and unexpected end to a decades-long saga. Back in the summer of 1989, Coble was distraught over the disintegration of his third marriage when he kidnapped his estranged wife and killed her parents and brother before attempting to kill himself.

But the Waco man, now 70, had no priors and, as he racked up years of good behavior in prison, his attorneys argued that a pair of experts for the state got it wrong at trial when they offered testimony claiming he'd be a future danger even behind bars....

This year, Coble's lawyer filed a plea for clemency.  "He is now 70 years old, in poor health, and has an almost blemish-free prison record for the past 30 years," attorney Richard Ellis wrote.  "His execution would serve no valid purpose."

The Texas Board of Pardons and Paroles turned his request down on Tuesday, leaving him with a final appeal in front of the U.S. Supreme Court.  In that claim, Coble's attorney argued that the Waco man's trial attorneys shouldn't have admitted his guilt because Coble asked them not to.  Last year, the same concern came up in a Louisiana case — and the high court sided with the condemned prisoner.  In Coble's case they did not....

Coble was the second man executed in Texas in 2019. There are five more executions on the calendar, including a June death date for Harris County killer Dexter Johnson.

SCOTUS, ruling 5-3, clarifies execution competency standards and remands in Madison v. Alabama

The Supreme Court this morning handed down an opinion in Madison v. Alabama, 17-7505 (S. Ct. Feb. 27, 2019) (available here), a case concerning the distinctive Eighth Amendment jurisprudence addressing whether a defendant is competent to be executed.  The ruling in the case is 5-3, as Justice Kavanaugh had not yet joined the Court at the time the case was argued.  Justice Kagan delivered the opinion of the Court, which was joined by the Chief Justice as well as Justices Ginsburg, Breyer and Sotomayor.  Here is how the opinion gets started:

The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman, 551 U.S. 930, 959 (2007). In this case, Vernon Madison argued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief.  We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court.  First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime?  We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions?  We (and, now, the parties) think so, because either condition may — or, then again, may not — impede the requisite comprehension of his punishment.  The only issue left, on which the parties still disagree, is what those rulings mean for Madison’s own execution.  We direct that issue to the state court for further consideration in light of this opinion.

Justice Alito filed a dissenting opinion, which Justices Thomas and Gorsuch joined, and starts with these pointed passages:

What the Court has done in this case makes a mockery of our Rules.

Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitutional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional.

After persuading the Court to grant review of this question, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental conditions, cannot provide a basis for such a claim.  See Brief for Petitioner 16.

This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition — not even a hint. Nor is this question fairly included within those on which the Court granted review.  On the contrary, it is an entirely discrete and independent question.

Counsel’s tactics flagrantly flouted our Rules.  Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”).  Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted.  See, e.g., Visa, Inc. v. Osborn, 580 U.S. ___ (2016); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015). We should do that here.

Instead, the majority rewards counsel’s trick.  It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief.  But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that petitioner claims it took.

As all Court watchers know, "death is different" not only for Eighth Amendment jurisprudence but also for how the Justices approach these cases procedurally. I suspect Justice Alito is not surprised that some fellow Justices are approaching a capital case in a unique way, but I wonder if he is surprised that the Chief Justice provides the key swing vote for the defendant here.

New Ohio Gov puts halt to all executions until Ohio develops new execution method

As reported in this local article, headlined "Gov. Mike DeWine freezes all Ohio executions while new method developed," the Buckeye state is yet again in a capital holding pattern because it governor is troubled by the state's current execution method. Here are the details:

Gov. Mike DeWine said Tuesday that there will be no more executions in Ohio until a new method of carrying them out can be developed and deemed constitutional by the courts.

“As long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio,” DeWine told reporters at an Associated Press forum in Columbus. “That would not be right, at least in my opinion.”

Pressed on whether he personally supports the death penalty, DeWine paused. Seeming to choose his words carefully, he then said he was a sponsor of Ohio’s current capital punishment law, which took effect in 1981. “It is the law of the state of Ohio. And I’ll let it go [not comment further] at this point. We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty. But I’m not going to go further down that path any more today,” he said.

DeWine, a Republican, ordered a review of Ohio’s death penalty protocols last month after a federal magistrate judge wrote that Ohio’s method of carrying out executions would subject a condemned Ohio prisoner to “severe pain and needless suffering.” Judge Michael Merz wrote Ohio could proceed with the execution, since the inmate, Warren Henness, did not produce an alternative that is ”available,” “feasible,” and can be “readily implemented,” required under a 2015 United States Supreme Court ruling that upheld lethal injection.

DeWine delayed Henness’ execution from Feb. 13 to Sept. 12 while the review was underway. But on Tuesday, he declined to place a timetable on how long it might take for a new execution method to be developed, for it to be legally challenged and then found constitutional by the courts. “I’ve dealt with the court system a long time, and I think it’s whenever you think you can figure out how fast or slow something’s going to take, you’re wrong,” he said....

Ohio’s method of execution is to inject the condemned with a combination of three drugs: midazolam (as a sedative), a paralytic drug, and potassium chloride to stop their heart. Death penalty opponents have challenged similar methods in other states, saying they are unconstitutional because they cause cruel and unusual punishment.

In his January opinion, Mertz, the federal magistrate judge, agreed with arguments made by Henness’s lawyers, writing that “it is certain or very likely” that the state’s prescribed dose of midazolam “cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride” or the “severe pain and needless suffering that is certain or very likely to be caused by the pulmonary edema which is very likely to be caused directly by the midazolam.”

DeWine’s review marks the second time in five years Ohio has searched for a new method of execution. The state changed the drugs it uses for lethal injection after the January 2014 execution of Dennis B. McGuire took more than 25 minutes.

Ohio had some two dozen execution dates scheduled over the next four years, but I think they are all now functionally on hold pending development of a new execution method. And, reading between the lines, I get the sense that Governor DeWine would be just fine if the state official did not try all that hard to devise a new execution method anytime soon.

A few (of many) prior recent related posts:

• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• "Behind the Curtain: Secrecy and the Death Penalty in the United States"
• Ohio completes its first execution since botched execution of another inmate late last year
• Ohio unable to complete execution for elderly murderer once called death penalty “poster child”
• Reviewing Ohio's unique execution difficulties ... which perhaps explains seemingly ho-hum reaction to latest botched Ohio execution 

SCOTUS via 6-3 vote rules Texas yet again misapplied its Eighth Amendment jurisprudence prohibiting the execution of those with intellectual disability

In the middle of this lengthy new SCOTUS order list, which has lots of cert denials and individual opinions about cert denials, is one notable Supreme Court opinion on the merits in Moore v. Texas, No. 18–443 (S. Ct. Feb. 19, 2019). The start and last substantive paragraph of the 10-page per curiam opinion for the Court provides the basics:

In 2015, the Texas Court of Criminal Appeals held that petitioner, Bobby James Moore, did not have intellectual disability and consequently was eligible for the death penalty.  Ex parte Moore, 470 S.W.3d 481, 527–528 (Ex parte Moore I).  We previously considered the lawfulness of that determination, vacated the appeals court’s decision, and remanded the case for further consideration of the issue.  Moore v. Texas, 581 U. S. ___, ___ (2017) (slip op., at 18).  The appeals court subsequently reconsidered the matter but reached the same conclusion.  Ex parte Moore, 548 S.W.3d 552, 573 (Tex. Crim. App. 2018) (Ex parte Moore II).  We again review its decision, and we reverse its determination....

We conclude that the appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.  And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court.  We consequently agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.

Chief Justice Roberts has this one-paragraph concurrence in the case:

When this case was before us two years ago, I wrote in dissent that the majority’s articulation of how courts should enforce the requirements of Atkins v. Virginia, 536 U.S. 304 (2002), lacked clarity.  Moore v. Texas, 581 U.S. ___, ___–___ (2017) (slip op., at 10–11).  It still does.  But putting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here.  On remand, the court repeated the same errors that this Court previously condemned — if not quite in haec verba, certainly in substance.  The court repeated its improper reliance on the factors articulated in Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004), and again emphasized Moore’s adaptive strengths rather than his deficits.  That did not pass muster under this Court’s analysis last time.  It still doesn’t.  For those reasons, I join the Court’s opinion reversing the judgment below.

Justice Alito, joined by Justices Thomas and Gorsuch, pens a three-page dissent with concludes this way:

The Court’s foray into factfinding is an unsound departure from our usual practice.  The error in this litigation was not the state court’s decision on remand but our own failure to provide a coherent rule of decision in Moore.  I would deny the petition for a writ of certiorari.  I certainly would not summarily reverse and make our own finding of fact without even giving the State the opportunity to brief and argue the question.  I therefore respectfully dissent.

There is a whole lot here to notice, but I think especially important and notable is the fact that the newest Justice, Justice Kavanaugh, is with the majority of the Court and not the dissenters here. Because of the Chief Justice's vote, Justice Kavanaugh is not technically a swing vote in this capital case.  But his vote still reveals that, unlike Justices Alito and Thomas (and even seemingly Justice Gorsuch), Justice Kavanaugh may be more inclined to scrutinize state capital practices than certain of his conservative colleagues.

"A World of Steel-Eyed Death': An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty"

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

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process — in many ways, the most scandalous — is the inadequacy of counsel so often provided to defendants facing execution.  By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients.  This is not news.

And, in the same vein, anyone who has been so involved with this area of law and policy for the past 35 years knows that it is impossible to make sense of any of these developments without a deep understanding of the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the case that established a pallid, virtually-impossible-to fail test for adequacy of counsel in such litigation.  Again, this is not news.

We also know that some of the most troubling results in Strickland interpretations have come in cases in which the defendant was mentally disabled — either by serious mental illness or by intellectual disability.  Some of the decisions in these cases — rejecting Strickland-based appeals — have been shocking, making a mockery out of a constitutionally based standard.

To the best of our knowledge, no one has — prior to this article — undertaken an extensive empirical analysis of how one discrete US federal circuit court of appeals has dealt with a wide array of Strickland-claim cases in cases involving defendants with mental disabilities.  We do this here.  In this article, we reexamine these issues from the perspective of the 198 state cases decided in the Fifth Circuit from 1984 to 2017 involving death penalty verdicts in which, at some stage of the appellate process, a Strickland claim was made (in which there were only 13 cases in which any relief was even preliminarily granted under Strickland).  As we demonstrate subsequently, Strickland is indeed a pallid standard, fostering “tolerance of abysmal lawyering,” and is one that makes a mockery of the most vital of constitutional law protections: the right to adequate counsel.

This article will proceed in this way.  First, we discuss the background of the development of counsel adequacy in death penalty cases.  Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear — on the surface — to bolster it in this context.  We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning.  Next, we will examine and interpret the data that we have developed, looking carefully at what happened after the Strickland-ordered remand in the 13 Strickland “victories.”  Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of adequacy of counsel law fails miserably to meet the standards of this important school of thought.

WWJD?: Interesting comments as Wyoming senate rejects effort to repeal the state's dormant death penalty

I mentioned in this post a few weeks ago that the Wyoming House of Representatives had voted to repeal the state's death penalty.  This past week the legislative repeal effort died, as reported in this local article headlined "Wyoming Senate defeats death penalty repeal bill."  And a notable quote from a particular senator concerning her reasons for voting against repeal has garnered some extra attention.  Here are some particulars:

The Wyoming Senate defeated a bill Thursday that would have repealed the state’s death penalty, ending the most successful legislative attempt to do away with capital punishment in recent memory. Having passed the House by a safe margin, the bill was swiftly voted down by the Wyoming Senate on its first reading. The final vote was 12-18.

“The vote was different than I expected to see from talking with people beforehand,” said the bill’s sponsor in the Senate, Brian Boner, R-Converse. “There’s a lot of different factors and, at the end of the day, everyone has to make their best determination based on the information they have.”

The death penalty repeal had passed out of the Senate Judiciary Committee on Wednesday by a unanimous vote. Proponents of the bill argued that it would save the state money and create a more humane justice system, an argument that had gained substantial traffic in the House of Representatives....

In the Senate — which has trended more conservative than the House this session — the bill had garnered several unlikely allies. Sen. Bill Landen, a reluctant sponsor of the bill, said that after years of budget cuts and eliminating line item after line item, he could no longer go home and feel good explaining the myriad cuts he’s made to the state budget while defending annual expenses like the death penalty, which costs the state roughly $1 million a year. “Regardless of my personal thoughts — my religion doesn’t believe in the right to kill people — that’s not enough for me,” he said.

Opponents of the bill, meanwhile, argued retaining the death penalty would allow the justice system to offer closure to victims of the most heinous crimes, and could be used as a tool to coerce confessions from the state’s worst perpetrators....

Several senators had other reasons for voting against the bill.  Sen. Anthony Bouchard, R-Cheyenne, said that while the death penalty could be used as an effective tool, it was also a means to keep the state’s justice system from turning into the type seen in other states. He then noted that states like California — in some cases — have allowed inmates to undergo gender reassignment surgery. “I think we’re becoming a lot like other states, and we have something to defend,” he said.  California, however, has not repealed the death penalty.

Sen. Lynn Hutchings, R-Cheyenne, argued that without the death penalty, Jesus Christ would not have been able to die to absolve the sins of mankind, and therefore capital punishment should be maintained. “The greatest man who ever lived died via the death penalty for you and me,” she said. “I’m grateful to him for our future hope because of this. Governments were instituted to execute justice. If it wasn’t for Jesus dying via the death penalty, we would all have no hope.”

Wyoming has not executed a prisoner since 1992. According to Wyoming Department of Corrections Director Bob Lampert, the average death row inmate costs the agency 30 percent more to incarcerate than a general population prisoner, with an average stay of 17 years.

I find it more than a bit amusing that Senator Bouchard seemed to think that voting to keep an effectively dormant costly capital punishment system on the books in Wyoming would help keep the state from becoming more like California, where voters have repeatedly voted to keep an effectively dormant costly capital punishment system on the books.  But, perhaps unsurprisingly, the comment generating the most attention has been Senator Hutchings' suggestion that we can thank (and should preserve) the death penalty for giving us all hope through Jesus Christ.

I am disinclined to make too many jokes about these comments at the risk of being sacrilegious, but I cannot help imagining a new ad campaign for capital punishment: "The death penalty: hope for you and me."  I also cannot help but note that Senator Hutchings has recently garnered negative attention from some other statements on a distinct issue.

Federal judge rejects Sayfullo Saipov's efforts to block capital prosecution based on Prez Trump's tweets

As reported in this New York Times piece, headlined "Trump’s Tweets Do Not Bar Prosecutors From Seeking Death in Terror Case, Judge Rules," a federal judge yesterday issued a notable ruling in a high-profile capital case. Here are the details:

When President Trump said on Twitter that an Uzbek man charged with using a pickup truck to kill eight people “SHOULD GET DEATH PENALTY,” the man’s lawyers asked a judge to bar prosecutors from seeking execution, saying the decision had become too politicized.  But a federal judge in Manhattan ruled on Thursday that prosecutors could seek capital punishment despite the president’s comments.

Defense lawyers had argued the president’s tweet and other statements he made on Twitter had put political pressure on the attorney general at the time, Jeff Sessions, to seek a death sentence.  The lawyers pointed to public reports that Mr. Trump was considering firing the attorney general for not following his wishes, and said Mr. Sessions would not be able to make an impartial decision.

In his ruling, Judge Vernon S. Broderick wrote that Mr. Trump’s statements advocating for the death penalty “were perhaps ill-advised given the pendency of this case.”  Still, the judge said the argument that Mr. Sessions was improperly motivated to seek execution was “pure speculation made without a scintilla of direct factual support.”  The judge said that without more evidence he could not interfere with “the attorney general’s presumptive authority to make charging decisions.”

In September, Mr. Sessions went ahead and directed prosecutors to seek the death penalty for the defendant, Sayfullo Saipov, 31, if he is convicted at trial, even though Judge Broderick had not yet ruled on the motion concerning the president’s tweets.  Six weeks later, Mr. Trump fired Mr. Sessions. 

Mr. Saipov is accused of driving the truck down a crowded bike path along the Hudson River on Oct. 31, 2017, and, after smashing into a school bus, jumping out and running down the highway, shouting “God is great” in Arabic.  He was taken into custody after being shot by a police officer.  He has pleaded not guilty to eight capital counts of murder and other charges, and is scheduled for trial in October.

Judge Broderick wrote that Mr. Saipov had “offered no evidence that the president’s remarks impacted the attorney general’s decision-making process in any way.”  To the contrary, the judge said, Mr. Sessions had “categorically renounced other provocative remarks made by the president” and had vowed that the Justice Department would “not be improperly influenced by political considerations.”

Prior related posts:

• Will NYC terror attack become the first big federal capital case for Trump's Department of Justice?
• "Trump labels US justice system 'laughing stock' "

A year after tragedy, taking stock of the agony (and wondering about the costs) already surrounding the capital prosecution of Parkland shooter Nikolas Cruz

CNN has this notable new article headlined "This is where Parkland shooter Nikolas Cruz's death penalty case stands a year later," and here are excerpts:

A year after Nikolas Cruz massacred 17 people and injured 17 others at his former high school in Florida, the question is not whether he's guilty -- he's confessed on video.  It's does he live or die?  His defense team has offered a guilty plea in exchange for life in prison without the possibility of parole -- but only if prosecutors take the death penalty off the table. Prosecutors have rejected the plea, meaning a lengthy trial is all but inevitable.

If the case goes to trial, Cruz will join a short list of mass shooters who've faced their victims in court.  Of the 10 deadliest shootings in recent US history, Cruz is the only one who was captured alive.

The case is on what's described as the "pretrial discovery" stage, says Broward Public Defender Howard Finkelstein, whose office is representing Cruz.  He says the case is a long way from trial. In this stage, Cruz's attorneys have been deposing dozens of witnesses to give oral statements under oath.

Such sessions happen behind closed doors and are only attended by attorneys, the court reporter and the victims' advocate, says Richard Hornsby, a criminal defense lawyer in Florida who is not involved in the case.  Depositions are conducted in person by prosecutors and defense attorneys, and the defendant is not allowed to be present, he adds.

"It is common for victims/accusers to be deposed. However, from a strategic standpoint, I could not imagine the defense attorneys deposing the survivors in this case without a good reason," Hornsby says.  The Broward County Clerk of Court's website lists deposition notices for mostly law enforcement witnesses.

It's the beginning of a long, arduous process.  A death penalty case can take years to go to trial.... The process involves painstakingly combing through graphic details of the shooting in court. No detail is too small, including the gunshots, autopsies and the killer's words.  "However, with the judge pushing the case hard and the passage of Marsy's Law last fall, I would not be surprised if this case makes it to trial early next fall," Hornsby says.  Marsy's Law expanded the rights of victims of crimes, including giving them the right to have a voice in prosecution issues.

Broward state prosecutors have not revealed much in recent months.  But in the past, they've rejected the defense's offer of a guilty plea in exchange for a life sentence, paving the way for a lengthy trial. While the prosecution did not respond to CNN's request for comments for this article, Michael Satz, Broward County's prosecutor, has previously said this is "certainly the type of case the death penalty was designed for."  Assistant State Attorney Shari Tate has said Florida will not allow Cruz to "choose his own punishment for the murder of 17 people."

Cruz's defense team has made it clear it's not looking forward to a death penalty trial. That's why Finkelstein is offering his client's guilty plea in exchange for 34 life sentences without parole.  That would take the death penalty trial off the table and spare the victims from reliving the nightmare during testimony, he says.

That would end the extensive legal process he says could last decades if there's an appeal. In some cases, death penalty trials are followed by lengthy appeals in which survivors return to court to face the killer all over again.  "A plea to 34 consecutive life sentences ends not only the above immediately but means no appeals," Finkelstein says. "We still stand ready to plead guilty to 34 consecutive life sentences."

Some Marjory Stoneman Douglas students are conflicted on the possibility of a death penalty trial.  Student leader Emma Gonzalez describes Cruz's potential death penalty trial as a "good" thing.  Another student, Cameron Kasky, has said he wants him to "rot forever" in prison instead.

Andrew Pollack, whose daughter, Meadow, was one of the people killed, has said he does not plan to attend any death trial hearings. "I don't want to go through some lengthy trial that's going to be brutal. I want him to sit in a cell and rot for the rest of his life," Pollack says.

In high-profile cases such as the Parkland shooting, there are no shortages of challenges for everyone involved.  Even finding a jury will be an ordeal, Hornsby says.... "You will have to find people who say they could be fair and impartial to the defendant given what they know about the Parkland murders," he says. "Good luck."

Florida's death penalty law requires the jury's decision to be unanimous. If one of the 12 jurors dissents, the defendant must be sentenced to life without parole.

There are so many interesting and sad elements to this story. For starters, the possibility of the death penalty has, in one sense, already done a lot of work in this case, as it is surely driving the defense to offer to plead guilty to 34 consecutive life sentences.  But because prosecutors, likely influenced in part by the wishes of some victims, are eager to secure a death sentence, there will be lots and lots of process (and expense) in the months and years ahead.  I hope that the victims of the shooting and victims' families can find some comfort in the long capital trial process, but even if they do they also have to be prepared for years (likely decades) of an appeals process.  (Recall, as noted in this recent post, that we are approaching the six-year anniversary of the Boston Marathon bombing and the capital case still is not close to being fully briefed in the First Circuit.)  

With a focus on the victims, I find it especially interesting that activist Emma Gonzalez is apparently supportive of the decision to pursue capital charges against Cruz.  My general perception is that many progressives and many young people tend to be strong opponents of the death penalty, and so I would be inclined to guess that most of the Parkland students will be disinclined to support efforts to send Cruz to death row.  But, as is often the case, victims are a diverse and sometimes unpredictable bunch.  And with Marsy's Law newly on the books in Florida, their roles will be one to watch closely in the months and years ahead as well.

Finally, at the risk of seeming crass, I hope someone is keeping track of what this prosecution is costing the taxpayers of the state of Florida.  As regular readers know, I think the extraordinary expense of many capital cases can often serves as one of the strongest arguments against the death penalty as it rarely seems the penalty's (debatable) benefits measure up to its (reasonably clear) economic costs.   

Prior related posts:

• Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz
• Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty? 
• 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?" 

Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug

Because there have been so many fewer executions nationwide in recent years, it seems there have been fewer struggles over access and use of execution drugs in recent years.  But Ohio, which always struggles in so many ways with carrying out death sentences, has already had significant 2019 developments in this arena.  This lengthy new article at The Intercept, headlined "Ohio’s Governor Stopped An Execution Over Fears It Would Feel Like Waterboarding," provides a great review of these developments.  I recommend the piece in full, and here are some excerpts:

At the coroner's office in Dayton, Ohio, Dr. Mark Edgar stood over the body of Robert Van Hook. The deceased 58-year-old weighed 228 pounds; he wore blue pants, a white shirt, and identification tags around his ankles.  Edgar, a professor of pathology at Emory University School of Medicine, had done countless autopsies over the years. But this would be the first time he examined the body of someone executed by the state.

Van Hook had died one day earlier, on July 18, 2018, inside the death chamber at the Southern Ohio Correctional Facility in Lucasville. After a tearful apology to his victim’s family, he was injected with 500 milligrams of midazolam — the first of a three-drug formula adopted in 2017. Media witnesses described labored breathing from Van Hook shortly afterward, including “gasping and wheezing” loud enough to be heard from the witness room. Nevertheless, compared to recent executions in Ohio, things seemed to go smoothly.

Still, Edgar had cause for concern. For the past few years he had been examining the autopsy reports of men executed using midazolam across the country. He found a disturbing pattern. A majority showed signs of pulmonary edema, an accumulation of fluid in the lungs. Several showed bloody froth that oozed from the lungs during the autopsy — evidence that the buildup had been sudden, severe, and harrowing. In a medical context, where a life is to be saved, pulmonary edema is considered an emergency — it feels like drowning. Even if someone is to be deliberately killed by the state, the Constitution is supposed to prohibit cruel and unusual punishment. To Edgar, the autopsies showed the executed men felt the panic and terror of asphyxiation before they died....

Ohio does not conduct autopsies following executions. But Ohio Federal Public Defender Allen Bohnert secured permission on Edgar’s behalf.  “The autopsy was conducted in the usual manner,” Edgar wrote in a subsequent report.  He made a Y-shaped incision into the chest and abdomen.  A technician removed and weighed Van Hook’s organs and Edgar examined them, looking for anything unusual.  When he got to the lungs, he found “significant abnormalities.”  They were unusually heavy — one telltale sign of congestion.  When he cut into them, he found a mix of blood and frothy fluid.

Of the 27 previously available autopsy reports for people executed using midazolam, Edgar had found evidence of pulmonary edema in 23.  Van Hook was the 24th. A few weeks later, Tennessee used midazolam to execute Irick, who moved and made choking sounds — another grim sign. In a motion seeking a stay of execution and preliminary injunction for Warren Keith Henness, who was scheduled to die in Ohio in February 2019, Bohnert urged a federal magistrate judge to consider these recent developments. “At some point the courts cannot explain away the ever-growing mountain of evidence” against midazolam, he wrote.

Magistrate Judge Michael Merz granted an evidentiary hearing.  After four days of testimony, he issued a damning 148-page order on January 14. The evidence surrounding midazolam had become far more persuasive since Merz last presided over such a proceeding. Not only was he now convinced that midazolam had no analgesic properties, but the drug was “sure or very likely” to cause pulmonary edema, which was akin to “waterboarding.” Yet Merz said he could not stop Henness’s execution. Under Glossip, people challenging lethal injection protocols had to prove that there was an alternative method readily available for the state to use to kill them. Henness had not met this burden.

“This is not a result with which the court is comfortable,” Merz wrote. “If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.”

Ohio seemed poised to carry out Henness’s execution. But then, on January 22, the governor’s office issued an order of its own. Newly inaugurated Gov. Mike DeWine granted a warrant of reprieve, delaying Henness’s execution until September. In the meantime, he ordered a review of the state’s options and an examination of “possible alternative drugs.”...

Bohnert points to an irony about Glossip and its legacy. “The fact that the states have been allowed to continue to execute using midazolam is in large part what allowed the evidence to accumulate,” he says. Although it is not clear what will happen next in Ohio, “I think we had a tipping point here.”

A few (of many) prior recent related posts:

• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• "Behind the Curtain: Secrecy and the Death Penalty in the United States"
• Ohio completes its first execution since botched execution of another inmate late last year
• Ohio unable to complete execution for elderly murderer once called death penalty “poster child”
• Reviewing Ohio's unique execution difficulties ... which perhaps explains seemingly ho-hum reaction to latest botched Ohio execution 

US Supreme Court, voting 5-4, vacates Eleventh Circuit stay of execution in Alabama for Muslim death row prisoner

The Supreme Court this evening, voting 5-4 along usual ideological lines, vacated the stay of execution entered yesterday by the Eleventh Circuit to allow the court to hear an Alabama death row defendant's religious liberty claims concerning who could be present at his execution.  The opinion of the majority of the court runs these two paragraphs:

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit on February 6, 2019, presented to JUSTICE THOMAS and by him referred to the Court, is granted.

On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019.  Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit.  See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).

A two-page dissent, authored by Justice Kagan, and Joined by Justices Ginsburg, Breyer and Sotomayor, gets started and ends this way:

Holman Correctional Facility, the Alabama prison where Domineque Ray will be executed tonight, regularly allows a Christian chaplain to be present in the execution chamber. But Ray is Muslim. And the prison refused his request to have an imam attend him in the last moments of his life.  Yesterday, the Eleventh Circuit concluded that there was a substantial likelihood that the prison’s policy violates the First Amendment’s Establishment Clause, and stayed Ray’s execution so it could consider his claim on its merits.  Today, this Court reverses that decision as an abuse of discretion and permits Mr. Ray’s execution to go forward. Given the gravity of the issue presented here, I think that decision profoundly wrong....

This Court is ordinarily reluctant to interfere with the substantial discretion Courts of Appeals have to issue stays when needed.  See, e.g., Dugger v. Johnson, 485 U.S. 945, 947 (1988) (O’Connor, J., joined by Rehnquist, C. J., dissenting). Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death.  The Eleventh Circuit wanted to hear that claim in full.  Instead, this Court short-circuits that ordinary process — and itself rejects the claim with little briefing and no argument — just so the State can meet its preferred execution date. I respectfully dissent.

Prior related posts:

• Condemned Alabama inmate seeks stay of execution based on notable religious claims
• Litigation update on Alabama death row prisoner denied Muslim spiritual adviser for upcoming execution 
• Eleventh Circuit panel grants stay of execution in Alabama for Muslim death row prisoner

Eleventh Circuit panel grants stay of execution in Alabama for Muslim death row prisoner

I highlighted in recent posts here and here the notable religious claims being made by Domineque Ray, who is scheduled to be executed by Alabama on Thursday.  A helpful reader alerted me to this new unanimous 28-page panel ruling from the Eleventh Circuit which grants a stay.  Here is how the opinion starts and a few key paragraph within:

Petitioner Domineque Ray has moved this Court for an emergency stay of his execution, scheduled to take place at 6:00 p.m. (CST) on February 7, 2019 at the Holman Correctional Facility (“Holman”) in Atmore, Alabama, for the 1995 rape, robbery, and murder of fifteen-year-old Tiffany Harville. He also appeals from the determination of the district court denying his emergency motion for a stay and dismissing two of his claims under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., and under § 1983 and the Establishment Clause of the First Amendment....

During the January 23 meeting with the Warden, Ray made three requests for the accommodation of his religious beliefs: first, that his Imam be present in order to provide spiritual guidance for him at the time of his death; second, that the institutional Christian Chaplain be excluded from the chamber; and, finally, that he not be required to undergo an autopsy because it conflicted with his religious beliefs.  The Warden denied the first two requests and explained that she had no decisional authority over the autopsy....

After review of this exceedingly limited record, we reject the district court’s analysis, and its refusal to grant an emergency stay in the face of what we see as a powerful Establishment Clause claim.  Because Ray has demonstrated a substantial likelihood of success on the Establishment Clause and because the other equitable factors tip in his favor, Ray’s emergency motion for stay is granted.  We direct the Clerk of Court to expedite the appeal of Ray’s case so that we may promptly address and resolve these claims.

It will be interesting to see if and how Alabama pursues further appeal of this ruling either to the full Eleventh Circuit or to the US Supreme Court. Stay tuned.

Prior related posts:

• Condemned Alabama inmate seeks stay of execution based on notable religious claims
• Litigation update on Alabama death row prisoner denied Muslim spiritual adviser for upcoming execution 

UPDATE: As reported in this AP article, Alabama completed this execution following the vacating of the stay: "Dominique Ray, 42, was pronounced dead at 10:12 p.m. of a lethal injection at the state prison in Atmore."

Litigation update on Alabama death row prisoner denied Muslim spiritual adviser for upcoming execution

I highlighted in this post last week the notable religious claims being made by Domineque Ray, who is scheduled to be executed by Alabama this coming Thursday.  I just saw this local article from a few days ago, headlined "Judge denies stay of execution for Alabama inmate," which provides this update on the state of the litigation:

A federal judge on Friday denied a stay of execution request from a Muslim death row inmate who claimed the absence of his spiritual adviser in Alabama's death chamber would violate his religious rights.

Domineque Ray this week filed a stay of execution, which is slated for Feb. 7, to challenge Alabama's practice of placing a Christian prison chaplain with inmates in the state execution chamber. Ray argued in court documents that he should have access to his Muslim spiritual adviser in the moments before his death. Failing that, Ray requested the Christian prison chaplain not be present.

On Thursday, the Alabama Department of Corrections acquiesced to Ray's first request, agreeing to keep the prison chaplain out of the chamber. But lawyers argued security concerns required Holman prison limit the execution chamber to trained corrections employees.

In a written order on Friday, U.S. District Judge Keith Watkins agreed that allowing a "free world" spiritual adviser into the death chamber would overburden ADOC's execution process. "Though a state chaplain is usually in the death chamber, he is also a trained member of the execution team. He has witnessed dozens of executions and trained on how to respond if something goes wrong," Watkins wrote. "If the chaplain disobeys orders, he will face disciplinary action. In contrast, Ray’s private spiritual adviser is untrained, inexperienced, and outside the State’s control."

Spencer Hahn, Ray's co-counsel, argued Thursday training nonemployee spiritual advisers to be present in the execution chamber should not be a barrier to providing inmates their religious rights. "We are disappointed that the District Court's order did not uphold the substantial claim that Mr. Ray's free exercise of religion is being interfered with, or the claim that the State is violating the establishment clause of the First Amendment of the United States Constitution," said John Palombi, an attorney for Ray. "We will be appealing this ruling and asking the Court of Appeals to stay Mr. Ray's execution to allow these important issues to be resolved in a more deliberate manner."

ADOC policies allow a death row inmate's chosen spiritual adviser visitation up to 5:15 p.m. on the day of an execution, when they are then allowed to view the execution from a witness room adjacent to the execution chamber. "Why does Mr. Ray not get the same benefit that a Christian would?" Hahn asked the court.

Ray was sentenced to death for the 1995 rape and fatal stabbing of 15-year-old Tiffany Harville of Selma. Months before his death penalty trial, he was sentenced to life for a 1994 slaying of two teen brothers, The Associated Press reports.

As indicated above, this litigation is headed to the Eleventh Circuit Court of Appeals, and likely will get the Supreme Court this week in some form regardless of how the Eleventh Circuit might rule.  In this context, it bears recalling that the Supreme Court four years ago in Holt v. Hobbs ruled unanimously in favor of a Muslim prisoner based on the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Justice Alito was the author of the opinion in Holt, and I am interested to see how he and other Justices might approach this case.

Prior related post:

• Condemned Alabama inmate seeks stay of execution based on notable religious claims

Could there soon be a western wave of death penalty repeals?

The question in the title of this post is prompted by this group of headlines that I saw in my news feed recently:

From Colorado, "Friednash: I helped expand the Colorado death penalty; now I support its repeal"

From Nevada, "Nevada's Future: 'Broken' death penalty could be banned in 2019 legislative session"

From Wyoming, "Wyoming is the closest it's ever been to repealing the death penalty"

Because the Wyoming House of Representatives actually voted for repeal last week, that state seems to present the greatest prospect for capital abolition. Given that Wyoming have not executed anyone for more than a quarter-century and has nobody currently on its death row, repeal by the state would be more symbolic than consequential in the state. But symbolism matters a lot to a lot of folks in this setting, so a repeal in the Equality State would not be without meaning or import.

"Unusual: The Death Penalty for Inadvertent Killing"

The title of this post is the title of this paper authored by Guyora Binder, Brenner Fissell and Robert Weisberg that was just posted to SSRN. Here is its abstract:

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed?  More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently?  This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life.  Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony but has not yet addressed the culpability required for execution of the actual killer.

In this Article, we urge the recognition of a new Eighth Amendment norm against executing even actual killers who lack a culpable mental state of at least recklessness, with respect to the victim’s death.  Using the methods employed by the Supreme Court for determining “evolving standards of decency,” we survey the pertinent homicide and sentencing laws of the fifty-three criminal law jurisdictions in the United States.  Second, we evaluate the facts of the cases that resulted in the nearly five hundred executions that have taken place since 1973, when the post-Furman statutes became operative, and 2016, in those jurisdictions permitting execution for inadvertent killing. We did the same for the facts of the 1755 cases of all death row inmates convicted in those jurisdictions and alive at the time of the study (2016).  This analysis shows that capital punishment for inadvertent killing has become “truly unusual,” and therefore, unconstitutional.

Texas completes first execution of 2019

As reported in this local article, "Robert Jennings was on Texas’ death row for nearly 30 years.  On Wednesday, the 61-year-old was put to death in the nation’s first execution of 2019."  Here is more:

Jennings was sentenced to death in the 1988 murder of Houston police officer Elston Howard.  According to court records, Jennings walked into an adult bookstore to rob it, and Howard was there arresting the store clerk for a municipal violation.  The clerk testified that Howard had no time to even reach for his gun before Jennings shot him multiple times, killing him.

Less than an hour after his final appeals were rejected by the U.S. Supreme Court on Wednesday, Jennings was injected with a lethal dose of pentobarbital at 6:15 p.m. in the state's execution chamber in Huntsville.  He was pronounced dead 18 minutes later.  In his final words uttered strapped to a gurney, he told his friends and family it was "a nice journey."

"To the family of the police officer, I hope this finds you peace," he said. "... Enjoy life's moments because we never get them back."

The lengthy stretch of time between Jennings' 1989 sentencing and his execution shines a light on the complications that can arise during the appeals process in the face of constantly evolving death penalty law.  In their last attempt to halt Jennings' execution, his lawyers zeroed in on changes in how death penalty juries weigh "mitigating evidence"— factors that can lessen the severity of the punishment that are largely based on the defendant's background, like an abusive childhood or intellectual disability.

Condemned Alabama inmate seeks stay of execution based on notable religious claims

As reported in this local story, "Alabama Death Row inmate set to die by lethal injection next week claims his execution should be stayed because the prison won’t let him have a Muslim spiritual adviser present in the execution chamber."  Here is more about a notable effort to put off an execution:

Domineque Ray, 42, is set to be executed at Holman Prison on Feb. 7 at 6 p.m. by lethal injection for the 1995 killing, rape, and robbery of 15-year-old Tiffany Harville. On Monday, Ray’s lawyers filed a lawsuit in federal court claiming Ray’s right to freedom of religion was being violated. They also asked for a stay of execution.

The lawsuit claims Ray, a Muslim, asked Holman’s Warden Cynthia Stewart last week that he be permitted to have a Muslim spiritual adviser — or imam — in the execution chamber instead of the prison’s longtime Christian chaplain. The warden denied his request and denied Ray’s second request to not have the chaplain present in the execution chamber at all, according to the lawsuit.

Ray made a third request to have no autopsy performed on his body because it conflicted with his religious beliefs, and Stewart said she “had no control” over that accommodation, the complaint says. The same day Ray met with the warden, Ray also met with the prison chaplain. The Christian chaplain told Ray his requests "could not be honored due to ADOC policy,” the lawsuit says....

The lawsuit claims Ray’s First Amendment rights have been violated, along with the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act.

Tuesday, Ray’s lawyers also filed in federal court an emergency motion for a stay of execution, claiming Ray’s constitutional violations should halt the scheduled execution. “Alabama has made a policy decision… the chaplain is there solely for a religious purpose,” the motion says. “In other words, Mr. Ray’s freedom of religion lasts until he enters the execution chamber.”...

Ray’s imam will be allowed to witness the execution from a room adjacent to the chamber through two-way glass. “There is no compelling governmental interest in preventing a condemned inmate from having his or her spiritual adviser- who has been approved to have a contact visit… moments before the execution begins—from taking the place of the prison chaplain in the execution chamber,” the suit states. “When that spiritual adviser is otherwise available, in the moments before death, imposes a substantial burden on the free exercise of Mr. Ray’s religious beliefs.”

The Christian chaplain’s “mandatory presence” in the execution chamber serves an unconstitutional interest in “safeguarding the soul or spiritual health of the condemned inmate in the Christian (non-Catholic) belief system… [it] has the principle of primary effect of advancing Christian (non-Catholic) religion and inhibiting all other religions,” the lawsuit claims. The suit also says the chaplain policy creates an “excessive entanglement of government with religion.”...

John Palombi and Spencer Hahn, assistant Federal Defenders, are representing Ray in the federal cases. Palombi said, “Mr. Ray’s suit goes to the heart of one of the most cherished of all rights, the right to freedom of religion. Neither Mr. Ray’s right to practice his religion nor his right to be free from having a different religion forced on him ends at the door to the execution chamber. We hope that the Commissioner will not force someone of a different religion on him and deny him the right to have his spiritual adviser with him at the moment of his death should that occur.”

Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs

As reported in this local article, headlined "Gov. Mike DeWine delays killer’s execution, orders review of lethal-injection drugs," this afternoon brought some interesting news on the capital administration front from Ohio's capital. Here are the details:

Gov. Mike DeWine on Friday postponed the execution of murderer Warren Henness from Feb. 13 to Sept. 12 following a recent judicial ruling that Ohio’s lethal-injection cocktail will “very likely cause him severe pain and needless suffering.”  In a release, DeWine said that he has also directed Ohio’s prisons agency to assess the state’s current options for execution drugs and examine possible alternative drugs.

On Jan. 15, federal magistrate judge Michael Merz ruled that the three drugs Ohio has used since last year for executions — midazolam (as a sedative), a paralytic drug, and potassium chloride (to stop the heart) — are likely unconstitutionally “cruel and unusual punishment.” Merz cited testimony from medical witnesses that high doses of midazolam and other drugs cause pulmonary edema, causing a painful drowning sensation comparable to the torture tactic of waterboarding.

However, Merz allowed Henness’ execution to proceed because, under a 2015 U.S. Supreme Court ruling, death row inmates challenging how they will be put to death must show that an alternative means of execution is “available,” “feasible,” and can be “readily implemented.”

Henness’ proposed alternatives -- drinking secobarbital in a sweet liquid such as apple juice, or an oral injection of four drugs – were rejected by Merz on the grounds that neither method has ever been used to carry out an execution, they would take more than an hour to kill Henness, and that there isn’t a proven way to obtain the drugs.

DeWine, in his statement, noted that Henness has appealed Merz’s ruling, but the governor said he delayed the execution because of the magistrate judge’s opinion.

David Stebbins, Henness’ attorney, said in a statement Friday: “We commend Governor DeWine for his leadership and for ensuring the justice system operates humanely in Ohio.”

Henness was convicted of murdering his drug-abuse counselor, Richard Myers, in 1992.  Prosecutors said Henness kidnapped Myers, shot him five times at an abandoned water-treatment plant, severed Myers’ finger to get his wedding ring, then drove around in Myers’ car for several days forging his checks and using his credit cards to get cash and buy crack cocaine....

Ohio, like many other states with the death penalty, has struggled to obtain lethal-injection drugs since European pharmaceutical companies cut off further sales on moral and legal grounds.  After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol — and suppliers willing to sell the state the drugs.

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

Anyone eager to speculate about Oklahoma capital cases with cert finally denied after so many relists?

I often like to make much of legal dogs that fail to bark (hat tip, Sherlock), and the Supreme Court's order list this morning had a couple of notably silent capital case canines in the form of Wood v. Oklahoma, No. 17-6891, and Jones v. Oklahoma, No. 17-6943 at the very top of the SCOTUS order list entries of cert denied.  Of course, silent and unexplained denials of even capital cert petitions without any comment are not usually noteworthy, but Kent Scheidegger over at Crime & Consequences has this new post sking "Why Did SCOTUS Sit on 2 Capital Cases for a Year?."  Here is part of Kent's lament, with emphasis in the original:

Wood v. Oklahoma, No. 17-6891, and Jones v. Oklahoma, No. 17-6943, involve the same issue the Supreme Court appropriately put to rest over 30 years ago in McCleskey v. Kemp....  Now they want to dredge it back up with yet another study conducted by notorious anti-death-penalty advocates. Note that this is a claim that has nothing whatever to do with whether they committed the crimes and only a very remote relation to whether death is a just and proportionate penalty for their conduct.  The Oklahoma courts said, correctly, that such a claim could not be raised for the first time in a successive post-conviction petition -- Wood's third and Jones's second.  Such petitions should be reserved for true miscarriages of justice.

The State filed its brief in opposition in Wood on January 29, 2018.  The case was distributed for conference twenty-six times.  This extraordinary number of relists has been the subject of considerable speculation.  What on earth could possibly be taking so long?  It does not take a year to say "Yes, we will hear it" or "No, we will not."  It couldn't be that the Court was going to summarily reverse and was writing a per curiam opinion.  The Court does not summarily reverse a decision when it rests on a valid state procedural ground and especially when deciding the merits in the petitioner's favor would require overruling a landmark precedent.

So the only possibility that seemed to be left was that one or more Justices were writing opinions concurring or dissenting from denial of certiorari.  But for nearly a year?

Today, the Court denied certiorari without comment and with no separate opinions. What?!  They held up long-overdue justice for a year for nothing?

Notably, Kent finishes his post with this expression of his frustration with these non-barking capital case canines: "This is conduct unbecoming the high court, or any court for that matter. Victims deserve more respect, even if the statute does not specifically apply to this proceeding."   I welcome reader reaction to what SCOTUS has done here or what Kent has to say about it, and I am especially interested in just thoughts about what might have been going on behind closed SCOTUS doors through 2018 here.

Big symposium on Lockett v. Ohio now published via University of Akron School of Law Constitutional Law Center

In this post last year I noted a call for papers by the Center for Constitutional Law at the University of Akron School of Law to commemorate the Supreme Court decision in Lockett v. Ohio, 438 U.S. 586 (1978).  I am pleased to see that the papers have now been published and are available at this link.  Here they are:

Introduction to the "Lockett v. Ohio at 40 Symposium": Rethinking the Death Penalty 40 Years After the U.S. Supreme Court Decision by Margery B. Koosed

The Other Lockett by Dennis Balske

Reflections on the Sandra Lockett Case by Peggy Cooper Davis

Justice White's Lockett Concurrence and the Evolving Standards for a Capital Defendant's Mens Rea by Jordan Berman

Lockett v. Ohio and The Rise of Mitigation Specialists by Russell Stetler

Is the Supreme Court's Command on Mitigating Circumstances a Spoonful of Sugar with a Poison Pill for the Death Penalty? by Jeffrey L. Kirchmeier

Lockett As It Was, Is Now, and Ever Shall Should Be by Karen A. Steele

Recollections on the Lockett Case in the U.S. Supreme Court by Joel Berger

Lockett v. Ohio and Its Subsequent Jurisprudence: Between Law and Politics by Cynthia Boyer

First scheduled execution of 2019 stayed by Texas Court of Criminal Appeals

As reported in this local article, the "Texas Court of Criminal Appeals has stopped the state’s first execution of the year, calling for a lower court to take another look at the case following changes in bite-mark science and laws regarding intellectual disability and the death penalty."  Here is more:

Blaine Milam received a stay from the court on Monday, a day before his death was scheduled. Milam, 29, was convicted in the brutal death of his girlfriend’s 13-month-old baby girl in 2008 in East Texas.

In a late appeal, Milam's lawyers argued against the state’s reliance on bite-mark testimony, which was a key part of his trial. His lawyers also claimed he was intellectually disabled and therefore ineligible for execution.

In December 2008, Milam called 911 and police in Rusk County arrived to find the body of Amora Carson, according to court opinions. The medical examiner counted 24 human bite marks on the baby’s body and found evidence of blunt force trauma and sexual assault. At trial, the prosecution linked Milam to several of the bite marks. But his attorneys now say that science has largely been discredited, pointing to the Court of Criminal Appeals’ recent decision to overturn the murder conviction of Steven Chaney....

Rusk County prosecutors, meanwhile, argued to the court that the questions over bite-mark science were settled at Milam’s trial in 2010. And they said the state had enough other evidence that it wouldn’t have affected the jury's decision at the time. They pointed to testimony that Milam told his sister from jail to find a hidden pipe wrench believed to be used in Carson’s assault — and his apparent confession to a jail nurse.

The trial court must also take another look at Milam’s claims of intellectual disability, according to the court order. The issue was raised at Milam’s trial, which prosecutors said put the issue to bed, but there has been considerable change in how the state determines such disability since 2010.

In 2017, the U.S Supreme Court tossed out the method the Texas Court of Criminal Appeals had previously used to determine who is intellectually disabled and, therefore, constitutionally ineligible to be executed. The Court of Criminal Appeals later said it would change its test, which used outdated medical standards and nonclinical factors created by its judges, including how well the person could lie. “Because of recent changes in the science pertaining to bite mark comparisons and recent changes in the law pertaining to the issue of intellectual disability ... we therefore stay his execution and remand these claims to the trial court for a review of the merits of these claims,” the court said in its order Monday....

The stay was not only the court's first of 2019 but also its first without death penalty critic Elsa Alcala, who left the bench at the end of 2018 and was replaced by Judge Michelle Slaughter. Slaughter, along with Presiding Judge Sharon Keller and Judge Kevin Yeary, dissented against the stay.

Despite the court's decision, Texas is still set to host the nation's first execution of the year. Robert Jennings is scheduled to die on Jan. 30, according to the Texas Department of Criminal Justice. Five other executions are scheduled in the state through May.

Justice Kavanaugh joins Chief and more liberal Justices in GVR of Kentucky capital case

This morning's Supreme Court order list is fairly short and is mostly denials of certiorari. But the last page of the order list should intrigue capital sentencing fans, and it contains an order in White v. Kentucky, No. 17-9467, in which the Court vacated the decision below "and the case is remanded to the Supreme Court of Kentucky for further consideration in light of Moore v. Texas, 581 U. S. ___ (2017)."

This GVR is made extra interesting because Justice Alito issued this short dissent, which was joined by Justices Thomas and Gorsuch:

The Court grants, vacates, and remands this case in light of Moore v. Texas, 581 U. S. ___ (2017). But Moore was handed down on March 28, 2017—almost five months before the Supreme Court of Kentucky reached a decision in this case. I would accordingly deny the petition for the reasons previously stated in my dissent in Kaushal v. Indiana, 585 U. S. ___, ___ (2018), and in Justice Scalia’s dissenting opinion in Webster v. Cooper, 558 U. S. 1039, 1040 (2009).

As the title of this post suggests, I find the fact that Justice Kavanaugh did not join this dissent particularly noteworthy, though the fact that the Chief Justice usually provides the key fifth vote in these types of cases prevents me from too boldly predicting at this early stage that Justice Kavanaugh could prove to be a swing vote in capital cases akin to the role his predecessor Justice Kennedy played.

New commentary at The American Conservative makes the case for "Why Conservatives Should Oppose the Death Penalty"

In prior posts here and here and here, I highlighted a series of lengthy articles in The American Conservative that were part of "a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform."   These folks are at it again with this new lengthy essay titled simply "Why Conservatives Should Oppose the Death Penalty."  The extendded essay, authored by Arthur Rizer and Marc Hyden of R Street Institute, merits a full read, and here are some excerpts:

If conservatives want to convince others that a smaller, more nimble government is best, then those values should be reflected in all policy areas, including the death penalty....

Our suspicion of government should not end with the criminal justice system. With respect to capital punishment, the United States has a track record of acting in an arbitrary and biased fashion. Some examples are obvious. For instance, a 19th century North Carolina law mandated the death penalty when a black man raped a white woman, but gave a maximum punishment of one year in prison to a white man for the same crime.

While such blatantly racist laws no longer exist, the disproportionality in death penalty cases has long been an issue. For instance, a Justice Department study established that, between 1930 and 1972, when an individual was sentenced to death for the crime of rape (a crime that no longer carries the death penalty), 89 percent of the defendants put to death were black men. More disturbing was the fact that in every rape execution case, the victim was white. Not one person received a death sentence for raping a black woman, despite black women being up to 12 times more likely to be rape victims.

Furthermore, a murder victim’s race also seems to influence whether or not the accused will be put to death. Indeed, there is a much higher likelihood of this occurring if the victim is white: over 75 percent of victims in cases that resulted in executions were Caucasian. Additionally, only 15 percent were African American even though they represent a far higher percentage of murder victims. This seems to suggest that, at least through the criminal justice lens, some lives are more valuable than others....

Conservatives claim to hold the government and its bureaucrats to high standards. We expect the state to be the flag bearer of moral precepts and criticize it when it fails. Indeed, the Republican platform uses the word “moral” nine times to describe topics ranging from healthcare to the environment. And regardless of a citizen’s source of morality, be it secular or ecclesiastical, the government should reflect those standards.

Despite this expectation, a core belief among conservatives is that the government is too often inefficient and prone to mistakes. Why should the death penalty’s administration by government bureaucrats be any different? We know individuals are wrongfully convicted—and to be sure, some wrongful convictions are unavoidable. However, when dealing with capital punishment, that inevitability could have irreversible consequences and can never be tolerated in a free and law-abiding society.

This is why government should not be in the business of killing its citizens. This view hews to a core conservative tenet, that the government should be inferior to the people from which it derives its power. True, we invest in the state the authority to protect its citizens, which might require lethal protection by police officers in the line of duty. But when it comes to the death penalty, executions aren’t a matter of self-defense or a response to imminent danger. Rather the defendant has already been neutralized as a threat and housed in a correctional facility. In contrast to just wars and police responses, our penal system can and should take all necessary time and devote all appropriate resources to achieve its ultimate end—justice.

Death penalty proponents often claim that executions are beneficial because they serve as a general deterrent to murder. According to this argument, people will hesitate to commit the most heinous crimes for fear of capital punishment, which could mean the firing squad, gas chamber, electric chair, lethal injection, or hanging—which are all legal in some states today. The problem with this theory is that there is very little valid data to support it....

Murder victims’ families deserve better than the system that they must endure, but policymakers are faced with a catch-22. The death penalty process cannot be shorter, less complex, or have its appeals limited without virtually guaranteeing that innocent people will be executed by the state. It seems that if murder victims’ well-being was a primary focus, then prosecutors would more frequently seek a briefer, simpler, surer proceeding like LWOP.

The creation of the Grand Old Party, and in many ways the modern conservative movement, traces its lineage to anti-slavery abolitionists. Their beliefs about human dignity have influenced current conservatives’ views on the sanctity of life. Conservatives should return to the root principles of liberty and dignity to ensure that the criminal justice system is fair, just, and respects life.

Prior related posts:

• The American Conservative explains "Where the Right Went Wrong on Criminal Justice"
• The American Conservative reviews how "Law-and-Order Texas Takes on Criminal Justice Reform"
• The American Conservative explores "What’s Philly’s DA Got to Do With Me?" 

Are there constitutional (and ethical) issues raised by allowing the family of murder victims to hire lawyers to assist prosecutors as "associate attorneys" in capital prosecution?

The question in the title of this post is prompted by this very interesting local article from Kansas headlined "Despite doubts, judge allows private prosecutors in case of two slain deputies."  Here is the story, with one particular line emphasized:

Over the objections of defense lawyers, and despite his own misgivings, a Wyandotte County judge said Wednesday he must allow private attorneys to assist in the prosecution of a man charged with killing two sheriff’s deputies.

Antoine Fielder, 30, is charged with capital murder in the fatal shooting last June of Wyandotte County deputies Theresa King and Patrick Rohrer as they were escorting him back to jail after a court hearing in a robbery case.

Under Kansas law, crime victims can pay for lawyers to assist prosecutors as “associate attorneys,” and the families of Rohrer and King have hired married law partners Tom Bath and Tricia Bath.

Because Fielder faces a possible death sentence, he is being represented by attorneys from the Kansas Death Penalty Defense Unit, who objected to what they termed “interference” in the case.

They argued that the Kansas law that allows the hiring of private attorneys to assist in criminal prosecutions has never been used in a death penalty case. They said it raises “novel constitutional, statutory and ethical issues.”

“Counsel for Mr. Fielder is not aware of any direct authority addressing the constitutionality of private prosecutions in obtaining sentences of death,” the defense said in court documents.

In their written response to the defense objections, the Baths noted that the Kansas Supreme Court has upheld the idea of crime victims hiring private attorneys in numerous cases. And while it has never been used in a capital case, there is nothing in the law that excludes it.

At a court hearing Wednesday, defense attorney Jeff Dazey noted that the law has been on the books in Kansas since the early 20th century, “long before the modern era of the death penalty.”

A spokesman for Wyandotte County District Attorney Mark Dupree said he had met with the Baths before they entered the case and had no objection to their participation.

At Wednesday’s hearing, Tricia Bath said they would be operating under the direction of Dupree’s office. She noted that both she and Tom Bath have represented defendants in death penalty cases and are familiar with the rules and ethical requirements for attorneys in death penalty cases.  “The law is clear,” she argued. “We get to be here and the victims get to have an official representative here.”

District Judge Bill Klapper said that, while he finds the inclusion of private associate prosecutors in the case “inherently problematic,” he is bound by Kansas law that mandates they “shall” be allowed. The judge did order that the Baths will not have any role in the case until after the Feb. 1 preliminary hearing.

The constitutionality of victims have a say and a role in various criminal justice proceedings is well established, and I am generally supportive of victim's being allowed to retain a lawyer to help them preserve and exercise their rights in various ways. But one reason I support victim involvement in criminal prosecution is because, if they have independent rights in the process, they can and should often serve as another kind of check on the power of the state (by, for example, advocating for a sentence lower or just different than what prosecutors seek). But here it seems that the victims' lawyers are not going to be an independent voice and advocate for the victims, but rather will be "operating under the direction" of the District Attorney. That does not seem quite right, and arguably raises some unique constitutional and ethical concerns.

Supreme Court order list full of (state-friendly) criminal justice per curiams and notable cert denial with statements

The Supreme Court is full back in action for the New Year, beginning with this new long order list with the always-expected long list of denials of certiorari and denials of rehearing. But the list also includes these two notable per curiam rulings:

City of Escondido v. Emmons, No. 17-1660, which summarily reverses/vacates a Ninth Circuit ruling that two officers were not entitled to qualified immunity in a excessive force case.

Shoop v. Hill, No. 18-56, which summarily vacates a Sixth Circuit ruling that an Ohio capital defendant was entitled to habeas relief because the state courts misapplied precedents concerning an Eighth Amendment intellectual disability claim.

In addition, the SCOTUS order list includes these two cert denials that prompted notable statements from the Justices:

Hester v. US, No. 17-9082, concerned whether the Sixth Amendment requires jury findings in support of restitution orders and Justice Alito issued a concurrence in the cert denial, largely in response to Justice Gorsuch's extended dissent which was joined by Justice Sotomayor.

Lance v. Sellers, No. 17-1382, concerned a Georgia capital defendant's claim that his lawyer was constitutionally ineffective and Justice Sotomayor issued a lengthy dissent from the cert denial which was joined by Justices Ginsburg and Kagan.

In a separate post, I may have more to say about some of these rulings, particularly Justice Gorsuch's dissenting opinion in Hester.

UPDATE:  I now do have a new post on the Hester case here under the title "Purported SCOTUS originalists and liberals, showing yet again that they are faint-hearted, refuse to consider extending jury trial rights to restitution punishments."  And Amy Howe here at SCOTUSblog has a review of all the action today in the first big SCOTUS order list for 2019.

More than 40 months after death sentencing, lawyers for Boston bomber Dzhokhar Tsarnaev file their 1000+-page appellate brief with First Circuit

As reported in this local article, headlined "Lawyers: Tsarnaev ‘should not have been tried in Boston’," a very long appellate brief has been filed in a very high-profile federal capital case.  A federal jury handed down Dzhokhar Tsarnaev death sentence way back in May 2015, a full month before Donald Trump had even announced he was running for President.  But now, as Prez Trump heads into the second half of his term, Tsarnaev's team of lawyers has fully briefed his complaints about his trial and sentencing.  Here are the basic details:

Boston Marathon bomber Dzhokhar Tsarnaev’s appellate team presented their oft-delayed opening argument Thursday, urging sparing him a federal execution and allowing him to be retried for the 2013 Patriots Day terror attack that killed an 8-year-old boy and two women.  Their premise is summed up in the opening line: “This case should not have been tried in Boston.

“Forcing this case to trial in a venue still suffering from the bombings was the District Court’s first fundamental error, and it deprived Tsarnaev of an impartial jury and a reliable verdict, in violation of the Fifth, Sixth, and Eighth Amendments,” the brief states.

The partially redacted document filed in the U.S. Court of Appeals for the First Circuit spans 1,124 pages, nearly half of which is the 500-page opening brief alone.

Absent a new trial, Tsarnaev’s team is asking the Appeals Court to reverse his death sentence and order a punishment of life imprisonment.

Tsarnaev, 25, has been in solitary confinement at the federal Supermax prison in Florence, Colo., since his 2015 conviction.  Tsarnaev’s trial attorneys made repeated bids for a change of venue.  His appeal focuses on and echoes several familiar protests raised during his trial, chief among them the argument that he was a pawn of his domineering big brother, Tamerlan Tsarnaev.

Among other things, the public defenders accuse Tsarnaev’s jury forewoman, a restaurant manager his attorneys tried to get removed, of retweeting a social media post calling the University of Massachusetts Dartmouth sophomore a “piece of garbage”  before she received a juror summons, but that she claimed during questioning for her suitability to serve she had not “commented on this case.”  A second juror, a male municipal worker, outright “disobeyed the Court’s instructions,” the brief asserts, by joining a Facebook discussion about the case before he was seated....

Tsarnaev’s appeal blames his 26-year-old brother for his involvement, calling Tamerlan “a killer, an angry and violent man” who “conceived and led this conspiracy.” And but for his influence, “Jahar would never have been on Boylston Street on Marathon Monday.

“Tsarnaev admitted heinous crimes,” the lawyers acknowledge, “but even so — perhaps especially so — this trial demanded scrupulous adherence to the requirements of the Constitution and federal law. Again and again this trial fell short.”

The Tsarnaevs detonated two homemade pressure-cooker bombs packed with shrapnel near the marathon finish line in Copley Square 12 seconds apart on April 15, 2013.  Three spectators were killed — 8-year-old Martin Richard of Dorchester, Krystle Campbell, 29, a restaurant manager from Medford, and Boston University graduate student Lingzi Lu, 23.  More than 260 other people were injured. Sixteen of them lost limbs in the blasts.  Three days later, the brothers shot and killed MIT Police Officer Sean Collier, 27, in his cruiser during an ambush on campus and failed attempt to steal his service weapon.

UPDATE: Thanks to a helpful tweet, I now see that the 500-page brief is available at this link. And there I noticed the final notable section starts this way:

XV. Under The Supreme Court’s Eighth Amendment Jurisprudence, This Court Should Vacate Tsarnaev’s Death Sentences Because He Was Only 19 Years Old At The Time Of The Crimes.

Tsarnaev was just 19 years old when he committed the crimes for which he was sentenced to death. According to now well-established brain science, and increasingly reflected by changing law around the country, the physical development of the brain and related behavioral maturation continues well through the late teens and early 20s. Consistent with the Supreme Court’s Eighth Amendment jurisprudence and a recent resolution adopted by the American Bar Association, this Court should hold that those who commit their crimes as “emerging adults,” when they were under 21 years old, are categorically exempt from the death penalty.

Second Circuit panel reverses federal death sentence based on "prosecutorial error" during sentencing phase

A helpful reader made sure I did not miss this 146-page(!) Second Circuit opinion in US v. Aquart, No. 12‐5086 (2d Cir. Dec. 20, 2018) (available here). Here is an overview from the start of the opinion for the panel:

Aquart here appeals both his conviction and his death sentence. As to conviction, he argues that (1) the trial evidence was insufficient to support guilty verdicts on any of the charged VICAR counts, (2) the prosecution suborned perjury by witnesses John Taylor and Lashika Johnson, and (3) he was prejudiced by prosecutorial misconduct in summation. As to sentence, Aquart’s challenges fall into three categories: (1) prosecutorial misconduct at the penalty phase, (2) insufficiency of the evidence as to certain identified aggravating factors, and (3) unconstitutionality of the death penalty both generally and as applied to his case.

The panel affirms Aquart’s conviction but, based on prosecutorial error, vacates his death sentence and remands the case for a new penalty hearing.

There is too much in the 139-page Aquart opinion for the court for me to summarize it here.  But I noticed that a former boss of mine, Judge Calabresi, has this amusing paragraph on an important issue in his short concurrence:

§2.b. Whether Aquart’s Death Sentence is Constitutionally Disproportionate. Because, as the Majority correctly explains, existing Supreme Court Law does not mandate proportionality review, the question of whether, if it did, Aquart would pass that test is entirely hypothetical. (I’m too much an academic to call it academic.) It need not be reached, and I decline to do so

DPIC releases year-end report noting that 2018 was "fourth consecutive year with fewer than 30 executions and 50 death sentences"

This press release from the Death Penalty Information Center, titled "2018 Marked the Fourth Consecutive Year with Fewer than 30 Executions and Less than 50 Death Sentences," provides a summary of the DPIC's 2018 year-end report on the administration of the death penalty in the United States.  Here are excerpts from the press release:

With 25 executions and 42 death sentences expected this year, the use of the death penalty remained near historic lows in 2018, according to a report released today by the Death Penalty Information Center (DPIC).  2018 marked the fourth consecutive year with fewer than 30 executions and 50 death sentences, reflecting a long-term decline of capital punishment across the United States. Court decisions and election results signaled continuing low death-penalty use as Washington State declared its capital punishment statute unconstitutional and voters ousted prosecutors in seven counties known for aggressive death-penalty usage.

In 2018, 14 states and the federal government imposed death sentences, with 57% of the projected 42 sentences coming from just four states: Texas and Florida (both with seven) and California and Ohio (both with five). No county imposed more than two death sentences for the first time in the modern era of the death penalty (after the U.S. Supreme Court struck down all death penalty statutes in 1972).

The death penalty remained geographically isolated as only eight states carried out the 25 executions: Alabama, Arkansas, Florida, Georgia, Nebraska, South Dakota, Tennessee, and Texas. Texas accounted for more than half of all executions (13); there were fewer executions in the rest of the country than in any year since 1991. 2018 was the fourth year in a row with fewer than 30 executions. Before 2015, 1991 was the last year with fewer than 30 executions.

The cases in which the death penalty was imposed or carried out continued to raise questions about the fairness of its application. More than 70% of the people executed showed evidence of serious mental illness, brain damage, intellectual impairment, or chronic abuse and trauma, and four were executed despite substantial innocence claims....

On October 11, Washington became the 20th state to abolish the death penalty when its Supreme Court unanimously ruled that capital punishment violates the state constitution because it “is imposed in an arbitrary and racially biased manner.” Governors in Oregon and Pennsylvania who had imposed or extended moratoria on the death penalty were reelected and Colorado, the third state with a moratorium, elected a governor who campaigned on repealing the death penalty.

Prosecutorial candidates who ran on reform platforms won elections in several counties with a history of aggressive use of the death penalty. Reform candidates were elected district attorney in two Texas counties – Bexar and Dallas – that are among the two percent of counties responsible for the majority of executions. Voters in Orange and San Bernardino counties in California, two of the nation’s most prolific producers of death sentences, ousted their long-time incumbent district attorneys.

Six former governors urge outgoing California Gov Jerry Brown to commute 740 death sentences

This new opinion piece in the New York Times is authored by six former governors and is headlined "Jerry Brown Has the Power to Save 740 Lives. He Should Use It."  Th2 headline is itself a bit factually misleading because none of the persons on California's death row seem at risk of being executed anytime soon.  There has not been a single execution in California in more than a dozen years, and the next Governor seems unlikely to be eager to start up the state's machinery of death anytime soon.   Still, the six former governors — Richard Celeste of Ohio, John Kitzhaber of Oregon, Martin O’Malley of Maryland, Bill Richardson of New Mexico, Pat Quinn of Illinois, and Toney Anaya of New Mexico — make a notable pitch and here are excerpts:

Among a governor’s many powers, none is more significant than signing a death warrant. It’s a terrible responsibility, hard even to imagine until you’re asked to carry it out, as we were. But we became convinced that it wasn’t something a civilized society should ask of its leaders. That’s why we halted executions in our states, and we call on Gov. Jerry Brown of California to do the same.... [W]e know it must weigh on Mr. Brown that, unless he acts soon, he will leave behind 740 men and women on California’s death row. It’s a staggering number and our hearts go out to him. From a humanitarian perspective, it is horrifying to imagine executing that many humans. As a practical matter, it’s beyond comprehension.

Even the most ardent proponents of capital punishment would shudder at composing a plan to execute 740 people. Would California’s citizens allow mass executions? If the state were to execute a single person every day, people would still be waiting on death row after two years....

Since the death penalty was reinstated in the United States in 1976, 11 governors have granted clemency to death row prisoners in their states. They did not free them; they either reduced their sentences to life, declared a moratorium on executions or repealed their death penalty. We have all done one of these; so have Gov. George Ryan of Illinois in 2003; Gov. Jon Corzine of New Jersey in 2007; Gov. Dannel Malloy of Connecticut in 2012; Gov. Jay Inslee of Washington in 2014; and Gov. Tom Wolf of Pennsylvania in 2015.

The achievement of high office demands that one be courageous in leadership. Mr. Brown now has the chance to do what others in our ranks have done after they became aware of the price paid for taking a human life. We were compelled to act because we have come to believe the death penalty is an expensive, error-prone and racist system, and also because our morality and our sense of decency demanded it.

Mr. Brown has the power to commute the sentences of 740 men and women, to save 740 lives. Or, he can declare a moratorium on the death penalty and give Governor-elect Gavin Newsom the time he will need to figure out how to end a system broken beyond repair. Such an act will take political will and moral clarity, both of which Mr. Brown has demonstrated in the past. In the interest of his legacy, the people of California need his leadership one more time before he leaves office.

"The Electric Chair Is Back and the Death Penalty Is on Life Support"

The title of this post is the headline of this new commentary by Austin Sarat in Slate.  Here are excerpts:

On Thursday, David Earl Miller became the second person in the last five weeks to choose death in Tennessee’s electric chair over lethal injection. Miller was executed for the 1981 murder of 23-year-old Lee Standifier.

After losing a lawsuit claiming he had a right to be executed by a firing squad, Miller took advantage of a state law allowing death row inmates convicted prior to 1999 to opt for the electric chair rather than lethal injection.  He did so because he feared that the state’s lethal injection protocol, which includes midazolam, a drug that has been involved in several botched executions, would result in a more prolonged and painful death than would electrocution.

The real significance of the return of the electric chair, though, would be missed if we saw it only as a loss of faith in lethal injection by death row inmates.  It signals a larger crisis for the death penalty system in the United States....

Today, nine states retain the electric chair as a legally allowable method of execution. Since 1980, only 11 percent of American executions have involved the electric chair. Most of the other countries that have capital punishment choose one method of execution and stick with it.  In contrast, since the late 19th century, the United States has used five different methods of execution: hanging, electrocution, lethal gas, the firing squad, and lethal injection.  The death penalty has been sustained by the hope of making progress in the grim business of putting people to death.  Indeed, its legitimacy is closely linked to the search for a technological magic bullet to insure the safety, reliability, and humanity of execution.

Even though Miller became just the 16th person put to death by electrocution in the United States since the turn of the 21st century, a period in which there have been 873 lethal injections, the return of the electric chair and other previously abandoned methods of executions signifies more than just the severity of lethal injection’s current problems.  This back-to-the future moment suggests that the United States has reached the end of the road in the search for ever-better execution methods.  It highlights the shaky ground now occupied by America’s death penalty.

Though I share the view that the death penalty remains on shaky ground in the US, it is also the case that the ground is getting just a bit more steady in the Trump era. The prospect of a wholesale striking down of the death penalty by the Supreme Court seems no longer likely in light of Prez Trump's two appointment to SCOTUS. And the last two years, the number of executions completed each year by the states have ticked up slightly since 2016.  As detailed here, there is an execution scheduled in Texas tonight; if it goes through, 2018 will have had more executions nationwide than did 2017.

Tennessee completes execution by electric chair

As reported in this local piece, "David Earl Miller was pronounced dead at 7:25 p.m. CST on Thursday after Tennessee prison officials electrocuted him with the electric chair. He was 61." Here is more:

He is the third person executed this year and was the longest-serving inmate on Tennessee's death row. Miller was sentenced to death for the May 1981 murder of 23-year-old Lee Standifer of Knoxville, who was mentally disabled.

Miller brought her to a pastor's home where he was staying and struck her across the face with a fire poker. He hit her with enough force to fracture her skull, burst one of her eye sockets and leave imprints on the bone. He stabbed her over and over — in the neck, in the chest, in the stomach and in the mouth.

Both the U.S. Supreme Court and Gov. Bill Haslam on Thursday declined to intervene and stop the scheduled execution....

With no emotion in his voice, Miller said his last words but at first could not be understood. The warden asked to him to repeat himself. With "Beats being on death row," the execution began.

An expressionless Miller stared ahead as he was held down by buckles and straps. His cream colored pants were rolled up and electrodes were fastened to his feet. His fingernails and toenails were untrimmed. Cuts were seen on his legs.

Prison staff placed a large wet sponge soaked in saline solution and a metal helmet on his shaved head. Solution dripped down his face and chest. One of the prison staff wiped Miller's face with a towel.

A black shroud was placed over his head. The warden gave the signal to proceed. At 7:16, the first jolt of 1,750 volts of electricity was sent through Miller's body. Witnesses could see him stiffen and his upper body raise up on the chair.

It was quiet. He made no sound but his hands were in fists and his pinkies stuck out over the arm rest of the seat. After he lowered on the chair, he wasn't seen moving again. A second jolt was administered for 15 seconds.

The doctor overseeing the death checked on Miller's vitals. He was dead. The curtain came down. "Miller cleared" came over the speakers.

The execution occurred similarly to Edmund Zagorski's electrocution a month prior. Down to the clenched fists, strained pinkies and no signs of breathing after the first jolt of electricity.

Texas completes execution for escapee involved in killing during crime spree

As reported in this local article, headlined "'Texas 7' escapee Joseph Garcia executed in Huntsville," the Lone Star State completed yet another execution last night.  Here are the basics:

Nearly two decades after the brazen prison break-out and cross-state crime spree that landed him on America's Most Wanted and eventually on death row, Texas 7 prisoner Joseph Garcia was executed Tuesday night in Huntsville....  He was pronounced dead at 6:43 p.m., 13 minutes after the lethal dose began.

In recent weeks, the 47-year-old convicted in the Christmas Eve killing of a North Texas police officer launched a slew of appeals, lawsuits, pleas for reprieve and requests for clemency. His last-minute legal moves raised questions about his initial conviction, the controversial "law of parties" and the source of the state's lethal injection supplies.

But on Friday, the parole board rebuffed the condemned man's request for clemency, and lower courts turned down appeal after appeal. By Tuesday morning, he still had a number of claims in front of appeals courts and the U.S. Supreme Court, and a long-shot bid for reprieve sitting on the governor's desk.  "I am on death row because of the actions and intent of others and because I am one of the Texas Seven, case closed," he wrote the Chronicle weeks before his scheduled execution.  "Is it right that I should be murdered for something that I did not do?"

To some friends and family of the slain policeman — Officer Aubrey Hawkins – the answer is clear.  "Whatever participation he had, he went along with it," said Seagoville police Sgt. Karl Bailey, a long-time friend of the Hawkins family. "The whole thing was sparked by the escape from prison, the burglaries - it was a crime spree."

Though Garcia offered no apology in his final statement, he sent out a message of remorse through his attorneys. "I want to offer my heartfelt apology to the family of Officer Hawkins, and the workers at Oshman's in Dallas," he said. "None of this was supposed to happen. I wish it didn't."

At the time of the breakout in December 2000, the Bexar County native was locked up in a prison south of San Antonio, serving a 50-year sentence stemming from a boozy fight that ended with one man dead. Garcia was convicted of murder, but he has long maintained that it was the other man — Miguel Luna — who attacked him, and that the fatal stabbing was only in self-defense.

Behind bars, he made friends with a charismatic thief named George Rivas.  First, they bonded over a "poor man's spread" of prisoner-made food. Then, they plotted an escape. Inspired by a book, their plan took months to prepare.  They picked a crew, spread rumors among the guards, surveyed the grounds and gathered supplies.  On Dec. 13, they made good on their plot....  

After pulling off a pair of robberies to load up with cash and supplies in the Bayou City, the fleeing prisoners left and headed north.  In the Dallas suburb of Irving, the seven escapees staked out an Oshman's sporting goods store....  They took hostages and stole guns, money and supplies.  But before they left, a lone police officer showed up.

Garcia says he was still inside the building when he heard the shots, but some of the other men offered different accounts.  In all, five men fired shots. Rivas admitted he was one of them – but the state never proved that Garcia was. He still maintains that he was inside the building when the shooting started. 

Afterward, they fled to Colorado, driving straight into a blizzard. They stopped at motels along the way, then holed up in a trailer park near Colorado Springs.  For a month, they posed as Christian missionaries before they were finally captured.  One of the men — Larry Harper — killed himself rather than be taken back to prison.

The other six were sent to death row, and three have since been executed.  To the former prosecutor who handled all six of the trials, a fourth execution date comes as a welcome relief.  "It's been almost 18 years," attorney Toby Shook told the Chronicle earlier this year. "It's satisfying that the actual sentence will actually be carried out."

In his final weeks, Garcia has launched an array of appeals. In one claim, he argued that his original Bexar County killing was actually self-defense and not murder. If so, he said, it shouldn't have been used as evidence of future dangerousness — something the state is required to show to secure a death sentence.  Among Garcia's other pending legal actions is a challenge to the state's lethal injection procedures in light of recent reporting about the alleged source of the drugs. In recent days, he'd also tried lobbing a lawsuit at the parole board, arguing the seven-member panel had too many former law enforcement members to be representative of the general public....

He was the 12th Texas prisoner executed this year. Another death date is scheduled for next week.

Renewed talk in Ohio of exempting those with "serious mental illness" from the death penalty

As reported in this local article, headlined "Should those with serious mental illnesses be exempt from the death penalty in Ohio?," there is renewed discussion in the Buckeye State of a task force proposal to carve out an exception to the death penalty for those with "serious mental illness." Here are the details:

If Ohio is going to execute convicted murderers, it shouldn't execute individuals with serious mental illnesses, a bipartisan group of lawmakers says.

That is the aim of House Bill 81 [available here], which would prohibit capital punishment for anyone with a clinical diagnosis of schizophrenia, schizoaffective disorder, bipolar disorder, major depressive disorder or delusional disorder.  The proposal has stalled for years in the Ohio House but could advance this week for the first time after gaining support from a handful of Republicans....

If a judge or jury finds the person was impaired at the time of the murder, the defendant could not be sentenced to death.  They could still face life in prison.  The idea came from a 2014 task force of judges, prosecutors, defense attorneys and academics who recommended several changes to Ohio's death penalty.  It builds on U.S. Supreme Court decisions.

The bill, sponsored by Republican Rep. Bill Seitz of Green Township and Democratic Rep. Nickie J. Antonio of Lakewood, has bipartisan support. Groups such as the National Alliance on Mental Illness of Ohio and Ohio Psychiatric Physicians Association agree that certain people shouldn't face the death penalty. “If we are going to have a death penalty, it should be reserved only for those who are the worst of the worst, not for those who are suffering from impaired judgment due to a severe mental illness," said Richard Cline, chief counsel with Ohio Public Defender's death penalty department, during a Nov. 27 hearing.

Convicted killers could be exempt from the death penalty even if they are found competent to stand trial and don't meet the standards for being found not guilty by reason of insanity.

Prosecutors and some GOP lawmakers aren't convinced that the changes are needed. Under the bill, those already on death row could ask a judge to take another look at their mental state at the time of the offense and possibly have their death sentence vacated.

Some worry that every inmate on death row would claim some mental illness to escape execution. “It would be a substantial miscarriage of justice for someone convicted and sentenced to death years ago to be able to now claim that they had a serious mental illness at the time and should, therefore, be excluded from the death penalty,” said Lou Tobin, executive director of the Ohio Prosecuting Attorneys Association.

Opposition from prosecutors has stalled the proposal once before. Still, the bill could get a vote in committee Tuesday. From there, the proposed law would need approval from the Ohio House and Ohio Senate before heading to Gov. John Kasich. The Legislature has only a handful of sessions remaining.