Sentencing Law and Policy

Second Texas inmate gets execution stay based on religion claim SCOTUS considering in Ramirez

As reported in this post, the Supreme Court last week stayed the execution of John Ramirez and granted certiorari to consider Ramirez’s request that his pastor be allowed to physically touch him and audibly pray in the execution chamber while Ramirez is put to death by the state of Texas.  In this follow-up post, titled "A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?", I wondered aloud if the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium based on other death row inmates making a religious liberty claim like Ramirez’s request.

This new AP piece, headlined "Judge delays another Texas execution over religious freedom claims," reports that at least one other Texas inmate has secured an execution stay on the basis of Ramirez.  Here are the details:

Another Texas inmate has had his execution delayed over claims the state is violating his religious freedom by not letting his spiritual adviser lay hands on him at the time of his lethal injection.

Ruben Gutierrez was set to be executed on Oct. 27 for fatally stabbing an 85-year-old Brownsville woman in 1998.  But a judge on Wednesday granted a request by the Cameron County District Attorney’s Office to vacate the execution date. Prosecutors said the U.S. Supreme Court’s upcoming review of similar religious freedom issues made by another inmate, John Henry Ramirez, whose execution the high court delayed last week, will impact Gutierrez’s case.

“As the Ramirez matter may be dispositive of any issue related to Gutierrez’s religious liberty claim, it is in the best interest of the state, the family of the victim of Gutierrez’s crimes, that his execution be delayed,” prosecutors said in a motion filed Tuesday.

Gutierrez was previously an hour away from execution in June 2020 when the Supreme Court granted him a stay because his spiritual adviser was not allowed to accompany him in the death chamber.

Last month, Gutierrez’s attorneys filed a complaint in federal court alleging the Texas Department of Criminal Justice was violating his right to practice his religion by denying his request to have his priest touch his shoulder, pray out loud and perform last rites when he was executed.

Gutierrez, 44, said that these three things need to be done “to ensure my path to the afterlife,” according to his complaint.  His attorneys cited the Constitution’s First Amendment and a federal statute that protects an inmate’s religious rights. Ramirez made similar claims when he was granted a stay.

The Supreme Court has dealt with the presence of spiritual advisers in the death chamber in recent years but has not made a definitive ruling on the issue.  That could change after it hears oral arguments in Ramirez’s case on Nov. 1.

Prior related posts:

• SCOTUS stays Texas execution and grants cert on death row inmate's request for pastor's touch during execution 
• A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty? 

Utah prosecutors urge repeal of death penalty as "grave defect that creates a liability for victims of violent crime, defendants' due process rights, and for the public good"

As reported in this local article from Utah, a "coalition of district attorneys and county prosecutors from around the state made noise on Tuesday, presenting a joint letter to be sent to Governor Spencer Cox and the State Legislature, asking for a repeal of the death penalty."  Here is more:

Citing six specific reasons, the four attorneys; Christina Sloan of Grand County, Margaret Olson of Summit County, David Leavitt of Utah County, and Sim Gill of Salt Lake County combined their influence to pen a recommendation to replace the death penalty sentence for aggravated murder to a term of 45 years to life....

The last person to be executed by the state in Utah was Ronnie Lee Gardner on June 18, 2010. His execution by firing squad (yes, that is still an option if lethal injection is held unconstitutional, unavailable, or if the convicted selected that method before May 3, 2004) was highly publicized at the time.  However, it came 26 years after his murder of an attorney during an escape attempt while being transported to a hearing for a separate robbery and murder.

Following his death sentence, which was given in October 1985, Gardner’s case was trapped in a series of appeals and defense motions that delayed his execution. Likely, the court and legal fees that were involved in finally carrying out his sentence were in the hundreds of thousands of dollars, if not more....  The coalition of attorneys in Utah referred to another study concluding that death penalty convictions cost taxpayers $1.12 million more than holding them for life. “A death sentence also carries the inevitable expenses of appeal.  The taxpayers must pay for both the prosecution and the defense in these hearings,” the letter reads....

Attempts have been made before to repeal the death penalty in Utah. In 2018, a death penalty amendment was introduced in the state legislature as House Bill 379.  The provisions were filed in the house but didn’t pass, even after a favorable recommendation from the Law Enforcement and Criminal Justice Committee.

This four-page prosecutor letter, styled as "An Open Letter to Governor Spencer Cox and the Utah State Legislature," is worth a full read. It starts and ends this way:

As attorneys and duly elected public prosecutors, we have sworn to support, obey, and defend the Constitution of the United States and the Constitution of Utah.  We also have a statutory duty to call to the State Legislature's attention any defect in the operation of the law.  In fulfillment of that oath and responsibility, we alert legislators and the people of a grave defect that creates a liability for victims of violent crime, defendants' due process rights, and for the public good. The defect which we urge the Legislature to repeal is the death penalty....

Doctors take the Hippocratic oath to do no harm to people when they become licensed.  The promise of an attorney is one to uphold and defend the Constitution.  Yet as prosecutors, our client is the public.  We file our cases in the name of the state of Utah.  We work to protect public safety, preserve the privacy and dignity of crime victims and to hold the guilty accountable.  Then, once a defendant is convicted, we seek to make victims whole and ensure that a defendant does not harm others again.  When someone commits a violent murder, nothing can repair the damage that person has caused.  No earthly court can order restored life to a murdered son or daughter or a healed heart to a crushed husband or wife.  However, we can ensure that the offender goes to prison.  If the Legislature repeals the death penalty, the available sentences for aggravated murder will be life without parole or 25 years to life.  Twenty-five years is far too short of a time for our most violent offenders.  Most people convicted of aggravated murder are young men.  We believe that justice requires the third optionof45 years to life to be made available. As prosecutors, we are not seeking mercy for the murderer but justice for the people.  A 45 to life sentence will mean that if an offender ever gets out, it will not be until the twilight of their lives.  That will protect the public and, to the extent possible, provide a small measure of justice for what that person has taken away.  Accordingly, we call on the Legislature to remedy this defect in the law by repealing the death penalty and creating a new possible alternative to life without parole of 45 years to life.

A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?

As highlighted in this post, the Supreme Court late last night stayed the execution of John Ramirez, who was scheduled to be killed by Texas via lethal injection on Wednesday night.  Importantly, the Justices not only postponed this execution, it also granted certiorari to allow the Court to fully consider on the merits Ramirez’s request that his pastor be allowed to physically touch him and audibly pray in the execution chamber while Ramirez is put to death. 

Notably, the brief SCOTUS order called for an expedited briefing schedule "that will allow the case to be argued in October or November 2021."  But, even if the argument were to take place in (late) October, it seems pretty unlikely that the Court's ultimate ruling in Ramirez v. Collier will be handed down before late November.  And, as detailed here, Texas has six additional executions scheduled for between now and November 17, 2021.  I cannot help but wonder if some or all of these condemned inmates on Texas death row will now request that a religious official be allowed to physically touch them and/or audibly pray in the execution chamber while they are put to death.  If any or all other Texas inmates on death row now make such a religious request and it is denied by prison officials (and/or if Alabama and Missouri inmates scheduled to be executed in October make similar requests), wouldn't the balance of equities support a short stay of these other scheduled executions until the Supreme Court rules in Ramirez?

Perhaps Texas and other state officials will seek to go forward with executions despite any new Ramirez-type requests by other condemned inmates for religious accommodations in the execution chamber by asserting that any new request is not made in good faith and is only a last-minute (and too-late) effort to delay an execution.  But couldn't  an inmate respond, perhaps in good faith, that he did not even think such a religious accommodation was possible until John Ramirez litigated this issue and the Supreme Court decided to take it seriously.  I sense lower courts might be particularly wary of trying to judge whether a dying inmate's religious request is sincere.  Moreover, the fact that SCOTUS has fast-tracked this case might also enable death row inmates and their counsel to argue that any execution postponement to resolve a requested Ramirez-type religious accommodations would likely last only a few months.

Am I missing something and/or am I crazy to think that the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium until the Justices issue an opinion in Ramirez? 

SCOTUS stays Texas execution and grants cert on death row inmate's request for pastor's touch during execution

Texas was scheduled to execute John Ramirez this evening, but the Supreme Court blocked the effort as reported here at SCOTUSblog:

The Supreme Court agreed to postpone the execution of John Ramirez, who was scheduled to die on Wednesday night in Texas.  The last-minute respite will allow the justices to fully consider Ramirez’s request that his pastor be allowed to physically touch Ramirez and audibly pray in the execution chamber while Ramirez is put to death.

Ramirez’s emergency application was the latest in a series of shadow-docket requests in the past two years involving spiritual advisers at executions. But the justices are now poised to weigh in more definitively on the rights of inmates to have spiritual advisers at their side in their final moments: In the brief order putting Ramirez’s execution on hold, the court agreed to hear Ramirez’s appeal on its regular docket this fall.

Ramirez, who was sentenced to death for the 2004 murder of convenience-store clerk Pablo Castro, asked to have his Baptist pastor, Dana Moore, put his hands on Ramirez’s body and pray out loud as Ramirez is executed.  After Texas refused to grant that request, Ramirez went to federal court in August.  The district court rejected Ramirez’s bid to postpone his execution last week, and the U.S. Court of Appeals for the 5th Circuit turned down his plea to intervene.

The four cases that have previously reached the court centered on whether spiritual advisers could be present in the execution chamber at all....  Ramirez’s case involved a slightly different issue: what kind of aid a spiritual adviser can (and cannot) provide during an execution.  Ramirez came to the Supreme Court on Tuesday, asking the justices to put his execution on hold and to review his case on the merits.  He stressed that his filing was not a last-minute effort to delay his execution, because he had first raised the spiritual-adviser question over a year ago.  The state’s refusal to allow Moore to touch him and pray out loud, Ramirez argued, violates both his constitutional rights and the federal law guaranteeing religious rights for inmates.  Under the Texas policy, Ramirez emphasized in his reply brief on Wednesday, the execution chamber would be “a godless vacuum,” with Moore “no different from a potted plant.”...

In an order issued shortly before 10 p.m. EDT, the justices agreed to stay Ramirez’s execution and to hear his appeal on the merits. The court indicated that the case should be fast-tracked, with oral argument set for either October or November. There were no public dissents from Wednesday’s order.

Noting that, with fewer executions, those on death row are growing even older

This new piece at The Crime Report authored by Maria DiLorenzo, which is titled "Growing Old on Death Row," highlights that many of those on death row these days are really serving a sentence of "a long confined aged" life behind bars.  Here are excerpts:

In the 36 years that David Carpenter has been on death row at San Quentin State Prison in California, his routine has rarely changed. He awakens early in the morning and exercises, despite suffering from arthritis, in the cramped space of his single-bunk cell before eating breakfast.  Three days a week, he has access to a yard outside.

Once a month he attends a church service, one of the few activities that allows him time out of his cell, aside from medical appointments and visiting with friends and family, which he used to do regularly prior to COVID restrictions that have made the prison more isolated.  But most of the time, he stays inside his cell, which he’s grateful he does not have to share with anyone else. “I control my lights,” he tells The Crime Report in an interview via snail mail.  “I have my 15-inch color television.  I can go to sleep when I want to at night, take a nap during the day, and write letters and read when I want to.  I have the freedom in a single cell that I would not have in a two-man cell.”

At the age of 91, there’s one other thing he can be grateful for.  In 2019, California Gov. Gavin Newsom suspended capital punishment. As long as Newsom remains governor, executions will not occur, which has effectively given Carpenter a lease on life.  He is keenly aware of the irony.  “Because no one has been executed in California, death row inmates (in this state) have grown older with each passing year,” he acknowledged in his note to The Crime Report. “If California was like Texas, [which] executes people shortly after being found guilty and [sentenced to death] I would have been executed years ago.”

In 1984, Carpenter, also known as The Trailside Killer, was sentenced to death for shooting and killing two women.  Then, in 1988, he was found guilty of murdering five women, raping two others, and attempting to rape a third.  He was later tried and convicted of two additional murders and an attempted murder....

Carpenter, now one of the oldest individuals awaiting execution in the U.S., belongs to a growing segment of the prison demographic. In 2019, according to the Death Penalty Information Center, some 574 prisoners on death row in the U.S. were aged 60 or over. In 1996 that figure was just 39....

Some 1,200 of the 2,800 inmates awaiting execution are aged 50 and over.  Demographic trends suggest that over-50 population will increase, as America’s death rows are increasingly transformed into high-cost homes for senior citizens....  [A]s courts scrutinize details of appeals, men and women condemned to death are not only growing old, but becoming afflicted with dementia or other disabling diseases of age.  Since 2000, 11 death row inmates ranging in age from 65 to 77 have been executed.  Some, according to scholars.org, ‘were disabled, demented, or both.”

And as more states reject or sidestep capital punishment, the issue of what do with aging prisoners on death row presents a dilemma with moral, constitutional and economic dimensions.  Some critics argue that keeping ailing and enfeebled individuals behind bars―some with no memory of the crime they are in for ― is a violation of the Eighth Amendment prohibition against cruel and unusual punishment.

But it also raises questions about whether a system in which capital punishment is invariably accompanied by a long appeals process that leaves people to grow old on Death Row makes sense. “One way is just to substitute life without parole for death,” Fox told The Crime Report. “You keep them off the street, which is the desire that people have, and keep them in prison longer… I understand that people are worried about the cost, (but) death row trials are very expensive. They’re longer, they have more witnesses, more experts.”

It is not quite right to say that Texas executes people shortly after they are found guilty.  This website listing the next eight Texas execution dates (one of which is tomorrow) reveals that all eight of these condemned men have been on death row for more than a decade and a few have been there for a quarter century or longer.  Still, with California having over 700 persons on its death row, while not having completed a single execution in over 15 years, it is fitting that someone like The Trailside Killer from the Golden State is the featured focal point for a discussion of aging on death row.

Might any Justices be intrigued by notion that Eighth Amendment originalism makes the Boston Marathon bomber's death sentence suspect?

I have always been intrigued by writings by Michael J.Z. Mannheimer making originalist claims about the Eighth Amendment as a unique and distinctive limit on federal punishments.  As he explains in "Cruel and Unusual Federal Punishments," the framers and ratifiers of the Eighth Amendment were particularly concerned about an oppressive federal government imposing  excessive punishments, and so they expected that "state law should be the benchmark for determining whether a federal punishment is 'cruel and unusual'."  Particularly because many federal  criminal laws and sentencing provisions are now particularly harsh when compared to state benchmarks — think many federal drug and gun mandatory minimums — Mannheimer's approach to the Eighth Amendment could have considerable modern purchase.  And, since this idea seems firmly grounded in originalism, one might hope that serious originalists might at least consider this idea when considering a notable federal punishment.

These matters are on my mind today because Professor Mannheimer just filed this interesting amicus brief in  US v. Tsarnaev, which just happens to involve a notable federal punishment for a notable criminal defendant.  Here is part of the brief's summary of argument:

In 1783, faced with a request by the Articles of Confederation Congress for unanimous consent by the States to implement a new impost on goods, Massachusetts assented.  But it did so only with conditions.  One condition was that, in enforcing the proposed impost within Massachusetts, the central government must not impose upon a violator of the impost law any “punishments which are either cruel or unusual in this Commonwealth.”  Georgia, New Hampshire, and South Carolina set the same condition, substituting “State” for “Commonwealth.”  Thus, a scant six years before the Bill of Rights was proposed by Congress and submitted to the States, we see a precursor to the Eighth Amendment in these state impost ratifications, which used language nearly identical to that which would appear in the Eighth Amendment.  And that language was State-specific; the measure of what punishments qualified as “cruel or unusual” was to be determined on a State-by-State basis, according to what qualified as “cruel or unusual” punishment in each State.

When the Eighth Amendment was drafted only a few years later, the State-specific understanding of this phrase remained. Coupled with the word “cruel,” unusual meant “harsher than is permitted by the law of long usage and custom,” i.e., the common law. And, of course, the common law differed in each State. More importantly, the framers and ratifiers of the Eighth Amendment understood that the common law differed by State.

This State-specific understanding of the term “cruel and unusual punishments” follows directly from the goals of the Anti-Federalists in demanding a bill of rights. The Anti-Federalists initially opposed ratification of the Constitution because they feared that the outsized power of the proposed new federal government would lead to both the annihilation of the States as sovereign entities and the destruction of individual rights. These two fears were intertwined: If the new central government were to create a parallel and plenary system of laws, it would render the States irrelevant and permit the central government to sidestep the common-law rights Americans had fought and died for only a few years before. These common-law rights had been enshrined in state constitutions and laws, but because the proposed federal government would be acting on the citizens directly, it would not be bound to observe those rights.

The Anti-Federalists’ solution was to constrain the new federal government in the same ways that the States constrained themselves. This meant, in some instances, calibrating federal rights to state norms, thereby preserving state power and individual rights simultaneously by retaining the primacy of the States in protecting common-law rights.  This is how the Cruel and Unusual Punishments Clause was to operate, protecting the common-law right against punishments unknown to the law by positing state law as the reference point, the benchmark of “unusualness.” “Cruel and unusual” meant “harsher than is permitted in the particular jurisdiction.”  With this understanding in place, moderate Anti-Federalists gave their assent to ratification and a Nation was born...

The people of Massachusetts have effectively turned their face against the death penalty, believing it to be an inappropriate method of punishment within their Commonwealth.  Just like the Commonwealth’s conditional assent to the 1783 confederal impost, the Anti-Federalists’ assent to ratification on condition that a bill of rights be adopted preserves the Commonwealth’s authority to set the outer bounds of punishment for crimes committed entirely within its borders.  The core, irreducible meaning of the Eighth Amendment is that this judgment is the Commonwealth’s to make.

The federal government may not impose capital punishment in this case because the death penalty, in the most fundamental, literal meaning of the words, is “cruel and unusual punishment” in Massachusetts.

Of course, substantive Eighth Amendment issues are not directly in front of the Supreme Court in Tsarnaev because the First Circuit reversed the Boston Marathon bomber's death sentence on procedural grounds. But the good professor urges SCOTUS to instruct the lower courts to address this matter if it were to at some point remand the case to the First Circuit.

California Supreme Court turns back broad challenge to state capital procedures

As detailed in this Los Angeles Times article, headlined "California’s top court declines to overhaul death penalty," a broad challenge to death penalty procedures was rejected by the California Supreme Court today.  Here are the basics:

The California Supreme Court on Thursday decided to leave the state’s death penalty law intact, refusing an entreaty from Gov. Gavin Newsom that would have overturned scores of death sentences.

In a unanimous decision, the state’s highest court said there was little legal support under state law for overhauling the law, as opponents of capital punishment urged. In fact, the court said, some of the precedents cited by defense lawyers actually undercut their position.

Defense lawyers had argued the state’s capital punishment law was unconstitutional because it failed to require jurors to unanimously agree beyond a reasonable doubt on the reasons why a defendant should be sentenced to death instead of life without possibility of parole. A decision to impose the death penalty also should be made beyond a reasonable doubt, the standard now used in deciding guilt, the lawyers said.

If the court had agreed, hundreds — if not all — death sentences would have had to be overturned because such decisions generally apply retroactively.

Justice Goodwin Liu, who wrote the ruling, said some of the cases cited by defense attorneys did not support their position. “If anything,” he said, they suggested “the ultimate penalty determination is entirely within the discretion of the jury.” The court did not reject the constitutional arguments raised by Newsom but said they did “not bear directly on the specific state law questions before us.”

In a concurring opinion, Liu said there was enough U.S. Supreme Court precedent to warrant reconsidering California’s death penalty rules in future cases. He noted that some other states have changed their capital punishment requirements as a result of more recent Supreme Court rulings on the 6th Amendment, which protects the trial rights of the criminally accused....

John Mills, who represented two scholars of the state Constitution as friends of the court, said the ruling and Liu’s concurrence have provided a road map for future challenges that may be more likely to succeed. He predicted death row inmates will soon bring the kinds of claims that Liu said might be persuasive but were not at issue in McDaniel’s appeal. “He was laying out some concerns that were not presented by Mr. McDaniel about the operations of the California death penalty statute that he is concerned may violate the federal Constitution,” Mills said. “Those issues remain an open question in California because they were not litigated in this case.”...

California has more than 700 inmates on death row, but legal challenges have stymied executions. Only 13 inmates have been executed since 1992, and Newsom imposed a moratorium on executions during his time in office.

The full 111-page opinion from the California Supreme Court is available at this link.

Might Oklahoma really try to move forward with seven executions over the next six months?

The question in the title of this post is prompted by this new local article headlined "Oklahoma AG requests execution dates for seven state death row inmates." Here are the basics:

Oklahoma Attorney General John O’Connor late Wednesday asked the Court of Criminal Appeals to set execution dates for seven death row inmates, including Julius Jones. The action comes after the state put the death penalty on hold following the 2014 botched execution of Clayton Lockett, the 2015 execution of Charles Warner using the wrong drug, a review of the protocol and litigation.

O’Connor asked that Jones’ execution date be set for Oct. 28. Jones, who has waged a public relations campaign claiming innocence, is set for a Sept. 13 commutation hearing before the Pardon and Parole Board. However, with the O’Connor filing seeking an execution date, that could change to a clemency hearing a later date, said Tom Bates, Oklahoma Pardon and Parole Board director.

The board has scheduled a meeting for next week to discuss the potential resumption of executions and the scheduling of clemency hearings. Jones was convicted of the 1999 murder of Edmond businessman Paul Howell.

O’Connor asked the court to set a Feb. 10 execution date for James Allen Coddington, who was sentenced to death for the 1997 killing of Albert Hale in Oklahoma County. He also requested that a Dec. 30 execution date be set for Donald Anthony Grant. He was sentenced to death for the 2001 murders of Del City motel workers Brenda McElyea and Suzette Smith.

An Oct. 7 date was requested by John Marion Grant Grant, who was sentenced for the 1998 killing of Gray Carter, a prison kitchen worker at the Dick Connor Correctional Center in Hominy. Wade Greely Lay, sentenced to death for the 2004 killing of a Tulsa security guard Kenny Anderson, was petitioned to be sentenced on Dec. 9.

The court was also asked to set a Jan. 20 execution date for Gilbert Ray Postelle. Postelle was convicted at trial of killing four people in 2005 outside a trailer in Del City. He received the death penalty for two of the murders.

A execution date of Nov.18 was requested for Bigler Jobe Stouffer.  Stouffer was sentenced to death for the 1985 killing of Putnam City teacher Linda Reaves.

I believe the have only been four state executions nationwide since the start of the pandemic nearly 18 months ago, so I am inclined to assume that this request for multiple execution dates over the next six months from the Oklahoma AG is mostly a symbolic effort primarily intended to signal the AG's eagerness to move forward with executions and to keep capital proceedings moving along.  But when former US AG William Barr announced his intent in 2019 to restart federal executions after a long delay, I underestimated just how effectual a motivated AG could be in getting the machinery of death back in action.  So stay tuned.

Unusual Fourth Circuit panel affirms federal convictions and death sentence for Charleston church shooter Dylann Roof

I noted in this post from May 2021 that an unusual Fourth Circuit panel had to be assembled to hear the capital appeal of Charleston church shooter Dylann Roof because all the member of the Fourth Circuit were recused.  The mass recusal resulted from the fact that now Circuit Judge Jay Richardson was in the U.S. Attorney’s Office in South Carolina in 2017 and the lead prosecutor on the Roof case.  And it meant that  Judge Duane Benton of the Eighth Circuit, Judge Kent Jordan of the Third Circuit and Senior Judge Ronald Gilman of the Sixth Circuit considered Roof's many issues on appeal.

That trio of judges today handed down a 149-page opinion in United States v. Roof, No. 17-3 (Aug. 25, 2021) (available here).  The per curiam opinion starts and concludes this way:

In 2015, Dylann Storm Roof, then 21 years old, shot and killed nine members of the historic Emanuel African Methodist Episcopal Church (“Mother Emanuel”) in Charleston, South Carolina during a meeting of a Wednesday night Bible-study group.  A jury convicted him on nine counts of racially motivated hate crimes resulting in death, three counts of racially motivated hate crimes involving an attempt to kill, nine counts of obstructing religion resulting in death, three counts of obstructing religion involving an attempt to kill and use of a dangerous weapon, and nine counts of use of a firearm to commit murder during and in relation to a crime of violence.  The jury unanimously recommended a death sentence on the religious-obstruction and firearm counts, and he was sentenced accordingly. He now appeals the convictions and sentence.  Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3595(a), we will affirm....

Dylann Roof murdered African Americans at their church, during their Bible-study and worship. They had welcomed him. He slaughtered them. He did so with the express intent of terrorizing not just his immediate victims at the historically important Mother Emanuel Church, but as many similar people as would hear of the mass murder. He used the internet to plan his attack and, using his crimes as a catalyst, intended to foment racial division and strife across America.  He wanted the widest possible publicity for his atrocities, and, to that end, he purposefully left one person alive in the church “to tell the story.” (J.A. at 5017.)  When apprehended, he frankly confessed, with barely a hint of remorse.

No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose.  We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself.  For the reasons given, we will affirm

In capital cases, it is pretty common for the losing party to seek en banc review. But, as was discussed in my May post, it is unclear whether and how an additional 12 judges would get appointed by designation in order to properly consider any en banc petition that might come next. Roof can, of course, proceed now to seek certiorari from the U.S. Supreme Court (which will surely happen eventually even if he does seek en banc review).

A few of many prior related posts:

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

En banc Sixth Circuit preserves death sentences in Kentucky in two big en banc rulings

This past Friday and also today, the Sixth Circuit handed down divided en banc rulings to upholds death sentences in cases from Ohio and Kentucky.  The Ohio case, Hill v. Shoop, No. 99-4317 (6th Cir. Aug, 20, 2021) (available here), has a majority opinion that gets started this way:

In this death penalty habeas case, appellant Danny Hill seeks collateral review of his conviction for the murder of Raymond Fife, a twelveyear-old boy. The case has been to the Supreme Court once and before panels of this court twice.  The core issue in the underlying state case was whether Hill was ineligible for the death penalty because he is intellectually disabled, a question that became pertinent after the Supreme Court’s 2002 decision in Atkins v. Virginia, 536 U.S. 304 (2002). Before us, the issues are whether, under governing AEDPA review principles, the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).  We conclude that the state court’s resolution of the issue does not meet either of the criteria that would permit a federal court to disturb a state conviction. Thus, we affirm the district court’s denial of Hill’s petition for a writ of habeas corpus.

The Kentucky case, Taylor v. Jordan, No. 14-6508 (6th Cir. Aug, 23, 2021) (available here), has a majority opinion that gets started this way:

Victor Taylor murdered two high-school students in 1984, for which a jury convicted him of capital murder and recommended a sentence of death.  The trial judge imposed that sentence and the Kentucky Supreme Court repeatedly denied Taylor’s claims for relief.  Taylor eventually filed a federal habeas petition, arguing (among many other things) that the prosecutor at his trial had discriminated against African-American members of his venire.  The district court denied Taylor’s petition. We affirm.

Notable accounting of "widespread support" for the death penalty in public polling

Joseph Bessette and J. Andrew Sinclair have this lengthy new post at Real Clear Policy discussing public polling in the US about capital punishment. The lengthy piece, which I recommend in full, is titled "New Evidence Confirms Widespread Support for the Death Penalty." Here are a few excerpts (with few links from the original):

On July 1, the Biden administration halted the use of the federal death penalty, reversing the Trump administration’s 2020 resumption of executions.  The announcement of a moratorium pending a review of “policies and procedures” is less permanent than legislative abolition, but it is unlikely the president could get Congress to end the death penalty. Many Americans support capital punishment; in fact, our research shows that public support for the death penalty is even greater than commonly reported....

The Pew Research Center recently reported that 60% of Americans support the death penalty for murder.  Gallup, which has been asking Americans about capital punishment since the late 1930s, gauges current support at 55%.  These are clear majorities but well below the modern peak of around 80% in the mid-1990s.  Political choices have begun to reflect this systematic decline in support. Despite championing the death penalty in the 1990s, President Biden joined nearly every other Democratic presidential candidate in calling for its abolition in his 2020 campaign.  Virginia (in 2021) and Colorado (in 2020), both states trending towards the Democratic Party, recently abolished the death penalty.

Although the two of us disagree about whether capital punishment should be public policy in the United States, we agree that a nuanced approach is required for understanding public opinion on this issue.  The standard type of death penalty question, asked over and over again for more than half a century, leaves policymakers, scholars, and citizens with an incomplete picture of support, or potential support, for the death penalty.  We are far from the first to observe that the answer you get depends on the question you ask.  We have begun a project, though, of systematically trying to understand what these different responses can tell us about how many American voters support capital punishment. 

Both Gallup and Pew ask a generic question. Gallup asks, “Are you in favor of the death penalty for a person convicted of murder?” Although Pew gives more options to measure level of support, its question is otherwise nearly identical: “Do you strongly favor, favor, oppose or strongly oppose the death penalty for persons convicted of murder?” Other polling organizations tend to ask versions of this question as well. Yet, these questions do not distinguish between most murders and the specific kinds of aggravated murders that make someone eligible for the death penalty in the 27 American states that retain capital punishment.  If you oppose the death penalty for most murders, but not all murders, how would you answer the generic question?...

While we continue to conduct survey research on the death penalty, we wanted to share our main findings from surveys conducted in June 2019 and October 2020 because of the renewed debate of recent months and years. (We present our key findings in a report released by the Rose Institute of State and Local Government, Claremont McKenna College.)  In each survey, we used a three-part approach to gauging support for the death penalty.  First, we asked a version of a general question about the death penalty.  Second, we asked all respondents about the appropriateness of the death penalty for particular aggravated murders.  Third, we asked respondents for their opinion about a death penalty policy decision in their own states....

To provide a rough summary of our findings: We can divide the electorate into three groups of different sizes.  About a fifth of American voters oppose the death penalty in nearly every circumstance: These appear to be the truly committed opponents.  About three fifths reliably support the death penalty: they favor it in theory and also want to have a death penalty law in their state.  A final fifth of the American electorate approves of the death penalty in some way, in theory, but does not necessarily want the death penalty in their state. 

Framed this way, there is more support for the death penalty than the 55% (Gallup) or 60% (Pew) numbers might suggest. This is not to say those numbers are “wrong” (with similar questions, we find similar results), but just that they understate death penalty support for the kinds of aggravated murders that make an offender eligible for capital punishment in American states.  If a substantial proportion of death penalty “opponents” — as measured by Gallup and Pew — actually approve, at least theoretically, of the death penalty in some cases, their opposition is much softer than might be assumed.  As prior research on this subject has demonstrated, changing crime rates or different media coverage might drive up support again, and these types of voters could potentially be satisfied with laws that focused on a few highly aggravated murders, provided special safeguards against mistaken convictions, or had other features to mitigate their concerns about implementation.  Truly committed opponents are a small minority of voters. 

I am always glad to see more thorough efforts to gauge public opinion in a more granular way. But I wonder if polling on the death penalty could be even more accurate if persons were informed about the considerable costs and inevitable delays that always attend the application of the death penalty in the US.

In some sense, many of these issues will be on display this fall when the Supreme Court considers the reversal of the death sentence given to the Boston Marathon bomber in United States v. Tsarnaev.  Tsarnaev committed his horrific crime now more than eight years ago, and I suspect the many millions spent on lawyers and court actions to fight over a death sentence might seem like a waste of resources even to those who would say they generally support capital punishment in a poll.  Or maybe the awfulness of Tsarnaev's crime might lead even more persons to be death penalty supporters no matter the costs and delays.

Democratic Senators praise AG Garland's capital moratorium and urge additional steps

As reported in this Hill article, a group of 17 Democratic Senators sent a notable letter to AG Garland this week in which they "voiced their approval of Garland's decision to issue a moratorium on federal executions while the Department of Justice reviews policies and procedures."  This letter is available at this link, and it begins this way:

We commend you for your recent decisions to impose a moratorium on federal executions pending a review of death penalty policies and procedures and to withdraw several notices of intent to seek the death penalty that the Justice Department filed during the Trump Administration.  These are important steps toward ending the injustice of the death penalty.  We urge you to take the additional steps of withdrawing all pending death notices, and authorizing no new death notices, while your review proceeds.

As your memorandum announcing the moratorium recognizes, there are serious concerns about arbitrariness in the application of the death penalty, its disparate impact on people of color, and the alarming number of exonerations in capital cases.  These concerns justify not only a review of the procedures for carrying out the death penalty, but also support halting its use — including prohibiting federal prosecutors from seeking the death penalty — during the review process.

Might Alabama become the first state to use nitrogen gas for an execution?

The question in the title of this post is prompted by this new AP article headlined "Alabama says it has built method for nitrogen gas execution."  Here are excerpts:

Alabama told a federal judge this week that it has finished construction of a “system” to use nitrogen gas to carry out death sentences, an execution method authorized by state law but never put into use.

The Alabama Department of Corrections indicated in an Aug. 2 court filing that it is waiting to make sure the nitrogen hypoxia system is ready, before writing procedures for how it will be used. The prison system did not describe how the system would work or give an estimate on when the state may try to use the new execution method.

“The ADOC has completed the initial physical build on the nitrogen hypoxia system. A safety expert has made a site visit to evaluate the system. As a result of the visit, the ADOC is considering additional health and safety measures,” a lawyer for the state attorney general’s office wrote in the court filing.

Alabama in 2018 became the third state — along with Oklahoma and Mississippi — to authorize the untested use of nitrogen gas to execute prisoners. Death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving him or her of oxygen. Lawmakers theorized that death by nitrogen hypoxia could be a simpler and more humane execution method. But critics have likened the untested method to human experimentation.

No state has used nitrogen hypoxia to carry out an execution, and no state has developed a protocol for its use, according to the Death Penalty Information Center.... Alabama currently carries out executions by lethal injections unless an inmate requests the electric chair. As lethal injection drugs become difficult to obtain, states have begun looking at alternative ideas for carrying out death sentences including firing squads and gas.

A few (of many) prior related posts:

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

"The Trump Executions"

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

In the final six months of Donald Trump’s presidency, the federal government executed thirteen people.  For perspective, there were three federal executions in the prior fifty-seven years — and none since 2003.  Among other things, this Article is a historical record of the “Trump Executions,” constructed largely from primary-source material. The Article also offers a framework for organizing the unique legal issues that the Trump Executions presented, and discusses their crucial implications.

I proceed in three parts.  Part I places the Trump Executions in historical context.  For politicians and bureaucrats who embrace the death penalty, the Trump Executions were a once-in-a-generation opportunity.  Part I explains the Bureau of Prisons’ lengthy struggle to identify and implement a lawful execution protocol — which was largely responsible for the growth of federal death row, and the pent-up desire to clear it.  Part I also presents a four-year timeline of the Trump Executions, which grounds the balance of the Article.

Part II organizes, into four useful categories, the legal disputes that were largely unique to the Trump Executions.  These were over: (1) the pentobarbital-only lethal injection sequence, (2) a federal “parity” provision requiring alignment between federal and state death penalty implementation; (3) a statutory savings clause allowing prisoners to bypass otherwise-applicable restrictions on post-conviction relief; and (4) the effects of the COVID-19 pandemic.  (Issues belonging to a residual category receive abbreviated treatment.) Surprisingly, when the litigation was complete, the judiciary had clarified little about federal death penalty law.

Part III considers the implications of the Trump Executions.  The Supreme Court, which undertook unprecedented intervention by way of its “shadow docket,” plainly worked to ensure that the Joe Biden administration had no say in sentence implementation.  The significance of the presidential transition was quite real, as the Trump Executions went forward on the backs of political and bureaucratic outliers that coincide only infrequently.  Ironically, the Trump Executions will most durably affect other institutional practices that depend on emergency adjudication — including pandemic responses, elections, and capital punishment in the states.

"Disrupting Death: How Dedicated Capital Defenders Broke Virginia's Machinery of Death"

The title of this post is the title of this new paper authored by Corinna Lain and Doug Ramseur now available via SSRN. Here is its abstract:

Virginia’s repeal of capital punishment in 2021 is arguably the most momentous abolitionist event since 1972, when the Supreme Court invalidated capital punishment statutes nationwide.  In part, this is because Virginia’s repeal marks the first time a Southern state abolished the death penalty.  And in part, it is because even among Southern states, Virginia was exceptional in its fealty to capital punishment.  Virginia had the broadest death penalty statute in the country, coupled with a post-conviction review process that was lightning fast and turned death sentences into executions at a rate five times the national average.  Virginia holds the record for the most executions in the history of the United States, so how did it go from all-in on the death penalty to abolition?

A critical piece of the puzzle was the fact that Virginia had not seen a new death sentence in ten years, and had only two people left on death row.  The death penalty was dying on the vine, and how that came to be owes largely to Virginia’s dedicated capital defenders, who literally worked themselves out of a job by disrupting the machinery of death at every turn.  In this Article, we (a law professor and a former regional capital defender) tell the story behind the story of Virginia’s plunging death sentences — what was happening in the trenches that the transcripts and plea deals don’t show. This is the backstory as we know it, and we share it here both to better understand Virginia’s journey, and to serve as a resource for others still navigating theirs.

"Death Penalty Exceptionalism and Administrative Law"

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

Prosecutors ask for death sentences, and judges and juries impose them, but the people who actually carry out those sentences are corrections department officials — administrative agency personnel. In this symposium contribution, I explore a little known nook of administrative law, examining how administrative law norms work in the execution setting of lethal injection.  What I find is death penalty exceptionalism — the notion that “death is different” so every procedural protection should be provided — turned on its head. 

Lethal injection statutes just say “lethal injection,” providing no guidance whatsoever to those who must implement them. Prison personnel have no expertise in deciding what drugs to use or how to perform the procedure.  And the usual administrative law devices that we rely on to bring transparency and accountability to the agency decision-making process are noticeably absent.  The culmination of these irregularities is a world where lethal injection drug protocols are decided by Google searches and other decision-making processes that would never pass muster in any other area of administrative law.

In the execution context, death penalty exceptionalism means that the minimal standards that ordinarily attend administrative decision-making do not apply.  It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less.  In the end, when the death penalty meets administrative law, administrative law norms get sullied and the death penalty loses the one comfort one might otherwise have: that when the state takes human life, it takes extra care to do it right.  What happens at the intersection of these two great bodies of law is a result not good for either.

Interesting review of African (and global) trends in capital punishment abolition

The New York Times has this interesting new article on capital punishment around the world under the headline "One by One, African Countries Dismantle Colonial-Era Death Penalty Laws."  Here are excerpts:

Lawmakers in Sierra Leone voted unanimously on Friday to abolish the death penalty, a momentous step that made the West African country the 23rd on the continent to prohibit capital punishment.

The decision was one more step in a long-sought goal of civil society organizations and legal practitioners who see the death penalty as a vestige of Africa’s oppressive colonial history.  “This is a horrible punishment and we need to get rid of it,” said Oluwatosin Popoola, a legal adviser at the rights group Amnesty International, a leading critic of capital punishment.

A vast majority of the 193 member states of the United Nations have either abolished the death penalty or do not practice it.... The vote in Sierra Leone came against the backdrop of a steady march in Africa to discard brutal laws imposed by past colonial masters.  In April, Malawi ruled the death penalty unconstitutional.  In May of 2020, Chad did the same. Nearly half of Africa’s 54 independent countries have abolished the punishment, more than double the number from less than two decades ago.

While death sentences and executions have declined globally in recent years, they do not necessarily reflect the growing number of countries that have banned capital punishment.  At least some of the declines are attributable to the Covid-19 pandemic, which slowed or delayed judicial proceedings in many countries.  And in some, like the United States, federal executions were ramped up in 2020.

As in previous years, China led the 2020 list of countries that execute the most people, killing thousands, according to Amnesty International, which compiles capital punishment statistics.  The exact figures for China are not known, as its data remains a state secret.  Next in 2020 came Iran, which executed at least 246 people, and then Egypt, Iraq, Saudi Arabia, and in sixth place the United States, with 17 executions.  Most of the American executions were of federal prisoners in the last six months of President Donald J. Trump’s term, a turnaround after years of an informal moratorium.

The legislators in Sierra Leone on Friday replaced the death sentence with a maximum life sentence for certain crimes, including murder and treason.  This means that judges will have the power to consider mitigating factors, such as whether the defendant has a mental illness.  They would have had no such flexibility if the lawmakers had voted instead to replace the death penalty with a mandatory life sentence....

Sierra Leone is the first of the English-speaking West African countries to abolish the punishment.  A decade ago, a commission in Ghana recommended abolition, but in recent years efforts have stalled.

In Nigeria, Africa’s most populous country, at least 2,700 people are on death row — the highest number by far on the African continent. Gambia had been on track to abolish the death penalty last year, when a new Constitution was drafted. But it was rejected by Parliament. Still, Gambia’s president has made some significant moves away from capital punishment, Mr. Popoola said.  These are all countries that, like Sierra Leone, obtained independence from the Britain in the late 1950s and 1960s — around the same time as that colonial power was carrying out its own last executions.

Noticing Biden Administration's withdrawal of pursuit of the death penalty in many cases

This new New York Times article, headlined "U.S. Won’t Seek Death Penalty in 7 Cases, Signaling a Shift Under Biden," reports on a notable set of pending case developments suggesting one way that the Biden Administration is making good on its stated antipathy toward capital punishment.  Here are excerpts:

One man was charged in Orlando, Fla., with kidnapping and fatally shooting his estranged wife. Another man was indicted in Syracuse, N.Y., in the armed robbery of a restaurant and the murders of two employees. And a third man was charged in Anchorage with fatally shooting two people during a home invasion.

Those cases and four others prosecuted in federal courts around the country all had a common theme — they were among cases in which the Justice Department under President Donald J. Trump directed federal prosecutors to seek the death penalty if they won convictions.

But now, under a new presidential administration, the Justice Department has moved to withdraw the capital punishment requests in each of the seven cases. The decisions were revealed in court filings without fanfare in recent months. The decision not to seek the death penalty in the cases comes amid the Biden administration’s broad rethinking of capital punishment — and could signal a move toward ending the practice at the federal level....

Some legal experts said it was too early to tell what the seven scattered cases signified, and one lawyer suggested Mr. Garland could have been even more assertive. “I think it’s a good and important step by the attorney general, but there’s no question that it’s not far enough,” said Cassandra Stubbs, director of the Capital Punishment Project at the American Civil Liberties Union. “President Biden should issue a much broader moratorium,” Ms. Stubbs added. “He should ask for a moratorium on all death penalty prosecutions.”

But Michael Rushford, president of the Criminal Justice Legal Foundation, a nonprofit group in Sacramento, Calif., that supports crime victims and the death penalty, was critical of Mr. Garland’s decisions in the seven cases. “The families of murder victims are clearly not included in the calculus when ordering U.S. attorneys not to pursue capital punishment in the worst cases,” he said.

Under Mr. Garland, the Justice Department has continued to fight the appeal of the death sentence imposed on Dylann Roof, the white supremacist who murdered nine Black churchgoers in Charleston in 2015. And in the case of Dzhokhar Tsarnaev, who was convicted of helping to carry out the 2013 Boston Marathon bombing, which killed three people and injured more than 260, the Justice Department has asked the Supreme Court to reinstate the death penalty, which had been overturned on appeal.

Helpful review of some modern US capital punishment realities

Over at the Pew Research Center, John Gramlich has this effective new piece headlined "10 facts about the death penalty in the U.S." In fact, many of the "facts" discussed in this article are facts about polling regarding the death penalty in the U.S. (which makes sense given Pew's recent poll work on this topic). Nevertheless, the piece is well worth a read in full, and here are a few of the highlights I though most bloggy-notable:

1. Six-in-ten U.S. adults strongly or somewhat favor the death penalty for convicted murderers, according to the April 2021 survey. A similar share (64%) say the death penalty is morally justified when someone commits a crime like murder....

5. Support for the death penalty is consistently higher in online polls than in phone polls. Survey respondents sometimes give different answers depending on how a poll is conducted. In a series of contemporaneous Pew Research Center surveys fielded online and on the phone between September 2019 and August 2020, Americans consistently expressed more support for the death penalty in a self-administered online format than in a survey administered on the phone by a live interviewer. This pattern was more pronounced among Democrats and Democratic-leaning independents than among Republicans and GOP leaners, according to an analysis of the survey results....

7. A majority of states have the death penalty, but far fewer use it regularly. As of July 2021, the death penalty is authorized by 27 states and the federal government – including the U.S. Department of Justice and the U.S. military – and prohibited in 23 states and the District of Columbia, according to the Death Penalty Information Center. But even in many of the jurisdictions that authorize the death penalty, executions are rare: 13 of these states, along with the U.S. military, haven’t carried out an execution in a decade or more.

A growing number of states have done away with the death penalty in recent years, either through legislation or a court ruling. Virginia, which has carried out more executions than any state except Texas since 1976, abolished capital punishment in 2021. It followed Colorado (2020), New Hampshire (2019), Washington (2018), Delaware (2016), Maryland (2013), Connecticut (2012), Illinois (2011), New Mexico (2009), New Jersey (2007) and New York (2004)....

8. Death sentences have steadily decreased in recent decades. There were 2,570 people on death row in the U.S. at the end of 2019, down 29% from a peak of 3,601 at the end of 2000, according to the Bureau of Justice Statistics (BJS). New death sentences have also declined sharply: 31 people were sentenced to death in 2019, far below the more than 320 who received death sentences each year between 1994 and 1996....

9. Annual executions are far below their peak level. Nationally, 17 people were put to death in 2020, the fewest since 1991 and far below the modern peak of 98 in 1999, according to BJS and the Death Penalty Information Center. The COVID-19 outbreak disrupted legal proceedings in much of the country in 2020, causing some executions to be postponed.

Continued decline of capital punishment in US detailed in DPIC mid-year review for 2021

The Death Penalty Information Center has provided a detail online "2021 Mid-Year Review" of death penalty administration in the United States.  Here is how the review gets started:

The first half of 2021 spotlighted two continuing death-penalty trends in the United States: the continuing erosion of capital punishment in law and practice across the country; and the extreme and often lawless conduct of the few jurisdictions that have attempted to carry out executions this year.  The year began with three executions that concluded the Trump administration’s unparalleled spree of 13 federal civilian executions in six months and two days, and saw state attempts to revive gruesome, disused execution methods and to introduce never-before-tried ways of putting prisoners to death.  At the same time, the first half of 2021 featured the historic abolition of capital punishment in the former home of the Confederacy and historically low numbers of both executions and new death sentences.

Virginia’s abolition of the death penalty was significant both historically and symbolically.  Its repeal of capital punishment was the first time a Deep South state whose death penalty was closely tied to a history of slavery, lynching, and Jim Crow segregation had abandoned the punishment.  Virginia was the 23rd state to abolish the death penalty and, with formal moratoria on executions in place in three states, meant that a majority of states either did not authorize the death penalty or had a formal policy against carrying it out.

Five people were executed in the first half of the year — three by the federal government and two by the state of Texas. Only four new death sentences were imposed, a rate of sentencing unmatched since the death penalty resumed in the U.S. in the 1970s.  The low numbers were once again unquestionably affected by the pandemic, but signaled that 2021 will be the seventh consecutive year of fewer that 30 executions and fewer than 50 new death sentences in the U.S.

In final order list of of SCOTUS OT20, Justices grant cert on 924(c) matter and spar over summary reversal in capital case

Though we are now two days into July 2021, the US Supreme Court has delivered this morning a last jolt of October 2020 Term action with this lengthy order list that has a little something for all SCOTUS fans.  For starters, there are nine grants of certiorari.  The only criminal law grant is yet another debate over what qualifies as a "crime of violence" under federal statutory law.  This time the issue concerns application of 924(c)'s added mandatory punishments for gun use in the case of United States v. Taylor, 20-1459, which formally presents this question:

Whether 18 U.S.C. 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a).

In addition, there are lots of GVRs and statements concerning cert dispositions on free speech, religion, takings and qualified immunity issues.  But nearly half of the 54-page order list is consumed with a per curiam summary reversal and dissent in the capital case of Dunn v. Reeves, 20-1084 (S. Ct.  July 2, 2021).  Here is how the 12-page majority opinion starts (with cites mostly removed):

Willie Johnson towed Matthew Reeves’ broken-down car back to the city after finding Reeves stranded on an Alabama dirt road.  In payment for this act of kindness, Reeves murdered Johnson, stole his money, and mocked his dying spasms.  Years after being convicted of murder and sentenced to death, Reeves sought state postconviction relief, arguing that his trial counsel should have hired an expert to develop sentencing-phase mitigation evidence of intellectual disability.  But despite having the burden to rebut the strong presumption that his attorneys made a legitimate strategic choice, Reeves did not call any of them to testify.

The Alabama Court of Criminal Appeals denied relief, stressing that lack of evidence about counsel’s decisions impeded Reeves’ efforts to prove that they acted unreasonably.  On federal habeas review, the Eleventh Circuit held that this analysis was not only wrong, but indefensible.  In an unpublished, per curiam opinion that drew heavily on a dissent from denial of certiorari, the Eleventh Circuit reinterpreted the Alabama court’s lengthy opinion as imposing a simple per se prohibition on relief in all cases where a prisoner fails to question his counsel.  It was the Eleventh Circuit, however, that went astray in its “readiness to attribute error.” Federal habeas courts must defer to reasonable state-court decisions, 28 U.S.C. §2254(d), and the Alabama court’s treatment of the spotty record in this case was consistent with this Court’s recognition that the absence of evidence cannot overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Justice Sotomayor authored a 14-page dissent joined by Justice Kagan. (Justice Breyer also dissented, but without opinion.) Justice Sotomayor dissent ends this way:

Today’s decision continues a troubling trend in which this Court strains to reverse summarily any grants of relief to those facing execution. See, e.g., United States v. Higgs, 592 U.S. ___ (2021) (emergency vacatur of stay and reversal); Shinn v. Kayer, 592 U.S. ___ (2020) (per curiam) (summary vacatur); Dunn v. Ray, 586 U.S. ___ (2019) (emergency vacatur of stay).  This Court has shown no such interest in cases in which defendants seek relief based on compelling showings that their constitutional rights were violated.  See, e.g., Johnson v. Precythe, 593 U.S. ___ (2021) (denying certiorari); Whatley v. Warden, 593 U.S. ___ (2021) (same); Bernard v. United States, 592 U.S. ___ (2020) (same). In Reeves’ case, this Court stops the lower court from granting Reeves’ petition by adopting an utterly implausible reading of the state court’s decision.  In essence, the Court turns “deference,” ante, at 7, into a rule that federal habeas relief is never available to those facing execution.  I respectfully dissent.

"Attorney General Merrick B. Garland Imposes a Moratorium on Federal Executions; Orders Review of Policies and Procedures"

The title of this post is the heading of this notable new US Justice Department press release.  Here is the main text of the press release:

Today, Attorney General Merrick B. Garland issued a memorandum imposing a moratorium on federal executions while a review of the Justice Department’s policies and procedures is pending.

“The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States, but is also treated fairly and humanely,” said Attorney General Garland. “That obligation has special force in capital cases.”

In the last two years, the department made a series of changes to capital case policies and procedures and carried out the first federal executions in nearly two decades between July 2020 and January 2021.  That included adopting a new protocol for administering lethal injections at the federal Bureau of Prisons, using the drug pentobarbital.  Attorney General Garland’s memorandum directs the Deputy Attorney General to lead a multi-pronged review of these recent policy changes, including:

• A review coordinated by the Office of Legal Policy of the Addendum to the Federal Execution Protocol, adopted in 2019, which will assess, among other things, the risk of pain and suffering associated with the use of pentobarbital.
• A review coordinated by the Office of Legal Policy to consider changes to Justice Department regulations made in November 2020 that expanded the permissible methods of execution beyond lethal injection, and authorized the use of state facilities and personnel in federal executions.
• A review of the Justice Manual’s capital case provisions, including the December 2020 and January 2021 changes to expedite execution of capital sentences.

The Attorney General’s memorandum requires the reviews to include consultations with a wide range of stakeholders including the relevant department components, other federal and state agencies, medical experts and experienced capital counsel, among others.

No federal executions will be scheduled while the reviews are pending.

The Attorney General’s memorandum can be found at this link, and it provides a slightly expanded account for why this moratorium has been imposed and the inquiry to take place during this period.  Here is the notable "preamble" of this two-page memo:

The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States, but is also treated fairly and humanely.  That obligation has special force in capital cases.  Serious concerns have been raised about the continued use of the death penalty across the country, including arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations in capital and other serious cases.  Those weighty concerns deserve careful study and evaluation by lawmakers.  In the meantime, the Department must take care to scrupulously maintain our commitment to fairness and humane treatment in the administration of existing federal laws governing capital sentences.

I am tempted to call these actions a "kick the can down the road" effort, but maybe some readers see more to this latest round of hand-wringing by yet another administration not really prepared to go "all in" on capital punishment abolition.

Texas completes only second state execution of first half of 2021

As detailed in this local article, Texas completed an execution last night just before the end of June.  Here are some details:

Texas executed John Hummel Wednesday evening for the 2009 murders of his family members.

Hummel, 45, was sentenced to death by a Tarrant County jury in 2011 after the slayings of his pregnant wife, his 5-year-old daughter and his father-in-law at their Kennedale home.  Police found their burned, beaten bodies in or near their beds after responding to an early morning fire, according to court records. Officials determined that they died by blunt-force injuries before the fire was set....

Shortly after 6 p.m., Hummel was escorted into the state's death chamber in Huntsville.  He was pronounced dead at 6:49 p.m., 13 minutes after he was injected with a lethal dose of pentobarbital, according to prison reports....

Hummel’s appeals — including a push last year to have the Tarrant County District Attorney’s Office taken off his case because his defense attorney at trial had become a leader in the prosecutor’s office — had been denied before Wednesday.

Last week, however, the American Civil Liberties Union of Texas sought to stop his execution because prison officials failed to let reporters witness a May execution for the first time in the history of the state's modern death penalty. Reporters for the Associated Press and the Huntsville Item, who attend every execution, were left waiting to be escorted from prison administrative offices across the street when Quinton Jones was killed. The same reporters were able to witness Hummel's execution Wednesday, Joseph Brown of the Huntsville newspaper, The Item, confirmed.

The Texas Department of Criminal Justice has said excluding the onsite reporters was a mistake, and has assured that media will be allowed in the future to observe as the state wields its greatest power over life.  The agency blamed new execution staff, a revised execution protocol and a lack of oversight, according to a TDCJ statement....

Nationwide, reporters have served as watchdogs in botched executions in states that struggle to find lethal injection drugs as capital punishment’s popularity wanes.  And Texas media reports often provide detail excluded from agency accounts of executions — like prisoners describing a burning sensation after lethal drugs are injected in their veins....

After the execution, Tarrant County District Attorney Sharen Wilson said in a statement that the death penalty should be reserved for the worst crimes. "John Hummel’s actions were unconscionable," she added.

Hummel’s execution, originally set for last March, was the first in the state to be taken off the calendar because of the coronavirus pandemic.  Texas has executed two people in the pandemic — Billy Wardlow last July and Jones last month. That’s an exceptionally low number for Texas, which leads the nation by far in executions.  Aside from Hummel, four other men’s executions were halted because of public health concerns.

So far, four other men are scheduled to be executed in Texas in 2021. Only one other execution in the nation is scheduled for 2021, in Nevada, according to the Death Penalty Information Center.

First person taken of Ohio death row based on new statute precluding capital punishment for those with "serious mentally illness"

In this post back in January, I reported on the new Ohio statute precluding the death penalty for those with "serious mentally illness."  Today I can report, with the help of this local article, that this law has now moved one person off Ohio's death row: "A Columbus man sentenced to death in 1999 for the murder of his ex-girlfriend and her father has become the first inmate in Ohio removed from death row under a new state law that bans the execution of the seriously mentally ill."  Here are more interesting details:

The death sentence of David L. Braden, 61, was vacated last week by a Franklin County judge, who resentenced him to life without parole.

The county prosecutor's office and the state public defender's office agreed that Braden, at the time of his crime, met the criteria for serious mental illness under the new Ohio law, which went into effect April 12.  Both sides prepared an order that was signed by Common Pleas Judge Colleen O'Donnell.

Ohio was the first state to create such a law, thus Braden is also the first death-row inmate in the nation "to be removed from death row because of a statutory prohibition against executing people with a serious mental illness," said Robert Dunham, executive director of the Death Penalty Information Center.

The Virginia legislature was close to approving a similar law late last year, Dunham said, but instead banned the death penalty in March, becoming the 23rd state to do so.

The Ohio law, House Bill 136, was overwhelmingly approved by the state House in June of last year and by the state Senate in December.  Gov. Mike DeWine signed the measure in January and it became law 90 days later.

The law designates certain mental illnesses, including schizophrenia and bipolar disorder, as qualifying disorders if the condition "significantly impaired the person's capacity to exercise rational judgment in relation to his or her conduct" or "to appreciate the nature, consequences or wrongfulness" of the conduct.  The law applies not only to current and future capital cases, but provides the possibility of postconviction relief for those already on death row who can establish that they qualified as seriously mentally ill at the time of their offense.

While prosecutors have the option to oppose such petitions and request a hearing before a judge, Janet Grubb, Franklin County first assistant prosecuting attorney, said a careful review of information from Braden's appellate attorneys made such a challenge unnecessary.  "We saw enough during the exchange of information to conclude that a reasonable fact-finder in our court would determine that this individual qualified under the statute," said Grubb, who signed the order on behalf of Prosecutor Gary Tyack's office.

Tyack, who was elected in November, had no involvement in the decision, Grubb said.  Because Tyack served on the 10th District Court of Appeals for one of Braden's appeals, he had a conflict of interest that required Grubb to serve as prosecutor on the matter.  "Gary was completely walled off" from discussions about Braden's petition, Grubb said.

Braden was 39 when he was convicted by a Franklin County jury in May 1999 of fatally shooting Denise Roberts, 44, and Ralph "Bud" Heimlich, 83, at the home they shared on Barthel Avenue on the East Side on Aug. 3, 1998.  Testimony established that Braden and Roberts were seen arguing in a parking lot outside her workplace earlier in the day.  A man matching his description was seen fleeing the victims' home after neighbors heard gunshots.

All of Braden's appeals over the years, including one heard by the Ohio Supreme Court, have been rejected, although a case in federal court was still pending. Kathryn Sandford, an assistant state public defender who has handled Braden's appeals since his conviction, said the federal case will be dismissed as a result of the agreed order signed by O'Donnell.

Sandford and Steve Brown, a fellow assistant state public defender, filed the petition outlining Braden's qualifications for the serious-mental-illness designation. They included the findings of a psychologist who determined that Braden suffered from "paranoid schizophrenia with delusions" before committing the murders.

Since the early to mid-1990s, they wrote, a brother and sister-in-law testified that Braden had made statements about being a prophet of God, while friends attested to his paranoia and alarming personality changes. Since the beginning of his incarceration, Braden has been treated with anti-psychotic medication to control his psychotic symptoms, according to his attorneys.

A psychologist testified during the sentencing phase of Braden's trial that he was mentally ill, but the jury recommended a death sentence, which was imposed by then-Common Pleas Judge Michael H. Watson....

As part of the prosecutor's office review of Braden's petition, it was required by a separate state law to contact the family of the victims to inform them of the request, Grubb said. "The survivor we met with understood the position we were in," she said. "I think she reluctantly accepted that this was something that made sense on multiple levels."

Justice Department files SCOTUS brief seeking to restore death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

As repoted in this Hill piece, the "Biden administration on Monday urged the Supreme Court to reinstate the death penalty against the Boston Marathon bomber in an apparent break with the president's stated opposition to capital punishment."  Here are the details (with a link to the filing):

In a 48-page brief, the Department of Justice (DOJ) asked the justices to reverse a Boston-based federal appeals court that vacated the death sentence for Dzhokhar Tsarnaev, the lone surviving perpetrator of the 2013 attack.

“The jury carefully considered each of respondent’s crimes and determined that capital punishment was warranted for the horrors that he personally inflicted — setting down a shrapnel bomb in a crowd and detonating it, killing a child and a promising young student, and consigning several others to a lifetime of unimaginable suffering,” the DOJ’s brief reads.

Tsarnaev and his since-deceased brother, Tamerlan Tsarnaev, killed three people and injured 260 others in the 2013 bombing attack near the finish line of the annual event in downtown Boston....

The U.S. Court of Appeals for the 1st Circuit last year vacated Tsarnaev’s death sentence. The court ruled that the trial court had failed to adequately gauge potential jury bias and the extent to which Tsarnaev may have been influenced by his brother.

Former President Trump in October appealed that decision to the Supreme Court. The justices agreed in March to take up the dispute and are expected to hear arguments in the case next term.  The case was seen as an early challenge for Biden, the first U.S. president to publicly oppose the death penalty, and his administration’s response had been highly anticipated.

During the 2020 presidential campaign, Biden called for an end to capital punishmentBut on Monday, the DOJ made clear that Biden would maintain his predecessor’s support for reinstating capital punishment against Tsarnaev. “The court of appeals improperly vacated the capital sentences recommended by the jury in one of the most important terrorism prosecutions in our Nation’s history,” the DOJ’s brief reads. “This Court should reverse the decision below and put this case back on track toward a just conclusion.”

The White House and DOJ did not immediately respond when asked by The Hill if Biden had changed his stance on the death penalty.

Tsarnaev, 27, will serve out multiple life sentences in federal prison if his death sentence is not reinstated.  

A few prior recent related posts:

• First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev
• Unsurprisingly, victims of Boston Marathon bomber differ on seeking a new death sentence for Dzhokhar Tsarnaev after reversal on appeal  
• AG Barr says, unsurprisingly, that feds will appeal reversal of Boston Marathon bomber's death sentence
• Feds officially seek SCOTUS certiorari to review First Circuit's reversal of Boston Marathon bombers death sentence 
• SCOTUS grants cert to review First Circuit's reversal of death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Youth, gender, mental illness, abuse, co-defendant disparity all part of Tennessee capital case perhaps nearing an execution date

This new lengthy article in the Knoxville News Sentinel, headlined "How young is too young for a death sentence? Christa Pike fights move to set execution date," discusses a remarkable case from the Volunteer State. I could imagine spending an entire semester discussing this case with students because it engages so many sentencing issues, and here are just some of the particulars:

What's the difference between being 17 years old and being 18? In Christa Gail Pike's case, her lawyers say, the difference is a death sentence.

The state wants to set an execution date for Pike, now 45 and the only woman on Tennessee's death row.  She was 18 years old when she and two other participants in a Knoxville job program for troubled teens killed Colleen Slemmer in a remote spot on the University of Tennessee's agriculture campus.

Pike, her boyfriend Tadaryl Shipp and fellow Job Corps student Shadolla Peterson lured Slemmer, 19, to campus the night of Jan. 12, 1995.  Once there, Slemmer was beaten, cut and bludgeoned to death with a rock.  Pike kept a piece of her skull as a souvenir. Investigators identified a love triangle between Pike, Shipp and Slemmer as the motive for the crime.

Only Pike received a death sentence for her role in the killing.  Peterson cooperated with investigators and walked away with probation.  Shipp was 17 — too young to be put to death.  He's serving a life sentence and will be eligible for parole in 2028.

Pike's legal team cites that difference in a new court filing asking the Tennessee Supreme Court to delay her execution — or recommend it be stopped altogether.  "Mr. Shipp was 17 years old at the time of Ms. Slemmer’s death. Christa Pike was 18.  That is the difference between a death sentence and parole eligibility in 2028," reads the filing signed by defense attorneys Stephen Ferrell and Kelly Gleason.  "That difference cannot be equated with increased maturity or brain development. Christa was not more mature or more responsible than Mr. Shipp."

The Tennessee Attorney General's Office is asking the high court to set an execution date for Pike, contending she has exhausted her appeals. But Pike's defense team says it's still too soon.  They've lodged several arguments, including one centered on her mental illness and youth at the time of the crime.

A jury condemned Pike in March 1996.  Nine years later, the U.S. Supreme Court abolished the juvenile death penalty in the landmark case Roper v. Simmons....  The court drew the line at 18, but Pike's attorneys argue its logic should extend beyond that. They point to scientific research that the brain isn't fully developed until after age 20 and that there's no way to differentiate between the brains of young people.

"There is thus no justification for a drastic differentiation in punishment between a 17-year-old offender and an 18-year-old offender," the filing reads. "And the question is an important one, for Christa Pike was eligible for the death penalty in this case and her co-defendant, Tadaryl Shipp, was not."

The lawyers paint Shipp — not Pike — as the ringleader of the group. Shipp was violent and controlling, they write, while Pike was suffering from undiagnosed bipolar disorder and brain damage after a childhood filled with sexual and physical abuse. Her mother drank while she was in the womb, and she was twice raped as a child.

"It is also significant that, in addition to her youth, Christa Pike was also brain damaged and severely mentally ill at the time of her offense," the filing reads.  "Thus, practical effects of the immaturity that would be inherent in the brain of any eighteen-year-old were magnified by other problems that adversely affected Christa’s developing brain."

Courts have shot down similar arguments in Pike's case before....  The U.S. Supreme Court declined to take up the case last year.  Pike's attorneys now are asking the Tennessee Supreme Court to recommend that Gov. Bill Lee commute Pike's sentence to life with or without the possibility of parole.  At the very least, they're asking for more time so a psychologist can examine Pike in prison and so the Inter-American Commission on Human Rights can finish investigating whether Pike's human rights have been violated.

Lee could grant Pike clemency but has not done so for any other death-row inmate since he was inaugurated in January 2019.  The state has executed four men since then, including Nicholas Sutton, a Morristown man who killed four people and turned his life around on death row.

Pike has had additional legal troubles while in prison.  In 2004, she was convicted of attempted murder for nearly strangling a fellow inmate with a shoestring.

Pike would be the first woman Tennessee has executed in over 200 years, her attorneys say, and the first person it's put to death "in the modern era" who was a teenager at the time of the crime.

Functional life sentence finally becomes actual life (with eligibility for parole) sentence for person serving longest on death row

Because I love sports statistics and trivia (especially baseball, of course), I cannot avoid being intrigued by records and data even in the much-less-fun world of sentencing.  Consequently, this AP story caught my eye this morning under the headline, "Longest serving death row inmate in US resentenced to life."  Unsurprisingly, the story behind the statistic is fascinating: 

The longest serving death row inmate in the U.S. was resentenced to life in prison on Wednesday after prosecutors in Texas concluded the 71-year-old man is ineligible for execution and incompetent for retrial due to his long history of mental illness.

Raymond Riles has spent more than 45 years on death row for fatally shooting John Thomas Henry in 1974 at a Houston car lot following a disagreement over a vehicle. He is the country's longest serving death row prisoner, according to the Death Penalty Information Center.

Riles was resentenced after the Texas Court of Criminal Appeals ruled in April that his “death sentence can no longer stand” because jurors did not properly consider his history of mental illness. Riles attended his resentencing by Zoom from the Polunsky Unit in Livingston, which houses the state’s death row inmates.  He said very little during the court hearing....

In a statement, Harris County District Attorney Kim Ogg said Riles is incompetent and “therefore can’t be executed.” “We will never forget John Henry, who was murdered so many years ago by Riles, and we believe justice would best be served by Riles spending the remainder of his life in custody of the Texas Department of Criminal Justice,” Ogg said.

During his time on death row, Riles has been treated with heavy antipsychotic medications but was never deemed mentally competent to be executed, according to prosecutors and his attorneys.  He had been scheduled for execution in 1986 but got a stay due to competency issues.  While Riles spent more than 45 years on death row in Texas, prisoners in the U.S. typically spend more than a decade awaiting execution, according to the Death Penalty Information Center.

[District Judge Ana] Martinez was not able to resentence Riles to life in prison without parole because it was not an option under state law at the time of his conviction. Riles’ new sentence means he is immediately eligible for parole.  The Texas Board of Pardons and Paroles will automatically conduct a parole review in his case, [Riles’ attorney Jim] Marcus said.

The district attorney’s office as well as Henry’s family have indicated they will fight any efforts to have Riles released on parole. “Mr. Riles is in very poor health but, if the Board of Pardons and Paroles sees fit to grant parole, he has family with the capacity to care for him,” Marcus said.

A co-defendant in the case, Herbert Washington, was also sentenced to death, but his sentence was overturned, and he later pleaded guilty to two related charges. He was paroled in 1983.

When Riles was tried, state law did not expect jurors to consider mitigating evidence such as mental illness when deciding whether to choose the death sentence. The U.S. Supreme Court ruled in 1989 that Texas jury instructions were unconstitutional because they didn’t allow appropriate consideration of intellectual disability, mental illness or other issues as mitigating evidence in the punishment phase of a capital murder trial.

But Riles’ case remained in limbo because lower courts failed to enforce the Supreme Court’s decision until at least 2007, according to his attorneys. That then gave Riles a realistic chance to prevail on this legal issue, but it wasn’t until recently that he had contact with attorneys who were willing to assist him, his lawyers said.

While prosecutors argued at Riles’ trial that he was not mentally ill, several psychiatrists and psychologists testified for the defense that he was psychotic and suffered from schizophrenia. Riles’ brother testified that his “mind is not normal like other people. He is not thinking like other people.”

While the Supreme Court has prohibited the death penalty for individuals who are intellectually disabled, it has not barred such punishment for those with serious mental illness, according to the Death Penalty Information Center. In 2019, the Texas Legislature considered a bill that would have prohibited the death penalty for someone with severe mental illness. The legislation did not pass.

A different assessment of "America’s Dangerous Obsession" with innocence on death row

Thirteen years ago, in an article titled Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. Online (2008), I explained the basis for my concern that "progressive criminal justice reform efforts concerning innocence issues, abolition of the death penalty, and sentencing disparities may contribute to, and even exacerbate, the forces that have helped propel modern mass incarceration."  That old article feels fresh again upon seeing this new lengthy Atlantic piece by Elizabeth Bruenig titled "America’s Dangerous Obsession With Innocence."  Here are a few excerpts from the piece:

It goes without saying that the state should not kill innocent people, and that it is a good thing to save the innocent from a fate no one thinks they deserve.  I believe it is a good thing, too, to save the guilty from a fate some would argue they have earned.  That the one stance may occlude the other reflects the death penalty’s bizarre moral universe....

According to the national Registry of Exonerations, more than 1,000 people have been exonerated for murder in the United States since 1989.  Many of these cases were initially decided when forensic techniques and technologies were less advanced and less accurate than they are now.  People with plausible innocence claims have, in some instances, been able to bring new technology to bear on preserved evidence to great effect.  That phenomenon spurred the innocence movement in capital-punishment advocacy as we know it.

“Around the year 2000, there’s this ferment all over the place to create innocence programs,” David R. Dow, the founder and director of one such program, the Texas Innocence Network, told me. “They’re kind of sexy. Funders want to fund them. People are beginning to pay attention to the fact that there are innocent people in prison.”

Marissa Bluestine, the assistant director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School, told me that more than 50 innocence organizations now operate in the United States.  They differ in size, scope, region, and budget, but they “all have the same goals: They work to identify people who did not commit the underlying crime they were convicted of and they try to exonerate them.”

That’s well and good, except that the number of innocence claims that can be confidently settled in labs is not infinite, and may in fact be dwindling. Dow, who teaches law at the University of Houston, has represented more than 100 clients on death row in his 30 years of practice; out of that number, he counts only eight as credibly innocent. He doesn’t suspect that his future will hold many more....

More generally, a 2014 published by the National Academy of Sciences found that if all of American death-row inmates were to remain condemned indefinitely, approximately 4.1 percent would eventually be exonerated — a proxy for the share of innocent inmates. That’s an admittedly conservative estimate. But even if the number of innocent inmates were doubled, the number of guilty ones would still make up more than 90 percent of death row....

To put it succinctly: Innocence cases indicate that some capital sentences are unfair, but decades of studies on death-qualified juries; race, gender, and immigration-status bias among jurors; law enforcement and prosecutorial misconduct; weak forensic science and poor representation at trial all suggest that a fair capital sentence is virtually impossible.  Ultimately the fight should be waged not against particular injustices, but against the unjust system itself.

Especially for those inclined toward capital abolition, I fully understand the logic of speculating that there many not be that many innocent persons left on death row and so even more fight needs to be directed toward the guilty on death row.  However, the fight against against all of death row has been pretty robust and pretty effective over the last 20 years (surely aided by the innocence movement).  Nationwide, since 2000, death row has shrunk about 30%, the number of executions has shrunk about 75%, and the number of death sentences imposed has shrunk 85%.

But, shifting our focus from formal death sentences to what are sometimes called "death in prison" sentences, the modern story changes dramatically.  As detailed in a recent Sentencing Project report (discussed here), the "number of people serving life without parole — the most extreme type of life sentence — is higher than ever before, a 66% increase since ... 2003."   Moreover, while there are currently around 2500 people on death row who have all been convicted of capital murder, there are now roughly 4000 people "serving life sentences [who] have been convicted for a drug-related offense."  And well over 200,000 persons are now "serving a life sentence, either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more)."  

If we keep the focus on innocence, and use the 4% number discussed in this Atlantic article and extrapolate, these data mean we could have 100 innocent persons on death row, but also 160 innocent persons serving life for a drug-related offense and over 8000 innocent persons serving LWOP or LWP or virtual life.  If there are lots of innocent groups and not a lot of "good" capital client, there would seem to be no shortage of innocent lifers needing help.  (And, on the data, I am always inclined to speculate that there are now an even larger number of innocent persons serving life than death because capital cases historically get more scrutiny.)

That all said, I obviously share this article's sentiment that guilty persons ought not endure unfair sentences and its advocacy for assailing "the unjust system itself."  However, the capital punishment system, for all its persistent flaws, still strikes me as somewhat less unjust than so many other parts of our sentencing system.  There are no mandatory death sentences, jurors play a central role in every death sentence, and state and federal appellate judges often actively review every death sentence.  There are nearly 100 people serving some type of life sentence for every person serving a death sentence in large part because life sentences are imposed so much more easily as subject to so much less scrutiny. 

Put simply, and I have said before, I worry it is a continued obsession with the death penalty, and not with innocence, that may be problematic in various ways.  But since that very obsession is largely what accounts for capital punishment's modern decline, I am disinclined to be too critical of capital obsessives.

Bureau of Justice Statistics releases "Capital Punishment, 2019 – Statistical Tables"

This morning the Justice Department's Bureau of Justice Statistics released this new report with data on the administration of capital punishment in the United States through the end of 2019. As I have noted before, though BJS sometimes provides the best available data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.  In any event, this new BJS report still provides notable and clear statistical snapshots about the death penalty, and the document sets out these initial "highlights":

• Eleven states and the BOP received a total of 31 prisoners under sentence of death in 2019.

• Twenty-one states and the BOP removed a total of 65 prisoners from under sentence of death by means other than execution.

• The New Hampshire legislature repealed the death penalty provision of the capital murder statute, but the repeal was prospective, leaving one male prisoner under a previously imposed sentence of death.

• The New Mexico Supreme Court declared the state capital statute unconstitutional, and the two prisoners under sentence of death were resentenced to life.

• The largest decline in the number of prisoners under sentence of death in 2019 occurred in California (down 11 prisoners), followed by Pennsylvania (down 8), Texas (down 7), and Tennessee (down 6).

• During 2019, the number of prisoners held under sentence of death increased in three states: North Carolina (up 3), Ohio (up 2), and South Carolina (up 1).

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

• Among prisoners under sentence of death at year-end 2019, about 56% were white and 41% were black.

• Among prisoners under sentence of death at year-end 2019 with a known ethnicity, 15% were Hispanic.

• As of December 31, 2019, prisoners under sentence of death had been on death row for an average of 18.7 years.

• Prisoners executed during 2019 had been on death row for an average of 22 years.

Might the California Supreme Court find a procedural flaw in the state's many death sentences?

The question in the title of this post is prompted by the notable oral argument that took place last week in the California Supreme Court.  This Los Angeles Times piece, headlined "California’s top court weighs overturning hundreds of death penalty sentences," provides this account and context. Here are excerpts:

For decades, California’s highest court has left it up to individual jurors to decide whether certain circumstances increase the severity of a crime and thereby warrant the death penalty in murder cases that qualify for the ultimate punishment.  On Wednesday, the state Supreme Court heard arguments on a change to that long-standing practice, which could potentially overturn hundreds of death penalty sentences in California.

At issue is how juries review “aggravating” factors — such as whether a crime was gang-related or involved multiple victims. Defense lawyers in the case argued that to ensure equal application of the death penalty, state law and the state Constitution require juries to be unanimous in their reasoning on each factor.

That the court is even considering new requirements is unusual.  It has refused to impose them in the past and has even summarily dismissed the kind of arguments presented Wednesday.  But the court’s composition has changed over the years.  Last June, the court issued a brief order asking for written arguments on the jury issue in what was otherwise a routine death penalty case.  That raised hopes among some that the court might be ready to wield an ax to capital punishment in California, a state that has produced the nation’s largest death row but hardly any executions.

Wednesday’s hearing probably tempered those hopes.  During a 90-minute hearing, only three justices — the more liberal members of the seven-judge court — spoke.  Though the silence of the majority can be interpreted in different ways, the hearing did not clearly signal that monumental changes were afoot.

The June order asked litigants to submit written arguments on this issue: Must a jury decide beyond a reasonable doubt that a defendant should get the death penalty or life without parole, and must that jury also be unanimous in deciding the reasons for a capital verdict?  If the court agreed, a ruling would probably throw out hundreds, if not all, previous death sentences in California.

The court’s sudden interest in the issue alarmed death penalty supporters.  They considered the questions long answered. Kent Scheidegger, a lawyer for a prominent pro-death penalty group, said he was both “surprised” and “very disturbed,” even with the changed composition of the court....

Justice Goodwin Liu, a Brown appointee, spoke the most during the hearing. He repeatedly pressed defense lawyers to cite precedent for their positions.  “I think there’s a lot of appeal to your argument from a fairness perspective,” Liu told a defense lawyer.  Liu’s “difficulty,” he said, was in finding cases that supported the argument legally. Is it possible, he asked, “that this issue has simply been missed this entire time? For 150 years, we have missed this issue?”...

Scheidegger said even that partial victory for the defense would have a “cataclysmic” impact on the death penalty and potentially overturn scores of sentences.  Such decisions in California are usually applied retroactively.  But Scheidegger said he felt “cautiously optimistic” after the hearing.  Liu, he said, did not seem “to be buying” the defendant’s main arguments.

UC Berkeley law professor Elisabeth A. Semel, who co-wrote Newsom’s written argument, declined to predict how the court would vote. “Justices Liu, Cuellar, and Groban had some tough questions” for the deputy attorney general defending the death penalty, she said.  “I do not believe she answered to their satisfaction.”

California has more than 700 inmates on death row, but legal challenges have stymied executions.  Only 13 inmates have been executed since 1992, and Newsom imposed a moratorium on executions during his term in office.

Notable new polling data on death penalty from Pew Research Center

The Pew Research Center has just reported its latest polling on the death penalty in this extended online report titled, "Most Americans Favor the Death Penalty Despite Concerns About Its Administration." Here are some excerpts:

[T]he death penalty for people convicted of murder continues to draw support from a majority of Americans despite widespread doubts about its administration, fairness and whether it deters serious crimes.

More Americans favor than oppose the death penalty: 60% of U.S. adults favor the death penalty for people convicted of murder, including 27% who strongly favor it.  About four-in-ten (39%) oppose the death penalty, with 15% strongly opposed, according to a new Pew Research Center survey.

The survey, conducted April 5-11 among 5,109 U.S. adults on the Center’s American Trends Panel, finds that support for the death penalty is 5 percentage points lower than it was in August 2020, when 65% said they favored the death penalty for people convicted of murder.

While public support for the death penalty has changed only modestly in recent years, support for the death penalty declined substantially between the late 1990s and the 2010s. (See “Death penalty draws more Americans’ support online than in telephone surveys” for more on long-term measures and the challenge of comparing views across different survey modes.)

Large shares of Americans express concerns over how the death penalty is administered and are skeptical about whether it deters people from committing serious crimes. Nearly eight-in-ten (78%) say there is some risk that an innocent person will be put to death, while only 21% think there are adequate safeguards in place to prevent that from happening. Only 30% of death penalty supporters — and just 6% of opponents — say adequate safeguards exist to prevent innocent people from being executed.

A majority of Americans (56%) say Black people are more likely than White people to be sentenced to the death penalty for being convicted of serious crimes.  This view is particularly widespread among Black adults: 85% of Black adults say Black people are more likely than Whites to receive the death penalty for being convicted of similar crimes (61% of Hispanic adults and 49% of White adults say this).  Moreover, more than six-in-ten Americans (63%), including about half of death penalty supporters (48%), say the death penalty does not deter people from committing serious crimes.

Yet support for the death penalty is strongly associated with a belief that when someone commits murder, the death penalty is morally justified.  Among the public overall, 64% say the death penalty is morally justified in cases of murder, while 33% say it is not justified.  An overwhelming share of death penalty supporters (90%) say it is morally justified under such circumstances, compared with 25% of death penalty opponents.

Partisanship continues to be a major factor in support for the death penalty and opinions about its administration.  Just over three-quarters of Republicans and independents who lean toward the Republican Party (77%) say they favor the death penalty for persons convicted of murder, including 40% who strongly favor it.  Democrats and Democratic leaners are more divided on this issue: 46% favor the death penalty, while 53% are opposed. About a quarter of Democrats (23%) strongly oppose the death penalty, compared with 17% who strongly favor it.

As in the past, support for the death penalty differs across racial and ethnic groups.  Majorities of White (63%), Asian (63%) and Hispanic adults (56%) favor the death penalty for persons convicted of murder.  Black adults are evenly divided: 49% favor the death penalty, while an identical share oppose it.

Support for the death penalty also varies across age groups.  About half of those ages 18 to 29 (51%) favor the death penalty, compared with about six-in-ten adults ages 30 to 49 (58%) and those 65 and older (60%).  Adults ages 50 to 64 are most supportive of the death penalty, with 69% in favor.

There are differences in attitudes by education, as well.  Nearly seven-in-ten adults (68%) who have not attended college favor the death penalty, as do 63% of those who have some college experience but no degree.  About half of those with four-year undergraduate degrees but no postgraduate experience (49%) support the death penalty.  Among those with postgraduate degrees, a larger share say they oppose (55%) than favor (44%) the death penalty.

Charleston church shooter Dylann Roof to have appeal of his death sentence heard by (unusual) Fourth Circuit panel

As detailed in this website, candidate Joe Biden pledged to "Eliminate the death penalty" if elected.  But many months into his presidency, it appears that Prez Biden's Department of Justice is continuing to actively defend the application of the death penalty in at least on high-profile case.  Specifically, as detailed in this local article, tomorrow a Fourth Circuit panel will hear arguments on Dylann Roof's appeal of his conviction and death sentence with DOJ apparently seeking to defend that punishment.  Here are the basics:

Defense lawyers will advance arguments Tuesday on up to 20 issues in the U.S. 4th Circuit Court of Appeals in Richmond as to why Dylann Roof was wrongfully convicted and sentenced to the death penalty in 2017 after a weeks-long trial. They will ask the court to vacate both the conviction and the death penalty.

Those arguments will be countered by a team of prosecution appellate lawyers from the U.S. Department of Justice. They seek to uphold the conviction and sentence.

Roof, 27, who grew up in Columbia, was sentenced to death in January 2017 by U.S. Judge Richard Gergel after a jury found him guilty of 18 death eligible federal hate-crimes and firearms charges. In a subsequent proceeding to determine sentence, the same jury ruled Roof deserved the death penalty. Judge Gergel then pronounced the sentence.

Evidence at Roof’s trial, which included his own writings and selfie photos and videos, portrayed him as a self-described white supremacist who wanted to start a race war by killing African-Americans. To implement his plan, Roof traveled to Charleston in June 2015, entered a prayer meeting at an African American church and executed nine Black churchgoers, including beloved Democratic state Sen. Clementa Pinckney.

“Multiple issues arising from convictions for hate crime, religious obstruction, and firearms offenses resulting in death and from imposition of death penalty” will be considered, according to a description about the case on the Fourth Circuit’s web site.

Roof’s purported mental illness and inability to be his own lawyer — casting aside an active defense role by David Bruck, one of the nation’s most experienced death penalty lawyers — is a major feature of Roof’s defense....

“Though Roof’s mental state was the subject of two competency hearings, and five experts found him delusional—findings swiftly dismissed by the court, in its rush to move the case along—jurors never heard any of that evidence. Instead, prosecutors told them Roof was a calculated killer with no signs of mental illness. Given no reason to do otherwise, jurors sentenced Roof to death. Roof’s crime was tragic, but this Court (the 4th Circuit) can have no confidence in the jury’s verdict,” the defense brief on the case says....

Prosecutors will argue that Judge Gergel’s rulings in both the guilt or innocence, as well as the penalty, phases of the trial were correct. “(Judge Gergel) did not clearly err in finding Roof competent to stand trial. The finding was supported by expert testimony and was not arbitrary or unwarranted,” the prosecutors’ brief said. “Roof’s right to self-representation was correctly defined and properly protected.”

“No error occurred at the penalty phase,” the prosecutors wrote. “The death penalty was not plainly erroneous based on Roof’s age or mental condition. Finally, Roof’s convictions rest on sound legal and constitutional grounds.”

Interestingly, though this appeal is technically being considered by the Fourth Circuit, no Fourth Circuit judge will actually be hearing the appeal. The press article explains:

The judges on the panel are Judge Duane Burton of the 8th Circuit Court of Appeals; Kent Jordan of the 3rd Circuit Court of Appeals; and Senior Judge Ronald Gilman of the 6th Circuit Court of Appeals. Usually, judges on a panel are chosen from the full 4th Circuit, which has 15 judges. However, 4th Circuit Judge Jay Richardson of Columbia was in the U.S. Attorney’s Office in South Carolina in 2017 and the lead prosecutor on the Roof case.

I welcome reader comment on the (interesting?) metaphysical question of whether an appeal in the Fourth Circuit heard by no Fourth Circuit judges is really a Fourth Circuit appeal.  (I also wonder if there will have to be an additional 12 judges appointed by designation in order to properly consider any en banc petition that might follow a ruling from this panel.)

A few of many prior related posts:

• Should I be more troubled by Dylann Storm Roof being allowed to defend himself at his federal capital trial? 
• Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial
• "Why Dylann Roof Has a Right to the Death Penalty" ... OR "Why Dylann Roof Representing Himself Is A Constitutional Tragedy"

Lengthy lament in SCOTUS cert dissent about execution method litigation

The Supreme Court’s order list this morning has no cert grants and lots and lots of cert denials.  And, at the end, Justice Sotomator penned a lengthy dissent to one such denial concerning a Missouri inmate’s effort to contest the state’s execution methods.  This dissent, in Johnson v. Precythe, No. 20-287, is joined by Justices Breyer and Kagan.

Because I am caught up with some pomp and circumstance today, I will not have a chance to review this opinion closely anytime soon.  (But I do have time to note that there are precious few persons being intentionally executed by states these days while there are still lots and lots of persons dying in prisons and jails due to neglect and other less intentional causes.  I hope these other more frequent kinds of deaths in custody might get more attention from the Supreme Court before too long.)

Texas completes first state execution of 2021

As reported in this AP piece, headlined "Absent media, Texas executes inmate who killed great aunt," Texas completed an execution this evening.  Here are some of the details:

A Texas man convicted of fatally beating his 83-year-old great aunt more than two decades ago was executed Wednesday evening without media witnesses present because prison agency officials neglected to notify reporters it was time to carry out the punishment.

Quintin Jones received the lethal injection at the state penitentiary in Huntsville for the September 1999 killing of Berthena Bryant, agency spokesman Jeremy Desel said about 30 minutes after Jones was pronounced dead.

Desel never received the usual phone call from the Huntsville Unit prison to bring reporters from The Associated Press and The Huntsville Item to the prison.  He and the media witnesses were waiting in an office across the street. 

“The Texas Department of Criminal Justice can only apologize for this error and nothing like this will ever happen again,” he said. He said the execution, the first in Texas in nearly a year, included a number of new personnel who have never participated in the process....

The previous 570 executions carried out by Texas since capital punishment resumed in 1982 all had at least one media witness. “My assumption is there will be a thorough investigation into how this all transpired and what was missed that allowed it to happen, and I expect that investigation is already underway,” Desel said.

There were no unusual circumstances with the execution itself, he said, relying on accounts from agency officials who were inside the death chamber.  Jones made a brief statement thanking his supporters and expressing love for them...

As the lethal dose of pentobarbital was administered, he took four or five deep breaths followed by “a long deep snore,” Desel said. Jones was pronounced dead at 6:40 p.m., 12 minutes after the drugs began.

Less than an hour before the scheduled punishment, the U.S. Supreme Court declined to halt the 41-year-old man’s execution....

Some of Bryant’s family members, including her sister Mattie Long, had said they didn’t want Jones to be executed. Jones is Long’s grandnephew.  “Because I was so close to Bert, her death hurt me a lot. Even so, God is merciful. Quintin can’t bring her back. I can’t bring her back. I am writing this to ask you to please spare Quintin’s life,” Long wrote in a letter that was part of Jones’ clemency petition with the Texas Board of Pardons and Paroles.

The board denied Jones’ clemency petition on Tuesday and Gov. Greg Abbott didn’t go against that decision and also declined to delay the execution.  Abbott has granted clemency to only one death row inmate, Thomas Whitaker, since taking office in 2015.

On Wednesday, Jones’ attorney filed a civil rights complaint against the board, alleging race played “an impermissible role” in its denial of Jones’ petition.  Jones’ attorney argued the case was similar to that of Whitaker’s and the only difference was that Whitaker is white and Jones was Black.  U.S. District Judge George C. Hanks Jr. dismissed the complaint, writing that Jones didn’t present direct evidence of his allegation....

Jones was the first inmate in Texas to receive a lethal injection since the July 8 execution of Billy Joe Wardlow. Four other executions had been set for earlier this year but were either delayed or rescheduled. While Texas is usually the nation’s busiest death penalty state, in 2020 it executed only three inmates — the fewest executions in nearly 25 years, mainly because of the pandemic.

After embracing new firing squad option, will South Carolina seek to move quickly forward with "old school" executions?

As reported in this new AP piece, "South Carolina Gov. Henry McMaster has signed into law a bill that forces death row inmates for now to choose between the electric chair or a newly formed firing squad in hopes the state can restart executions after an involuntary 10-year pause." Here are more details that prompt the question in the title of this post:

South Carolina had been one of the most prolific states of its size in putting inmates to death. But a lack of lethal injection drugs brought executions to a halt.

McMaster signed the bill Friday with no ceremony or fanfare, according to the state Legislature’s website. It’s the first bill the governor decided to deal with after nearly 50 hit his desk Thursday. “The families and loved ones of victims are owed closure and justice by law. Now, we can provide it,” McMaster said on Twitter on Monday.

Last week state lawmakers gave their final sign offs to the bill, which retains lethal injection as the primary method of execution if the state has the drugs, but requires prison officials to use the electric chair or firing squad if it doesn’t.

Prosecutors said three inmates have exhausted all their normal appeals, but can’t be killed because under the previous law, inmates who don’t choose the state’s 109-year-old electric chair automatically are scheduled to die by lethal injection.  They have all chosen the method that can’t be carried out.

How soon executions can begin is up in the air.  The electric chair is ready to use.  Prison officials have been doing preliminary research into how firing squads carry out executions in other states, but are not sure how long it will take to have one in place in South Carolina.  The other three states that allow a firing squad are Mississippi, Oklahoma and Utah, according to the Death Penalty Information Center.

Three inmates, all in Utah, have been killed by firing squad since the U.S. reinstated the death penalty in 1977.  Nineteen inmates have died in the electric chair this century, and South Carolina is one of eight states that can still electrocute inmates, according to the center.

Lawyers for the men with potentially imminent death dates are considering suing over the new law, saying the state is going backward.  “These are execution methods that previously were replaced by lethal injection, which is considered more humane, and it makes South Carolina the only state going back to the less humane execution methods,” said Lindsey Vann of Justice 360, a nonprofit that represents many of the men on South Carolina’s death row.

From 1996 to 2009, South Carolina executed close to average of three inmates a year.  But a lull in death row inmates reaching the end of their appeals coincided a few years later with pharmaceutical companies refusing to sell states the drugs needed to sedate inmates, relax their muscles and stop their hearts.  South Carolina’s last execution took place in May 2011, and its batch of lethal injection drugs expired in 2013.

I am struck by the report here that South Carolina has a "109-year-old electric chair." It makes me wonder, only half-jokingly, if they might try to find some really old guns for use in a firing squad.  Gallows humor aside, I sincerely wonder how quickly South Carolina will seek to set execution dates for condemned prisoners who has exhausted all their appeals and how quickly the inevitable litigation over this new law will make its way through the court system.

SCOTUS grants cert on a capital habeas procedure case, while Justice Sotomayor makes district statement about capital sentencing process

The Supreme Court is back in action this morning, and the big news from this new order list is its decision to grant cert on an abortion case from Mississippi.  But the Court granted cert in a couple of other cases, including a capital case from Arizona, Shin v. Ramirez, No. 20-1009, which raises this issue:

Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

In addition, at the end of the order list, Justice Sotomayor has a statement respecting the denial of certiorari in a capital case out of Texas, Calvert v. Texas, No. 20–701.  The statement laments various procedural developments in this case and ends this way:

Although this case does not meet this Court’s traditional criteria for certiorari, it still stands as a grim reminder that courts should rigorously scrutinize how States prove that a person should face the ultimate penalty.  Juries must have a clear view of the “uniquely individual human beings” they are sentencing to death, Woodson, 428 U.S., at 304 (plurality opinion), not one tainted by irrelevant facts about other people’s crimes.  The Constitution and basic principles of justice require nothing less.

After historic hiatus, state execution plans and practices back in the news

A lengthy break in state executions has been one of many notable impacts of the coronavirus pandemic on criminal justice systems.  Indeed, as this Death Penalty Information Center analysis explains, the United States is in the midst of "the longest period in 40 years without any state carrying out an execution." (Of course, as DPIC also notes, at the federal level, the Trump administration during this period launched "the longest and most sustained execution spree in the modern history of the U.S. death penalty [as it] carried out 13 consecutive executions between July 14, 2020 and January 16, 2021, the most consecutive executions by any jurisdiction since capital punishment resumed in the U.S. in the 1970.")

After an historic hiatus, there are now serious execution dates scheduled over the next few weeks in Texas (May 19 for Quintin Jones) and Idaho (June 2 for Gerald Ross Pizzuto Jr.).  And it seems that a few other states are also growing eager to get their death machinery back into operation.  Consequentially, as detailed by the links and headlines below, state capital punishment practices are again generating news:

From the AP, "Idaho death row inmate asks Supreme Court to stop execution"

From the AP, "Nebraska death sentences continue despite not having execution drugs"

From CBS News, "Quintin Jones is on death row for killing his great-aunt. The victim's sister is pleading for clemency."

From Fox News, "South Carolina to bring back firing squads for executions"

From The Marshall Project, "They Are Terminally Ill. States Want To Execute Them Anyway."

From NBC News, "Rush of Arkansas executions that included Ledell Lee's comes under renewed scrutiny"

"The Fate of Lethal Injection: Decomposition of the Paradigm and Its Consequences"

The title of this post is the title of this new article by multiple authors now available on SSRN.  Here is its abstract:

This article examines the use of lethal injection from 2010-2020.  That period marks the "decomposition" of the standard three drug protocol and the proliferating use of new drugs or drug combinations in American executions.  That development is associated with an increase in the number and type of mishaps encountered during lethal injections.  This article describes and analyzes those mishaps and the ways death penalty jurisdictions responded, and adapted, to them.  It suggests that the recent history of lethal injection echoes the longer history of the death penalty.  When states encountered problems with their previous methods of execution, they first attempted to address these problems by tinkering with their existing methods.  When tinkering failed, they adopted allegedly more humane execution methods.  When they ran into difficulty with the new methods, state actors scrambled to hide the death penalty from public view.  New drugs and drug combinations may have allowed the machinery of death to keep running.  New procedures may have given the lethal injection process a veneer of legitimacy.  But none of these recent changes has resolved its fate or repaired its vexing problems.

Some death penalty news and notes from around the USA

I have noticed a number of notable recent new press pieces about death penalty issues, and I figured a round up was in order: 

From the AP, "MO Supreme Court continues death penalty trial despite positive COVID-19 cases"

From the Canton Repository, "Canton man's new mission: Eliminating Ohio's death penalty"

From CNN, "Biden vowed to end the death penalty. Activists are demanding action as he nears the 100-day mark"

From Nevada Public Radio, "Will Nevada Abolish The Death Penalty?"

From the Tennessean, "Tennessee legislature: Courts allowed to reconsider death sentences over intellectual disability appeal"

Can capital punishment be another part of a bipartisan criminal justice reform story?

The question in the title of this post is prompted by this lengthy new Marshall Project piece fully titled "Can The Death Penalty Be Fixed? These Republicans Think So: A growing number of conservative lawmakers want to overhaul capital punishment, or end it."  Here are excerpts:

As Oklahoma officials seek to resume putting prisoners to death later this year, [state Rep. Kevin] McDugle has pursued bills in the state legislature to help those on death row prove their innocence ... in a deep-red state at a time when Republicans across the country are increasingly split on the future of capital punishment.  Support for the death penalty used to be popular in both parties, but over the last three decades, Democrats have turned away from the punishment, leaving Republican legislators, governors, prosecutors and judges to fight for its continued use.  At the same time, a small conservative movement — including groups like Conservatives Concerned About the Death Penalty — has been openly questioning capital punishment. It’s now clear their efforts are paying off.

Earlier this year, Virginia became the first Southern state to repeal the death penalty after three Republicans voted with the state legislature’s Democratic majority.  A Marshall Project review found that in roughly half the states with an active death penalty system, Republican lawmakers have recently sponsored or written bills to ban or constrain the punishment, or to help potentially innocent prisoners avoid it.

Although many of these bills are unlikely to pass, their sheer volume suggests a significant shift in conservative views.  Some of these Republican legislators see their bills as incremental steps toward ending the punishment. But others, like McDugle, don’t want to end the death penalty — they just want to fix it. “I want to make darn sure that if we as Oklahoma are putting someone to death, they deserve to be there,” McDugle said. “I know there is human error all the way through.”

Conservatives have been slowly turning away from the death penalty for years, as high-profile innocence cases have helped frame capital punishment as a problem of out-of-control big government.  In 2000, after a series of exonerations of people who had been sentenced to death, the Republican governor of Illinois, George Ryan, declared a moratorium on executions.  At the time, Texas Gov. George W. Bush was running for president, and the national press questioned whether an innocent person had faced execution under his watch; soon after, his fellow Republicans in the state legislature voted to make DNA testing more available for prisoners.  From 2014 to 2019, Republican support for the death penalty, as opposed to life sentences, dropped from 68% to 58%, according to Gallup Polls. Republican legislators in Nebraska voted to repeal the punishment in 2015, although the state’s residents then voted to bring the punishment back.

Some lawmakers have been motivated by anti-abortion arguments about the sanctity of human life and stories of Christian redemption on death row.  Others talk about the cost to taxpayers. South Dakota state Sen. Arthur Rusch previously served as a judge in a capital case.  “My case cost at least $1 million if not more,” he said, noting that the court paid for counseling for some jurors who suffered from post-traumatic stress after the lengthy trial. He was elected to the senate in 2015, and has filed numerous bills to abolish or restrict the punishment; none have succeeded, he said, but each time he brings along a few more peers.

“Changing your mind on an emotional subject like this can be difficult,” said Hannah Cox, who writes columns for Newsmax, a conservative web outlet, and serves as national manager of Conservatives Concerned About the Death Penalty. She’s found that efforts to fix the system can serve as “baby steps,” as she tries to show her fellow conservatives that the system can’t be saved. “If you fix one of 13 problems with the death penalty, there are still another 12.”...

Many conservatives focus on the moral calculation of who deserves the ultimate punishment.  Ohio recently passed a bill, sponsored by a Republican legislator, to ban the execution of anyone with a serious mental illness. Republicans are pushing similar bills in Florida, Kentucky and Missouri.  In Texas, state Rep. Jeff Leach has filed a bill that would ban the death penalty for people who were technically “accomplices” to murders but played a minor role, including getaway drivers.  Much like the Oklahomans, he was motivated by a single case — that of Jeff Wood, who was sentenced to die after his friend killed a store clerk while Wood waited outside in the car, after what they thought would be an easy robbery.

"Getting to Know You: An Expanded Approach to Capital Jury Selection"

The title of this post is the title of this new article authored by Samuel Newton now available via SSRN. Here is its abstract:

The Colorado Method of capital jury selection is a widely-embraced strategy defense attorneys use in voir dire, in which attorneys rank each juror exclusively on the likelihood that the juror will vote for life or death.  The method has some problems.  It is not fully public.  Discussing punishment prior to guilt also predisposes juries to vote for death.  It inadequately addresses innocence cases.  Nor should we reduce jurors to their views or positions on the death penalty. 

While capital juries are already predisposed to give death sentences, scholars have determined that numerous case-specific and juror-specific factors — such as a defendant's willingness to express remorse or the juror’s views or racial experiences — significantly affect jurors’ votes.  I review research findings from the Capital Jury Project and other studies, concluding that capital defense attorneys are better served by questioning and ranking jurors on a much broader set of factors.  I propose that with more information in hand, defense attorneys can improve their ability to rank jurors and select a jury more inclined to impose a life sentence.

Virginia officially repeals its death penalty

I reported here last month that Virginia was on the verge of repealing the death penalty in the state.  Today, as reported in this new NPR piece, the repeal became official.  Here are some details:

Virginia Gov. Ralph Northam signed a bill into law abolishing the death penalty in the state after the Democratically-controlled legislature passed the measure late last month. "It is the moral thing to do to end the death penalty in the Commonwealth of Virginia," said the governor....

Virginia is the first state in what was the Confederacy to stop using the punishment. The commonwealth has executed more people than any other state since the first execution took place at Jamestown in 1608.

Opponents of the death penalty cite the high cost, the possibility of executing the innocent and the disproportionate racial impact. Black defendants are more likely to face death sentences, especially when victims are white. "The death penalty is the direct descendant of lynching. It is state-sponsored racism and we have an opportunity to end this today," said Democratic Del. Jay Jones, speaking on the floor of the House last month.

Virginia has gone through several racial reckonings in the last few years. Michael Stone, executive director of Virginians for Alternatives to the Death Penalty, says the 2019 controversy involving Gov. Northam and an old racist yearbook photo may have brought the state closer to this point. "I think the governor's blackface scandal certainly predisposed him to being far more sensitive about racial justice issues."

And then came the police killing of George Floyd by police in Minneapolis last year. "The Black Lives Matter protests turbocharged the move toward criminal justice reform in general, and death penalty abolition in particular," says Stone.

Two Republicans voted with Democrats in favor of abolition, but the party has been largely unified in opposition, along with law enforcement groups who want to keep the penalty for people who murder police officers.

Many victim's families have spoken out against the death penalty, saying it makes healing more difficult. Rachel Sutphin is a vocal opponent of the death penalty and objected to the 2017 execution of her father's killer. William Morva, who was the last person to be executed in Virginia, fatally shot her father, Eric Sutphin, a police officer, in 2006. She objected to Morva's execution in part because he was diagnosed with a serious mental illness....

Gov. Northam thanked lawmakers for getting the bill to his desk, "Virginia will join 22 other states that have ended use of the death penalty. This is an important step forward in ensuring that our criminal justice system is fair and equitable to all."

Prior recent related post:

• Virginia, the state "that since Colonial times has executed more people than any other," is on verge of abolishing the death penalty 

SCOTUS grants cert to review First Circuit's reversal of death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

As noted in this post, the First CIrcuit last summer overturned the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev, and the Trump administration sought review in October on these two questions in the government's cert petition:

1. Whether the court of appeals erred in concluding that respondent’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.
2. Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.

This morning, as detailed in this new order list, the US Supreme Court granted cert in US v. Tsarnaev.  Because the cert grant does not specify a particular question presented, I assume both of the questions presented flgged by the government will be before the Justices.

Of course, the new Biden Administration is purportedly opposed to the death penalty based on statements by then-candidate Joe Biden before his election.  (I do not believe Prez Biden has spoken to this matter directly and he had a history of supporting the death penalty in the past.)  Notably, the Biden Administration did not seek to withdraw the cert petition in Tsarnaev, and it will now be very interesting to see how it plans to move forward with this case now that cert has been granted.  

A few prior recent related posts:

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

Can global capitalists bring an end to capital punishment around the globe?

The question in the title of this post is prompted by the interestng news of the creation of a notable new death penalty abolition group going by the name "Business Leaders Against the Death Penalty."  This ABC News piece, headlined "Branson leads business group demanding end to death penalty," provides the backstory:

Virgin Group Chairman Richard Branson feels the time has come to galvanize business leaders in a movement to eradicate the death penalty, a cause he has ardently supported for years.

A group of 18 business leaders led by the British billionaire launched a campaign Thursday they hope will quickly build, signing a declaration that called on all governments to end executions. Branson said he hoped to get “hundreds, if not thousands" more business leaders on board over the next six months.

“I’m contacting a lot of business leaders that I’ve met over the years. I think a lot of us believe it to be inhumane, to be barbaric, to be flawed,” Branson said in a video interview with The Associated Press before announcing the campaign at the virtual South by Southwest festival....

Telecom billionaire Mo Ibrahim, the co-founders of Ben & Jerry's Ice Cream, Thrive CEO Arianna Huffington and Jared Smith, co-founder of software vendor Qualtrics, were among the 18 initial signatories....

The business leaders, who said they were speaking in a personal capacity, called the death penalty emblematic of the systemic racial injustice companies claim to be trying to fight. “Business leaders need to do more than just say Black Lives Matter. They need to walk the talk and be instrumental in tearing down all the symbols of structural racism in our society," Ben Cohen and Jerry Greenfield, co-founders of Ben & Jerry’s, said in a prepared statement.

According to a report by the Washington-based Death Penalty Information Center, Black people remain overrepresented on U.S. death row, and Black people who kill white people are far more likely to be sentenced to death than white people who kill Black people.

Although support for the death penalty has waned in recent years, the Trump administration carried out an unprecedented run of 13 executions in six months last year, ending a 17-year hiatus on federal executions. President Joe Biden has not said whether he will halt federal executions, though he is against the death penalty and has said he will work to end its use.

Celia Ouellette, CEO of The Responsible Business Initiative for Justice that is coordinating the campaign, said the hurried executions last year added “real urgency” to the issue that helped draw in business leaders. She said the signatories would be participating in various events with anti-death penalty activists groups in the next months. “This is the first time that we've seen business leaders joining forces to call for an end to the death penalty globally," Ouellette said.

Branson said business leaders see the tide turning, symbolized most recently by the Virginia state legislature's vote to abolish capital punishment. That vote last month held particular significance for death penalty opponents because Virginia has executed more people than any other state in its long history.

Despite his own longtime advocacy, Branson said the death penalty has not been an issue business leaders have taken up historically. “So part of our job is, is to find the time to educate them, give them the facts and win and win them over,” Branson said. “It needs patience. It needs education for some. But for, I say the vast majority, it’s a reasonably easy. The doors are open and I think we can get the vast majority of people on board.”

"Are Life Sentences a Merciful Alternative to the Death Penalty?"

The question in the title of this post is the headline of this new extended Mother Jones article.  Here are excerpts:

In the midst of [recent] victories in the fight against capital punishment, many advocates are attempting to address a different form of punishment, questioning how much more merciful life imprisonment is compared to the death penalty.

Life without parole has many of the same qualities that make the death penalty so abhorrent.  Capital punishment is riddled with racial disparities, junk science, and a legal system that routinely fails the marginalized. “Those same exact flaws exist across the whole system,” says Ashley Nellis, a senior research analyst at the advocacy organization The Sentencing Project.  Looked at logically, staying alive, albeit in prison, just has to be a better outcome than being executed.  But looked at more closely, is the lesser sentence really “better” than the harshest one?  “I would not call it a humane alternative to the death penalty,” Shari Silberstein, the executive director of the Equal Justice USA, a criminal justice nonprofit, tells me.  In fact, it’s a punishment both extreme and one that disproportionately affects the most marginalized people....

For Silberstein, anti-death penalty activists shouldn’t focus solely on life without parole as an alternative to the death penalty, but they should consider an entire reconfiguration of what justice means, and what it should look like.  After someone has been harmed, “there’s a need for healing, safety, accountability, and a sense of justice,” she explains. But it is unrealistic to expect “that a prison sentence can meet all of those needs.”  Clearly, they haven’t, she notes.  Harsh sentences persevere, even in places where the death penalty has already been abolished because of the underlying belief that, as Silverstein explains succinctly, “The only sense that justice has been done is if someone else suffers.”

Perhaps now — when execution as a punishment has never seemed so obscene and unacceptable — it’s the right time to reconsider all punishments.  What is the real difference between spending years behind bars only to die strapped to a gurney while correctional staff administer enough drugs to kill you, and languishing behind bars until so-called natural causes finally, mercifully, takes your life?  Are these differences sufficient to end one punishment and while still justifying another?  If the United States is on the cusp of abolishing the death penalty, perhaps it should take the next logical step and abolish another form of cruel and unusual punishment as well: life imprisonment.

Stories highlight that the west is no longer so wild about the death penalty

These three newspaper pieces from three different western states strike a similar theme relating to the decline in political support for capital punishment:

"California has undergone a sea change on the death penalty" from the Los Angeles Times

"Poll: Nevadans divided over abolishing the death penalty, a shift from previous poll" from The Nevada Independent

"Bill to repeal death penalty in Wyoming advanced by legislative committee" from the Wyoming Tribune Eagle

Notably, as well detailed by the Death Penalty Information Center in this map of US executions, there have never actually been all that many executions west of Texas in the modern capital era. Indeed, Missouri alone has has more executions (90) than all states combined; leave out Arizona, and Ohio at 56 executions has had more than all those other weterns states combined. But, as also well detailed by this DPIC map of US death rows, a number of western states have sizeable death rows (with California's death row twice as big as any other states').

Federal prosecutors still pursuing capital charges over a month into Biden Administration

There has been considerable advocacy from progressives urging Prez Biden to commute federal death row and to halt all capital prosecutions (examples here and here).  Against that backdrop, I thought this new Justice Department press release was notable under this full headline: "Death Penalty Sought For Murder Of Fort Campbell Soldier; Victim's murder occurred on the Fort Campbell, Kentucky military installation."   Interestingly, the start of the release specifies that former Prez Trump's last Attorney General was the one who authorized this prosecution in the Western District of Kentucky:

The United States filed Notice of Intent to Seek the Death Penalty for Victor Everette Silvers, in connection with the death of Brittney Niecol Silvers, announced Acting United States Attorney Michael A. Bennett.  Former Acting Attorney General Jeffrey A. Rosen authorized and directed the United States Attorney’s Office for the Western District of Kentucky to seek the death penalty.

According to the superseding indictment, returned on Tuesday, February 23, 2021, Victor Everette Silvers murdered Brittney Niecol Silvers on October 14, 2018, by shooting her with a firearm at the Fort Campbell, Kentucky military installation.  Brittney Niecol Silvers was, at the time of her death, assigned to the 96th Aviation Support Battalion at Fort Campbell, Kentucky.  The penalty for First-Degree Murder (Premediated) is Death or Life Imprisonment.

Victor Everette Silvers is also charged with Attempted First-Degree Murder, Domestic Violence, Violation of a Protection Order, Possession of a Firearm by a Prohibited Person, and two counts of the Use/Carry/Discharge of a Firearm During and in Relation to a Crime of Violence.

This press release is a useful reminder that, while it may not be essential for Prez Biden to make an immediate decision about whether to commute the sentences of persons already on federal death row, there is more immediate urgency for the Biden Administration about whether to continue seeking to add to the number of persons on federal death row.

Notable new press report on accounts of recent federal execution particulars

The AP has this notable new story, headlined "Executioners sanitized accounts of deaths in federal cases."  Here is how it gets started:

Executioners who put 13 inmates to death in the last months of the Trump administration likened the process of dying by lethal injection to falling asleep and called gurneys “beds” and final breaths “snores.”  But those tranquil accounts are at odds with reports by The Associated Press and other media witnesses of how prisoners’ stomachs rolled, shook and shuddered as the pentobarbital took effect inside the U.S. penitentiary death chamber in Terre Haute, Indiana. The AP witnessed every execution.

The sworn accounts by executioners, which government filings cited as evidence the lethal injections were going smoothly, raise questions about whether officials misled courts to ensure the executions scheduled from July to mid-January were done before death penalty opponent Joe Biden became president.  Secrecy surrounded all aspects of the executions. Courts relied on those carrying them out to volunteer information about glitches. None of the executioners mentioned any.

Questions about whether inmates’ midsections trembled as media witnesses described were a focus of litigation throughout the run of executions. Inmates’ lawyers argued it proved pentobarbital caused flash pulmonary edema, in which fluid rushes through quickly disintegrating membranes into lungs and airways, causing pain akin to being suffocated or drowned.  The Constitution prohibits execution methods that are “cruel and unusual.”

The discrepancies could increase pressure on Biden to declare his administration won’t execute any of the roughly 50 federal inmates still on death row.  Activists want him to go further by backing a bill abolishing the federal death penalty.  Biden hasn’t spoken about any specific action.

During the Sept. 22 execution of William LeCroy, convicted of killing Georgia nurse Joann Lee Tiesler in 2001, the 50-year-old’s stomach area heaved uncontrollably immediately after the pentobarbital injection.  It lasted about a minute, according to the AP and other reports.

Executioner Eric Williams stood next to LeCroy as he died.  But Williams made only cursory reference to “the rise and fall” of LeCroy’s abdomen in his account.  Shortly after serving in five of the recent executions, Williams was named the interim warden of the high-profile New York City lockup where Jeffrey Epstein died in 2019.  “During the entirety of the execution, LeCroy did not appear to be in any sort of distress, discomfort, or pain,” Williams wrote.  “A short time after he took a deep breath and snored, it appeared to me that LeCroy was in a deep, comfortable sleep.”

The distinctive jerking and jolting was visible in at least half the executions, according to the AP and other media accounts.  Among multiple executioner accounts, none described any such movements.  All employed the same sleep metaphors.

When Donald Trump’s Justice Department announced in 2019 it’d resume executions after a 17-year hiatus, it said it would use pentobarbital alone.  Manufacturers were no longer willing to supply the combination of drugs used in three federal executions from 2001 to 2003, explaining they didn’t want drugs meant to save lives to be used for killing.

One point of contention during the litigation was whether, even if pulmonary edema did occur, inmates could feel it after they appeared to be knocked out.  Experts for the prisoners said the drug paralyzes the body, masking the pain prisoners could feel as they died.  None of those executed appeared to writhe in pain.  But audio from the death chamber to the media viewing room was switched off just prior to the injections, so journalists couldn’t hear if inmates groaned or complained of pain.

Litigation over clergy halts Alabama execution (and divides Justices in notable ways)

Though the federal government carried out the first three execution of 2021 last month, the first state execution in the US was scheduled to take place last night in Alabama.  But, as this local article explains, today "Willie B. Smith III remains alive on death row in Alabama, after the U.S. Supreme Court upheld a ruling that required Smith’s spiritual advisor to be in the execution chamber with Smith when he was given the lethal injection."  Here is more:

The ruling came down around 11:08 p.m. Thursday night, with the Alabama Department of Corrections calling off the execution one minute later.

In the concurring ruling, Justice Elena Kagan said that the law “guarantees Smith the right to practice his faith free from unnecessary interference”. “The Eleventh Circuit was right to bar Alabama from executing Smith without his pastor by his side,” Kagan said. “Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.”

Kagan along with Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Amy Coney Barrett all denied the Alabama Attorney General’s Office’s motion to overturn a lower court ruling requiring Smith’s spiritual advisor to be in the execution chamber. Justice Brett Kavanaugh along with Justice John Roberts, wrote the dissenting opinion.

Smith’s other claim as to why the execution should be called off centered on what his lawyers called an intellectual disability.  While the 11th Circuit Court of Appeals granted a stay based on that claim Wednesday night, the U.S. Supreme Court lifted that stay around 11 p.m. Thursday.

Smith, 51, was originally set to die by lethal injection at 6 p.m. inside of William C. Holman Correctional Facility in Atmore....  Smith was sentenced to death in 1992 for the Oct. 1991 abduction, robbery and murder of Sharma Ruth Johnson. Johnson’s body was found in the trunk of her burned car with a shotgun wound to her head, after being shot execution style at a east Birmingham cemetery. 

The full SCOTUS discussion of these issues is available at this link, but the opinions released by the justices are just concurrences and dissents from the denial of Alabama's application to lift the stay put in place by the Eleventh Circuit.  As Amy Howe explains in this SCOTUSblog post, the exact votes here are unclear even though it is clear that this issue has divided the more conservative block of Justices:

Four justices — Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett — all signed an opinion, written by Kagan, that said the state failed to adequately justify its policy of barring spiritual advisers from the execution chamber.  Three justices — Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh — indicated that they would have allowed the execution to go forward under Alabama’s policy.  The remaining two justices — Justices Samuel Alito and Neil Gorsuch — did not publicly disclose how they voted, but at least one of them must have voted with the three liberal justices and Barrett to prevent the execution from occurring without a spiritual adviser.

This NPR piece about the ruling provides some context for how SCOTUS has struggled with execution clergy issues in recent years:

The Supreme Court justices have grappled with the same legal question at the core of the Smith case in the last two years, but have ruled very differently in each situation.  In 2019, the Supreme Court, by a 5-4 vote, ruled that Alabama could execute Domineque Hakim Ray, a Muslim man convicted of murder.

The appellate court had temporarily blocked the execution because the state barred the man from having a Muslim imam at his side in the death chamber. Alabama said only the prison's Christian minister would be allowed in.

A month later, in a 7-2 vote, the justices granted an eleventh-hour stay of execution to Patrick Henry Murphy, a Buddhist prisoner in Texas who had been denied a Buddhist religious adviser at his side in the death chamber.  The difference between the two cases, according to the conservative court majority, was that the Muslim prisoner waited too long to ask for an imam.

It's unclear what the state of Alabama's next move will be in the Smith case.

That both Justices Alito and Gorsuch remained silent and yet may have voted for the stay here is fascinating; these two have long seemed, by virtue of their votes and opinions, to be the two Justices most eager to ensure condemned inmates fail in any and all efforts to block or delay scheduled executions.  In addition, I believe this case may represent the very first time in which, in a closely divided vote, Justice Barrett joined an opinion of her more liberal colleagues.  Justice Barrett could have, of course, opted for the "silence is golden" approach adopted by Justices Alito and Gorsuch; that she notably decided instead to sign on to Justice Kagan's concurrence is quite noteworthy.

Coalition of civil rights groups calls on Prez Biden to commute all federal death sentences and halt capital activity

As reported in this AP piece, "civil rights and advocacy organizations are calling on the Biden administration to immediately halt federal executions after an unprecedented run of capital punishment under President Donald Trump and to commute the sentences of inmates on federal death row."  Here is more (with links from the original):

The organizations, including the American Civil Liberties Union, The Leadership Conference on Civil and Human Rights and 80 others, sent a letter to President Joe Biden on Tuesday morning, urging that he act immediately “on your promise of ensuring equality, equity, and justice in our criminal legal system.”

Biden has been systematically undoing many Trump administration policies on climate, immigration and ethics rules. Although he is against the death penalty and has said he will work to end its use, Biden has not commented on what he will do with Trump’s unprecedented push for the federal death penalty.  The Bureau of Prisons carried out more executions under Trump, 13, than any previous president....  The groups say Biden should step in immediately and take action, as his administration works to establish priorities, address systemic racism and overhaul parts of the criminal justice system.

In the letter, the civil rights groups said the use of the death penalty “continues to perpetuate patterns of racial and economic oppression endemic to the American criminal legal system.”...  “Any criminal legal system truly dedicated to the pursuit of justice should recognize the humanity of all those who come into contact with it, not sanction the use of a discriminatory practice that denies individuals their rights, fails to respect their dignity, and stands in stark contrast to the fundamental values of our democratic system of governance,” the letter said....

The groups told Biden he has the power to dismantle the death chamber building at the Federal Correctional Complex in Terre Haute, Indiana — the small building where the 13 executions were carried out in six months — in addition to rescinding the Justice Department’s execution protocols and a regulation that no longer required federal death sentences to be carried out by lethal injection and cleared the way to use other methods like firing squads and poison gas.

They also said Biden could prohibit prosecutors from seeking death sentences and commute the sentences of the several dozen inmates on federal death row.  Far-reaching steps by Biden, the letter said, would also preclude any future president from restarting federal executions.  Trump’s predecessor, Barack Obama, halted federal executions but never cleared death row or sought to strike the death penalty from U.S. statutes.  That left the door open for Trump to resume them.  “We … recognize that if there is one thing that the waning months of the Trump presidency also made clear, it is the horrendous implications of simply having an informal federal death penalty moratorium in place,” it said.

Cynthia Roseberry, the ACLU’s deputy director of policy for the justice division, said she knows that Biden has a lot on his plate and that he should be given some time to act on the death penalty.  But she said the groups wanted to assure Biden “that there is broad based support to be bold” on the issue and that some don’t require complicated policy initiatives or new legislation.  “These things,” Roseberry said, “can be accomplished with the stroke of the pen.”

The full ACLU press release about this letter is available at this link, and the full letter from the coaltion is available at this link.   

I noted here in response to last month's similar letter by 37 Democratic members of Congress that the call for commuting all of federal death row came with a request to "ensur[e] that each person is provided with an adequate and unique re-sentencing process."  This new call here to "immediately commuting the sentences of all individuals under federal sentence of death" does not alternative sentencing with any specificity, but it obviously avoids advocating that Prez Biden converting death sentences into life without parole sentences.  This is yet another reminder that modern adocacy against LWOP sentences, which often calls LWOP just a death sentence by another name, serves to complicate a bit advocacy against capital punishment.