Sentencing Law and Policy

"Is Death Different to Federal Judges?"

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

Legal commentators have long believed that federal judges treat capital appeals more favorably than noncapital appeals.  However, due to the bifurcated nature of capital trials and the complexity of the ensuing appeals, no empirical research to date has proven that the guilt-phase claims of capital defendants are more likely to succeed on federal habeas review than the claims of other defendants. 

This Note addresses that gap in the literature.  The Author analyzed 1,368 votes cast by federal appellate judges between 2013 and 2017 in murder cases heard on habeas review.  In each of those cases, the defendant was under a sentence of either death or life in prison. Exploiting this unique dataset, this Note finds that federal appellate judges are significantly more likely to grant guilt-phase relief to capital defendants than they are to similarly situated noncapital defendants.  It then rules out alternative explanations for this finding of a “sentencing effect,” such as differential attorney investment or dissimilarity between capital and noncapital defendants.  After establishing that federal appellate judges do in fact behave differently in capital cases, the Note considers the normative implications of this finding.  It ultimately concludes that the behavior of federal judges on habeas review is consistent with a generally shared principle of capital jurisprudence: preventing the execution of innocents.

Study details how Georgia execution rate is "substantially greater" for those convicted of killing white victims than for those convicted of killing black victims

This New York Times article, headlined "A Vast Racial Gap in Death Penalty Cases, New Study Finds," highlights new research on the intersection of race and the death penalty.  Here are excerpts from the press piece with a few of the original links to the original research:

Black lives do not matter nearly as much as white ones when it comes to the death penalty, a new study has found.  Building on data at the heart of a landmark 1987 Supreme Court decision, the study concluded that defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims.

There is little chance that the new findings would alter the current Supreme Court’s support for the death penalty. Its conservative majority has expressed impatience with efforts to block executions, and last month it issued a pair of 5-to-4 rulings in the middle of the night that allowed federal executions to resume after a 17-year hiatus.

But the court came within one vote of addressing racial bias in the administration of the death penalty in the 1987 decision, McCleskey v. Kemp. By a 5-to-4 vote, the court ruled that even solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution....

The McCleskey decision considered a study conducted by David C. Baldus, a law professor who died in 2011.  It looked at death sentences rather than executions, and it made two basic points.  The first was that the race of the defendant does not predict the likelihood of a death sentence.  The second was that the race of the victim does.  Killers of white people were more than four times as likely to be sentenced to death as killers of Black people, Professor Baldus found.

The new study, published in The Harvard Civil Rights-Civil Liberties Law Review, examined not only death sentences but also whether defendants sentenced to death were eventually executed. “The problematic sentencing disparity discovered by Baldus is exacerbated at the execution stage,” wrote the study’s authors, Scott Phillips and Justin Marceau of the University of Denver. Professor Baldus’s study examined more than 2,000 murders in Georgia from 1973 to 1979, controlling for some 230 variables.

Though some have argued that Professor Baldus did not consider every possible variable, few question his bottom-line conclusion, and other studies have confirmed it. In 1990, the General Accounting Office, now called the Government Accountability Office, reviewed 28 studies and determined that 23 of them found that the race of the victim influenced “the likelihood of being charged with capital murder or receiving a death sentence.” “This finding was remarkably consistent across data sets, states, data collection methods and analytic techniques,” the report said. A 2014 update came to a similar conclusion.

One factor Professor Baldus could not analyze, given the decades that often pass between sentencings and executions, was whether the race of the victim correlated to the likelihood of the defendant being put to death. The new study, the product of exhaustive research, supplied the missing information. It found that 22 of the 972 defendants convicted of killing a white victim were executed, as compared with two of the 1,503 defendants convicted of killing a Black victim.

The new study also confirmed just how rare executions are. Of the 127 men sentenced to death in the Baldus study, 95 left death row thanks to judicial action or executive clemency; five died of natural causes; one was executed in another state; one escaped (and was soon beaten to death in a bar fight); and one remains on death row.

A more general and less granular 2017 study compared two sets of nationwide data: homicides from 1975 to 2005 and executions from 1976 to 2015. Its conclusions were similarly striking. About half of the victims were white, that study found, but three-quarters of defendants put to death had killed a white person. About 46 percent of the victims were Black, but only 15 percent of defendants who were executed had killed a Black person.

Eric M. Freedman, a law professor at Hofstra, said courts and lawmakers had failed to confront the question of racial bias in the administration of capital punishment. “The continuing adherence of the Supreme Court to McCleskey is a continuing statement that Black lives do not matter,” he said. “The continuing failure of Congress and the state legislatures to remedy the situation is a continuing admission that the states are unable to run racially unbiased death penalty systems.”

I always find in-depth exploration of the Baldus study and McClesky so interesting and important, in part because David Baldus discovered that even in Georgia in the 1970s, it appears that the race of the defendant had relatively little or no impact on who was ultimately sentenced to death.  That strikes me as itself a remarkable and encouraging finding, even though he reached the corresponding and discouraging finding that the race of the victim did have a huge impact on who was ultimately sentenced to death.  But, as Prof Randall Kennedy astutely explored in this terrific article published right after the McClesky decision, one logical response to these kinds of race-of-the-victim disparity studies is to call for far more executions of persons who kill black victims to signal in this context that black lives matter as much as white ones.

According to my quick searching using the DPIC database, it appears that only 3 of 25 persons executed in the United States in 2018 had black victims, whereas in 2019 there were 6 of 22 persons executed in the US who had black victims.  Should we be "celebrating" that black lives mattered more than twice as much in the operation of the US machinery of death in 2019 than in 2018?  Circa 2020 when the feds are now poised to be the most active of executioners, should we all be urging Attorney General Barr, as he continues adding names to the list of condemned to now be marched into the federal death chamber, to be working harder to pick from federal death row those killers with black victims?

My point here is just to recall in this context Prof Kennedy's important insight that the most ready response to these kinds of race-of-the-victim disparities may be to encourage more (capital) punishment, especially if we end up talking about these disparities in terms of certain victims not getting equal justice.   I would also add that I wish there was a lot more of this kind of race-of-the-victim sentencing disparity conducted concerning non-capital crimes.  I suspect and fear that there may be even more pernicious individual and community harms resulting from persistently unequal sentencing for those who commit sexual or property offenses with black victims.  

US Department of Justice sets two execution dates for late September

As I have mentioned before, in this recent post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My central point in that post was that, after the completion of three federal executions earlier this month thanks to SCOTUS lifting lower court stays, there is every reason to believe that AG Barr will be able to complete however many executions he decides to set in the near future.

Thereafter, as reported in this post, DOJ set the execution of Lezmond Mitchell for August 26, 2020.  And late Friday, as detailed in this DOJ press release, AG Barr has decided that he wants to move forward with at least two more executions in 2020.  This release includes these particulars:

Attorney General William P. Barr ... directed the Federal Bureau of Prisons to schedule the executions of two federal death-row inmates who were each convicted of murder.

• William Emmett LeCroy raped and murdered Joann Lee Tiesler, a 30-year-old nurse, in 2001.  LeCroy had previously served 10 years in federal and state prison for, among other crimes, aggravated assault, burglary, child molestation, and statutory rape.  After his release to supervised probation, LeCroy began planning to flee the country.  In furtherance of that plan, LeCroy broke into Tiesler’s home in Gilmer County, Georgia.  Once she returned home, LeCroy attacked her, bound her hands behind her back, strangled her with an electrical cord, and raped her.  Then he slashed her throat with a knife and stabbed her in the back five times.  LeCroy then stole Tiesler’s vehicle and drove to the Canadian border, where he was arrested....  LeCroy’s execution is scheduled for Sept. 22, 2020.
• Christopher Andre Vialva murdered youth ministers Todd and Stacie Bagley in 1999.  While stopping to use a payphone in Killeen, Texas, Todd Bagley agreed to give a ride to Vialva and two of his accomplices.  In the victims’ car, Vialva pulled out a gun, forced the Bagleys into the trunk, and drove the vehicle for several hours, stopping at ATMs to withdraw money from the couple’s bank account and trying to pawn Stacie Bagley’s wedding ring.  While locked in the trunk, the couple spoke with their abductors about God and pleaded for their lives.  Vialva eventually parked at a remote site on the Fort Hood, Texas, military reservation, where an accomplice doused the car with lighter fluid as the couple sang and prayed.  Vialva then shot Todd Bagley in the head, killing him instantly, and shot Stacie Bagley in the face, knocking her unconscious and leaving her to die of smoke inhalation after an accomplice set the car on fire.... Vialva’s execution is scheduled for Sept. 24, 2020.

A few of many recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week
• How many federal death row prisoners does Attorney General William Barr want to see executed in 2020? 
• US Department of Justice sets another execution date for last week of August

First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Roughly five years after a jury handed down a death sentence to the Boston Marathon bomber Dzhokhar Tsarnaev back in May 2015, today a First Circuit panel reversed the sentence while affirming his convictions.  This local NPR piece provides the basics and some context:

A federal appeals court has overturned the death sentence of admitted Boston Marathon bomber Dzhokhar Tsarnaev, saying the trial judge didn't do enough to ensure an unbiased jury.

The First Circuit Court of Appeals Friday ordered a new penalty phase of the trial, where a new set of jurors would decide whether to sentence Tsarnaev to life or death.  "A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished," Judge O. Rogeriee Thompson wrote in her 182-page opinion.

The federal appeals court said that Judge George O'Toole didn't do enough to make sure jurors were not tainted by pretrial publicity.... "But as to 9 of the 12 seated jurors, the judge fell short on this front," Thompson wrote. "The judge qualified jurors who had already formed an opinion that Dzhokhar was guilty — and he did so in large part because they answered 'yes' to the question whether they could decide this high-profile case based on the evidence."

But by not having the jurors identify exactly what they already knew about the case, the judge couldn’t determine whether they were actually fit to serve. The First Circuit Court of appeals issued its decision Friday, after hearing arguments in the case in December 2019.

Tsarnaev and his older brother Tamerlan killed three and injured more than 260 people near the finish line of the marathon in 2013, then murdered a police officer several days later. Tamerlan was killed during the manhunt for the brothers. In 2015, a jury convicted Dzhokhar Tsarnaev of all 30 counts against him, and then handed down six death sentences.

Liz Norden, whose two sons J.P. and Paul each lost their right leg in the bombing, supported the death penalty for Tsarnaev. In an interview with WBUR Friday, she said the appeals court decision made her “sick to her stomach.” She said she’s sad at the prospect of a new penalty phase of the trial, but having sat through the first trial, is willing to do it again....

Bombing survivor Michelle L’Heureux said she was "sad and frustrated" by the decision. "We had closure. And now that’s gone," she said. "This is going to take a toll on so many of the survivors and the families of those who never made it home. I, fortunately, through my own recovery, have gained strength and have found ways to cope with the trauma of what I and so many suffered on that fateful day in April 2013. This is a step back for many. And that is a disgrace."

The family of Martin Richard, the youngest victim of the bombing at 8 years old, declined to comment. But they pointed to a letter they wrote in 2015, just after Tsarnaev was convicted but before he was sentenced. "To end the anguish, drop the death penalty," they wrote.

Instead of another sentencing phase, prosecutors and defense attorneys could agree to life in prison for Tsarnaev, avoiding another high-profile, weeks-long session in front of a new jury. Tsarnaev's attorneys admitted his guilt at the start of the trial in 2015, and sought a plea deal before going to trial....

Among the factors at play in what happens next is a new U.S. Attorney, Andrew Lelling, who replaced Carmen Ortiz, the U.S. Attorney who oversaw the Tsarnaev trial. Lelling on Friday said his office was reviewing the decision. Tsarnaev's federal public defenders said in a statement they were grateful for the court's straightforward and fair decision....

Tsarnaev is now 27 and remains at the federal supermax prison in Florence, Colorado. Thompson noted twice in her decision that the court's ruling does not mean Tsarnaev will ever be released from prison. "Make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution," she wrote. With another trial, however, he will be back in a Massachusetts courtroom.

The full opinion in this case is available at this link, and I welcome help from readers to identify the good, the bad and the ugly of this notable and very lengthy ruling.  I am especially interested in speculation about whether the feds will seek review with the full First Circuit or SCOTUS.  If they do, it could be years before we even know if there will be a need for a retrial.

US Department of Justice sets another execution date for last week of August

In this recent post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of three federal executions earlier this month thanks to SCOTUS lifting lower court stays, it would now seem that AG Barr is likely to be able to complete how ever many executions he decides to set.

Yesterday, via this press release, we learned that AG Barr wants to see at least one more execution in 2020.  This release, titled  "Execution Rescheduled for Federal Inmate Convicted of Brutally Murdering a Grandmother and her Nine-Year-Old Granddaughter" states:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to reschedule the execution of Lezmond Mitchell, a federal death-row inmate who was convicted more than 17 years ago of the brutal murders of a grandmother and her nine-year-old granddaughter.  The execution, initially scheduled for last December, is now scheduled to occur on August 26, 2020, at the U.S. Penitentiary in Terre Haute, Indiana.

In October 2001, Mitchell murdered Alyce Slim, a 63-year-old grandmother, and her nine-year-old granddaughter as part of a carjacking in Arizona.  After getting a ride from Slim in her pickup truck, Mitchell and an accomplice stabbed her 33 times and threw her body into the backseat beside her granddaughter.  Mitchell then drove the truck 30-40 miles into the mountains, ordered the girl “to lay down and die,” slit her throat twice, and crushed her head with rocks. Mitchell and his accomplice proceeded to sever the heads and hands of the victims’ bodies and burn their clothes. Mitchell later confessed to the murders.  In May 2003, a jury in the U.S. District Court for the District of Arizona found him guilty of numerous federal crimes — including first-degree murder, felony murder, and carjacking resulting in death — and he was sentenced to death.  His convictions and sentence were affirmed on appeal, and his claims for collateral relief were denied by every court that considered them.

Mitchell’s execution was initially scheduled for December 2019, but the U.S. Court of Appeals for the Ninth Circuit entered a stay of execution while it resolved an additional appeal by Mitchell.  The court of appeals unanimously rejected Mitchell’s claim in April 2020 and denied his request for full-court rehearing earlier this month. When the Ninth Circuit stay formally concludes, no legal impediments will bar the execution, and it can occur without further delay.

This Arizona Republic article provides more details on Mitchell's crime and notes that he is the only Native American on federal death row.

Recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• With executions looming, lots of news and notes about the federal death penalty 
• DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week
• How many federal death row prisoners does Attorney General William Barr want to see executed in 2020? 

"Death Row Narratives: A Qualitative Analysis of Mental Health Issues Found in Death Row Inmate Blog Entries"

The title of this post is the title of this new article now on SSRN authored by Robert Johnson and Jacqueline Lantsman.  Here is its abstract:

Death row inmate narratives, culled from online blogs, are used to explore the social determinants of mental health in the context of the stresses and deprivations of living on death row.  Legal and correctional procedures that affect death row inmates are conceptualized as social determinants of mental health.  These procedures include the granting or denying of stays of execution, conditions of solitary confinement during death row and particularly the death watch, and impending dates of execution.  Death row narratives offer a nuanced account of the many ways condemned prisoners must contend with their powerlessness as an essential element of life under sentence of death.

Deputy AG defends federal executions that "operated entirely within the law"

Deputy Attorney General Jeffrey Rosen took to the pages of the New York Times to publish this piece defending the Justice Department's successful effort to move forward with three federal executions earlier this month.  Here are excerpts:

The death penalty is a difficult issue for many Americans on moral, religious and policy grounds.  But as a legal issue, it is straightforward.  The United States Constitution expressly contemplates “capital” crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790.  The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof.

The recent executions reflect that consensus, as the Justice Department has an obligation to implement the law.  The decision to seek the death penalty against Mr. Lee was made by Attorney General Janet Reno (who said she personally opposed the death penalty but was bound by the law) and reaffirmed by then-Deputy Attorney General Eric Holder.  Mr. Purkey was prosecuted during the George W. Bush administration, and his conviction and sentence were vigorously defended throughout the Obama administration. The former judge who imposed the death sentence on Mr. Honken, Mark Bennett, said that while he generally opposed the death penalty, he would not lose any sleep over Mr. Honken’s execution.

In a New York Times op-ed published on July 17, two of Mr. Lee’s lawyers criticized the execution of their client, which they contend was carried out in a “shameful rush.”  That objection overlooks that Mr. Lee was sentenced more than 20 years ago, and his appeals and other permissible challenges failed, up to and including the day of his execution.  Mr. Lee’s lawyers seem to endorse a system of endless delays that prevent a death sentence from ever becoming real.  But his execution date was announced almost a year ago, and was initially set for last December. It was delayed when his lawyers obtained six more months of review by unsuccessfully challenging the procedures used to carry out his lethal injection....

[I]f the United States is going to allow capital punishment, a white-supremacist triple murderer would seem the textbook example of a justified case.  And if death sentences are going to be imposed, they cannot just be hypothetical; they eventually have to be carried out, or the punishment will lose its deterrent and retributive effects.

Rather than forthrightly opposing the death penalty and attempting to change the law through democratic means, however, Mr. Lee’s lawyers and others have chosen the legal and public-relations equivalent of guerrilla war.  They sought to obstruct by any means the administration of sentences that Congress permitted, juries supported and the Supreme Court approved.  And when those tactics failed, they accused the Justice Department of “a grave threat to the rule of law,” even though it operated entirely within the law enacted by Congress and approved by the Supreme Court.  The American people can decide for themselves which aspects of that process should be considered “shameful.”

A few of many recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• With executions looming, lots of news and notes about the federal death penalty 
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week
• How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?

How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?

The question in the title of this post has been in my head in the wake of last week's three federal executions and the clear signal sent by five members of the Supreme Court that they will not allow lower courts to get in the way of the Attorney General's execution plans.  As highlighted in posts last week here and here, the Supreme Court by 5-4 votes vacated a series of lower court stays and injunctions to enable the Justice Department to complete the scheduled executions of Daniel Lewis Lee and Wesley Ira Purkey.  By the end of the week, the pro-execution momentum was so strong that the third person executed, Dustin Lee Honken, apparently did not even pursue any final legal claims up to the Supreme Court.

Recall that it was only a month ago that AG Barr ordered the scheduling of these execution dates for last week (as well as one more set for August 28 for Keith Dwayne Nelson).  This reality suggests to me that AG Barr could, at just about any time for just about any reason, order the scheduling of one or many executions and have them carried our within a month's time.  There are 59 condemned persons on federal death row (full list here via DPIC), and I suspect at least a couple dozen of these death row defendants have exhausted the standard appellate and post-conviction remedies so that no legal impediments would currently prevent their executions.  Consequently, it would seem their fates now lie squarely and only in the hands of AG Barr and will turn on how he now decides to exercise his discretion in the setting of execution dates.

In DOJ statements concerning the setting of executions dates (here and here), AG Barr has repeatedly stated that "we owe it to the victims and their families to carry forward the sentence imposed by our justice system."  If AG Barr really believes this, will he be actively trying to set more execution dates (perhaps many more) in the weeks and months ahead?  Notably, former Vice President Joe Biden is campaigning for Prez on a promise to "Eliminate the death penalty": "Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example."  If AG Barr really believes that justice calls for executing those now currently on federal death row, should he be seeking to complete as many executions as possible in 2020 just in case a new administration might not want to carry out these sentences in 2021? 

Recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• With executions looming, lots of news and notes about the federal death penalty 
• DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week

"American Roulette: The Social Logic of Death Penalty Sentencing Trials"

The title of this post is the title of this recently published book authored by Sarah Beth Kaufman which now seem especially timely in light of the federal government's return to operating its machinery of death.  Here is the book description on the website of the publisher, University of California Press:

As the death penalty clings to life in many states and dies off in others, this first-of-its-kind ethnography takes readers inside capital trials across the United States.  Sarah Beth Kaufman draws on years of ethnographic and documentary research, including hundreds of hours of courtroom observation in seven states, interviews with participants, and analyses of newspaper coverage to reveal how the American justice system decides who deserves the most extreme punishment.  The “super due process” accorded capital sentencing by the United States Supreme Court is the system’s best attempt at individuated sentencing.  Resources not seen in most other parts of the criminal justice system, such as jurors and psychological experts, are required in capital trials, yet even these cannot create the conditions of morality or justice.  Kaufman demonstrates that capital trials ultimately depend on performance and politics, resulting in the enactment of deep biases and utter capriciousness.  American Roulette contends that the liberal, democratic ideals of criminal punishment cannot be enacted in the current criminal justice system, even under the most controlled circumstances.

The 15-page introduction to the text is available here, and here is an excerpt:

It would be sensible to assume that those who face capital punishment have committed the most atrocious murders and that their executions might serve as the strongest deterrent to others.  But these are not the criteria that determine who is “death-worthy” in the United States; ... Zacarias Moussaoui, who conspired to plan the 9/11 attacks, and Gary Ridgway, who was convicted of killing forty-nine women, for example, were both sentenced to life imprisonment.  Corinio Pruitt and Corey Wimbley each committed single robbery-murders and were sentenced to death by execution.  In the twenty-first century United States, between 14,000 and 17,000 homicides are committed each year, yet fewer than a hundred result in a sentence of death.  Those so chosen, according to prosecutors, judges, and legislators, are meant to be the “worst of the worst.”  During the past two decades, death sentencing has steadily decreased from its peak of 315 cases in 1996 to fewer than 50 in 2018....  This is a meaningful trend, but the capital punishment system continues to provide fodder for politicians touting “tough on crime” positions, feeding the myth that the capital punishment system identifies and punishes those most evil in American society.  Whether for or against the death penalty, few people are satisfied with the current system....

I came to think of the trials I witnessed as games of Russian roulette, unnecessary sport where someone would inevitably die, and that I had no power to stop.  Criminal defendants arrive at capital trials through a series of structuring logics ordained by racial classification and state power.  In part I, I take readers through the first major structuring logic: the construction of capital homicide.  From a vast backdrop of millions of human deaths a year, courts, legislatures, police forces, and prosecutors define some deaths as homicide — the result of malicious human intent — before settling on those worthy of being considered capital.  What I refer to as the “narrowing structure” of the capital punishment field is not unproblematic.  The cultural and legal norms that determine who eventually is tried by a capital jury follow confusing and often contradictory logics....  Importantly, the stages of capital narrowing are unknown to most of the parties involved.  Though I worked in capital sentencing for years, I had little idea about the mechanisms determining who was tried capitally.  Capital jurors, I will argue, are likewise and necessarily uninformed.  When they agree to participate in the capital sentencing process, they are assured that they are the last in a series of people who systematically ensure that those tried for capital murder are the worst society has to offer.

Feds, revving up machinery of death, complete third execution of week

As reported in this Fox News piece, a "drug kingpin from Iowa was executed on Friday afternoon, after he was convicted of murdering two young women and three adults, marking the third time this week that a federal inmate has been put to death after a 17-year capital punishment hiatus." Here is more:

Department of Justice (DOJ) spokeswoman Kerri Kupec issued the following statement after the execution was carried out. “Today, Dustin Lee Honken was executed at USP Terre Haute in accordance with the death sentence imposed by a federal district court in 2004. Honken was pronounced dead at 4:36 p.m. EDT by the Vigo County Coroner," she wrote.

"In 1993, Honken, a meth kingpin, kidnapped, fatally shot, and buried Lori Duncan, a single, working mother, Duncan’s two young daughters — 10-year-old Kandi and 6-year-old Amber — and Greg Nicholson, a government informant who testified against Honken on federal drug trafficking charges. Honken also murdered Terry DeGeus, who Honken thought might also testify against him, by beating him with a bat and shooting him. On October 14, 2004, a jury in the U.S. District Court for the Northern District of Iowa found Honken guilty of numerous federal offenses, including five counts of continuing criminal enterprise murder, and he was sentenced to death."...

Honken had also befriended Daniel Lewis Lee, 47, who was the first federal inmate to die this week, hours after the Supreme Court greenlit the first federal execution to take place since 2003. Lee was convicted of multiple offenses, including three counts of murder in aid of racketeering in the 1996 slayings of William Frederick Mueller, his wife Nancy Ann Mueller and his 8-year-old stepdaughter, Sarah Elizabeth Powell, in Arkansas.

Wesley Ira Purkey was the second man to be put to death two days later, after being convicted in the 1998 kidnapping and killing of 16-year-old Jennifer Long, whose body was dismembered, burned and dumped in a septic pond. That same year, Purkey was also convicted in a state court in Kansas after using a claw hammer to kill an 80-year-old woman who had polio.

After Honken was convicted in 2004, the jury recommended a death sentence. U.S. District Judge Mark Bennett -- who claimed to mostly oppose the death penalty -- said, “I am not going to lose any sleep if he is executed,” The Associated Press reported.

Recent prior related posts:

• With executions looming, lots of news and notes about the federal death penalty 
• DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 

Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection

As reported here earlier this week, the federal government completed the execution of Daniel Lewis Lee, which had been scheduled for Monday, around 8am on Tuesday morning after a divided  Supreme Court around 2am vacated lower court ruling that were blocking the execution.  It was déjà vu all over again today:  sometime not long after 2am this morning, the US Supreme Court issued this order vacating the injunction, with four Justices in dissent and Justices Breyer and Sotomayor writing up the basis for their disagreement.  This new AP article reports on the execution and some of the legal wrangling that preceded it:

The United States on Thursday carried out its second federal execution this week, killing by lethal injection a Kansas man whose lawyers contended he had dementia and was unfit to be executed.

Wesley Ira Purkey was put to death at the Federal Correctional Complex in Terre Haute, Indiana. Purkey was convicted of kidnapping and killing a 16-year-old girl, Jennifer Long, before dismembering, burning and dumping her body in a septic pond. He also was convicted in a state court in Kansas after using a claw hammer to kill an 80-year-old woman who had polio....

As the lethal chemical was injected, Purkey took several deep breaths and blinked repeatedly, laying his head back down on the gurney. His time of death was 8:19 a.m. EDT. His spiritual adviser was in the room, wearing a face mask and a surgical mask and appeared to be praying, his gloved hands held together at the palms.

The Supreme Court cleared the way for the execution to take place just hours before, ruling in a 5-4 decision. The four liberal justices dissented, like they did for the first case earlier this week. Justice Sonia Sotomayor wrote that “proceeding with Purkey’s execution now, despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.” She was joined by Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

It was the federal government’s second execution after a 17-year hiatus. Another man, Daniel Lewis Lee, was put to death Tuesday after his eleventh hour legal bids failed. Both executions were delayed into the day after they were scheduled as legal wrangling continued late into the night and into the next morning....

Purkey’s lawyers had argued his condition had deteriorated so severely that he didn’t understand why he was being executed. They said he was repeatedly sexually assaulted as a child and had been diagnosed with schizophrenia, bipolar disorder and other mental health conditions....

The Supreme Court also lifted a hold placed on other executions set for Friday and next month. Dustin Honken, a drug kingpin from Iowa convicted of killing five people in a scheme to silence former dealers, was scheduled for execution Friday.

We may see this pattern play out one more time this week, as I suspect that Honken still has some legal claims to press to try to block his execution tomorrow and that the Supreme Court will eventually turn away those claims so that his execution goes forward. DPIC has this webpage trying to track all the legal developments in all these cases, though it looks like they all are going to end the same way.

Some prior recent related posts:

• With executions looming, lots of news and notes about the federal death penalty 
• DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency

UPDATE: Over at SCOTUSblog here, Amy Howe has an extended post with more details on the litigation and rulings leading up to Purkey's execution this morning under the headline "Justices allow second federal execution to proceed (updated)."

DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency

As detailed in this new AP piece, this morning a DC District Judge "halted the execution of a man said to be suffering from dementia, who had been set to die by lethal injection in the federal government’s second execution after a 17-year hiatus." Here is more:

Wesley Ira Purkey, convicted of a gruesome 1998 kidnapping and killing, was scheduled for execution Wednesday at the U.S. Penitentiary in Terre Haute, Indiana, where Daniel Lewis Lee was put to death Tuesday after his eleventh-hour legal bids failed.

U.S. District Judge Tanya Chutkan in Washington, D.C., imposed two injunctions on Wednesday prohibiting the federal Bureau of Prisons from moving forward with Purkey’s execution. The Justice Department immediately appealed in both cases. A separate temporary stay was already in place from the 7th U.S. Circuit Court of Appeals.

The early morning legal wrangling suggests a volley of litigation will continue in the hours ahead of Purkey’s scheduled execution, similar to what happened when the government executed Lee, following a ruling from the Supreme Court. Lee, convicted of killing an Arkansas family in a 1990s plot to build a whites-only nation, was the first of four condemned men scheduled to die in July and August despite the coronavirus pandemic raging inside and outside prisons.

Purkey, 68, of Lansing, Kansas, would be the second, but his lawyers were still expected to press for a ruling from the Supreme Court on his competency. “This competency issue is a very strong issue on paper,” said Robert Dunham, executive director of the Death Penalty Information Center. “The Supreme Court has halted executions on this issue in the past. At a minimum, the question of whether Purkey dies is going to go down to the last minute.”

Chutkan didn’t rule on whether Purkey is competent but said the court needs to evaluate the claim. She said that while the government may disagree with Purkey’s lawyers about his competency, there’s no question he’d suffer “irreparable harm” if he’s put to death before his claims can be evaluated.

Lee’s execution went forward a day late. It was scheduled for Monday afternoon, but the Supreme Court only gave the green light in a narrow 5-4 ruling early Tuesday.

The issue of Purkey’s mental health arose in the runup to his 2003 trial and when, after the verdict, jurors had to decide whether he should be put to death in the killing of 16-year-old Jennifer Long in Kansas City, Missouri. Prosecutors said he raped and stabbed her, dismembered her with a chainsaw, burned her and dumped her ashes 200 miles (320 kilometers) away in a septic pond in Kansas. Purkey was separately convicted and sentenced to life in the beating death of 80-year-old Mary Ruth Bales, of Kansas City, Kansas.

But the legal questions of whether he was mentally fit to stand trial or to be sentenced to die are different from the question of whether he’s mentally fit enough now to be put to death. Purkey’s lawyers argue he clearly isn’t, saying in recent filings he suffers from advancing Alzheimer’s disease. “He has long accepted responsibility for the crime that put him on death row,” one of this lawyers, Rebecca Woodman, said. “But as his dementia has progressed, he no longer has a rational understanding of why the government plans to execute him.”

Purkey believes his planned execution is part of a conspiracy involving his attorneys, Woodman said. In other filings, they describe delusions that people were spraying poison into his room and that drug dealers implanted a device in his chest meant to kill him.

While various legal issues in Purkey’s case have been hashed, rehashed and settled by courts over nearly two decades, the issue of mental fitness for execution can only be addressed once a date is set, according to Dunham, who teaches law school courses on capital punishment. A date was set only last year. “Competency is something that is always in flux,” so judges can only assess it in the weeks or days before a firm execution date, he said.

In a landmark 1986 decision, the Supreme Court ruled the Constitution prohibits executing someone who lacks a reasonable understanding of why he’s being executed. It involved the case of Alvin Ford, who was convicted of murder but whose mental health deteriorated behind bars to the point, according to his lawyer, he believed he was pope.

Purkey’s mental issues go beyond Alzheimer’s, his lawyers have said. They say he was subject to sexual and mental abuse as a child and, at 14, was diagnosed with schizophrenia, bipolar disorder, major depression and psychosis. Last week, three mental health organizations urged U.S. Attorney William Barr to stop Purkey’s execution and commute his sentence to life in prison without possibility of parole. The National Alliance on Mental Illness, Mental Health America and the Treatment Advocacy Center said executing mentally ailing people like Purkey “constitutes cruel and unusual punishment and does not comport with ‘evolving standards of decency.’”

The mother of the slain teenager, Glenda Lamont, told the Kansas City Star last year she planned to attend Purkey’s execution. “I don’t want to say that I’m happy,” Lamont said. “At the same time, he is a crazy mad man that doesn’t deserve, in my opinion, to be breathing anymore.”

US District Judge Chutkan’s 14-page ruling granting a preliminary injunction to  halt the execution can be accessed here.  I was able to accurately guess at this time two days ago that Judge Chutkan's order blocking Daniel Lewis Lee's execution would get vacated on appeal.  But the nature of Purkey's claim make (as well as other litigation he has afoot) leads me to think it somewhat more likely that Purkey's scheduled execution will not go forward today.  But as I said before and will surely say again, one really never knows just what will happen when it comes to last-minute capital litigation.

SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed

As noted in this post yesterday, a DC District Court in the morning had entered an order blocking yesterday scheduled federal execution as well as the others planned for this week. That ruling stayed in place through a DC Circuit appeal. But at around 2am this morning, the US Supreme Court decided in this per curiam opinion to "vacate the District Court’s preliminary injunction so that the plaintiffs’ executions may proceed as planned." This AP article provides context and more details:

The Trump administration was moving ahead early Tuesday with the execution of the first federal prison inmate in 17 years after a divided Supreme Court reversed lower courts and ruled federal executions could proceed.

Daniel Lewis Lee had been scheduled to receive a lethal dose of the powerful sedative pentobarbital at 4 p.m. EDT Monday.  But a court order issued Monday morning by U.S. District Judge Tanya Chutkan prevented Lee’s execution.  A federal appeals court in Washington refused the administration’s plea to step in, leaving the hold in place, before the Supreme Court acted by a 5-4 vote.  Still, Lee’s lawyers insisted the execution could not go forward after midnight under federal regulations.  With conservatives in the majority, the court said in an unsigned opinion that the prisoners’ “executions may proceed as planned.” The four liberal justices dissented.

Lee’s execution was scheduled for about 4 a.m. EDT Tuesday, according to court papers. There was another delay when the government asked for an emergency ruling related to an old stay that had been issued in the case, but that wasn’t expected to derail the execution. The Bureau of Prisons had continued with preparations even as lower courts paused the proceedings....

Lee was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell. “The government has been trying to plow forward with these executions despite many unanswered questions about the legality of its new execution protocol,” said Shawn Nolan, one of the attorneys for the men facing federal execution.

The decision to move forward during a global health pandemic that has killed more than 135,000 people in the United States and is ravaging prisons nationwide, drew scrutiny from civil rights groups as well as family of Lee’s victims.

Some members of the victims’ family argued they would be put at high risk for the coronavirus if they had to travel to attend, and sought to delay the execution until it was safer to travel. Those claims were at first granted but also eventually overturned by the Supreme Court. [NOTE: It was the Seventh Circuit that overturned these claims, but SCOTUS upheld that decision.]

Critics argue that the government is creating an unnecessary and manufactured urgency for political gain. The developments are also likely to add a new front to the national conversation about criminal justice reform in the lead-up to the 2020 elections.

Two more executions are scheduled this week, though one, Wesley Ira Purkey, was on hold in a separate legal claim. Dustin Lee Honken’s execution was scheduled for on Friday. A fourth man, Keith Dwayne Nelson, is scheduled to be executed in August.

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier. In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume.

The Supreme Court's per curiam opinion runs three pages, and separate dissents by Justice Breyer and Justice Sotomayor are of similar lengthy and hit their usual notes of complaint about the death penalty. And Justice Breyer's dissent seemed resigned to a particular outcome, as its first sentence states plainly: "Today, for the first time in 17 years, the Federal Government will execute an inmate, Daniel Lewis Lee."

Notably, though the AP report suggested that the Lee execution was still to go forward in the early hours of this morning, as of this writing (just after 8 am on July 14) there is no report that the execution has been completed.

Prior recent related posts:

• With executions looming, lots of news and notes about the federal death penalty 
• Seventh Circuit panel vacates stay to put federal execution back on schedule for July 13
• DC District Judge issues new stay, based on Eighth Amemdment claims, to block this week's scheduled federal executions

UPDATE: I suppose I should have waited a few minutes to complete this post, as this Fox News piece now has this updated headline: "Daniel Lewis Lee executed for torturing, killing Arkansas family in 1996, first federal execution 17 years." Here is the start of the piece:

A white supremacist who tortured and killed an Arkansas family-- including an 8-year-old girl-- was executed early Tuesday morning in Indiana. Daniel Lewis Lee, 47, was injected with a lethal dose of pentobarbital at 8:07 a.m., just hours after the Supreme Court greenlighted the first federal execution to take place since 2003.

DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions

As detailed in this new AP piece, a "district judge on Monday ordered a new delay in federal executions, hours before the first lethal injection was scheduled to be carried out at a federal prison in Indiana. The Trump administration immediately appealed to a higher court, asking that the executions move forward." Here is more:

U.S. District Judge Tanya Chutkan said there are still legal issues to resolve and that “the public is not served by short-circuiting legitimate judicial process.” The executions, pushed by the administration, would be the first carried out at the federal level since 2003. Chutkan said the inmates have presented evidence showing that the government’s plan to use only pentobarbital to carry out the executions “poses an unconstitutionally significant risk of serious pain.”

Chutkan said the inmates produced evidence that, in other executions, prisoners who are given pentobarbital suffered ”flash pulmonary edema,” which she said interferes with breathing and produces sensations of drowning and strangulation. The inmates have identified alternatives, including the use of an opioid or anti-anxiety drug at the start of the procedure or a different method altogether, a firing squad, Chutkan said.

The Justice Department immediately appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The new hold on executions came a day after a federal appeals court lifted a hold on the execution of Daniel Lewis Lee, of Yukon, Oklahoma, which is scheduled for 4 p.m. EDT on Monday at the federal prison in Terre Haute, Indiana. He was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell....

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Barr said he believes the Bureau of Prisons could “carry out these executions without being at risk.” The agency has put a number of additional measures in place, including temperature checks and requiring witnesses to wear masks. On Sunday, the Justice Department disclosed that a staff member involved in preparing for the execution had tested positive for the coronavirus, but said he had not been in the execution chamber and had not come into contact with anyone on the specialized team sent to the prison to handle the execution.

The victim’s family hopes there won’t be an execution, ever. They’ve asked the Justice Department and President Donald Trump not to move forward with the execution and have long asked that he be given a life sentence instead.

The three men scheduled to be executed this week had been scheduled to be put to death when Barr announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. A fourth man is scheduled to be put to death in August. The Justice Department had scheduled five executions set to begin in December, but some of the inmates challenged the new procedures in court.

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume. He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.

US District Judge Chutkan’s 22-page ruling granting this stay can be accessed here. I would be inclined to guess that this stay will be vacated on appeal, but one never knows when it comes to last-minute capital litigation.

Seventh Circuit panel vacates stay to put federal execution back on schedule for July 13

As reported in this USA Today piece, a Seventh Circuit panel this evening "ruled that the first federal execution in 17 years should go forward Monday, despite concerns raised by the victims' family members that the resurgent coronavirus risked the health of those who planned to witness Daniel Lewis Lee's death by lethal injection."  Here is more:

The court found that the family's argument "lacks any arguable legal basis and is therefore frivolous."

U.S. District Judge Jane Magnus-Stinson on Friday sided with family members who asserted that the pandemic posed an unreasonable health risk to them as witnesses to execution in Terre Haute, Indiana. “The federal government has put this family in the untenable position of choosing between their right to witness Danny Lee’s execution and their own health and safety," the attorney for the family said Sunday.

The family had planned to attend Lee's execution, even though they are opposed to Lee's death sentence for the murders of William Mueller, his wife, Nancy, and her daughter, 8-year-old Sarah Powell. Earlene Branch Peterson, 81, the young victim's grandmother, and other family members have argued that Lee's co-defendant was the unquestioned ringleader in the 1996 robbery-murder yet was sentenced to life in prison.

The Arkansas judge who presided at trial and the lead prosecutor in the case also have expressed their opposition to Lee's death sentence.

"Because the government has scheduled the execution in the midst of a raging pandemic, these (family members) would have to put their lives at risk to travel cross-country at this time," the family's attorney said. "They will now appeal the Seventh Circuit Court of Appeals’ decision to the U.S. Supreme Court in an effort to seek reversal. My clients hope the Supreme Court and the federal government will respect their right to be present at the execution and delay it until travel is safe enough to make that possible.”

The full panel opinion in Peterson v. Barr, No. 20-2252 (7th Cir. July 12, 2020) (available here), runs ten pages and is unanimous.  When I saw that a stay had been entered late Friday by the district court, I was a bit surprised that it focused on the Federal Death Penalty Act and that no mention was made of the federal Crime Victims' Rights Act. The Seventh Circuit panel was plainly unimpressed with arguments based on the FDPA, and now it might be too late for any arguments based in the CVRA. 

I believe various other claims by defendant Lee have been rejected by lower courts, and I am sure they are all going to get to SCOTUS is short order.  But I will be surprised if a majority of the Justices are going to disrupts the feds execution plans.

Prior recent related post:

• With executions looming, lots of news and notes about the federal death penalty 

With executions looming, lots of news and notes about the federal death penalty

Last month, as noted here, Attorney General William Barr directed the federal Bureau of Prisons to schedule the executions of four federal death-row inmates for this summer.  As of this writing, according to this DPIC page, the federal executions scheduled for Monday, July 13 (of Daniel Lewis Lee) and Friday, July 17 (of Dustin Lee Honken) are going forward.  Unsurprisingly, the prospect of the first federal executions in nearly two decades has led to lots of folks paying a lot more attention to the federal death penalty,  Here are just some of the press pieces catching my eye recently:

From Bloomberg Law, "Vast Majority on Federal Death Row Have Significant Impairments"

From The Crime Report, "Victim Relatives, Priest Seek to Delay Federal Executions"

From The Hill, "EU condemns U.S. for resuming federal executions"

From The Hill, "Executing four white men won't erase death penalty racism"

From the National Catholic Reporter, "Cardinal Tobin asks Trump to grant clemency to federal death-row inmate"

From Reuters, "Special Report: How the Trump administration secured a secret supply of execution drugs"

From USA Today, "Re-opening federal death chamber: Victim opposition, pandemic threaten first execution in 17 years"

Texas completes second US execution in COVID era of a defendant who committed murder at age 18

As reported in this local article, "Texas executed Billy Joe Wardlow on Wednesday night for a 1993 East Texas robbery and murder. It was the state's first execution since the coronavirus swept through the state."  Here is more:

In late appeals, Wardlow's lawyers argued that his death should be stopped because of the dangers presented by the rising pandemic and his young age at the the time of the crime. Neuroscientists and a group of Texas lawmakers also raised concerns with sentencing people who had committed crimes under 21 to death because of brain immaturity.  All of Wardlow's appeals were denied by the U.S. Supreme Court just after 6 p.m., the scheduled time of execution.

After 25 years on death row, Wardlow, aided by neuroscientists, asked the U.S. Supreme Court to rule that at 18, he was too young to face Texas’ death penalty. Nearly 60 Texas lawmakers also informed the Texas Board of Pardons and Paroles, which could recommend a delay to the execution, that they plan to take up the issue of age and the death penalty in the 2021 Legislature.  But on Monday, the board voted against halting the execution until then....

Since 2005, the Supreme Court has held that death sentences are unconstitutional for those 17 or younger at the time of the crime because of their vulnerability, comparative lack of control and still-undefined identity.  Some state and lower federal courts have questioned in recent years whether the upper limit of 18 is too young as new science emerges that shows the brains of people ages 18 to 20 are “functionally indistinguishable” from those of 17-year-olds in terms of moral culpability, according to Wardlow’s brief.

In a plea to stop his execution and invalidate his death sentence, Wardlow asked the high court to rule that the death penalty is unconstitutional for those under 21 — but just in Texas. That’s because a Texas death sentence requires a jury to unanimously agree that a person convicted of capital murder would likely be a future danger to society — a decision Wardlow’s attorney and a group of brain researchers said is impossible to make for an 18-year-old....

Before Wednesday, Texas had not held an execution since the pandemic took hold of the state in March — a long stretch for the state that carries out the most executions by far. The Court of Criminal Appeals halted four scheduled executions from March to May "in light of the current health crisis and the enormous resources needed to address that emergency."...

Texas executions are held at the Huntsville Unit in Huntsville, a prison that on Wednesday reported active infections among inmates and staff in a city that has seen a high surge of cases, largely due to the fact that it has seven prisons and many prison employees. Wardlow’s attorneys argued that holding an execution was still too dangerous, potentially exposing to the virus employees who have to attend the execution, witnesses and the community.

Wardlow was the third person to be executed in Texas this year and the second in the country since the coronavirus swept the nation.

Death Penalty Information Center releases "Mid-Year Review" detailing "Record-Low Death Penalty Use in First Half of 2020"

I just saw that the Death Penalty Information Center published here just before the holiday weekend a short report titled "DPIC MID-YEAR REVIEW: Pandemic and Continuing Historic Decline Produce Record-Low Death Penalty Use in First Half of 2020."  Here are some highlights:

Introduction

The combination of the effects of the coronavirus pandemic and the continuing broad national decline in the use of capital punishment produced historically low numbers of new death sentences and executions in the first half of 2020.

Even before the pandemic, the U.S. was poised for its sixth consecutive year with 50 or fewer new death sentences and 30 or fewer executions.  At the midpoint of 2020, there had been 13 new death sentences, imposed in seven states, and six executions carried out by five historically high-execution states. Florida (4), California (3), and Texas had imposed multiple new death sentences, but only Texas (with 2) had carried out more than one execution....

First-Half 2020 Death Sentences

2016 through 2019 produced four of the five lowest death-sentencing years in the U.S. since the Supreme Court struck down existing death-penalty statutes in Furman v. Georgia in 1972.  With new death sentences already near historic lows and most capital trials and sentencings now suspended or delayed, 2020 is expected to produce the fewest death sentences of any year in the modern history of the U.S. death penalty....

Only two death sentences have been imposed since the pandemic began shutting down courts in mid-March.  Neither of those sentences — a trial before a three-judge panel in Ohio and a California trial court’s acceptance of a jury verdict issued in January — involved new jury action, nor did the last sentences imposed prior to the pandemic.

The last death sentences imposed before the widespread court closures were handed down by a Florida trial judge on March 13, who sentenced Jesse Bell and Barry Noetzel to death after they pled guilty and were permitted to waive their rights to counsel and a jury sentencing.  The next new death sentence came on May 18, when an Ohio three-judge panel sentenced Joel Drain to death. Drain had waived his right to a jury trial and sentence, presented no guilt defense and refused to present mitigating evidence in the penalty-phase of his trial.  The 66 days between those two death sentences was the longest the United States had gone without a new death sentence since 1973....

First-Half 2020 Executions

Midway through 2020, it appears that U.S. states are likely to carry out fewer executions than in any year since 1991, when there were 14 executions.  Of the 54 executions dates set for 2020, six executions have been carried out, with nine scheduled executions still pending.  The few jurisdictions that are attempting to carry out executions are outliers in both their criminal justice and public health policies, prioritizing immediately executing prisoners over public health and safety concerns and fair judicial process.  Eight executions have been stayed or rescheduled as a result of the COVID-19 pandemic.

I am always grateful for how DPIC assembles and reports essential capital punishment data, but I find it notable that this report does not discuss  that the federal government may be poised to resume executions in the second half of 2020 thanks to key decisions by the DC Circuit and SCOTUS in the first half of 2020.  Though I doubt that the resumption of federal executions will dramatically impact the declining fate of the death penalty throughout the US, I do think the pending federal executions could prove to be one of the biggest death penalty stories of 2020 (and could even become a presidential campaign issue in the coming months).  It seems worth a mention.

The new death penalty: COVID now a leading modern killer of California inmates on death row

As reported in this local article, headlined "Fifth San Quentin Death Row Inmate Dies During Prison COVID-19 Outbreak," the global pandemic is hitting California's death row hard these days. Here are the details:

While California has not executed a death row inmate since 2006, an out-of-control COVID-19 outbreak at San Quentin State Prison may have contributed to the death of a fifth condemned inmate on Saturday.

To date, more than 1,300 prisoners and 120 staff members have tested positive for COVID-19 at the state prison in Marin County. Among those who have fallen victims to the deadly illness have been San Quentin’s aging population on death row.

On Saturday, Dewayne Michael Carey, 59, died at an outside hospital from what appear to be complications related to COVID-19. An exact cause of death has not yet been determined. Carey was committed to CDCR on Dec. 16, 1996 as a condemned inmate from Los Angeles County for first-degree, special-circumstances murder. He was convicted of killing Ernestine Campbell in her Harbor City home. Her hands were tied to a staircase handrail and she had been stabbed to death....

On Friday, the California Department of Corrections and Rehabilitation identified two inmates who died while being treated for COVID-19 infections as Scott Thomas Erskine, 57, and Manuel Machado Alvarez, 59. Both died while being treated at San Francisco Bay Area hospitals. Erskine had been on death row since 2004 for the murder of two young boys in San Diego, while Machado had been on death row since 1989 for a string of crimes in Sacramento including rape and murder.

There have been two other deaths of condemned inmates deaths amid an exploding number of coronavirus cases at the prison. Richard Stitely, 71, was found unresponsive in his cell last week on June 29 and was confirmed Monday to have tested positive for COVID-19. He was sentenced for the 1990 rape and murder of a 47-year-old woman in Los Angeles County.

Joseph S. Cordova, 75, was found dead in his cell on July 1. He had been sentenced to death for the rape and murder of an eight-year-old girl in San Pablo....

“The prison was built in 1852. It’s the oldest prison in the state and it’s got old grill cells, they’re not closed doors,” said Assemblyman Marc Levine. Levine says the style of the prison cells allowed the disease to spread like wildfire. He has been a strong critic of the botched handling of the pandemic....

The CDCR said there are currently 722 people on California’s death row. While California doesn’t currently have a way to carry out capital punishment, inmates still continue to be sentenced to death. Last year, Gov. Gavin Newsom declared a moratorium on it shortly after taking office and the death chamber at San Quentin was dismantled. The state has executed only 13 murderers since 1978, the last in 2006.

As this article highlights, nobody has been executed in California in nearly 15 years. And, as this Wikipedia page details, only five condemned California inmates have been executed by the state over the last two decades. As I have noted in prior posts (some linked below), COVID has been killing many more total prisoners in the US than has capital punishment. And now in California, COVID is even killing more death row prisoners that the state is likely to execute anytime soon, perhaps ever.

Prior related posts:

• The new death penalty: COVID has now killed more US prisoners in weeks than the US death penalty has in over a decade 
• The new death penalty: COVID has now killed more than 500 US prisoners and prison staff according to UCLA Law data 

Spotlighting our unique times as feds seek to resume execution this month

The New York Times has this article detailing that the first planned executions in nearly two decades are coming at quite a time. The piece is fully headlined "Federal Executions to Resume Amid a Pandemic and Protests: The administration is pressing ahead with the first federal execution in 17 years as demonstrators seek changes to the criminal justice system and lawyers have trouble visiting death-row clients."  Here are excerpts (with one line emphasized for commentary):

Daniel Lewis Lee is scheduled to be executed in less than two weeks, but he has been unable to see his lawyers for three months because of the coronavirus pandemic.

Mr. Lee, sentenced to death for his involvement in the 1996 murder of a married couple and their 8-year-old daughter, has been limited to phone calls, which one of his lawyers, Ruth Friedman, said she feared would jeopardize her client’s confidentiality.  And amid a global pandemic that has put travel on hold, her team has been unable to discuss pressing issues with Mr. Lee, conduct investigations, or interview witnesses in person.  “I can’t do my job right. Nobody can,” Ms. Friedman said from her apartment 600 miles away, in Washington, D.C., where she is working to commute Mr. Lee’s sentence to life in prison.

If she is unsuccessful, Mr. Lee, 47, will be the first federal death row inmate to be executed in 17 years.  Last year, Attorney General William P. Barr announced that the Justice Department would resume executions of federal inmates sentenced to death.  Two weeks ago, Mr. Barr scheduled the first four executions for this summer, all of men convicted of murdering children, and to be carried out at the federal penitentiary in Terre Haute, Ind.  On Monday, the Supreme Court cleared the way for the federal executions to proceed, rejecting arguments against the use of a single drug to carry out the sentence by lethal injection.

As the pandemic worsened, many states, including Texas and Tennessee, postponed scheduled executions of prisoners sentenced under state law. Since the pandemic began, there has been only one execution at a state prison, in Bonne Terre, Mo. The state capital trial in Florida for Nikolas Cruz, the gunman who killed 17 at Marjory Stoneman Douglas High School in 2018, was delayed indefinitely. Courthouses closed or moved to remote operations to accommodate social distancing....

In announcing the schedule for this summer’s federal executions, Mr. Barr said the death penalty was the will of the American people as expressed through Congress and presidents of both parties, and that the four men scheduled to die “have received full and fair proceedings under our Constitution and laws.”

The summer’s scheduled executions mesh with President Trump’s increasing election year efforts to cast himself as a “law and order” leader even as his administration faces mounting criticism for its response to protests over systemic racism in the policing system and a deadly pandemic.

Mr. Lee, who is scheduled to be put to death on July 13, was a white supremacist who has since disavowed his ties to that movement. The Trump campaign has seized on the political ramifications of Mr. Lee’s planned execution, criticizing the president’s presumptive Democratic opponent, former Vice President Joseph R. Biden Jr., for reversing his earlier support for the death penalty “even for white supremacist murderers!”

Though Mr. Biden now opposes capital punishment, he played a central role as a senator in the passage of the 1994 crime bill that expanded the use of the federal death penalty.  Mr. Trump has repeatedly attacked Mr. Biden for his record on criminal justice issues.

Mr. Biden and Mr. Trump are far from the first presidential candidates to spar over the death penalty as a political tactic. In 1992, then-Gov. Bill Clinton denounced President George Bush for his inaction on crime.  To affirm his support for the death penalty, he flew home to Arkansas in the midst of campaigning to personally see to the execution of a man who had been convicted of murdering a police officer.

But today’s candidates are vying for the White House amid nationwide protests over racism in the criminal justice system. Black people make up 42 percent of those on death row, both among federal inmates and over all, compared to 13 percent of the general population.

Though the four inmates scheduled to be executed this summer are white, critics of the death penalty warned that resumption of federal executions would only exacerbate the policy’s discrimination against people of color. “It would be nice if they used those resources to address the widespread problem of police violence against Black people,” said Samuel Spital, director of litigation at the N.A.A.C.P. Legal Defense & Educational Fund. Mr. Spital also questioned why the Justice Department did not use those resources allocated to resume federal executions to protect prisons from the coronavirus.

Imposing the death penalty amid the pandemic holds risks for those carrying out the execution: Doing so may require dozens of individuals, including corrections officers, victims and journalists, to come in close contact. The Bureau of Prisons directed that face masks would be required for all individuals throughout the entire procedure, with violators asked to leave the premises. Social distancing will be practiced “to the extent practical,” but the bureau conceded that limited capacity of the media witness room might preclude their ability to maintain a six-foot distance between observers....

Several family members of Mr. Lee’s victims, his trial's lead prosecutor, and the trial judge have all publicly opposed Mr. Lee’s execution. His co-defendant, described as “the ringleader” by the judge, was given a life sentence without parole.

In a statement, Mr. Barr maintained that the decision to reinstate federal capital punishment was owed “to the victims of these horrific crimes, and to the families left behind.” But Monica Veillette, who lost her aunt and cousin to Mr. Lee’s crimes, does not believe that this execution is for her family. She has asthma, and both her grandmother and parents are older. If they travel to Indiana for the execution from Washington State and Arkansas, each of them could be put at risk of contracting the virus. “If they owe us anything, it’s to keep us safe now by not pushing this execution through while people are still scrambling to access disinfectant spray and proper masks,” she said. “Haven’t enough people died?”

I have emphasized the fact that all of the defendants selected for execution dates by AG Barr are white because I suspect they were chosen to be the first ones to be executed, at least in part, because of their race. If I am right in this suspicion, I think AG Barr acted unconstitutionally. I am not sure if these defendants are pursuing an equal protection claim on this ground, but I sure think they should.

Is it a death penalty success or failure when worst-of-the-worst plead guilty to avoid capital trial?

The question in the title of this post is prompted by this AP story out of California headlined "Accused ‘Golden State Killer’ admits murders, will avoid death penalty."  Here are the basics:

A former police officer who terrorized California as a serial burglar and rapist and went on to kill more than a dozen people while evading capture for decades pleaded guilty Monday to murders attributed to a criminal dubbed the Golden State Killer.

Joseph James DeAngelo Jr. had remained almost silent in court since his 2018 arrest until he uttered the word “guilty” in a hushed and raspy voice multiple times in a plea agreement that will spare him the death penalty for a life sentence with no chance of parole.

DeAngelo, 74, has never publicly acknowledged the killings, but offered up a confession of sorts after his arrest that cryptically referred to an inner personality named “Jerry” that had apparently forced him to commit the wave of crimes that ended abruptly in 1986. “I did all that,” DeAngelo said to himself while alone in a police interrogation room after his arrest in April 2018, Sacramento County prosecutor Thien Ho said....

DeAngelo, seated in a wheelchair on a makeshift stage in a university ballroom that could accommodate hundreds of observers a safe distance apart during the coronavirus pandemic, acknowledged he would plead guilty to 13 counts of murder and dozens of rapes that are too old to prosecute. “The scope of Joseph DeAngelo’s crimes is simply staggering,” Ho said. ”Each time he escaped, slipping away silently into the night.”...

DeAngelo, a Vietnam veteran and a grandfather, had never been on the radar of investigators who spent years trying to track down the culprit. It wasn’t until after the crimes ended that investigators connected a series of assaults in central and Northern California to slayings in Southern California and settled on the umbrella Golden State Killer nickname for the mysterious assailant.

DeAngelo was caught after police used DNA from crime scenes to find a distant relative through a popular genealogy website database and then built a family tree that eventually led them to him. They then tailed DeAngelo and were able to secretly collect DNA from his car door and a discarded tissue to get an arrest warrant....

He tied up husbands and boyfriends and told them he’d kill them if they made a sound while he assaulted the women. Eventually he slipped off into the dark on foot or by bicycle and even managed to evade police who at times believed they came close to catching him. DeAngelo knew the territory well. He had started on the police force in the San Joaquin Valley farm town of Exeter in 1973, where he is believed to have committed his first burglaries and first killing....

Victims’ family members were anxious about what to expect before the court hearing began. “I’ve been on pins and needles because I just don’t like that our lives are tied to him, again,” said Jennifer Carole, the daughter of Lyman Smith, a lawyer who was slain in 1980 at age 43 in Ventura County. His wife, 33-year-old Charlene Smith, was also raped and killed.

A guilty plea and life sentence avoids a trial or even the planned weeks-long preliminary hearing. The victims expect to confront him at his sentencing in August, where it’s expected to take several days to tell DeAngelo and Sacramento County Superior Court Judge Michael Bowman what they have suffered. Gay and Bob Hardwick were among the survivors looking forward to DeAngelo admitting to their 1978 assault.

The death penalty was never realistic anyway, Gay Hardwick said, given DeAngelo’s age and Gov. Gavin Newsom’s moratorium on executions. “He certainly does deserve to die, in my view, so I am seeing that he is trading the death penalty for death in prison,” she said. “It will be good to put the thing to rest. I think he will never serve the sentence that we have served — we’ve served the sentence for 42 years.”

A person who murdered more than a dozen and raped many more would certainly seem to qualify as one of the "worst-of-the-worst" offenders that are often said to be those for whom the death penalty is reserved. But DeAngelo is not getting the ultimately penalty of death, so this case is arguably a story of death penalty failure.  And yet, without the death penalty as a (remote) possibility, DeAngelo would have arguably had no reason to plead guilty and spare victims the pain of a trial and other court proceedings. And so maybe this case is still a story of death penalty success.

SCOTUS denies, by 7-2 vote, cert petition from federal death row defendants challenging federal execution protocol

As reported in this AP article, the "Supreme Court on Monday refused to block the execution of four federal prison inmates who are scheduled to be put to death in July and August."  Here is more:

The justices rejected an appeal from four inmates who were convicted of killing children.  Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that they would have blocked the executions from going forward.

The court's action leaves no obstacles standing in the way of the executions, the first of which is scheduled for July 13. The inmates are separately asking a federal judge in Washington to impose a new delay on their executions over other legal issues that have yet to be resolved.

The activity at the high court came after Attorney General William Barr directed the federal Bureau of Prisons to schedule the executions. Three of the men had been scheduled to be put to death when Barr first announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain....

The federal government’s initial effort was put on hold by a trial judge after the inmates challenged the new execution procedures, and the federal appeals court in Washington and the Supreme Court both declined to step in late last year. But in April, the appeals court threw out the judge’s order. The federal prison in Indiana where the executions would take place, USP Terre Haute, has struggled to combat the coronavirus pandemic behind bars. One inmate there has died from COVID-19.

The inmates scheduled for execution are: Danny Lee, who was convicted in Arkansas of killing a family of three, including an 8-year-old; Wesley Ira Purkey, of Kansas, who raped and murdered a 16-year-old girl and killed an 80-year-old woman; Dustin Lee Honken, who killed five people in Iowa, including two children; and Keith Dwayne Nelson, who kidnapped a 10-year-old girl who was rollerblading in front of her Kansas home and raped her in a forest behind a church before strangling the young girl with a wire.

Three of the executions — for Lee, Purkley and Honken — are scheduled days apart beginning July 13. Nelson’s execution is scheduled for Aug. 28. The Justice Department said additional executions will be set at a later date. Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

The Supreme Court's decision here does not guarantee that federal executions will go forward in two weeks, but it does guarantee there will be lots and lots of litigation in those two weeks as defense attorneys press other legal claims and federal prosecutors respond. The fact that the cert vote here was 7-2 could be viewed in various ways as a forecast of how the Justices might approach other issues surely to be brought before them by these defendants with pending execution dates. But I have come to assume that there are now five pretty solid SCOTUS votes to allow capital punishment administration to move forward, so there would seem to be a pretty solid chance the federal government will be getting back to executions shortly.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?
• DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 
• SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions
• Dispute over legality of new federal execution protocol up for argument in DC Circuit 
• So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions
• Split DC Circuit panel (after taking twice as long as Justice Alito urged) vacates preliminary injunction blocking resumption of federal executions 
• Justice Department announces the scheduling of four new federal execution dates

Sixth Circuit panel rejects Romell Broom's constitutional arguments that Ohio cannot try again to execute him after botched first attempt

I somehow missed that last week a Sixth Circuit panel handed down a notable unanimous ruling on a novel (and disconcerting) issues of capital punishment administration . Even long-time readers may have forgotten about the case of Romell Broon, but the start of the Sixth Circuit ruling in Broom v. Shoop, No. 19-3356 (6th Cir. June 23, 2020) (available here), provides the still-remarkable essentials:

In an infamous September 2009 incident, the state of Ohio tried to execute death-row inmate Rommel Broom, and failed.  More specifically, the state tried to execute Broom by way of lethal injection, but was forced to abandon the effort when the execution team concluded — two hours into the process — that it could not maintain a viable IV connection to Broom’s veins.  The state then returned Broom to his cell, to await a second execution attempt on another day.  That second execution attempt has not yet happened, however, because the parties have spent the last eleven years litigating whether the U.S. Constitution bars Ohio from ever trying to execute Broom again — Broom relies on both the Eighth Amendment’s prohibition on “cruel and unusual” punishment and the Fifth Amendment’s prohibition on “double jeopardy.”  The state courts, including the Ohio Supreme Court, have rejected Broom’s contentions on the merits, as did the district court below on habeas review.  Broom’s case now comes before us.

We in no way condone Ohio’s treatment of Broom; that it took two hours of stabbing and prodding for the state to realize that it could not maintain a viable IV connection to Broom’s veins is disturbing, to say the least.  But because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) permits us to reverse state court merits decisions in only a narrow set of circumstances, and because the Ohio Supreme Court’s decision rejecting Broom’s constitutional claims on the merits does not fall within that set of circumstances here, we AFFIRM the district court’s judgment denying Broom habeas relief.

Ohio has not executed anyone in two years due in part to litigation and uncertainty over execution protocols, and Broom recently had his 2020 execution date pushed back to March 2022.  I could discuss at great length not only why this case is so jurisprudentially interesting, but I continue to fear that SCOTUS will not be inclined to take up this case.  And for those interested in more coverage of all the facts and law, here are posts on the case going back more than a decade now:

• Ohio struggling, legally and practically, with effort to execute offender (Sept 2009)
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions (Sept 2009)
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again? (Sept 2009)
• Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details) (Sept 2009)
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months (Sept 2009)
• Ohio finally gets its execution protocol in order (and praised) (Nov 2012)
• "Does failed execution attempt mean Ohio prisoner can avoid death penalty?" (June 2015)
• Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt (March 2016)
• "How many times should a state be able to try to execute someone without running afoul of the Constitution?" (March 2016)
• Should and will SCOTUS take up Romell Broom's constitutional claim that Ohio cannot try again to execute him after botched first attempt? (Nov 2016)
• With only two dissenters, SCOTUS refuses to hear Ohio death row defendant's arguments against a second execution attempt (Dec 2016)
• Ohio legislators predict more talk, but no likely action, on state's dormant death penalty (Feb 2020)

SCOTUS stays Texas execution based seemingly on clergy claim

As reported in this AP article, the "Supreme Court granted a reprieve Tuesday to a Texas inmate scheduled to die for fatally stabbing an 85-year-old woman more than two decades ago, continuing a more than four-month delay of executions in the nation’s busiest death penalty state during the coronavirus pandemic." Here are the details:

The justices blocked Ruben Gutierrez’s execution about an hour before he could have been executed. Gutierrez’s attorneys had argued his religious rights are being violated because the prison system won’t allow a chaplain to accompany him in the death chamber.

The Texas prison system last year banned clergy from the death chamber following a Supreme Court ruling that halted the execution of another inmate, Patrick Murphy, who had requested a Buddhist adviser be allowed in the chamber. In response to the ruling in Murphy’s case, the Texas prison system changed its policy, only allowing prison security staff into the execution chamber.

“As a devout Catholic, Mr. Gutierrez’s faith requires the assistance of clergy to help him pass from life into afterlife. The Texas Department of Criminal Justice changed its policy for its own convenience, but spiritual comfort at the time of death is not a convenience; it’s a protected legal right,” Shawn Nolan, one of Mr. Gutierrez’s attorneys, said after the stay was granted.

The Supreme Court said it granted the stay pending a ruling by the high court on Gutierrez’s petition on the issue of whether to allow a spiritual adviser to accompany him in the death chamber. A decision on the petition was expected at a later date....

If Gutierrez’s execution had been carried out, he would have been the first inmate in Texas to receive a lethal injection since Feb. 6 and the second U.S. inmate to be put to death since states began to reopen after the pandemic shut down much of the U.S. After the country began to reopen, Missouri resumed executions on May 19.

Six executions scheduled in Texas for earlier this year were postponed by an appeals court or judges because of the outbreak. A seventh was delayed over claims of intellectual disability. Gutierrez’s attorneys had also sought a coronavirus-related delay but were turned down Friday by the Texas Court of Criminal Appeals....

The Texas Catholic Conference of Bishops filed a brief with the high court in support of Gutierrez. “To deny a prisoner facing imminent execution access to spiritual and religious guidance and accompaniment is cruel and inhuman,” said Bishop Daniel Flores of Brownsville....

Gutierrez would have been the third inmate put to death this year in Texas and the seventh in the U.S.

The Supreme Court's stay order is available at this link, and here is its text in full:

The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically.  In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.  The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.

Justice Department announces the scheduling of four new federal execution dates

As detailed in this DOJ press release, titled "Executions Scheduled for Four Federal Inmates Convicted of Murdering Children," new federal executions dates have been set for four murderers.  Here are the details:

Attorney General William P. Barr today directed the Federal Bureau of Prisons (BOP) to schedule the executions of four federal death-row inmates who were convicted of murdering children in violation of federal law and who, in two cases, raped the children they murdered. 

In July 2019, Attorney General Barr directed the BOP to revise the Federal Execution Protocol to provide for the use of a single-drug, pentobarbital — similar to protocols used in hundreds of state executions and repeatedly upheld by federal courts, including the Supreme Court, as consistent with the Eighth Amendment.  A district court’s preliminary injunction prevented BOP from carrying out executions under the revised protocol, but the U.S. Court of Appeals for the D.C. Circuit vacated that injunction — clearing the way for the federal government to resume capital punishment after a nearly two-decade hiatus....

In accordance with 28 C.F.R. Part 26, the BOP has scheduled executions for the following death-sentenced inmates:

• Daniel Lewis Lee, a member of a white supremacist group, murdered a family of three, including an eight-year-old girl.  After robbing and shooting the victims with a stun gun, Lee covered their heads with plastic bags, sealed the bags with duct tape, weighed down each victim with rocks, and threw the family of three into the Illinois bayou.  On May 4, 1999, a jury in the U.S. District Court for the Eastern District of Arkansas found Lee guilty of numerous offenses, including three counts of murder in aid of racketeering, and he was sentenced to death.  Lee’s execution is scheduled to occur on July 13, 2020.
• Wesley Ira Purkey violently raped and murdered a 16-year-old girl, and then dismembered, burned, and dumped the young girl’s body in a septic pond. He also was convicted in state court for using a claw hammer to bludgeon to death an 80-year-old woman who suffered from polio and walked with a cane.  On November 5, 2003, a jury in the U.S. District Court for the Western District of Missouri found Purkey guilty of kidnapping a child resulting in the child’s death, and he was sentenced to death.  Purkey’s execution is scheduled to occur on July 15, 2020.
• Dustin Lee Honken shot and killed five people — two men who planned to testify against him, and a single, working mother and her ten-year-old and six-year-old daughters. On October 14, 2004, a jury in the U.S. District Court for the Northern District of Iowa found Honken guilty of numerous offenses, including five counts of murder during the course of a continuing criminal enterprise, and he was sentenced to death.  Honken’s execution is scheduled to occur on July 17, 2020.
• Keith Dwayne Nelson kidnapped a 10-year-old girl rollerblading in front of her home, and in a forest behind a church, raped her and strangled her to death with a wire. On October 25, 2001, Nelson pled guilty in the U.S. District Court for the Western District of Missouri to the kidnapping and unlawful interstate transportation of a child for the purpose of sexual abuse which resulted in death, and he was sentenced to death.  Nelson’s execution is scheduled to occur on August 28, 2020.

Each of these inmates has exhausted appellate and post-conviction remedies, and no legal impediments prevent their executions, which will take place at U.S. Penitentiary Terre Haute, Indiana.  Additional executions will be scheduled at a later date.

Notably, defendants Lee, Purkey and Honken were on the list of the initial five persons slated to be executed back in July 2019 (details here).  I assume that partially explains why their execution dates are all set for the same week a month from now while the new addition, Nelson, gets an extra month before his execution date.

Of course, there is on-going litigation before the Supreme Court about the lawfulness of the DOJ's execution method (basics here).  I figure that part of the point of these new execution dates is to ensure this litigation moves forward expeditiously.  I speculated in this post that the SCOTUS litigation could delay federal executions until 2022, but the Barr Justice Department is clearly eager for a quicker timeline. 

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?
• DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 
• SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions
• Dispute over legality of new federal execution protocol up for argument in DC Circuit 
• So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions
• Split DC Circuit panel (after taking twice as long as Justice Alito urged) vacates preliminary injunction blocking resumption of federal executions 

By a vote of 6-3, SCOTUS finds deficient performance in Texas capital case and remands on prejudice issue

A dozen years ago, I wrote a full law review article to express my grumpiness about the felt reality that the Supreme Court often seems to care a whole lot more about cases involving persons sentenced to death than about just about any other criminal defendants.  That article is on my mind this morning upon seeing the 19-page per curiam decision that Supreme Court released in Andrus v. Texas, No. 18–9674 (S. Ct. June 15, 2020) (available here). 

The defendant in this case, Terence Andrus, killed two people in an attempted carjacking and was sentenced to death after his defense counsel plainly did a very lousy job developing mitigation on his behalf.  Here is the heart of the per curiam opinion's accounting of its ruling and rationale:

The Texas Court of Criminal Appeals rejected the trial court’s recommendation to grant habeas relief. In an unpublished per curiam order, the Court of Criminal Appeals concluded without elaboration that Andrus had “fail[ed] to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel’s deficient performance.” App. to Pet. for Cert. 7–8.  A concurring opinion reasoned that, even if counsel had provided deficient performance under Strickland, Andrus could not show that counsel’s deficient performance prejudiced him. Andrus petitioned for a writ of certiorari.  We grant the  petition, vacate the judgment of the Texas Court of Criminal Appeals, and remand for further proceedings not inconsistent with this opinion. The evidence makes clear that Andrus’ counsel provided constitutionally deficient performance under Strickland. But we remand so that the Court of Criminal Appeals may address the prejudice prong of Strickland in the first instance....

Here, the habeas record reveals that Andrus’ counsel fell short of his obligation in multiple ways: First, counsel performed almost no mitigation investigation, overlooking vast
tranches of mitigating evidence. Second, due to counsel’s failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering
the State’s aggravation case. Third, counsel failed adequately to investigate the State’s aggravating evidence, thereby forgoing critical opportunities to rebut the case in
aggravation. Taken together, those deficiencies effected an unconstitutional abnegation of prevailing professional norms.

I am always pleased to see the Supreme Court call out, and find constitutionally inadequate, any sort of lousy defense work (though I sure would like to see this done a lot more in NON-capital cases).  And I suppose I should also be pleased that Andrus will be a "good" SCOTUS precedent for inadequate defense Strickland claims in the future.  But Justice Alito's seven-page dissent (which was jointed by Justices Thomas and Gorsuch) has me convinced that this was ultimately a "bad" case because the defendant seems sure to lose on the prejudice issue upon remand to the Texas state courts. Here is how Justice Alito's dissent concludes:

In sum, the CCA assessed the issue of prejudice in light of more than the potentially mitigating evidence that the Court marshals for Andrus.  The CCA had before it strong aggravating evidence that Andrus wantonly killed two innocent victims and shot a third; that he committed other violent crimes; that he has a violent, dangerous, and unstable character; and that he is a threat to those he encounters.

The CCA has already held once that Andrus failed to establish prejudice.  I see no good reason why it should be required to revisit the issue.

"Should death-penalty juries learn about death penalty costs?"

The title of this post is the headline of this new AP article.  Here are excerpts: 

Debate over Utah’s death penalty is intensifying in 2nd District Court as attorneys prepare for the trial of an Ogden couple accused of starving and fatally abusing their 3-year-old daughter.  Prosecutors said earlier they will seek the death penalty against Miller Costello, 28, and Brenda Emile, 25, if they are convicted of aggravated murder in the July 6, 2017, death of Angelina Costello.

Over the past year, defense attorneys have filed several motions challenging the death penalty, including those asking that jurors be questioned about blood atonement and the comparative costs of execution versus life in prison.  They also have asked Judge Michael DiReda to strike the death penalty as “cruel and unusual punishment by practice and the consensus of the Utah citizenry” and because they contend the sentencing portion of the law unfairly shifts the burden of proof to defendants....

In a May 14 filing, county attorneys ... urged DiReda to reject the defense’s request to allow defense lawyers to quiz prospective jurors about death penalty costs.  “Questions of deterrence or cost in carrying out a capital sentence are for the Legislature, not for the jury considering a particular case,” the prosecution said.

Admitting evidence on death penalty costs “is akin to admitting evidence of the process of the death penalty, which has already been rejected by the Utah Supreme Court,” prosecutors said.  They added, “inviting the jury to determine whether the cost of the death penalty is worth it for a person that may be convicted of starving and physically abusing a three-year-old girl to death is very dangerous ground for the defendant.”

The defense had argued in its Jan. 21 filing that there’s ample evidence that imposing the death penalty far exceeds the cost of imposing a life sentence.  The Utah Commission on Criminal and Juvenile Justice published a study in 2018 determining that the average cost of an execution was at least $237,900 more than a decision of life in prison.  A more limited 2012 Utah study said the difference was as much as $1.6 million per case.

The defense noted that in the 2009-15 case of Weber County double-murder convict Jeremy Valdes, two dozen or more potential jurors said in their questionnaire that they would choose the death penalty over life in prison because they thought it would cost less to execute the defendant.

“Of course, that is not true,” the defense motion said.  “It is incumbent upon the court to ensure that the citizens who comprise the jury pool are well-informed. And those who would otherwise make good jurors should be educated as to the cost imposing the death penalty so they can be properly rehabilitated.”

I tend to be very supportive of sentencing decision-makers, whether judge or jurors, having as much relevant and accurate information as possible when making sentencing decisions. Especially if there is reason to fear that misinformation about costs may shape the work of capital sentencing jurors, I would strongly urge allowing then to have accurate information on this topic.

NC Supreme Court limits reach of repeal of state's Racial Justice Act in capital cases

Over a decade ago, North Carolina enacted a Racial Justice Act that allowed a capital defendant to seek relief on a claim that race was a significant factor in the decision to seek or impose the death penalty in his case. After nearly every person on North Carolina's death row made a claim under this statute, it was repealed by the legislature. Today the North Carolina Supreme Court in North Carolina v. Ramseur, No. 388A10 (N.C. June 5, 2020) (available here), limits the impact of this repeal. The majority opinion in this 6-1 ruling starts this way:

Defendant, Andrew Darrin Ramseur, was convicted of two counts of firstdegree murder and sentenced to death in 2010.  After his trial, defendant filed a motion seeking relief pursuant to the newly enacted North Carolina Racial Justice Act on the basis that race was a significant factor in the decision to seek or impose the death penalty in his case.  Before the trial court ruled on defendant’s motion, the General Assembly amended the Racial Justice Act in 2012 and then, in 2013, repealed the Racial Justice Act in its entirety. The trial court determined that this repeal rendered defendant’s pending motion void and therefore dismissed defendant’s Racial Justice Act claims.  Here we are asked to decide the constitutionality of the retroactive application of the repeal of the Racial Justice Act. For the reasons stated herein, we hold that applying the repeal retroactively violates the constitutional prohibition on ex post facto laws, and therefore we reverse the trial court.

The dissent by Justice Newby starts this way:

The narrow issue presented by this case is whether, as applied to defendant, legislation repealing the Racial Justice Act of 2009 (the RJA) constitutes an ex post facto law. The majority incorrectly answers this question in the affirmative.  The repeal plainly does not qualify as an ex post facto law because it left defendant in precisely the same legal situation as the one he occupied on 16 December 2007, when, according to a jury, he murdered Jennifer Lee Vincek and Jeffrey Robert Peck.  The repeal did not subject defendant to more serious or additional charges for past conduct, nor did it increase the punishment in effect on 16 December 2007.  When properly viewed, the General Assembly intended the RJA to provide a procedural mechanism by which a defendant could collaterally attack a capital sentence.  The General Assembly did not intend to make a substantive change to the death penalty sentencing law. As such, the General Assembly had the constitutional authority subsequently to amend it and repeal it.

Full issue Columbia Human Rights Law Review devoted to capital sentencing practices and problems

A helpful reader alerted me to the latest issue of the Columbia Human Rights Law Review, which has these nine terrific-looking article about the ugly realities of capital sentencing past and present.  Here are the titles and links:

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment by Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017) by Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row by Hannah L. Gorman and Margot Ravenscroft

Valuing Black Lives: A Case for Ending the Death Penalty by Alexis Hoag

Double Duty: The Amplified Role of Special Circumstances in California’s Capital Punishment System by Mona Lynch

A Systematic Lottery: The Texas Death Penalty, 1976 to 2016 by Scott Phillips and Trent Steidley

Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion by Steven F. Shatz, Glenn L. Pierce, and Michael L. Radelet

Hidalgo v. Arizona and Non-Narrowing Challenges by Sam Kamin and Justin Marceau

Restoring Empirical Evidence to the Pursuit of Evenhanded Capital Sentencing by Joseph J. Perkovich

Florida Supreme Court seemingly finds way avoid retroactive application of proper determination of who is exempt from execution under Atkins

As reported in this local article, headlined "Conservative Florida Supreme Court reverses itself again on death penalty legal issue," the top court in Florida authored this lengthy opinion which seems to permit the state to go forward with executing a person who would be exempt from execution under the Supreme Court's Atkins decision prohibiting the execution of the intellectually disabled. Here are the press details:

Harry Franklin Phillips, a convict who shot a Miami parole officer to death in 1982, was hoping to get his death sentence reversed by convincing the courts that he is intellectually disabled. But the Florida Supreme Court, backtracking on its own case decided only years ago, on Thursday ruled that Phillips isn’t ineligible, the court’s latest reversal in how sentences in major cases are meted out.

The court ruled that an earlier decision allowed for the broadening of who can be deemed intellectually disabled — generally someone with an IQ of 70 or less — does not apply “retroactively” to older cases such as Phillips’.  The court ruled 4-1. The only dissenter was Justice Jorge Labarga....

The decision in Phillips’ case drew immediate criticism from opponents of the death penalty, who say the Florida Supreme Court has yet again thumbed its nose at the legal concept of stare decisis, or making decisions drawing from legal precedents. “I am personally shocked at the Court’s audacity and frankly its meanness,” said defense lawyer Stephen Harper, of Florida International University’s Florida Center for Capital Representation. “So many people who were already granted relief by the Florida Supreme Court are now being deprived of that relief by the Florida Supreme Court. “And stare decisis has been abandoned, and this will have a much more devastating effect on the public’s trust in the judicial system.”

Two years ago, the Florida Supreme Court backtracked on allowing certain juveniles — who had been eligible for parole because their murder convictions were from decades ago — to get new sentencing hearings. In January, the Florida Supreme Court reversed itself in ruling that unanimous jury verdicts were not needed to mete out the death penalty, a ruling excoriated by opponents of capital punishment. Florida law, however, still require juries to be unanimous in handing down a death sentence.

In Hall v. Florida, 572 U.S. 701 (2014), the US Supreme Court said that the "old" rule that Florida had used to determine who was ineligible to be executed under Atkins was "invalid under the Constitution’s Cruel and Unusual Punishments Clause."  But now the Florida Supreme Court is saying the state does not have to apply the constitutionally proper Atikns rule to "old" cases decided before Hall.  That strikes me as wrong because Atkins is fundamentally a substantive constitutional rule and its proper application should be fully retroactive because it involves "prohibiting a certain category of punishment for a class of defendants because of their status." Montgomery v. Louisiana, 136 S. Ct. 718, 728-29 (2016).  If the Constitution demands a certain approach to determining the applicable "class of defendants" (which is what Hall says), I do not think a state can dodge its retroactive application.

This matter seems sure to end up in federal courts, and it will be interesting to see how it plays out in the years ahead. 

Missouri completes first US execution of COVID era ... with social distancing

As detailed in prior posts (linked below), Texas and a few other states have postponed more than a few executions as a result of the coronavirus pandemic.  But, as detailed in this local piece, headlined "State of Missouri executes Ozark, Mo. death row inmate for 1991 killing," the Show-Me State got its machinery of death up and running tonight.  Here are some of the details:

The state of Missouri executed an Ozark, Mo. death row inmate Tuesday night for fatally stabbing an 81-year-old woman nearly three decades ago, the first U.S. execution since the coronavirus pandemic took hold.  Walter Barton, 64, had long maintained he was innocent of killing Gladys Kuehler, and his case was tied up for years due to appeals, mistrials and two overturned convictions.  His fate was sealed when neither the courts nor Gov. Mike Parson intervened.

Barton breathed heavily five times after the lethal drug entered his body Tuesday evening, then suddenly stopped. In his final statement released prior to his execution, Barton said: "I, Walter "Arkie" Barton, am innocent and they are executing an innocent man!!" He died at 6:10 p.m.

Concerns related to the coronavirus caused several states to postpone or cancel executions over the past 2½ months. Until Tuesday, no one had been executed in the U.S. since Nathaniel Woods was put to death in Alabama on March 5. Ohio, Tennessee and Texas were among states calling off executions.  Texas delayed six executions due to the pandemic.

Barton's attorney, Fred Duchardt Jr., and attorneys for death row inmates in the other states argued that the pandemic prevented them from safely conducting thorough investigations for clemency petitions and last-minute appeals.  They said they were unable to secure records or conduct interviews due to closures.

Attorneys also expressed concerns about interacting with individuals and possibly being exposed to the virus, and they worried that the close proximity of witnesses and staff at executions could lead to spread of COVID-19, the disease caused by the coronavirus.

Barton was executed in Bonne Terre, Missouri, about 60 miles (97 kilometers) south of St. Louis, at a prison that has no confirmed cases of the virus.  Strict protocols were in place to protect workers and visitors from exposure to the coronavirus.

Everyone entering the prison had their temperatures checked.  Face coverings were required, and the prison provided masks for those who didn't have them. But several employees clocking in and out for the day, without masks, came into the same room used by media prior to and after the execution.  They remained more than six feet away from the lone reporter in the media room at the time.

Witnesses were divided into three rooms.  Those witnesses include an Associated Press reporter and other journalists and state witnesses, and people there to support Barton. No relatives or other supporters of the victim attended....

The last execution in Texas, the nation's busiest capital punishment state, was Feb. 6.  Seven executions that were scheduled since then have been delayed.  Six of the delays had some connection to the pandemic while the seventh was related to claims that a death row inmate is intellectually disabled.

The next execution in Texas is set for June 16.  Officials have instituted a process requiring witnesses to be be subject to the same screening required of prison employees before entering the facility, Texas Department of Criminal Justice spokesman Jeremy Desel said.  The screening involves questions based on potential exposure to the coronavirus and health inquiries.  Texas' death chamber is not a heavy traffic area and is isolated from all parts of the prison in Huntsville, and it is constantly cleaned, Desel said.

Some prior related capital COVID posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 
• "How Coronavirus is Disrupting the Death Penalty" 
• Yet another Texas execution postponed due to coronavirus
• As Ohio and Tennessee delay more executions, might "incremental reopening" in Texas lead to resumption of lethal injections? 
• Texas postpones a sixth execution due to coronavirus 
• Though delaying a number of executions, COVID-19 takes the life of death row prisoner in Arizona 
• Yet another Texas execution postponed, though purportedly not for COVID reasons 

Missouri seemingly on track to conduct first execution of COVID era

As detailed in prior posts (linked below), Texas and a few other states have postponed more than a few executions as a result of the coronavirus pandemic.  But, providing more evidence that many are quite eager to get back to business as usual, it seems Missouri is ready to get back to executions tomorrow.  This CBS news report, headlined "Appeals court clears way for Missouri execution despite new questions over evidence," provides these details on a case that is notable for more reasons than just the timing of the scheduled execution:

A federal appeals court has cleared the way for a Missouri death row inmate to be executed on Tuesday, despite questions raised about evidence used to convict him.  The Sunday decision by the 8th U.S. Circuit Court of Appeals vacated a 30-day stay of execution granted Friday to Walter Barton by a federal judge. 

Barton, 64, is now set to die by lethal injection for the 1991 killing of 81-year-old trailer park operator Gladys Kuehler. Kuehler was beaten, sexually assaulted and stabbed more than 50 times in Ozark, near Springfield.

The federal judge on Friday had decided the court needed more time to consider issues raised by Barton's attorneys, including new concerns about blood spatter evidence used to convict him.  Prosecutors appealed the judge's stay, and the 8th Circuit said it saw "no possibility of success" on Barton's claims, which it said presented no new evidence....

Barton's case has been tied up in court for years due to mistrials, appeals and two overturned convictions.  He was prosecuted five times between 1993 and 2006, and has always maintained his innocence.  The Missouri Supreme Court narrowly upheld his conviction in 2007, with multiple judges dissenting. One dissenting judge, Michael Wolff, wrote: "How could Barton have perpetrated the kind of violent, forceful attack that killed Ms. Kuehler and walked away quite unstained by the effort?"...

The American Bar Association has called on Republican Governor Mike Parson to issue an execution reprieve, citing the case's "troubling history" and "lingering doubts around guilt," and to commission an inquiry board to review Barton's conviction and sentence.  The ABA cited "unprecedented limitations on effective representation" due to the coronavirus pandemic.  In Barton's case, coronavirus restrictions have made it difficult for his attorneys to investigate the new evidence, the group wrote....

In a letter to Parson on Friday, The Innocence Project, the Midwest Innocence Project and the MacArthur Justice Center echoed the call for an independent inquiry board to review the case.  It said Barton's conviction "rests entirely upon evidence now known to be two of the leading causes of wrongful conviction: incentivized jailhouse informant testimony and blood spatter evidence, an infamously unreliable forensic 'science.'"...

The execution would be the first in the U.S. since March 5 and is scheduled despite concerns about the coronavirus that prompted other states to postpone lethal injections.

Some prior related capital COVID posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 
• "How Coronavirus is Disrupting the Death Penalty" 
• Yet another Texas execution postponed due to coronavirus
• As Ohio and Tennessee delay more executions, might "incremental reopening" in Texas lead to resumption of lethal injections? 
• Texas postpones a sixth execution due to coronavirus 
• Though delaying a number of executions, COVID-19 takes the life of death row prisoner in Arizona 
• Yet another Texas execution postponed, though purportedly not for COVID reasons 

Yet another Texas execution postponed, though purportedly not for COVID reasons

Texas had an execution scheduled for next Wednesday, but no longer as explained in this local article: "An East Texas man who asserts that he is intellectually disabled has won a reprieve from his execution scheduled for next week for a 2007 shootout that left two sheriff’s officers dead." Here is more:

Randall Wayne Mays was set to receive lethal injection May 13 for the shootings at his Henderson County home.  In an order issued Thursday, the Texas Court of Criminal Appeals issued an execution stay and remanded Mays’ case to the trial court in Henderson County for review of his intellectual-disability claim.

Mays’ attorneys say the 60-year-old suffers from delusions and thinks Texas wants to execute him over a renewable energy design he believes he created....  Mays had previously won reprieves in October and in 2015.

Six other executions scheduled in Texas for earlier this year have been postponed because of the novel coronavirus outbreak statewide.  Besides Mays' intellectual-disability claim, his attorneys had also asked the appeals court for an execution stay because of the pandemic. The appeals court did not address that request in its order.

The next execution in Texas is scheduled for June 16.

Though this reprieve was not based on the COVID pandemic, I wonder if the Texas Court of Criminal Appeals was just a little bit more willing to grant the defendant his requested relief because of the many challenges posed to courts and corrections officials these days. I suspect that, even when courts and litigants do not make express reference to COVID concerns, they still cannot help but look at all criminal justice issues through a somewhat different lens.

With Texas starting to open up, it will be especially interesting to see if the state's two scheduled excutions for mid June and early July go forward. And, in the meantime, Missouri has an execution schedule for May 19, and it seems that the state is seriously prepared to move forward (see, e.g., press reports from Mother Jones and the St. Louis Dispatch).

Some prior related capital COVID posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 
• "How Coronavirus is Disrupting the Death Penalty" 
• Yet another Texas execution postponed due to coronavirus
• As Ohio and Tennessee delay more executions, might "incremental reopening" in Texas lead to resumption of lethal injections? 
• Texas postpones a sixth execution due to coronavirus 
• Though delaying a number of executions, COVID-19 takes the life of death row prisoner in Arizona 

Though delaying a number of executions, COVID-19 takes the life of death row prisoner in Arizona

As reported in this Fox New piece, "Arizona inmate on death row for murder and kidnapping convictions died Thursday from the coronavirus, according to a report." Here is more:

Alfonso Salazar, 56, had been hospitalized since April 21. He was being housed at the Florence prison, located about 60 miles southeast of Phoenix. Dale Baich, a federal public defender whose office represented him in an appeal, called the prison's medical care "poor" and said it is the "subject of ongoing litigation."

Salazar was sentenced to death in 1988 after he, along with another man, were convicted of murdering 83-year-old Tucson resident, Sara Kaplan two years earlier. She was found beaten and strangled by a telephone cord, according to Phoenix's KJZZ radio station. They entered her home by prying open metal security bars from a window, the station added.

He's the first death row inmate in Arizona to die of coronavirus complications, and the third inmate in the state to die from the virus. At least seven other death row prisoners have tested positive for the coronavirus, Baich said.

One of the ill inmates said he and the others are being isolated in a dirty, cockroach-infested building. The Florence facility accounts for 35 of the 50 coronavirus cases in state prisons.

As detailed in this posts linked below, a few persons on death row are still alive because of the coronavirus as more than a half-dozen executions have been postponed nationwide. But this story from Arizona is the first report I have seen of a person on death row being among the prisoners to die because of COVID-19.

Some prior related capital COVID posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 
• "How Coronavirus is Disrupting the Death Penalty" 
• Yet another Texas execution postponed due to coronavirus
• As Ohio and Tennessee delay more executions, might "incremental reopening" in Texas lead to resumption of lethal injections? 
• Texas postpones a sixth execution due to coronavirus 

Texas postpones a sixth execution due to coronavirus

As reported in this new AP piece, a "sixth scheduled execution of a Texas death row inmate has been delayed following the coronavirus spread around the state."  Here is more:

Edward Lee Busby’s execution had been set for May 6, but it was stayed for 60 days by the Texas Court of Criminal Appeals on Monday.

Busby, 47, was condemned for the 2004 suffocation of a retired 77-year-old college professor abducted in Fort Worth and whose body was later recovered in Oklahoma.

While the appeals court didn’t mention COVID-19 in its order, Busby’s attorneys had argued the execution should be delayed because they and others, including judges and personnel who carry out the execution, could be put at risk for getting the virus if it proceeded.

Three other executions that had been scheduled this year were also delayed by the appeals court while two others were delayed by local judges.

The next execution scheduled in the Lone Star State is slated for May 13 according to this Death Penalty Information Center listing. Given that Texas is opening a lot of facilities by the end of this week, it will be interest to see if the state tries to get its machinery of death operational by the middle of May.

Some prior related capital COVID posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 
• "How Coronavirus is Disrupting the Death Penalty" 
• Might COVID-19 ultimately bring an end to the death penalty in the United States?
• Yet another Texas execution postponed due to coronavirus
• As Ohio and Tennessee delay more executions, might "incremental reopening" in Texas lead to resumption of lethal injections? 

As Ohio and Tennessee delay more executions, might "incremental reopening" in Texas lead to resumption of lethal injections?

The question in title of this post is prompted by news from three states this week:

From Ohio: "Gov. Mike DeWine delays 3 more Ohio executions amid drug shortage"

From Tennessee: "Tennessee Supreme Court delays upcoming execution, citing COVID-19"

From Texas: "Is Texas the first state to roll out a timeline to begin reopening?"

Here is an excerpt from the last of these pieces:

In Texas, Govt. Abbott directed retail stores to begin reopening April 24 and instead deliver products to customers’ cars and homes.  He also ordered state parks to reopen by Monday, directing residents to wear face coverings, keep a distance and stay in groups of five people or less.  And, beginning April 22 restrictions on elective medical procedures will be loosened.  Abbott said the process of reopening the state will happen gradually and will be guided by medical experts.

Instead of kicking off a full restart, the Texas governor announced that a group of medical and economic experts will guide him through a series of incremental steps aimed at slowly reopening the state’s economy.

This AP piece notes that the four executions which Texas had scheduled for March and April were delayed because of coronavirus concerns.  But this DPIC page indicates that Texas has four other executions scheduled for May through July, and the delayed executions were mostly put on hold for 60 days.  If the incremental steps to reopen Texas include restarting its death chamber, the state could have as many as eight executions before the end of the summer (and, if they did, Texas would waste to my speculation that the US could end up in 2020 with its lowest number of executions in nearly four decades).

For various reasons, I somewhat doubt that Texas will be able to get its machinery of death up and running fully in the coming months.  But when there is a will to execute, Texas often finds a way.  So the uncertain reopening of Lone Star lethal injection plans provides another unfolding story at the intersection of COVID and criminal justice.

Some prior related capital COVID posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 
• "How Coronavirus is Disrupting the Death Penalty" 
• Might COVID-19 ultimately bring an end to the death penalty in the United States?
• Yet another Texas execution postponed due to coronavirus

Does splintered nature of DC Circuit panel ruling suggest federal executions are now unlikely until at least 2022?

As reported in this post yesterday, a divided DC Circuit panel lifted an injunction on federal executions via this 88-page opinion in In Re: Federal Bureau Of Prisons’ Execution Protocol Cases, No. 19-5322 (DC Cir. April 7, 2020).  Over at Crime & Consequences, Kent Scheidegger here provides an effective summary of the three opinions from the three judges on the panel while noting that the "division on the panel clearly requires further review, and the court on its own motion stayed the issuance of its mandate to allow it."  In other words, the defendants subject to possible execution now have time and every good reason to ask the full DC Circuit and also SCOTUS to address just how federal executions must be conducted under existing statutory authority.

I cannot imagine any reason why defendants would not first seek en banc DC Circuit review.  I am not an expert in en banc procedures, but I do know just the process of just seeking such review and having it rejected can itself often take at least a few months.   In this case, given the issue and the split among the panel judges, I would guess the odds of a grant of en banc review are much higher than usual.  If such review is granted, I would be surprised to see a full opinion from the full DC Circuit until sometime in (early?) 2021.

Whatever the DC Circuit does and whenever it does it, an appeal to the US Supreme Court is a near certainty.  If the full DC Circuit takes up this case and provides a clear script for federal executions to go forward, I suppose it is possible that SCOTUS would not grant review.  But I think it quite likely, no matter what the DC Circuit does, that this matter will be considered on the merits by SCOTUS.  And, roughly speaking, it can often take up to 18 months or 2 years between a lower court's ruling and a disposition on the merits by the Supreme Court.  (The Fourth Amendment case of Kansas v. Glover decided by SCOTUS this week, for example, had been decided by the Kansas Supreme Court 21 months ago in July 2018.)

Of course, the Justice Department could urge for this matter to be litigated more quickly, and maybe could even ask immediately for SCOTUS review by claiming it could not operate an execution protocol effectively on the terms set out in the DC Circuit panel decision.  But, of course, the Justice Department has a lot on its plate these days; it hardly clear, practically or politically, that DOJ will want to press forward with any suggestion that this case involves priority matters at this time.  

Future litigation realities aside, there are other political/legal possibilities that might change this federal capital landscape and timeline.  Congress could alter the text of the statute that is the focal point of this legal battle.  But that seems unlikely when Congress is itself busy with more pressing matters, and a legislative change would itself likely engender just another type of litigation.  Perhaps more likely, as we are now less than seven months to a scheduled election, is a change in administration.  For the first time since 1988, it appears that the Democratic nominee for president will campaign as an opponent of capital punishment.  If a Democrat is in charge come 2021, it is possible (though not a certainty) that the Justice Department will not continue to seek conduct federal executions).

Long story short: though the death-row defendants lost a battle yesterday, the always lengthy capital litigation war is still a long way from final resolution.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?
• DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 
• SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions
• Dispute over legality of new federal execution protocol up for argument in DC Circuit 
• So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions
• Split DC Circuit panel (after taking twice as long as Justice Alito urged) vacates preliminary injunction blocking resumption of federal executions 

Split DC Circuit panel (after taking twice as long as Justice Alito urged) vacates preliminary injunction blocking resumption of federal executions

As regular readers may recall, Attorney General William Barr last July announced a new Federal Execution Protocol in order to enable the federal government to resume capital punishment after a nearly two decade lapse.  AG Barr set execution dates for five (mysteriously selected) federal murders starting in December 2019, which of course got lots of federal capital litigation going.

In late November 2019, as noted here, a federal district judge enjoined the scheduled federal executions based on the view that the planned execution protocol "exceeds statutory authority."  In short order, the DC Circuit and then SCOTUS refused to vacate that injunction, but SCOTUS on December 6 urged the DC Court of Appeals to render a full decision on the matter "with appropriate dispatch."  Justice Alito issued a statement, joined by Justices Gorsuch and Kavanaugh, said her could "see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days." 

We are now 123 days from when these matters were addressed by the Supreme Court on December 6, 2019, and we have also now experienced a global pandemic.  But the federal capital punishment train is still on the tracks, it seems, as today a divided DC Circuit panel handed down an 88-page opinion in In Re: Federal Bureau Of Prisons’ Execution Protocol Cases, No. 19-5322 (DC Cir. April 7, 2020) (available here).  Here is how the opinion gets going:

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge TATEL.

PER CURIAM: The Federal Death Penalty Act of 1994 (FDPA) requires federal executions to be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” 18 U.S.C. § 3596(a). It is common ground that this provision requires the federal government to adhere at least to a State’s choice among execution methods such as hanging, electrocution, or lethal injection. The district court held that the FDPA also requires the federal government to follow all the subsidiary details set forth in state execution protocols—such as, in the case of lethal injection, the method of inserting an intravenous catheter. On that basis, the court preliminarily enjoined four federal executions.

Each member of the panel takes a different view of what the FDPA requires. Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction.

I presume the federal death row defendants in this case will now seek en banc and/or SCOTUS review, so more litigation is much more certain than more executions in the federal system.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?
• DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 
• SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions
• Dispute over legality of new federal execution protocol up for argument in DC Circuit 
• So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions 

Yet another Texas execution postponed due to coronavirus

As reported in this new AP piece, headlined "4th Texas execution delayed in midst of virus outbreak," administration of the death penalty in the US continue to be halted amidst the coronavirus pandemic.  Here is more:

A fourth scheduled execution of a Texas death row inmate was delayed Monday because of the coronavirus spread around the state.  Billy Joe Wardlow’s execution was postponed from April 29 to July 8.

Wardlow, 45, was condemned for the June 1993 fatal shooting of 82-year-old Carl Cole during a robbery at his home in Cason, located about 130 miles (209 kilometers) east of Dallas....

The execution date was changed by state District Judge Angela Saucier of Titus County in East Texas.  While Saucier didn’t mention COVID-19 in her order, Morris County District Attorney Steve Cowan had requested the change citing the statewide disaster declaration due to the virus.  He also cited three other executions the Texas Court of Criminal Appeals delayed in March and earlier this month. Wardlow’s attorneys had requested the execution date instead be withdrawn, which would have resulted in a new date much later than July 8.

Some prior related capital COVID posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 
• "How Coronavirus is Disrupting the Death Penalty" 
• Might COVID-19 ultimately bring an end to the death penalty in the United States?

"How Coronavirus is Disrupting the Death Penalty"

The title of this post is the headline of this new Marshall Project piece highlighting some topics I have been tracking recently.  Here are excerpts:

With a signature from Gov. Jared Polis, Colorado on Monday became the 22nd state to abolish the death penalty. But the governor’s long-planned intervention comes at a moment when capital punishment is already at a standstill across the nation for a very different reason: coronavirus.

The growing global pandemic—reaching 163 countries and more than 15,000 deaths—has at least temporarily saved two condemned men from execution in Texas, with more delays sought elsewhere. The pandemic has also stopped trials in which the death penalty was being sought. It has even upended the process for defense attorneys to try to exonerate their clients facing capital punishment.

“Almost every aspect of legal representation is at a halt in the judicial system,” said Amanda Marzullo, a consultant with the Innocence Project. “People are effectively unable to prepare and investigate their cases.”...

Executions are frequently put on hold due to Supreme Court decisions and lethal injection drug shortages, but rarely do natural events play such a disruptive role. One example was in 2017, when Juan Castillo’s execution was delayed after Hurricane Harvey hit Texas. (He was executed the following year despite his long-standing claims of innocence.)

And more stays may be coming. Last week, lawyers for Oscar Smith asked the Tennessee Supreme Court to delay his June 4 execution. They said they plan to ask Gov. Bill Lee for clemency but cannot put together an application “without putting themselves and others at risk” of contracting the virus. Executions are also scheduled for May in Missouri and June in Ohio, although the latter state lacks lethal injection drugs. Several other defense lawyers told The Marshall Project they plan to ask for delays.

With trials halted around the country, the number of new death sentences will drop, at least temporarily. Even before Colorado’s governor signed the abolition bill, a judge in Adams County postponed the trial of Dreion Dearing, who was facing a death sentence for the murder of Deputy Heath Gumm in 2018. (Dearing can still face death despite the repeal due to the timing of his charges, according to the Denver Post.) Judge Mark Warner had previously been criticized by defense lawyers for pushing the trial forward and having 250 potential jurors gather at one time, even as other courts were closing down. In Texas, jury selection for a death penalty trial in San Antonio was halted for 30 days.

In Tarrant County, Texas, prosecutors agreed to postpone the trial of Reginald Kimbro, who faces a potential death sentence if he’s convicted of the rapes and murders of two young women in 2017. Kimbro’s lawyer Steve Gordon said many jurors were elderly, and witnesses were slated to travel from Arkansas....

The slowdown caused by the COVID-19 crisis is even affecting cases that would not go to trial for months. People who face a death sentence typically work with a defense investigator whose job is to gather information to sway the jury towards mercy. These specialists do most of their interviewing in person, because it allows them to gain sensitive information about mental health issues and trauma. “If you knock on somebody’s door during a pandemic, you’re creating more barriers to relationship-building,” said Elizabeth Vartkessian, who oversees investigations for the non-profit Advancing Real Change, Inc.

There is at least one notable exception to this slowdown, which will test how long the disruption may last. Last week, a judge in Corpus Christi, Texas, approved a request from the Nueces County District Attorney's office and set an execution date for John Ramirez, who was convicted of fatally stabbing a man during a 2004 robbery. Ramirez is scheduled to die on Sept. 9.

Prior recent related posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 
• Colorado death penalty repeal official, and Gov commutes three capital sentences as he signs repeal
• Might COVID-19 ultimately bring an end to the death penalty in the United States?  

Colorado death penalty repeal official, and Gov commutes three capital sentences as he signs repeal

As reported in this local article, "Gov. Jared Polis signed a bill Monday making Colorado the 22nd state to abolish the death penalty, and he also commuted the sentences of the three killers on death row."  Here is more:

They will instead serve life sentences without the possibility of parole, Polis said.  “The commutations of these despicable and guilty individuals are consistent with the abolition of the death penalty in the State of Colorado, and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the State of Colorado,” he said....

The historic end of executions in Colorado comes after about 36 hours of debate at the legislature this year and a push by Republicans to instead put the issue on the 2020 ballot. Proponents called the death penalty “cruel and unusual punishment.”  They said its use in cases is uneven, and the litigation surrounding it is not only costly to taxpayers but forces families to relive their loved ones’ killings. Only one person has been executed in the state since 1976....

Arapahoe District Attorney George Brauchler, however, called the signing a win for criminals.  “The decision to pass and sign the death penalty repeal bill should bring a smile to the faces of future serial killers, terrorists, cop killers, mass murderers, child killers, and those in prison who decide to kill again,” he wrote in a statement.  “We have also reduced the protections for witnesses to crime by lowering the bar for their murders.  Colorado’s pro-offender legislature and its current governor have signaled that those lives are worth more protection than those of their victims.

The newly signed bill specifies that the death penalty can’t be used in cases for crimes committed on or after July 1, and currently, at least one defendant in Adams County is facing trial in a case that could result in the death penalty.  Dreion Dearing is accused of killing Adams County Deputy Heath Gumm.  “For all intents and purposes, the death penalty in Colorado is now a thing of the past,” said Jim Castle, the attorney for Sir Mario Owens, one of three men on death row.

Robert Ray and Owens were convicted of fatally shooting Gregory Vann, 20, at a 2004 party in Lowry Park. Javad Marshall-Fields was wounded in the shooting, and he and his fiancee Vivian Wolfe were planning to testify about the shooting before Ray ordered that they be killed. Owens was convicted for their 2005 murders in Aurora. They were 22 years old.

The other man on death row was Nathan Dunlap who was convicted in 1993 of fatally shooting employees who were closing for the night at Chuck E. Cheese in Aurora. He killed Ben Grant, 17; Sylvia Crowell, 19; Colleen O’Connor, 17; and Margaret Kohlbert, 50.  Bobby Stephens survived.  Dunlap received a temporary reprieve from former Gov. John Hickenlooper in 2013.  The three black men went to the same high school in Denver at different times....

The issue of the repeal doesn’t follow strict party lines.  A handful of Democrats opposed the measure while a few Republicans backed it. “As the death penalty has been a failure in several aspects, I felt compelled to fight for its repeal,” said Colorado Sen. Jack Tate, a Centennial Republican and sponsor of the Colorado bill.  “I applaud the governor’s leadership in signing this bill and moving Colorado towards a system that produces justice for all.”...

Sen. Rhonda Fields, an Aurora Democrat, joined opponents against the bill because of the killing of her son, Marshall-Fields, and his fiancée Wolfe — their killers were two of three men on death row in the state. Similarly, Aurora Democrat Rep. Tom Sullivan fought against the bill.  His son, Alex, was killed in the Aurora theater shooting.

Relatedly, the one on-going capital trial in Colorado, which moved forward last week, has now wisely been put on hold due to COVID-19 concern.

Prior recent related posts:

• Colorado on the verge of abolishing the state's death penalty
• With death penalty repeal legislation, Colorado Gov contemplating commutations for three now on death row 

Might COVID-19 ultimately bring an end to the death penalty in the United States?

Upon seeing this new story, headlined "U.S. Coronavirus Lockdown to Last 10-12 Weeks, Top Trump Official Says," I am now thinking it may not be too early to start wondering if one echo effect of this global pandemic could be the functional or formal end to the death penalty in the United States.  Texas has already postponed two executions (links below), and that furthers my thinking that there is now a real possibility we might not end up having any more executions in 2020.  Moreover, I would be surprised if any new executions get scheduled for 2020 even if some existing executions dates stay in place later in the year.  Consequently, the US would seem to now be on pace for its lowest number of executions in nearly four decades.

Further, at this time of extraordinary uncertainty and disruption and social distancing, it is essentially impossible to conduct a fair and orderly capital trial.  As courts struggle to figure out how to keep functioning at all during this period, on-going capital trials should and likely will be suspended (and perhaps resolved via pleas).  New capital cases are unlikely to be brought, and I see now a real possibility that we might not end up having any more capital sentences imposed in 2020.  This DPIC fact sheet details that we had 34 death sentences in 2019; I will be surprised if we end up with more than 10 in 2020. 

We will get back to some form of normal before too long, I hope.  But the likely economic woes the country will be facing as we rebuild necessarily means we are going to need to be more efficient and effective in our use of limited government time and resources.  As those who work in capital systems know well, modern death penalty administration is the antithesis of efficient and effective use of government time and resources.  Whatever happens with the death penalty while we deal with COVID-19, I think there will be very strong arguments that this punishment is a kind of "legal luxury" that we really cannot and ought not invest resources in while we try to rebuild after COVID-19.

Prior related capital COVID posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 

Noticing potency of our culture of death as Denver capital trial moves forward amidst global pandemic

Those of a certain age can recall a time in which certain politicians regularly preached about the importance of promoting a "Culture of Life."  As one who follows closely the administration of the death penalty in the US,  I have long been inclined to derisively lament what I called a "culture of death" too often leading too many courts and other legal actors to devote, in my view, too much of their scarce resources to capital cases.  (I wrote a 2008 article on the topic focused particularly on the Supreme Court: "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'.")

These thoughts all came to mind today in these fraught times upon seeing this local article from Denver headlined "Court will not test potential jurors for coronavirus in Adams County death penalty case."  Here are the remarkable particulars:

A high-profile death penalty trial in the killing of an Adams County Sheriff’s deputy is going forward despite defense attorneys’ concerns for the health of their client, jurors and court personnel during the novel coronavirus pandemic.  Public defenders for Dreion Dearing, 24, argued in court filings that jury selection should not go on as scheduled Friday without screening and testing procedures for the virus in place for prospective jurors.

Dearing is accused of fatally shooting sheriff’s deputy Heath Gumm, 31, during a January 2018 chase.  He is charged with first-degree murder and faces the death penalty if convicted, despite the state legislature’s vote to repeal the death sentence in cases filed on or after July 1.  The bill has yet to be signed into law by Gov. Jared Polis.  The repeal would not apply to Dearing’s case even if Polis signs the bill, which he is expected to do.

Adams County District Court Judge Mark Warner denied the defense’s request for testing Thursday in part because the 17th Judicial District Court has already taken a variety of precautions, including cancelling most proceedings and ordering those who show symptoms or think they may have been exposed to COVID-19 not to come to the courthouse. Chief Judge Emily Anderson also ordered that people in the courthouse be allowed to wear masks and gloves and carry hand sanitizer.

“Based on the foregoing and the reasons set forth on the record on March 18, 2020, the Court will deny the Defendant’s requests concerning individual virus screening of prospective jurors,” Warner wrote in an order filed Thursday, adding that he would have court staff monitor jurors for potential infection and alert any prospective jurors who might have been exposed to the virus if such exposure is discovered. Jury selection will continue as planned on Friday, Warner wrote in his order. Already, jurors have been called to the courthouse in groups of 250 to complete questionnaires, and public defenders have raised concerns about the closeness of those prospective jurors and the possibility that the novel coronavirus is unknowingly spreading among the groups.

“We remain seriously concerned that the court has exposed, at this point, 1,700 people to a virus and we believe a doctor or medical professional needs to tell us how we can safely proceed,” Maureen Cain, director of legislative policy and external communications for the Colorado State Public Defender’s office, said Thursday.

The process to select the 18 jurors in the trial will begin in earnest Friday, despite a request from the district attorney’s office that the proceedings be moved to April 6, which the defense objected to. The trial is expected to last for weeks.

Despite the fact that the President's Coronavirus Guidelines urges all of us to avoid social gatherings "in groups of more than 10 people," it seems that trying to make sure a defendant can be condemned to death is thought so important that we have to bring together nearly 2000 prospective jurors in groups of 250.  What?!!?!?!?   

If this was going on in Texas (where, notably, two scheduled executions have been postponed as noted here and here), I suppose I could wrap my head around the eagerness for capital business as usual despite a global pandemic.  But as the article above highlights, death penalty repeal legislation was passes earlier this year in Colorado, which means it is extraordinarily unlikely the defendant here would get a death sentence or face execution even if convicted.  So, in the pursuit of a capital verdict that will not even be worth the paper it is written on, this court is prepared to expose hundred of people to a deadly virus.  Got it.

Texas Court of Appeals stays a second execution for 60 days due to COVID-19

As reported in this local piece, headlined "Texas Court of Criminal Appeals stops another scheduled execution because of the coronavirus," it seems that the coronavirus outbreak has now clearly created a de facto moratorium on executions in at least one significant state.  Here are the basic details:

A Texas court has stopped a second execution because of the new coronavirus that has swept through the state and world.

The Texas Court of Criminal Appeals issued a stay Thursday for next Wednesday’s scheduled execution of Tracy Beatty, a 59-year-old man convicted more than 15 years ago of killing his mother. Earlier this week, the same court halted the execution planned Wednesday for John Hummel for the same reason.

“We have determined that the execution should be stayed at the present time in light of the current health crisis and the enormous resources needed to address that emergency,” the court said in the order Thursday. The court’s stay lasts for 60 days, after which a new execution date can be set.

Beatty’s attorney filed a motion to halt his upcoming execution shortly after the court stayed Hummel’s execution Monday, citing the “unprecedented proportions” of the pandemic....

As in Hummel’s case, prosecutors were opposed to stopping the execution, however. Smith County District Attorney Jacob Putman said in a filing that COVID-19, the disease caused by the coronavirus discovered in December 2019, has not been shown to impact the state’s ability to carry out an execution. “There has been no evidence that the ‘enormous resources needed to address that emergency’ will also include the handful of TDCJ personnel who will carry out Beatty's execution,” he wrote.

Seven other executions are scheduled in Texas through September, with two set in April.

Given the CDC has urged all of us to avoid gatherings of more than 10 people for the next eight weeks, I would expect April and even May execution dats to also get postponed in this way. And if we are not getting back to normal by May, it will be interesting to see if still further executions get delayed due to the on-going pandemic.

Prior related post:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 

"Appeals Court Delays Texas Execution Due To Coronavirus Outbreak"

The title of this post is the headline of this notable story out of Texas concerning another remarkable echo effect of the global pandemic we are facing. Here are the details:

The outbreak of the novel coronavirus prompted the top Texas criminal appeals court on Monday to stay for 60 days the scheduled execution of a man condemned for killing his family.

The Texas Court of Criminal Appeals rejected all grounds of John William Hummel’s appeal but said it would postpone the scheduled Wednesday execution “in light of the current health crisis and the enormous resources needed to address the execution.”

Hummel, 44, was convicted in 2011 of capital murder in the December 2009 fatal stabbing of his pregnant wife, Joy Hummel, 45, and fatal bludgeoning of his father-in-law, Clyde Bedford, 57, with a baseball bat. Evidence showed he also used the bat to beat to death Jodi Hummel, his 5-year-old daughter, before he torched their home in the Fort Worth suburb or Kennedale. However, he was only convicted of capital murder in the deaths of his wife and father-in-law....

One of the issues that Michael Mowla, Hummel’s attorney, had raised in his efforts to stop the execution was a concern that the process involved with putting Hummel to death “may itself assist in spreading COVID-19.”

A number of people either take part or witness the execution in the death chamber at the state penitentiary in Huntsville, including correctional officers, attorneys, physicians and family members or friends of the inmate and of the victims. “Gathering all these people in one location presents a substantial risk of transmission of COVID-19/Coronavirus if anyone is infected,” Mowla wrote in a petition to the appeals court last week....

The Texas Department of Criminal Justice had been prepared to carry out the execution as officials had instituted a screening process for people who would have witnessed it, said agency spokesman Jeremy Desel. Execution witnesses would have been subject to the same screening that department employees have to go through before entering a prison unit. The screening involves questions based on travel, potential exposure to the coronavirus and health inquiries, Desel said.

The death chamber is not a heavy traffic area and is completely isolated from all parts of the prison in Huntsville, Desel said. “But it is thoroughly cleaned, consistently and constantly. We are taking precautions throughout the prison system,” he said.

Notably, according this Upcoming Executions page on the Death Penalty Information Center's website, Texas has five other executions scheduled over the next 60 days. I would predict that, unless we get some very good news about the spread of COVID-19 very soon, all these other executions would appear very likely to be postponed. In addition, I would be surprised if Texas or any other state were to start scheduling any new executions anytime soon.

This DPIC fact sheet details that we have so far five executions in the United States this year. As of this writing, I am thinking we might not end up having any more executions in 2020, which would mean the country would have its lowest number of executions since 1983.

Despite prominent calls for clemency, Alabama completes execution of Nathaniel Woods

As reported in this local article, Nathaniel Woods "was executed Thursday evening on a 2005 conviction of being an accomplice to the murder of three police officers." Here is more about a case that had receive considerable attention prior to tonight's execution:

Nathaniel Woods, 43, was pronounced dead at 9:01 p.m. after an execution that lasted 15 minutes.  The three Birmingham police officers — Charles Bennett; Carlos "Curly" Owen and Harley Chisholm III — were killed on June 17, 2004 with a semi-automatic rifle while entering a drug house.

Woods was put to death amid a storm of appeals and protests from supporters, who noted that Woods did not actually kill the officers; that Woods' attorneys missed key deadlines in his appeals, and that the trigger man — also on death row — said Woods was not involved....

Family members of the officers who attended the execution said Woods was as guilty as the man who pulled the trigger.  "Our loved ones took their last breath while upholding the law to make (Birmingham) a safer place," said Rhonda Hembd, the sister of Harley Chisholm, after the execution.  "Our families will not have closure until Kerry Spencer’s execution date. May God have mercy on their souls.  Until then may our loved ones rest in peace."...

The Woods family and hundreds of thousands of people appealed to Gov. Kay Ivey to extend clemency to Woods....  In a statement Thursday night, Ivey accused Woods of luring the police officers into the house, and said two other individuals had been executed in Alabama since 1983 "for being an accomplice to capital murder."

“After thorough and careful consideration of the facts surrounding the case, the initial jury’s decision, the many legal challenges and reviews, I concluded that the state of Alabama should carry out Mr. Woods’ lawfully imposed sentence this evening," the statement said.

Though Woods acknowledged he and Spencer sold drugs, he is not accused of actually killing the officers and by all accounts did not have a gun at the time of the shooting.  But at his 2005 trial, prosecutors argued that Woods had "conspired" with the shooter, Kerry Spencer.  Alabama law makes a person legally accountable for the behavior of another person if he or she "procures, induces or causes such other person to commit the offense."  Prosecutors did not provide evidence that Woods held or fired a gun during the incident.

A jury convicted Woods and voted 10-2 to sentence him to death.  Spencer told The Appeal last month that Woods was not involved and that "there was no plan to kill the police."...

U.S. Sen. Doug Jones of Alabama said in a statement Thursday he called Ivey's office to express concerns about the case.  "Given the questions and mitigating issues involved in this case — and the finality of a death sentence — a delay is warranted to provide time for a thorough review of all the facts and circumstances to truly ensure that justice is done," the statement said.

Kim Kardashian West sent a tweet urging Ivey to commute Woods' sentence, and later shared a number for Gov. Ivey's office.  The rapper and actor T.I. also called on followers to contact Ivey. The family of former Alabama and Green Bay Packers quarterback Bart Starr also called for clemency.

Colorado on the verge of abolishing the state's death penalty

As reported in this local article, the "bill to repeal Colorado’s death penalty cleared its final legislative hurdle Wednesday afternoon in a 38-27 vote in the House of Representatives, and the governor’s office says he will sign the measure." Here is more:

The measure passed its third reading Wednesday morning after passing its second reading early Tuesday morning after an 11-hour debate period.  There was more than five hours of emotional testimony from lawmakers before the final vote Wednesday.  Passage of the bill, HB20-100, was all-but a foregone conclusion after the bill cleared the Senate late last month because of the strong Democratic majority in the House.

Some Republicans — and Democrats — made their final pleas to send the question of whether to repeal the death penalty to voters, as they have sought in prior discussions about the bill.  Rep. Tim Geitner again tried to offer an amendment to refer the question to voters — but that attempt failed despite five Democrats voting for it.  Rep. Tom Sullivan, a Democrat whose son was killed in the Aurora theater shooting, was also among those who opposed passage of the measure during prior debate this week.

Much of the opposition from lawmakers came because they feel families of murder victims will not get closure if the death penalty is not on the table for the killers.  But many Democrats pointed that there are other options, which they say are more cost-effective, than capital punishment....

In the end, three Democrats voted against the measure — Reps. Kyle Mullica, Brianna Titone and Tom Sullivan — all of whom said they would be voting "no" during Wednesday's debate.  Zero Republicans voted for the measure.  But Democrats hold an advantage in the House and had the votes to pass the bill Wednesday.

Colorado is now the 22nd state to abolish the death penalty.

The measure repeals the state’s death penalty for any crimes charged by prosecutors on or after July 1, 2020. There are currently three people on Colorado’s death row: Robert Ray, Sir Mario Owens and Nathan Dunlap.  Ray and Owens were convicted of killing Javad Marshall-Fields, the son of Sen. Rhonda Fields, D-Aurora, and Marshall-Fields fiancée in 2005, and Fields’ opposition to the repeal has been a key point of contention in this year’s debate after it caused last year’s repeal measure to fail.  New Republican sponsorship in the Senate offset Fields’ opposition to the measure and allowed it to pass the Senate.

The 2020 repeal measure was the sixth attempt by lawmakers in recent years to get rid of the death penalty in Colorado — but the first to succeed.  A spokesperson for Polis confirmed Tuesday night that the governor will sign the bill.

Voting 5-4 on predictable lines, SCOTUS approves of appellate reweighing of aggravating and mitigating circumstances to uphold a death sentence

The Supreme Court this morning handed down a notable (and notably short) opinion in the capital case of McKinney v. Arizona, No, 18-1109 (S. Ct. Feb. 25, 2020) (available here), which rules that an appeals court can, and a jury need not, reweigh aggravating and mitigating circumstances to uphold a death sentence. The court split 5-4 with Justice Kavanaugh writing the majority opinion and with Justice Ginsburg authoring a dissent joined by Justices Breyer, Sotomayor, and Kagan.

Key passages from McKinney should be of interest not only to those who follow capital punishment jurisprudence, but also those who care about jury trial rights and the reach of precedents like Apprendi and Ring.  Here are excerpts from the seven-page majority opinion:

Nearly 20 years [after James McKinney was sentenced to death], on federal habeas corpus review, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit decided by a 6 to 5 vote that, in sentencing McKinney, the Arizona courts had failed to properly consider McKinney’s posttraumatic stress disorder (PTSD) and had thereby run afoul of this Court’s decision in Eddings v. Oklahoma, 455 U.S. 104 (1982)....  McKinney contends that after the Ninth Circuit identified an Eddings error, the Arizona Supreme Court could not itself reweigh the aggravating and mitigating circumstances.  Rather, according to McKinney, a jury must resentence him.

McKinney’s argument does not square with this Court’s decision in Clemons...  [which held] that “the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review.”  The Court explained that a Clemons reweighing is not a resentencing but instead is akin to harmless-error review in that both may be conducted by an appellate court...

In deciding whether a particular defendant warrants a death sentence in light of the mix of aggravating and mitigating circumstances, there is no meaningful difference for purposes of appellate reweighing between subtracting an aggravator from one side of the scale and adding a mitigator to the other side.  Both involve weighing, and the Court’s decision in Clemons ruled that appellate tribunals may perform a “reweighing of the aggravating and mitigating evidence.”  In short, a Clemons reweighing is a permissible remedy for an Eddings error....

Under Ring and Hurst, a jury must find the aggravating circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range....  Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances.

McKinney ... asserts that the Arizona Supreme Court’s 2018 decision reweighing the aggravators and mitigators constituted a reopening of direct review. Because this case (as McKinney sees it) is again on direct review, McKinney argues that he should receive the benefit of Ring and Hurst — namely, a jury resentencing with a jury determination of aggravating circumstances.

But the premise of that argument is wrong because the Arizona Supreme Court’s reweighing of the aggravating and mitigating circumstances occurred on collateral review, not direct review. In conducting the reweighing, the Arizona Supreme Court explained that it was conducting an independent review in a collateral proceeding.... Under these circumstances, we may not secondguess the Arizona Supreme Court’s characterization of state law.  As a matter of state law, the reweighing proceeding in McKinney’s case occurred on collateral review.

And here is how Justice Ginsburg's seven-page dissent gets started (with cites and footnotes removed):

Petitioner James Erin McKinney, convicted in Arizona of two counts of first-degree murder, was sentenced to death in 1993.  At that time, Arizona assigned capital sentencing to trial judges.  To impose a death sentence, the judge had to find at least one aggravating circumstance and “no mitigating circumstances sufficiently substantial to call for leniency.” Ariz. Rev. Stat. Ann. §13–703(E) (1993).  In 2002, in Ring v. Arizona, 536 U.S. 584 (2002), this Court held Arizona’s capital sentencing regime unconstitutional....  Here in dispute, does Ring apply to McKinney’s case?  If it does, then McKinney’s death sentences — imposed based on aggravating factors found by a judge, not a jury — are unlawful.

The Constitution, this Court has determined, requires the application of new rules of constitutional law to cases on direct review.   Such rules, however, do not apply retroactively to cases on collateral review unless they fall within one of two exceptions.  This Court has already held that Ring does not fall within those exceptions.  Thus, the pivotal question: Is McKinney’s case currently on direct review, in which case Ring applies, or on collateral review, in which case Ring does not apply?  I would rank the Arizona Supreme Court’s proceeding now before this Court for review as direct in character.  I would therefore hold McKinney’s death sentences unconstitutional under Ring, and reverse the judgment of the Arizona Supreme Court.

Via statement after cert denial, Justice Sotomayor makes lengthy case highlighting doubts about guilt of Texas capital defendant

In the middle of a lengthy order list with mostly just cert denials of interest to criminal justice fans (two of which I will discuss in a coming post), Justice Sonia Sotomayor issued this lengthy statement respecting the denial of certiorari in the capital case of Reed v. Texas, No. 19–411.  The bulk of the seven-page statement discusses the evidence raising doubts about the guilt of Rodney Reed, and here are the Justice's closing paragraphs:

In the instant petition for a writ of certiorari, Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests.  Misgivings this ponderous should not be brushed aside even in the least consequential of criminal cases; certainly they deserve sober consideration when a capital conviction and sentence hang in the balance.  In the pending tenth state habeas proceeding, however, Reed has identified still more evidence that he says further demonstrates his innocence.  It is no trivial moment that the Texas courts have concluded that Reed has presented a substantive claim of actual innocence warranting further consideration and development on the merits.  While the Court today declines to review the instant petition, it of course does not pass on the merits of Reed’s innocence or close the door to future review.

In my view, there is no escaping the pall of uncertainty over Reed’s conviction.  Nor is there any denying the irreversible consequence of setting that uncertainty aside.  But I remain hopeful that available state processes will take care to ensure full and fair consideration of Reed’s innocence — and will not allow the most permanent of consequences to weigh on the Nation’s conscience while Reed’s conviction remains so mired in doubt.

Prior related post:

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

Tennessee completes yet another execution using the electric chair

As reported in this AP piece, a "convicted murderer was put to death in Tennessee's electric chair Thursday, becoming the state's fifth prisoner over 16 months to choose electrocution over the state's preferred method of lethal injection."  Here are the basics:

Nicholas Sutton, 58, was pronounced dead at 7:26 p.m. at the Riverbend Maximum Security Institution in Nashville.

Asked if he had any last words, Sutton looked directly into the witness room and spoke clearly. “I would like to thank my wife for being such a good witness to the Lord, and my family and many friends who loved and supported me and tried so very hard to save my life,” Sutton said. He also spoke of his Christian faith, saying that Jesus Christ had “fixed him.” He added, “I'm just grateful to be a servant of God, and I'm looking forward to being in his presence."

Sutton was sentenced to death in 1986 for killing fellow inmate Carl Estep in a conflict over a drug deal while both were incarcerated in an East Tennessee prison, where Sutton had been serving time for the killings of his grandmother and two others when he was 18....

Sutton's supporters, including several family members of his victims and prison workers, had recently asked Gov. Bill Lee to commute the sentence, saying Sutton had rehabilitated himself in prison and was not the same person who first entered prison 40 years ago. His supporters included two prison workers who credited Sutton with saving their lives.

Retired Correction Lt. Tony Eden had stated in an affidavit included with Sutton's clemency petition that Sutton confronted a group of armed inmates during a prison riot in 1985 and helped get Eden to safety “If Nick Sutton was released tomorrow, I would welcome him into my home and invite him to be my neighbor,” Eden wrote.

But Lee said Wednesday that he would not intervene to stop the execution. And two last-ditch appeals to the U.S. Supreme Court were denied Thursday evening. The justices, in an emailed statement, gave no explanation for their decision.

Sutton had not indicated why he chose electrocution — an option for inmates whose crimes were committed before the state adopted lethal injection as its preferred execution method — but other inmates have said they thought the electric chair would be quicker and less painful.

In the death chamber after Sutton's last words, officers placed a large wet sponge on his head and a cap over it. They then attached to the cap a black shroud that covered Sutton's face. At 7:18 p.m. two jolts of electricity, with a pause in between, were delivered to his body, which stiffened and partially lifted out of the chair as his hands balled up. It was over in just under a minute....

Inmates' attorneys have argued without success that both lethal injection and electrocution violate the Constitution's ban on cruel and unusual punishment. The electric chair fell out of favor in the 1990s following several gruesomely botched executions, including a Florida execution in which smoke and flames shot from the head of the condemned inmate. Only one other state, Virginia, has used electrocution in recent years, and it has not done so since 2013.

During Tennessee's last electrocution in December, witnesses said they saw smoke or steam coming from the side of inmate Lee Hall's head. But witnesses on Thursday said they saw nothing unusual.

Over the last decade of litigation surrounding lethal injections as a means of execution (which contributed to states' struggling to secure lethal drugs), I have presumed that many legislatures and state prison officials have been disinclined to look to the electric chair as an alternative for fear of engendering even more litigation and controversy over execution methods.  But, it seems Tennessee has been able to move forward with this older execution method without too much litigation or other problems getting in their way.  And yet, interestingly, it still does not seem that other states struggling with lethal injection difficulties are inclined to follow the Tennessee path.

A few recent related posts:

• Noting that condemned Tennessee inmates are opting for electrocution over lethal injection 
• Five years after problematic executions led to halt, Oklahoma plans to restart its machinery of death